March 14, 2014

Investigators open probe into Kilah’s death

Investigators from two counties were interviewing family members of Kilah Davenport on Friday, raising the possibility that new charges will be filed against the child’s stepfather in connection with her death.

Investigators from two counties were interviewing family members of Kilah Davenport on Friday, raising the possibility that new charges will be filed against the child’s stepfather in connection with her death.

Kilah died Thursday in Cabarrus County, two weeks after her stepfather, Joshua Houser, was convicted of felony child abuse and sentenced to eight to 10 years in prison. In May 2012, an enraged Houser, a Union County resident, is believed to have slammed Kilah’s head through a wall. The child suffered severe brain injuries and never recovered.

Now, speculation is growing that Houser could face a murder charge, even if Kilah’s death comes almost two years after the act for which he has already been convicted.

Union County District Attorney Trey Robison, whose office would likely handle any new prosecution of Houser, could not be reached for comment Friday. His office put out a short midday statement, saying that the investigation into Kilah’s death is in “the early stages ... No decision regarding any further charging of Joshua Houser can be made at this time.”

Behind the scenes, however, the foundation for a possible murder case against Houser appears to be taking shape.

Leslie Davenport, the child’s grandmother, talked to the Observer on Friday while she and other family members were giving statements at the Cabarrus County Sheriff’s Office, with Union County investigators also on hand.

Based on what the family has been told, she said, “They’re treating this as a homicide.”

Union County Sheriff Eddie Cathey confirmed Friday that a two-county probe into Kilah’s death is underway. The first step: an autopsy to determine how the child died.

“Depending on what the medical examiner finds, we’ll meet with the district attorney and decide our next step, if any,” he said.

Davenport said Houser should be charged with her granddaughter’s death.

“She suffered through almost two more years,” Davenport said. “She’s not suffering anymore. But that doesn’t take our pain away.”

Over the last two years of her life, the child became a catalyst for child-abuse prevention in North Carolina and around the country. She served as the namesake of a legislative move to toughen penalties for a series of child-abuse felonies. Gov. Pat McCrory signed “Kilah’s Law” last year. A federal companion bill awaits action in the U.S. Senate.

Houser, of Indian Trail, was convicted Feb. 27 of felony child abuse/inflicting serious bodily harm. Under the new “Kilah’s Law” penalties, he would have been sentenced to between 25 years and life.

Two legislative sponsors of the state bill named for the girl said Friday that prosecutors should move ahead with new and tougher charges in the case.

“Another event has occurred with, unfortunately, the child’s passing,” said state Rep. Dean Arp, a Union County Republican. “I hope and believe they will pursue vigorously and prosecute all of the charges involved in this case.”

Attorneys and legal experts contacted by the Observer said further prosecution of Houser could raise “double jeopardy” complaints from his attorneys. Miles Helms, who represented Helms in his child-abuse case, could not be reached Friday night.

If a murder charge is sought, said State Rep. Rick Glazier, D-Cumberland, an attorney who teaches at Campbell School of Law, double jeopardy rules would not block it as long as the new charge includes an additional criminal element.

Charlotte defense attorneys Jim Cooney and Tony Scheer agreed.

“Double jeopardy prevents you from being punished twice for the same crime. It doesn’t prevent you from being punished worse for the same crime,” Cooney said.

North Carolina is considered a “prosecutor-friendly state.” It has no statute of limitations, or time limit, on bringing felony charges, and the old “year and a day” limit on filing murder charges, a holdover from common law, is no longer on the books.

The state also has “one of the most open-ended felony murder rules in the country,” Cooney said. If prosecutors want to levy a first-degree murder charge, Houser’s previous child-abuse charges could possibly serve as the required “predicate felony,” he said.

Scheer, a former prosecutor, said criminal charges often change with the circumstances. For example, if a defendant is accused of attempted murder and the victim later dies, the charge can be altered to fit the new crime, he said. The same rule could apply here, he said, even though Houser already has been convicted of a lesser offense involving the same action.

North Carolina is already in the midst of a high-profile capital murder trial involving allegations of child abuse.

In Smithfield, Jonathan Douglas Richardson faces a possible death penalty if he’s convicted of the 2010 torture and beating death of his girlfriend’s 4-year-old daughter.

Investigators say Richardson whipped, bit and sexually assaulted the child for 10 days while her mother was away on military training. Richardson’s attorney says his client is mentally ill and was abused by his own father.

Among the charges he faces: felony child abuse/inflicting serious bodily injury – the same as Houser.

Meanwhile, Kilah’s family will not hold a funeral for the child. Instead they will host a public celebration of her life next week. Davenport said a more festive ceremony seemed appropriate for a girl “who had become the voice and face of child-abuse prevention.”

Researcher Maria David contributed

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