A Union County grand jury indicted the stepfather of 4-year-old child abuse victim Kilah Davenport on a second-degree murder charge Monday afternoon.
Kilah died in mid-March, just weeks after Joshua Houser was convicted of abusing the girl in May 2012. He had rammed her head though the wall of their Indian Trail home in a fit of rage, leaving her permanently impaired.
After that conviction, Houser was sentenced to spend from seven years, nine months, to 10 years, three months, in state prison. If convicted of second-degree murder, he could face nearly 21 years in prison, legal experts said, but could get credit for time served from the child abuse case.
The state medical examiner’s office ruled that Kilah’s death was a homicide, case records released in September show. An autopsy found she died of pneumonia due to complications of injuries from the assault, and that diabetes, which Kilah did not have before the attack, also contributed to her death.
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Kilah’s grandmother, Leslie Davenport, expressed mixed emotions about the new charge.
“It’s a relief, but it’s also still very heartbreaking because we have to go through it again,” Davenport said. “She should be starting kindergarten now. … But Kilah will receive justice for what happened to her.”
Davenport asked for prayers for her family and for Houser’s.
Union County District Attorney Trey Robison declined to comment on the indictment.
Union County Sheriff Eddie Cathey, in a statement, said the new charge resulted from information presented to Robison that was obtained from the state medical examiner’s office and deputies with his department and the Cabarrus County sheriff’s office. Cathey called the new charge “an opportunity to seek justice for Kilah and her family.”
Kilah was with her mother, Kirbi Davenport, in their Cabarrus County home on March 13 when Kilah stopped breathing while sitting on her mother’s lap, state records show. Kilah died at nearby Carolinas Medical Center-NorthEast in Concord.
She would have turned 5 in early April.
Houser, 25, is appealing his child abuse conviction. He is being held in protective custody in a medium-security state prison in Pamlico County, state records show. Inmates can be removed from the regular population when they express fear for their own safety, a prison spokesman said.
Houser’s court-appointed appellate attorney, Barbara Blackman with the state Office of the Appellate Defender, declined to comment.
It does not appear Houser is facing double jeopardy despite a new indictment for the same act, thanks in part to a half-century-old case from Monroe.
That’s because an exception to double jeopardy allows for the filing of more serious charges involving “a later event,” said Jessica Smith, a professor and criminal law expert at the UNC School of Government.
For instance, if someone is convicted of assault before his victim dies of those wounds, “he couldn’t have been charged with murder earlier because the victim had not died,” Smith said. The earlier prosecution would not bar charges for the greater offense.
Smith cited a 1912 U.S. Supreme Court case as well as a 1968 state Supreme Court opinion that upheld more serious charges after a conviction for lesser charges involving the same act but different crimes.
The North Carolina case centered on a Monroe man, Ernest Meadows, who shot Ellis Junior Newman in the neck with a shotgun in February 1965 outside of Meadows’ home. There may have been an argument over a hat that Newman had borrowed from Meadows but hadn’t returned, records show.
One witness testified that after the shooting, Meadows went inside, came back out and said, “The damn rascal ain’t dead?” according to records.
Meadows pleaded guilty to felonious assault less than a month before Newman died in May 1965. But in late 1966, after a new trial, Meadows was convicted of manslaughter.
In upholding the conviction, the state court wrote, “At the time of the first indictment the facts upon which the second indictment is based had not yet occurred. … When the death occurred, a new and distinct crime was consummated.”
Kilah’s case served as the inspiration to toughen child abuse laws in the state.
After Houser’s arrest, Kilah’s family was upset over the length of time he could potentially serve. They joined community activists and politicians to launch what became “Kilah’s Law,” which increased the sentencing terms for five child abuse-related felonies.
The bill became law last year. But Houser was not eligible for sentencing under Kilah’s Law since it was not in place at the time of the assault on Kilah.
She also had an impact at the national level. President Barack Obama signed into law in the spring the Kilah Davenport Child Protection Act. It directs the attorney general to issue a report detailing every state’s child abuse penalties, including whether their laws provide enhanced penalties in cases of severe child abuse.