Hearing held in child's death
By Steve Herring
Published in News on July 9, 2013 1:46 PM
The Air Force's lead prosecutor in the case against a Seymour Johnson Air Force Base airman charged in the death of his 15-month-old son has asked that the charges be expanded to include premeditated murder.
Senior Airman Matthew Theurer, 21, is charged in connection with his son's death after the toddler's body was found March 12 wrapped in trash bags alongside a Columbus County road. The child was also named Matthew.
According to testimony by investigating officers, Theurer allegedly threw the bag containing his son's body across a shallow canal while he was en route to spend the weekend with a female friend in Myrtle Beach, S.C.
The state medical examiners office has ruled "severe malnutrition" as the cause of the child's death.
Col. Brian Thompson, the Air Force's chief senior trial counsel, asked that the premeditated murder charge be included in the report of Monday's Article 32 hearing for Theurer who already faces six charges in connection with his son's death in February. Capt. Brendan Groves of Seymour Johnson Air Force Base is assisting in the prosecution.
Defense attorney Capt. Johnathan Legg of Seymour Johnson Air Force Base objected, arguing that the evidence did not warrant such a charge. Also, Legg said the defense strategy would have been different had accusations of premeditated murder been lodged to start with.
Legg did not call any witnesses or present any testimony on Theurer's behalf.
"No ma'am," was Theurer's only response when asked by presiding investigating officer, Air Force Capt. Anne Marie Sibal, if he had anything to say.
The Article 32 hearing is similar to the civilian preliminary hearing. However, there is no judge. Instead, the investigating officer listens to testimony, but does not rule on probable cause.
Following the testimony, the investigating officer has eight days to prepare and to submit a report to the office of 9th Air Force Commander Maj. Gen. H.D. Polumbo, where the decision is made as to what charges, if any, would be referred to the convening authority for court martial.
There is no timetable for how long it could take for the decision to be made or for a court martial to be convened.
Theurer is charged with providing a false official statement, murder by an act inherently dangerous to another, involuntary manslaughter, negligent homicide, child endangerment and obstruction of justice.
Capt. Sibal said based on testimony from Theurer's estranged wife that her report would include a possible additional charge of assault.
Theurer has been in custody since March after he allegedly confessed to 4th Fighter Wing Security Forces personnel and members of the Air Force Office of Special Investigations that he placed his son's body in a garbage bag and dumped it along a road on his way to the beach.
The body was discovered by Columbus County sheriff's deputies at a location Theurer allegedly provided.
Monday's day-long hearing was held in Courtroom 4 at the Wayne County Courthouse because the on-base courtroom was being used for another case.
Most of the morning testimony centered on the initial investigation, the finding of the child's body and the unkempt nature of the Theurer home.
In the afternoon, testimony was heard from Dr. Deborah Radisch, the state's chief medical examiner, who performed the autopsy on the toddler, and from Theurer's wife, Amy, who testified by phone from her home in Portland, Ind., including allegations of violent encounters she had with her husband.
"In my opinion, the cause of death was severe malnutrition," Dr. Radisch said. "The first obvious observation was just to look at the body and see the condition of the body."
The toddler weighed 13 pounds, 8 ounces and appeared dehydrated, she said. The weight put Matthew "well below the fifth percentile" on the growth chart, Dr. Radisch added.
An average male child of the same age should weigh about 22 pounds, she said.
The toxicology screening was negative and there was no evidence of physical abuse, she said.
Thompson asked Dr. Radisch if there would have been outward signs that the baby was suffering.
He would have appeared emaciated with sunken eyes, ribs and cheeks, she said. Also, he would have been lethargic and drowsy.
Legg asked if the malnutrition could have happened even though the toddler was eating.
It is possible that the child could be eating, but that there could be a problem with the food digesting, or it could be caused by the child being given food, but not enough to sustain him, she said.
So it was possible that a caregiver (Theurer) was feeding the child, but did not understand or realize there was a problem, Legg asked.
"It is possible, but this did not happen overnight," Dr. Radisch said. "The signs were there that something wasn't going right and medical attention should be sought."
In her testimony, Mrs. Theurer said her and her husband's relationship had started off "great" after they were married in March 2010, but had deteriorated.
However, a mutual friend, Michael Fowler of Goldsboro, testified that it appeared the arguments were more Mrs. Theurer than Theurer.
Fowler also said he noticed that the child appeared thin and had offered to help Theurer care for him, but that Theurer assured him the toddler was being cared for.
Mrs. Theurer said she did "get in" her husband's face and screamed at him. She also said she had never filed a report, but that Theurer had pushed down the hall causing her to fall.
She said he also kicked her in the stomach while she was pregnant. Legg asked her if it wasn't true that Theurer was attempting to get out of his truck when that happened and the kick was her interpretation of what had happened.
Mrs. Theurer said she had been approaching the truck, but disputed Legg's assertion.
She testified that she moved back to Indiana in late April 2012, staying first with her mother, then her father and stepmother before moving in with her boyfriend.
Mrs. Theurer said she contacted Theurer in June 2012 about taking custody of their son.
"I was moving from place to place and I couldn't take care of him like I needed to, so I asked Matt to take care of him until I was back up on my feet," she said.
She said the baby at that time was a "healthy little boy" and "not sick in any way."
During the hearing, it was brought out that the Theurers had been investigated by Child Protective Services about their care of their son.
Mrs. Theurer testified that Matthew had not been taken away from them. There was no further testimony about that investigation.
Mrs. Theurer said she remained in contact with Theurer through cell phone calls and text messages. She said he told her Matthew was anemic, that his heart rate kept going up, and that he was having trouble gaining weight.
She said Theurer told her he was taking Matthew to day care on the base and that other times used a baby-sitter.
That continued into March, she said, until Theurer stopped responding. She said she tried contacting the doctor's office to verify what Theurer was telling her. Someone at the office told her she would need to fill out paperwork online and mail it in to receive such information, she said.
She said she had also contacted someone on the base and that nothing was done. However, she said she could not remember the person's name or at what point they had been contacted.
"Can I ask what happened to my son?" she said.
Capt. Sibal told Mrs. Theurer she could talk to trial counsel if and when a trial was held.
Gregory Gow, special agent with the base's OIS, testified that he had overseen the investigation, which included a search of Theurer's on-base housing.
The house, he said, smelled strongly of urine and was "very unkempt" and "messy." The toddler crib appeared to be stained with bodily fluids, possibly urine, from the bed to the floor, he said. It was on the walls as well, he added.
In response to questioning by Legg, Gow said it was not determined if the urine was human or from the cats the family had owned.
Gow said receipts for baby food had been found that had been purchased the day before the search. None could be found to indicate when the last time was before that when food had been purchased, he said.
There was some evidence of food in the toddler's room, he said.
Gow said investigators had looked at a Facebook page in which Theurer was corresponding with a woman and had told her Matthew was sick and eventually had passed away.
Gow said that had also spoken to the woman Theurer had gone to Myrtle Beach to see. The woman said that Theurer was in good spirits and didn't seem to have anything on his mind, he said.