The Phillips & Associates Oklahoma Law Blog


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By Dustin Phillips on
April 18, 2016
January 26, 2022

On April 7, three-week-old Natalie Nicole Fuston was taken to OU Children's Hospital with severe injuries. The baby's father, James Fuston, 22, told medical workers that the injuries to the infant were accidental--that he had been playing with her by tossing her in the air, but on the last toss, he accidentally threw her too hard. He said that when he tossed her up, she struck her head on the ceiling."

Doctors say the baby's injuries were far too severe to be accidental, and called police, who said the injuries "clearly were the result of abuse." The newborn's injuries included bruising on her head and torso, a cut behind her ear, cerebral hemorrhage, and a swollen brain.

Two days after the infant was taken to the hospital, James Fuston turned himself into police on an unrelated outstanding warrant. While he was there, police questioned him about the injuries to his infant daughter. They then arrested him on complaints of child abuse and child neglect.

On April 13, nearly a week after she was taken to the hospital and just before she turned a month old, little Natalie died of her injuries. Now charges against her father have been upgraded to include child abuse murder.

Fuston is held without bond in the Oklahoma County jail on complaints of child abuse, child neglect, and first degree murder.

Oklahoma law defines first degree murder in 21 O.S. § 701.7. A homicide is charged as murder in the first degree if it occurs under one of the following circumstances:

  • Premeditated murder - committed unlawfully, deliberately, and "with malice aforethought"
  • Felony murder - committed during the commission of a specified felony, including the murder or attempted murder of another person, shooting a firearm into a building, forcible rape, armed robbery, kidnapping, escaping from custody or eluding, first degree burglary, first degree arson, drug distribution, drug trafficking, or drug manufacturing
  • Child abuse murder - when the death of a child results from "willful or malicious injuring, torturing, maiming or using of unreasonable force" or from allowing such abuse
  • Soliciting a murder in furtherance of a drug crime
  • Killing a law officer engaged in the performance of his or her duties

First degree murder is punishable by death, life in prison without parole, or life in prison. The death penalty is reserved for those cases involving one of the following eight aggravating circumstances:

  1. The defendant was previously convicted of a felony involving the use or threat of violence to the person;
  2. The defendant knowingly created a great risk of death to more than one person;
  3. The person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration;
  4. The murder was especially heinous, atrocious, or cruel;
  5. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution;
  6. The murder was committed by a person while serving a sentence of imprisonment on conviction of a felony;
  7. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; or
  8. The victim of the murder was a peace officer . . ., or correctional employee of an institution under the control of the Department of Corrections, and such person was killed while in performance of official duty.

Child abuse and child neglect are each punishable by a maximum of life in prison. In most cases, child abuse murder carries a maximum of life without parole; however, it can be considered especially heinous, atrocious, or cruel, and the state can seek the death penalty in such a case.

Image credit: Dennis Yang


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