A stone-faced gallery of close to 30 people looked on Thursday afternoon as a Gillette man was sentenced to life in prison without parole for the first-degree murder of a 2-year-old boy.
In November, Donald Foltz Jr., 36, was convicted of abusing and killing his girlfriend’s 2-year-old son, Braxton Bailey, on Dec. 30, 2014.
District Judge Michael N. “Nick” Deegan handed down the sentence and said he took no pleasure in it.
“When one life is lost, and another life is … curtailed,” he said.
When Foltz heard the sentence, he showed no emotion, much like when he heard the jury’s guilty verdict back in November.
Deegan said any homicide conviction deserves careful attention, “more so when the victim was a child of tender years.”
Campbell County Attorney Ron Wirthwein, who was one of the prosecutors in the case, argued that Foltz should never be given the chance to re-enter society.
“Prison isn’t for people you’re mad at, it’s for people you’re afraid of,” he said. “Donald Foltz is someone the community should be afraid of.”
Wirthwein also pointed out that Foltz had a prior child abuse conviction, which he didn’t talk about during the trial because prior convictions usually can’t be used as evidence at trial for a different crime. Foltz was convicted of abusing a child in Greeley, Colorado, in 2006.
The child in that case also was 2 years old, and also had blunt-force trauma to the head and abdomen
Wirthwein added that Foltz has had several other charges, including battery of a household member and a violation of a protection order.
The possibility of Foltz ever getting out, Wirthwein said, presented too much of a danger to the community, which was why he argued for life without parole.
One of Foltz’s attorneys, public defender Dylan Rosalez, asked the court to sentence Foltz to life in prison with parole.
“Grant some leniency, show some mercy, give Donald some hope,” he said.
In the end, however, Deegan sided with the prosecution, in part because Braxton was a young, defenseless victim.
“This child has no life,” he said. “The defendant enjoys, in some limited capacity, his life.”
The events leading up to the sentence
On the final day of his trial, Foltz’s attorneys argued that prosecutors did not prove beyond a reasonable doubt that Foltz caused the injuries that killed Braxton.
In her closing remarks, public defender Kerri Johnson told the jury that throughout the course of the trial, prosecutors were not able to prove who caused the mesenteric tears in the the boy’s abdomen that led to his death, or when those tears happened.
Although the child died, there was “nothing clear and convincing” presented during the trial that shows Foltz caused those fatal injuries.
“If we don’t know what happened, it’s reasonable doubt,” Johnson said. “Foltz didn’t do anything to kill the boy. He was trying to save his life. That’s all the evidence proves.”
She pointed out testimony that said Foltz was never allowed to discipline the boy, that he never showed aggression toward Braxton and that he loved the boy, and the boy him.
Johnson also criticized the investigation. She said that although she believed Sgt. Paul Pownall to be a competent investigator with the Campbell County Sheriff’s Office, he was not when he investigated this case.
“Sgt. Pownall did not conduct a complete investigation,” Johnson said. “It became personal to him.”
Pownall testified that the case “was personal to me” because “a 2-year-old boy died.”
Johnson said that when Pownall was presented with evidence that someone else may have abused Braxton, he chose to ignore it and focused only on Foltz.
Wirthwein admitted there was no direct evidence that Foltz killed the child. Instead, he walked the jury through the chain of events that pointed to nobody else but Foltz.
Wirthwein pointed out, as Deegan did, that circumstantial evidence and direct evidence bear equal weight when coming to a conclusion.
Wirthwein argued that he and fellow prosecutor Nathan Henkes proved, through testimony and circumstantial evidence, that Foltz killed Braxton. He noted that the symptoms of mesenteric tear, such as vomiting and extreme thirst, were not present until the day of his death, when Braxton was alone with Foltz.
“Look at the timing of it,” Wirthwein said. “When does he become symptomatic? On the 30th.”
Wirthwein also showed the jury pictures of the boy’s body that were taken in the emergency room and during the autopsy. Many in the audience looked away, while others cried softly when viewing the images.
“The boy isn’t able to tell you what happened, but his body speaks volumes,” Wirthwein said.
What it told the forensic pathologist who performed the autopsy is that the fatal injuries couldn’t have been caused by any of the numerous stories Foltz told different people about how the boy died, Wirthwein said.