Commonwealth Of Kentucky Court of Appeals - Justia

FACTS
We take the underlying facts from the Supreme Court of Kentucky’s 2000
opinion on Tharp’s direct appeal.
On January 11, 1997, Elaina Curtis, age ten months, died
from a ruptured spleen which allegedly resulted from
physical abuse inflicted by her stepfather, Kenneth Tharp.
Medical examinations of the child's body also revealed
severe bruises of the legs, abdomen, chest, forehead, left
eye, scalp and the back of the head. Some of the bruises
were estimated to be seven days old or older. There were
also fractures of the left ulnar and of another bone just above
the ankle joint, the latter estimated to be seven to eight days
old and the former estimated to be a month old. A
radiologist opined that the fractures were caused by two acts
of deliberate child abuse occurring on two separate
occasions.
Kenneth Tharp and his wife, Appellant Myrna Tharp, the
child's mother, were indicted by a McCracken County Grand
Jury on charges of wanton murder and criminal abuse in the
first degree. Kenneth was also indicted as a persistent
felony offender in the first degree. A motion for separate
trials was granted, RCr 9.16, and Appellant's case was tried
first. Appellant testified that she had never witnessed her
husband abusing Elaina and had never observed anything
seriously wrong with the child until shortly before her death.
However, she had previously given statements to the police
in which she admitted (1) that she had observed her
husband beat the child with his fists on occasions prior to
January 11, 1997; (2) that she saw her husband strike Elaina
with his fists on January 11, 1997, knocking the child from
side-to-side, and that she told him to stop hitting the child,
but then left the room and closed the door behind her,
leaving the child alone with her husband; and (3) that later
that same day, she saw her husband throw Elaina to the
floor, but thought he was just “playing” with the child. Shortly
thereafter, Appellant observed blood in Elaina's diaper and
that she was having difficulty breathing. An ambulance was
called, but efforts to save the child's life were unsuccessful.
Appellant was convicted of wanton murder by complicity and
of criminal abuse in the second degree, and was sentenced
to a total of twenty-seven years in the penitentiary.
Tharp v. Commonwealth, 40 S.W.3d 356, 359 (Ky. 2000).
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