OSSIPEE — A Tamworth man who struck his toddler son causing a severe traumatic brain injury received the maximum sentence for first-degree assault and will spend the next 7½ to 15 years behind bars.
Ryan Upson, 24, appeared in Carroll County Superior Court on Tuesday to plead guilty and accept the terms of a naked plea without the protection of a fully negotiated sentence.
As Upson agreed to plead guilty to the assault and falsifying physical evidence, averting a trial, the state withdrew an enhanced penalty provision that called for a maximum sentence of 25 years to life, as the victim was under age 13 and the injuries lasting.
“It’s all but a miracle that the child didn’t die and that you aren’t facing an even more serious charge,” Judge Amy L. Ignatius told Upson. She credited the victim’s fighting spirit and excellent medical care with allowing him to survive.
Defense Attorney Wade Harwood had argued for a two- to four-year state prison sentence saying the incident occurred “in a split second that he will forever regret.” He urged the judge to weigh the actual conduct vs. the consequences, characterizing Upson’s actions as a “momentary loss of control.”
He cited a number of cases involving first-degree assault charges in which young children and even an infant suffered multiple broken bones at the hands of parents or caregivers, evidence of a pattern of abuse that didn’t result in the maximum consecutive sentences that the state was requesting.
“This is a tragedy and the whole family has already suffered,” said Paul Upson the defendant’s uncle.
The defendant’s employer told the judge Upson has an incredible work ethic, is honest, punctual and reliable.
“He regrets what happened every day and that is punishment enough,” he said.
Senior Assistant County Attorney Steve Briden said Upson had a duty to protect his son and instead victimized him. He stressed that Upson had chosen the relationship, explaining the boy was being cared for by relatives when Upson wanted to take custody.
“He used the strength of a grown man to lash out against a little boy,” said the prosecutor before showing the judge a photo of the bruise left on the victim’s chest when he was struck with such force that it launched him high enough into the air that when he struck the tile floor it rendered him unconscious for 30 minutes.
The victim was in a coma for a week following the injury and remained in the intensive care unit for three weeks before being moved to a regular hospital ward. He was later transferred to rehabilitation facility and had to relearn how to walk.
“These were significant injuries. The brain itself had shifted inside his skull because of the trauma,” Briden said. The boy suffered several strokes while hospitalized and remains at risk for seizures and Attention Deficit Hyperactivity Disorder, only time will tell what lasting effects may remain, Briden told the court.
Prior to imposing the sentence, Judge Ignatius said she had read a two-page letter written by the victim’s caretakers Andrew and Melissa Marshal that detailed the boy’s current medical status, the progress that he has made since he was injured and his limitations. Briden said the couple did not wish to attend the sentencing hearing.
“I think everyone would agree that the starting point is a tragedy,” the judge said.
Mitigating factors, she considered were Upson’s minor criminal record, reports of his good moral character and the lack of any evidence that there was a pattern of child abuse. Aggravating factors included evidence that the blow was forceful enough to lift the child a foot off the ground, causing him to impact the tile floor and sustain a traumatic brain injury. Compounding that conduct was a 30-minute delay in taking the child to the hospital and then telling a series of stories about how the injury occurred that didn’t help doctors working to appropriately treat him.
“I can’t accept the characterization that we have all been there with a two-year-old. A two- to four-year sentence is inadequate,” Ignatius said. While conceding the sentence she imposed was “extremely high,” she felt it was warranted given the conduct.
Upson received a two- to four-year suspended prison sentence on the falsifying charge for returning to the 196 Deer Hill Road home in the Chocorua section of Tamworth and cleaning up blood and vomit, with the purpose to impair the police investigation.