photo by: Mike Yoder

Defendant Carrody Buchhorn is pictured Tuesday, July 24, 2018, in Douglas County District Court.

On Tuesday in Douglas County District Court, prosecutor Mark Simpson wove a week of testimony into a dark summary of the state’s murder case against former day care worker Carrody M. Buchhorn, 44, of Eudora.

“On Sept. 29, 2016, Oliver Ortiz went to day care, and he was a happy, healthy baby,” Simpson said. “The defendant was at the day care, she was disgruntled, she was unhappy with her work, she was unhappy with Oliver because he took more effort. And when she was alone with Oliver, it came to a head.”

Simpson said Buchhorn inflicted blunt force trauma to the 9-month-old baby’s head, interrupting electrical impulses to the brain and rendering him unresponsive.

“She hurt him, and she knew it,” Simpson said. “And instead of helping him, she put him in the Pack ‘n Play and let him die.”

Buchhorn’s defense attorney Paul Morrison painted a different picture with his closing arguments.

“This is a tragedy, a real tragedy, there’s a dead little boy,” Morrison began.

But Morrison said what happened next was a “quest” to convict his client, an autopsy that was “beyond sloppy” and an “inept, incomplete police investigation.”

“Less than 24 hours after that little boy died, they already knew where they were going with this … straight to Carrody Buchhorn,” Morrison said.

“She’s consistently professed her innocence in this case. Why would she want to hurt Ollie Ortiz?”

After hearing attorneys’ closing arguments, jurors began deliberations shortly before 3 p.m. but did not reach a verdict Tuesday, the seventh day of Buchhorn’s trial. The jury went home at 5 p.m. and planned to reconvene Wednesday morning.

Buchhorn is charged with first-degree felony murder for allegedly killing Oliver while committing the crime of aggravated endangerment of a child, according to instructions Judge Sally Pokorny read to the jury. Alternatively, Buchhorn is charged with second-degree murder for killing Oliver unintentionally but recklessly, or the jury has an option to find her guilty of the lesser crime of involuntary manslaughter.

Oliver became unresponsive the afternoon of Sept. 29, 2016, at Sunshine Kids Group Daycare Home, 1307 Chestnut Lane in Eudora. Despite CPR by Buchhorn, first responders and doctors in the Lawrence Memorial Hospital emergency room, he was never revived.

The case hinges on what caused Oliver’s death, when it occurred and who was with him at that time.

The coroner ruled Oliver’s death a homicide caused by blunt force trauma to the head. He testified that Oliver had a fractured skull caused by an incident forceful enough — not a drop, fall or the actions of another child — to render him unresponsive right away and, without intervention, dead within minutes.

Oliver had multiple grave injuries, most of which were hidden until the autopsy. They included a second beneath-the-skin hematoma on the front of his head, a torn liver and other abdominal organ trauma.

Buchhorn’s defense disputed the cause and timing of Oliver’s death, citing testimony by Seattle-based Carl Wigren, a forensic pathologist they hired to review the local autopsy findings.

Morrison said Oliver was a “sick little boy,” with ear infections, early stages of pneumonia in his lungs and something causing him to be fussy and cry a lot, possibly the undetected skull fracture.

Morrison attacked the credibility of then-coroner Erik Mitchell. Morrison also attacked police for not splitting Oliver’s parents up to interview them and for not interviewing Oliver’s older brother and an aunt who watched him weekly as well.

“They have not proven beyond a reasonable doubt that this even happened at that day care,” Morrison said. “She’s accused of committing these horrible crimes simply because she was there.”

Simpson rebutted Morrison’s arguments, stressing Mitchell’s credibility and impartiality versus that of a forensic pathologist with significantly less autopsy experience hired by the defense.

Only two people know what happened to Oliver, Simpson said.

“One of them was Ms. Buchhorn, and she’s not telling,” Simpson said. “The other one was Oliver Ortiz, and his body and the injuries he got are telling you what happened.”

Defendant takes stand

Earlier Tuesday, Buchhorn herself took the stand.

Questioned by her attorney Veronica Dersch, Buchhorn repeatedly answered “no” to whether she hit Oliver, punched him in the stomach, dropped him, stepped on him or saw anyone else do any of those things.

Buchhorn also said she did not know what caused Oliver to become unresponsive.

Cross-examining Buchhorn, Simpson did not ask whether she hurt Oliver or whether she saw anyone else do it.

Instead, Simpson asked her this:

“You were the last person to touch Oliver when he was alive, right?” Simpson said, to which Buchhorn answered, “probably.”

“And you were the first person who found him once he was dead?” Simpson said, which Buchhorn did not deny.

Buchhorn recounted the day’s events down to how many ounces of formula Oliver was fed at what time. Her timeline was consistent with what she told police after the incident and what day care owner Gina Brunton — the only other adult caring for Oliver that day — testified to last week.

Buchhorn said it began as a normal day, Oliver was exceptionally happy and content, and he followed his normal feeding and napping routine.

Buchhorn said that during Oliver’s afternoon nap, he dirtied his diaper and fussed like he usually did. She said she changed his diaper and lulled him back to sleep around 2:30. She said she went to wake him shortly after 3 p.m. and found him unresponsive in his crib.

In videos of her multiple interviews with authorities immediately after the death and several days later, Buchhorn appeared nervous and agitated. She was calm and mostly composed when questioned in court, at times smiling when answering questions about the children she cared for.

When Dersch asked Buchhorn to describe what she did after realizing Oliver was not just asleep but in fact unresponsive, Buchhorn said she yelled at her boss to call 911, tapped Oliver’s chest to see if he would respond, then began CPR as she was trained to do.

At this point Buchhorn began to cry on the stand.

“I was getting no response so I started doing it a little bit harder,” she said.

Dersch asked if she got any response from Oliver then.

“No,” Buchhorn said.

Prosecutor Simpson’s questioning of Buchhorn confirmed that she’d seen no previous injuries on him and no signs of prior head trauma or abuse. Buchhorn confirmed that at one point several weeks earlier when she had awakened Oliver from a nap and he was lethargic, alarming her, his parents took him to the doctor and learned that he had an ear infection.

Simpson then grilled Buchhorn on her attitude about her work on that day in particular.

He specifically referenced texts — which were not previously presented during the trial — that she’d sent to a friend the day before Oliver’s death calling her boss “stupid” and a profane name, which was not stated in court. The texts said Buchhorn had planned to leave at 2:30 p.m. that day but was asked to stay and close the day care instead, Simpson said.

Simpson confronted Buchhorn about how, on a stressful day, she might have felt to have a baby wake up and interrupt her only downtime when all the other children were napping.

Buchhorn denied the implication.

“No, it doesn’t ruin it,” she said.

Simpson pointed out how Buchhorn, in police interviews, had described Oliver as a difficult baby who cried a lot, once using the word “pissy” to describe his crying.

Buchhorn explained her initial uncertainty and brief laugh when she picked up Oliver and found him limp, before realizing he wasn’t just fast asleep and calling for help.

“I would never expect to pick up an unresponsive child; that was the furthest thing from my mind,” she said.

Coroner called back

The last witness called in the case was Mitchell — who was sent home after testifying Friday but called back by prosecutors on Tuesday.

On Monday afternoon, the defense’s medical expert testified that his review found signs that the skull fracture had begun healing. Based on a microscopic examination of tissue samples from the fracture area, Wigren estimated the injury was a day to a week old when Oliver died.

Prosecutor C.J. Rieg questioned Mitchell Tuesday morning, highlighting Mitchell’s lengthy career, including 17 years reviewing thousands of child death cases as part of a national board he served on.

Based on his own examination of Oliver’s body and ensuing lab testing, Mitchell rebutted points made by the defense’s expert and stuck to his ruling that a sudden and forceful head injury caused Oliver’s death — and quickly.