The Kansas Court of Appeals has ordered a new trial for a Leavenworth woman who was convicted in 2010 of the involuntary manslaughter of her son.
And the prosecution has about another week to ask the Kansas Supreme Court to review the case, an attorney involved in the appeal said.
The Court of Appeals decision came in the case of Monica Rivera, 31. The decision was released Dec. 21.
Rivera was convicted in August 2010 in Leavenworth County District Court of involuntary manslaughter and endangering a child. She later was sentenced to 41 months in prison.
She currently is being held in minimum custody at the Topeka Correctional Facility, according to a Kansas Department of Corrections website.
Rivera's son, Gabriel, reportedly died in 2009 from blunt force trauma after he was left in the care of Rivera's fiancé, Jason L. Jones. The boy was 4 years old.
Jones was sentenced in 2010 to more than 38 years in prison for the second-degree murder of the boy.
During her trial, the prosecution argued Jones had abused the boy prior to his death. And Rivera had endangered the boy by leaving him in Jones' care.
The defense argued Rivera had never seen Jones abuse the boy. And at least some of the injuries the boy suffered prior to his death resulted from accidents.
The judges of the Court of Appeals found that errors had been made in the instructions provided to the jurors and Rivera was denied a fair trial.
Carl Folsom III, who's been representing Rivera in the appeal, said a jury has to be unanimous as to what act resulted in a conviction.
He said several months worth of acts were discussed during the trial including an incident that happened a few days before the boy's death.
According to the Court of the Appeals decision, the prosecution "has to elect which act or incident it is relying upon to support each charge, or the district court has to give a unanimity instruction. Here, the district court did not give a unanimity instruction, and the (prosecution) never elected which act it was relying upon to support each of the charges."
The judges of the Court of Appeals also found that jurors were "not properly instructed on the elements of the underlying offense that the (prosecution) was required to prove in order to convict Rivera of involuntary manslaughter." The underlying offense was endangering a child.
Even though a new trial was ordered, the Court of Appeals decision rejected several other arguments made by Rivera's attorney.
"We lost a few issues with the Court of Appeals that we felt we should have won," Folsom said.
He said these issues can be argued again if the case is reviewed by the Kansas Supreme Court.
Page 2 of 2 - He said the prosecution has until Tuesday to file a petition for review with the Kansas Supreme Court.
County Attorney Todd Thompson said Wednesday that officials with his office have not made a decision regarding an appeal to the Kansas Supreme Court.
If the petition is not filed or the Supreme Court declines to review the appeal, the case would be remanded to Leavenworth County District Court for a new trial, according to Folsom.
"So the convictions would be officially reversed," he said.