As the prosecutor and defense lawyers presented their cases to the jury today in the aggravated child abuse case that could potentially send former Palm Coast resident Deviaun Toler to prison for 80 years, some facts were not in dispute.
TT was 20 months old when Toler, his father, took him to what was then known as Florida Hospital Flagler (today’s AdventHealth Palm Coast) with seizures and “altered mental status,” as it was described in court papers. That was the evening of Feb. 15, 2018. The child was in critical condition. TT was transferred to Wolfson Children’s Hospital in Jacksonville, where he was diagnosed with a parietal skull fracture, blood buildup on the surface of the brain, a second degree burn to his arm, and several abrasions all over his body. The abrasions had been inflicted over time. TT would be at the hospital for three weeks. A surgeon operated on his skull.
This is not in dispute, either: Toler disciplined the child–the 20-month-old child: a year and eight months–with a switch and a belt that left whipping marks on the child’s butt, his legs and his stomach. He was in the hospital for three weeks. As Toler’s attorney, John Hager, put it to the jury in his opening arguments, by way of explanation, if not justification, “Deviaun Toler was beaten with belts and switches when he was younger. Mr. Toler, having [TT] and being a father for the first time, he would discipline him. He hit him with a belt, he demonstrated what he would do.” He has admitted that much. (In an interview with a sheriff’s detective, Toler said, of getting hit with a switch, that it was done to him and “it didn’t kill me.”)
It is also factually undisputed that the relationship between Toler and TT’s mother, Seanteria Gilmore (who testified today), had soured before TT was born. Toler stayed involved in his son’s life after he was born, to some extent. He saw him, but only a handful of time. Gilmore lived in Daytona Beach. Toler lived in Palm Coast with his girlfriend, Luciana Celestin, who had an infant child. Toler had arranged with Gilmore to take care of TT on Jan. 2 for a few days, as part of a day care arrangement: TT would shuttle between Toler’s Palm Coast home and his mother’s Daytona Beach home. “A few days ended up becoming almost six weeks,” Assistant State Attorney Melissa Clark, who is prosecuting the case, told the jury, even as Gilmore repeatedly asked for her son back.
She would not see TT again until she saw him struggling for his life at a children’s hospital in Jacksonville, when he was intubated. He had a feeding tube in his nose, a breathing tube in his mouth, and a neck brace.
This is where the accounts diverge. The prosecution is pinning the blame for the skull fracture and the burn on Toler’s willful acts of violence toward the child. The defense, while conceding that he “disciplined” the child, says TT’s skull fracture was the result of a fall, not a willful act. Florida law permits corporal punishment “when it does not result in harm to the child,” as the subjective law reads. The subjectivity leaves room for interpretation, opening the door for the defense, which may be angling for a lesser charge to be included in the jury instructions–like child abuse, a third-degree felony punishable by up to five years in prison. Many people convicted under that charge end up serving probation, no prison time, if they have a clean record, as Toler does.
But he’s far from there for now. The two aggravated child abuse charges–one for the skull fracture, the other for the burn on the arm–are each a first-degree felony, each carrying up to 30 years in prison.
“You’ll see during the course of the interviews how those explanations change over time,” Clark said of the interviews Toler gave authorities. “Ask yourself: why is that happening? If it was the truth, why are his stories changing?”
Hager conceded that his client lied. Initially, Toler told detectives that TT pulled a boiling pot off the stove and burned himself. Then he told them he’d tell them the “truth.” The burn happened when TT was in the bath. But there’s an explanation for that, too. As Hager described it to the jury, there was a problem with hot water in the house. It kept running out. Other adults in the house–Toler’s mother, Toler’s uncle–would say so. To get around the problem, they’d boil water and pour it into the tub. Toler was going to bathe TT. Toler had taken a shower right before that, using up the hot water. So he put TT in the bathtub, in cold water, boiled water, and poured the boiling water on the other side of the bathtub. Toler then took a washcloth and put it on TT, not meaning to burn him. But he did. It just wasn’t intentional, and he and his girlfriend looked up on the internet how to treat burns.
Separately–and apparently in the same close-knit time-frame–TT fell and injured his head. He’d been taking a nap. Toler wasn’t home. Celestin was. She heard a third. “She doesn’t know how it happened,” Hager said. “Nobody knows.” It wasn’t TT’s only fall. He had another fall within a couple of days–on Feb. 13– busting open his lip. That night, Hager said, Toler started worrying that there could be something going on with his son’s balance, or maybe with a concussion. He kept an eye on him. Issues became “prominent” after the second fall, with vomiting. With Toler not seeming right, Toler took him to the hospital, on Feb. 14.
But a year and five months after that trip to the hospital, Hager told the jury. the doctor who had at first said that TT had had a hemorrhage changed the finding. It hadn’t been a hemorrhage. The doctor also determined that TT had had a stroke. He had seized “several times” at both hospitals. One of the defense’s doctors will testify that the child went through an “unnecessary surgery,” given that he’d suffered a stroke unrelated to the matter of accumulating blood on the brain. Hager argued doctors would testify that the skull fracture was accidental.
The state’s case today focused on law enforcement personnel–a crime lab analyst from the Florida Department of Law Enforcement, who talked about what evidence was collected from Toler’s house, Nicole Quintieri, the former Flagler County Sheriff’s detective who investigated the case (she is now an investigator at the State Attorney’s Office), who discussed the search history related to burns and child injuries on Toler’s iPad.
Dr. Deana Lashley, a pediatrician, testified by zoom in the afternoon–after a delay caused by technical issues. She had treated TT at Wolfson Hospital. She described TT’s injuries as they were shown in photographs, describing one, on his leg, as “a patterned injury that would have been inflicted by some high velocity objects coming into contact with [TT]’s leg right in that spot.” Asked if it could have been a belt, the doctor was non-committal. She described a discoloring injury around the abdomen ” as something that looked like an inflicted injury.” On the testimony went, picture after picture, injury after injury.
” And so are you indicating that because these different marks look so different, that actually tells you he was hit with more than one type of object?” Clark asked the physician.
“Correct,” the doctor responded.
More photographs. More descriptions of injuries. “Just to make sure I understand,” Clark asked, “when you say hyper pigmented, which is a darker coloration, is that consistent with, like, bruising?”
“No, not necessarily,” Lashley said. “Bruising is bleeding under the skin, which will appear darker. These are patterned injuries of whatever the object was. So there could be a little bit of blood making those look darker, like a bruise. It’s really more of like with the hypeo pigmented a lot of times the top layer of the skin has been removed. With hyper pigmented it could mean a different depth or a different timing of those inflicted injuries and we’re just seeing them at a later time after they began to heal.”
The language could have applied to descriptions of injuries in a war theater rather than a 20-month old child.
Hager in his cross-examination of the physician went over details of TT’s treatment, at times asking the sort of questions that don’t in and of themselves mean anything but, framed as they are, are intended to sow some doubt in the jury’s mind, or establish as fact what hasn’t, in fact, been so established, as when he asked Lashley if she knew he’d fallen on the 13th of February and taken to the hospital on the 14th. He asked her about TT’s seizures, of which she was aware.
He then asked what sounds like an innocuous question to the jury, though the question has been at the center of a heated and ongoing debate, its tendentiousness generally clear from the simplistic way Hager asked it: “You’d agree with me you can’t get a skull fracture from just shaking” a child, he asked.
“There’s actually two different ways that people think about it and it’s not really been resolved. That’s why we stick with the term abuse of head trauma,” the doctor replied.
“So one side says you can, the other side says you can’t,” Hager said, again reducing the matter to what sounds like a 50-50 split. But that’s a fallacy similar to claiming that because some people don’t believe that climate change is real, then “one side says it is, the other side says it isn’t,” when the scientific consensus is more decisive. Lashley attempted to answer without falling in Hager’s rhetorical trap: “It’s more of a based on the studies and what we’ve found and in trying to distinguish when there’s shaking, when there’s shaking and impact. It’s hard to distinguish, which is why it’s [referred to as] abuse of head trauma.”
Toler’s trial continued before Circuit Judge Terence Perkins Wednesday starting at 9 a.m. in Courtroom 301 at the Flagler County courthouse.