OF JUDGMENT: 06/20/2017
HANCOCK COUNTY CIRCUIT COURT HON. LAWRENCE PAUL BOURGEOIS JR.
ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
MATTHEW WYATT WALTON
J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.
On June 16, 2017, a jury found Oren Lewis guilty of capital
murder for the death of his two-year-old daughter,
Ma'Leah Grace Bush. The Hancock County Circuit Court
sentenced Lewis to life imprisonment without eligibility for
parole. On June 23, 2017, Lewis filed an unsuccessful
post-trial motion requesting an acquittal or, alternatively,
a new trial. Lewis now appeals to this Court. Finding no
error, we affirm Lewis's conviction and sentence.
AND PROCEDURAL HISTORY
On May, 21, 2015, Lewis was indicted for capital murder for
Ma'Leah's death. Lewis's jury trial was held June
13-15, 2017. During trial, the jury heard testimony from
numerous witnesses for the State and Lewis. The facts leading
up to the incident primarily stemmed from the testimony of
Lewis, Amanda Proulx (Lewis's wife), Jalen Walker
(Lewis's son), Michaela Walker (Lewis's
step-daughter), and Dena Lohman (Amanda's friend).
Prior to his conviction, Lewis testified that he was a
special-education teacher at North Gulfport Middle School.
Lewis and Amanda lived in Waveland, Mississippi, with four
children-Jalen and Bralen (Lewis and Amanda's
seven-year-old and three-month-old sons), Michaela
(Amanda's nine-year-old daughter), and Ma'Leah, who
was two years old at that time. Amanda testified that she
worked the night shift at Ochsner's Hospital in Slidell,
Louisiana, leaving Lewis responsible for taking care of the
four children while she was at work.
Amanda and Dena testified that on the morning of August 24,
2013, they both went to Biloxi for a girls' day, leaving
Lewis with Amanda's and Dena's children. When Amanda
and Dena returned that evening, Dena took Jalen, Michaela,
and Ma'Leah to spend the night at her house. Dena
testified that at this point, Ma'Leah was acting normally
and was excited to spend time with Michaela and Dena's
Dena stated that she left Lewis and Amanda's home and
took the children to McDonald's to eat. After dinner,
Dena took the children back to her house, where Jaylen played
with Dena's son, Caden, and Allie, Michaela, and
Ma'Leah played "Just Dance" and polished each
other's toenails. Dena testified that Ma'Leah was
dancing, walking around, and was very happy all night. Dena
put the children to bed, and Ma'Leah slept in Allie's
room with Allie and Michaela.
Meanwhile, that same night, Amanda and Lewis both testified
that they went to a casino in Gulfport while a babysitter
took care of Bralen. The couple returned home between 2 a.m.
and 4 a.m. on Sunday, August 25, 2013, the day of the
incident. Bralen woke up crying around 6 a.m., and Amanda fed
him before returning to sleep. When Bralen woke up again,
around 8 a.m., Lewis got up with him and cared for him the
rest of the day while Amanda rested for work.
That Sunday morning, Dena testified that she took all of the
children to church. Ma'Leah was very well-behaved at
church and sat near Dena during the service. Dena took
Michaela and Allie to dance practice and took Jalen and
Ma'Leah back home around 2:30 p.m. At the time, Amanda
recalled Ma'Leah walking, talking, and acting normally.
Amanda testified that the last time she saw Ma'Leah
before the incident in question was around 6:15 p.m., just
before leaving their house for work. Again, Ma'Leah
appeared to be normal and was eating a bag of chips just as
Amanda left the house.
Lewis testified that after Amanda left for work, he was in
charge of making meals and taking care of Michaela, Jalen,
Bralen, and Ma'Leah. Lewis stated that Ma'Leah was
very tired and would not eat while Bralen-a newborn-was
"inconsolable" that night. Lewis also testified
that Ma'Leah refused to eat that night, and after she
spit out her food, he cleaned her up. At trial, Amanda read a
series of text messages to the jury that were exchanged
between her and Lewis around 8:10 p.m. that night. In the
messages, Lewis expressed frustration with taking care of the
children, specifically Bralen, and Amanda attempted to calm
Lewis down. Amanda also testified that she called Lewis
around 10 p.m. to check on him. Lewis told Amanda that Bralen
had finally fallen asleep but did not eat much that night.
Amanda warned Lewis that he should be prepared to be up that
night with Bralen because he would be hungry. Amanda
testified that she and Lewis never spoke about Ma'Leah
during these exchanges, and to her knowledge, Ma'Leah was
fine at this point in the night.
At trial, Lewis, Michaela, and Jalen all testified to three
different versions of the events leading up to
Ma'Leah's death. Immediately prior to her testimony,
Michaela informed a victim's coordinator for the State
that her mother, Amanda, had asked her to tell the jury that
she did not remember anything that happened the night of
Ma'Leah's death. The State informed the circuit court
that Michaela was visibly upset and crying. However, Michaela
proceeded with her testimony.
Michaela testified that, after her mother went to work, Lewis
was the only adult left to watch Jalen, Bralen, Ma'Leah,
and her. That night, Michaela testified that she and Jalen
watched television in Jalen's room. Michaela went to take
a bath but heard a loud noise that sounded like thunder
coming from the living room. Michaela then testified that she
went back into Jalen's room. Soon after, Michaela and
Jalen heard three "slapping noises," again coming
from the living room. After hearing the slapping noises,
Michaela went into the living room and saw only Lewis and
Ma'Leah. Michaela testified that Ma'Leah was crying.
Lewis turned to Michaela and said, "I didn't touch
her." Michaela went back to Jalen's room and
continued watching television.
Michaela testified that, some time later, she went into the
living room again to put Ma'Leah to bed. Michaela picked
Ma'Leah up from the couch and noticed a "knot on her
head." Michaela took Ma'Leah to her room and placed
Ma'Leah on her (Michaela's) bed before going back to
Jalen's room. Michaela testified that she and Jalen were
sitting on Jalen's bed watching television and could see
out of Jalen's bedroom door into the hallway. Sometime
later, Michaela and Jalen fell asleep. Michaela was later
awoken by Lewis's loud footsteps and looked out into the
hallway. In the shadows on the wall across from her room,
Michaela saw Lewis pick Ma'Leah up and "toss"
her onto Michaela's bed twice. Michaela testified that
she fell asleep, and she was again awoken by Lewis's
footsteps. Michaela again looked out into the hallway and saw
Lewis, who was now walking down the hallway toward the back
of the house. Michaela stated that Lewis was holding
Ma'Leah's body out and away from him. Michaela
testified that she fell asleep one more time and was awoken
by strangers asking her questions and telling her that
Ma'Leah had been hurt.
Jalen's testimony about that night differed slightly.
Jalen testified that he and Michaela were watching television
in his room when they heard a loud "boom" coming
from Michaela's room. Jalen testified that he and
Michaela both went to the bedroom and that Lewis came from
the living room to the bedroom. Jalen further testified that
he and Michaela saw Ma'Leah lying on the ground, and
unlike Lewis's testimony, Jalen said that he did not see
any part of her body caught in Michaela's trundle bed.
Jalen then remembered going to the hospital in New Orleans
after Ma'Leah had been hurt.
Lewis recalled a different set of events surrounding
Ma'Leah's death. Lewis testified that he gave
Ma'Leah a bath and dropped a bottle of shampoo, which
made the first "boom" that Jalen and Michaela
heard. Lewis testified that Jalen and Michaela came in the
bathroom to ask about the "boom," and Lewis told
them that he had dropped the shampoo bottle. Lewis testified
that after Ma'Leah's bath, Jalen and Michaela watched
television at the back of the house while he sat in the
living room on the couch with Bralen and Ma'Leah. Lewis
said that at some point later in the evening, Michaela came
and put Ma'Leah to bed. But in a separate statement made
on the night of the investigation, Lewis told investigators
that he actually put Ma'Leah to bed. Lewis
testified that Ma'Leah slept in Michaela's trundle
bed, which was approximately two feet from the ground in
Lewis then testified that he put Bralen in his crib and went
to bed himself. Lewis stated that he heard the second
"boom" and went into Michaela's room to check
on Ma'Leah. Lewis testified that Jalen and Michaela were
asleep in Jalen's room and never came into Michaela's
room to see what had happened, as they testified. Lewis
testified that when he came to check on Ma'Leah, he saw
her right foot caught in the wire of Michaela's trundle
bed and her head and body on the carpeted floor next to the
bed. After calling Ma'Leah's name, Lewis stated that
she was unresponsive. He then called 911 and placed
Ma'Leah on the living-room couch until an ambulance
arrived. When asked about Jalen's and Michaela's
versions of the events, Lewis responded that their accounts
During trial, the State offered a number of medical and
law-enforcement witnesses to testify as to the aftermath of
Ma'Leah's injury. Allison Jacobson, a 911 dispatcher,
testified that she received the call from Lewis the night of
the incident stating that Ma'Leah had fallen from her
bed. Benjamin Bowden, an investigating officer, testified
that he was dispatched to Lewis's home following the 911
call. Bowden arrived at Lewis's house and saw Ma'Leah
lying on the couch in the living room. Ma'Leah initially
appeared to be deceased, but then Bowden heard a gurgling
sound and saw Ma'Leah struggling to breathe. Bowden
testified that he observed "a large indentation and some
bruising [and] a large pooling of blood underneath the skin
on the left side of her head." Bowden also testified
that Lewis, who appeared to be calm, informed Bowden that
Ma'Leah had fallen out of the bed in Michaela's room.
Bowden then surveyed Michaela's room and observed that
the bed was above carpeted floor. Bowden testified that he
notified an investigator from the Waveland Police Department
and remained at the house until someone was called to look
after Michaela, Jalen, and Bralen.
David Allen, the police chief at the time of the incident,
testified to investigating Lewis's house on August 26,
2013. Because Lewis claimed that Ma'Leah had fallen from
the bed, Allen and another investigator inspected
Michaela's room and bed. Allen testified that the house
was raised, meaning that the floor under Michaela's room
was hollow and not a solid, concrete slab. Allen further
testified that he took measurements of Michaela's bed.
According to Allen, the length from the top of the highest
part of the bed to the carpeted floor measured approximately
Kyle Carter, a paramedic who arrived at the scene, testified
that Ma'Leah appeared to be unresponsive and had
significant swelling on her head. Carter also testified to
suctioning a significant amount of blood from
Ma'Leah's mouth. Carter ultimately transported
Ma'Leah to Hancock Medical Center, stating that she was
"cool to the touch."
Martha Moraway, an emergency-room nurse who treated
Ma'Leah the night of the incident, also testified at
trial. Moraway testified that Ma'Leah required
ventilation upon arrival at Hancock Medical Center. Moraway
observed a large contusion on the left side of
Ma'Leah's head, a small indention on the right side
of her head, a small abrasion on her forehead, bruising on
her arms and legs, and blood in her mouth. Moraway also
testified that Lewis told her in the emergency room that
Ma'Leah had fallen from her bed. However, Moraway
testified that, from her observations, Ma'Leah's
injuries were inconsistent with a child who had fallen from a
Dr. Edward Byrnes, Ma'Leah's treating emergency
physician at Hancock Medical Center, testified at trial as an
expert in emergency medicine. Dr. Byrnes stated that
Ma'Leah entered the hospital around 11:34 p.m. on the
night of the incident. Dr. Byrnes examined Ma'Leah and
testified that she suffered "significant multiple skull
fractures" as well as a significant bleeding in the
brain. Dr. Byrnes testified that he had treated "a
couple hundred" head injuries and that every year he
treated 30-40 children whose injuries resulted from falling
out of a bed. In his expert opinion, Dr. Byrnes stated that
Ma'Leah's injuries were inconsistent with a child who
had just fallen 26 inches from a bed. Dr. Byrnes further
testified that Ma'Leah's injuries were consistent
with non-accidental trauma.
Around 3 a.m. on August 26, 2013, Ma'Leah was airlifted
to the Children's Hospital in New Orleans and treated by
a team of doctors. That team included Dr. Jamie Jackson, a
child-abuse pediatrician, who also testified at trial. Dr.
Jackson testified that because there was suspected child
abuse involved, she examined Ma'Leah and spoke with
Lewis, Michaela, and Jalen. According to Dr. Jackson, Lewis
told her that, after putting Ma'Leah to sleep, he heard
"a boom boom" noise and found Ma'Leah
unresponsive with her right foot stuck in the trundle bed.
Upon interviewing Michaela and Jalen, however, Dr. Jackson
became concerned. Dr. Jackson testified that the
children's statements conflicted in such a way that it
seemed as if someone was trying to influence their
statements. Dr. Jackson also testified that Jalen stated that
his sister told him "not to talk about things."
In treating Ma'Leah, Dr. Jackson testified that
Ma'Leah sustained serious bruising around both ears, on
the left side of her face and head, on her right knee and
lower leg, and on her left shoulder. Dr. Jackson testified
that the amount and specific locations of the bruising was
not indicative of one incident of a child falling from her
bed. Dr. Jackson stated that the ear bruising alone indicated
that Ma'Leah had been physically abused. Dr. Jackson also
testified that Ma'Leah sustained a complex skull fracture
and multiple fractures to her vertebrae. Dr. Jackson
explained that most "typical simple household
falls" result in a single linear skull fracture or, in
very rare occasions, two skull fractures. Ma'Leah's
injuries, however, were severely complex and suggestive of a
child being forcibly "slammed down directly onto [her]
head," thereby fracturing the skull and
"crunching" the vertebrae. Also, Dr. Jackson noted
that Ma'Leah had extensive retinal hemorrhaging, or
bleeding to the eyes, which "is almost exclusively seen
with regard to abusive head traumas." Overall, Dr.
Jackson concluded that Ma'Leah's injuries were not
consistent with the history Lewis provided. Dr. Jackson
testified that, in her expert opinion, the injuries were the
result of child abuse.
Dr. Alejandro Leon, Ma'Leah's pediatric
ophthalmologist at the Children's Hospital of New
Orleans, also testified at trial. Dr. Leon testified that,
like Dr. Jackson, he too received a medical history on
Ma'Leah stating that she had fallen from a trundle bed.
Dr. Leon explained that most children who are injured from a
low-height fall sustain little, if any, hemorrhaging to the
eyes. However, Dr. Leon's examination showed that
Ma'Leah had sustained extensive hemorrhaging in both
eyes, which affected multiple layers of her eyes. Dr. Leon
testified that, in his opinion, this type of damage to
Ma'Leah's eyes was the result of non-accidental
trauma or child abuse.
Another one of Lewis's defense theories at trial was that
Ma'Leah's injuries resulted from Lewis rolling onto
Ma'Leah while they were asleep on the couch and crushing
her. Lewis's counsel questioned each doctor about the
possibility of Ma'Leah sustaining a "crush
injury," or an injury resulting from Lewis accidentally
rolling onto Ma'Leah during sleep. Dr. Byrnes testified
that, based upon his knowledge and experience, he had never
heard of a parent rolling onto a child and the child
sustaining Ma'Leah's severity of injuries. Dr.
Jackson testified that children typically do not suffer such
severe skull fractures in these situations but usually die
from suffocation, which was not present with Ma'Leah. Dr.
Leon also testified that when a parent rolls onto a child
during sleep, the child likely suffers from a lack of oxygen.
Dr. Leon explained, however, that a lack of oxygen would not
cause the type of multi-layer hemorrhaging that Ma'Leah
As a result of her injuries, Ma'Leah died on August 27,
2013. On August 28, 2013, Dr. Paul McGarry performed the
autopsy, but he passed away prior to trial. Dr. Mark
LeVaughn, the Chief Medical Examiner for the State of
Mississippi, testified at trial as to Ma'Leah's
autopsy report. Dr. LeVaughn testified that Ma'Leah
sustained external bruising on the left ear, the left side of
her head, the left shoulder, the right lower abdomen, the
right side of her chest, the right foot, and the front of her
left shin. Internally, Ma'Leah sustained a complex skull
fracture and massive hemorrhaging to all levels of her brain,
indicating "a tremendous amount of force" to the
left side of Ma'Leah's head. Dr. LeVaughn testified
that, had Ma'Leah fallen from her bed, at most, she would
have suffered "some redness and abrasion" and
possibly swelling. Dr. LeVaughn testified that Ma'Leah
would "absolutely not" have sustained such severe
injuries from falling out of bed. Dr. LeVaughn further
testified that, to a reasonable degree of medical certainty,
Ma'Leah's cause of death was a "blunt head
injury," and her manner of death was
After hearing all the evidence, the jury convicted Lewis of
capital murder. The circuit court sentenced Lewis to life
imprisonment without eligibility for parole, pursuant to
Mississippi Code Annotated section 97-3-21(3)(b) (Supp.
2013). Aggrieved, Lewis appeals and argues the following: (1)
Mississippi Code Annotated section 97-5-39(2) (Supp. 1989) is
unconstitutional; (2) The State violated Lewis's
due-process rights by failing to include all the elements of
felony child abuse in his capital-murder indictment; (3) The
State violated Lewis's due-process rights by failing to
include a statutory aggravating factor or a mens rea element
in his capital-murder indictment; (4) The circuit court erred
by denying his motion to dismiss and refusing a jury
instruction regarding spoliation of evidence; (5) The circuit
court erred by admitting improper Rule 404(b) evidence; (6)
The circuit court erred by denying Lewis's jury
instruction on culpable negligence; (7) The circuit court
erred by allowing the underlying felony of child abuse to be
used as an aggravating factor for sentencing; and (8) The
circuit court erred by imposing a life sentence without
eligibility of parole without conducting a jury hearing.
"When addressing a statute's constitutionality, we
apply a de novo standard, bearing in mind (1) the strong
presumption of constitutionality; (2) the challenging
party's burden to prove the statute is unconstitutional
beyond a reasonable doubt; and (3) all doubts are resolved in
favor of the statute's validity." Bosarge v.
State, 141 So.3d 24, 27 (¶11) (Miss. Ct. App.
2014). Additionally, we apply a de novo standard of review
when a defendant challenges the legal sufficiency of an
indictment. Beal v. State, 86 So.3d 887, 891
(¶9) (Miss. 2012). We also review de novo a circuit
court's denial of a defendant's motion to dismiss and
will not disturb the circuit court's findings unless they
are manifestly wrong, clearly erroneous, or apply an
erroneous legal standard. McLendon v. State, 945
So.2d 372, 382 (¶26) (Miss. 2006).
Admission of evidence under Mississippi Rule of Evidence
404(b) is reviewed for abuse of discretion. Wilson v.
State, 149 So.3d 544, 550 (¶22) (Miss. Ct. App.
2014). We also review a circuit court's denial of
proposed jury instructions for abuse of discretion.
Thompson v. State, 119 So.3d 1007, 1009 (¶3)
(Miss. 2013). Finally, "[s]entencing is [also] within
the complete discretion of the [circuit] court and not
subject to appellate review if it is within the limits
prescribed by statute. Unless the sentence is grossly
disproportionate or not within the statutory limits, we will
not disturb the sentence on appeal." Cummings v.
State, 58 So.3d 715, 719 (¶19) (Miss. Ct. App.
2011) (citation omitted).
Whether Mississippi Code Annotated section 97-5-39(2)
(Supp. 1989) applies and whether the amended statute is
Lewis was convicted of capital murder while in the commission
of felonious child abuse, pursuant to Mississippi Code
Annotated section 97-3-19(2)(f) (Supp. 2013). The statute
defines this type of capital murder as "[t]he killing of
a human being without the authority of law by any means or in
any manner . . . [w]hen done with or without any design to
effect death, by any person engaged in the commission of the
crime of felony child abuse and/or battery of a child in
violation of subsection (2) of section 97-5-39." Miss.
Code Ann. ...