Reno case prompted murder charge in baby’s drowning

Kim Smith

Wednesday, May 31, 2000 | 11:25 a.m.

Sunday's death of a baby girl in a bathtub closely mirrors a Reno case that ended up before the Nevada Supreme Court.

The Supreme Court's decision in that case is what prompted police to charge Johnny Campos Avila, 23, with second-degree murder in addition to felony child neglect, Chief Deputy District Attorney Doug Herndon said.

Avila made his initial court appearance via video this morning before Justice of the Peace Jennifer Togliatti. She scheduled a bail hearing for Monday.

According to authorities, Avila's 11-month-old daughter, Katie Cortes, was found in the bathtub by her mother, who had returned home after she became worried when no one answered the phone at the Jones Boulevard apartment.

"I was told that when mom came home and opened the door, the apartment was flooded, the downstairs apartment was flooded and the water in the tub was still running," Herndon said.

Herndon said that Avila told police that he fell asleep while the baby was in the tub and that he had used cocaine the day before, prompting his probation officer to request that blood tests be done on Avila.

The results of those tests are not yet back, Herndon said.

According to court records, Avila was placed on three years probation by District Judge Joseph Pavlikowski in December 1998 after Avila pleaded guilty to unlawful possession of a controlled substance.

Herndon said the decision to charge Avila with second-degree murder was a result of the Eric Paul Noonan case.

Noonan, 34, was baby-sitting 16-month-old Taylor Savanna Buttacavole when he left her in a bathtub while he walked to a nearby school to pick up another child in March 1996.

An autopsy revealed that the baby died of hypothermia after her temperature dropped to 81 degrees.

At first Noonan told police that he never left the house, and then he said he left for two minutes only. During his trial he admitted leaving the baby alone for at least 15 minutes.

Once Noonan changed his story on the stand, Washoe County prosecutors gave the jurors the option of finding him guilty of second-degree murder.

Noonan was convicted of second-degree murder and appealed his case to the Nevada Supreme Court. Noonan and his attorney argued that in order to find someone guilty of second-degree murder, they would have to find that the death happened during the commission of a felony that is inherently dangerous.

Noonan's attorney, John Petty, told the judges that "leaving a child in a bath is not an inherently dangerous act."

Herndon said the Supreme Court disagreed and upheld Noonan's conviction. He was sentenced to 25 years in prison and is eligible for parole in 2007.

Prior to the Avila case, Herndon said the only time he has tried someone for second-degree murder in a child neglect case was when a parent failed to protect a child from an abusive person.

When the Supreme Court made its ruling in the Noonan case, the judges also ruled that charging someone with second-degree murder for an act of omission is wrong, Herndon said.

In such cases the parent who failed to protect the child must now be charged with felony child neglect, Herndon said.

In addition to facing the second-degree murder and neglect charge, Herndon said Avila also could have his probation revoked.

According to court records, Avila could face up to four years on the old drug case alone.