Even public defender Sydney West was shocked when second-chair prosecutor Yvonne Chicoine gave her opening statement in the child abuse case against Jennifer Stephenson Tuesday afternoon.

Since Stephenson's January 2010 arrest on a 1st degree child abuse charge, police have said the explanation she gave doctors for her 2-year-old's injuries couldn't be right. Stephenson told doctors that a dresser fell on the little boy, but court documents state the type of injuries corresponded instead to a "ligature," meaning a rope or other long object used to bind the body.

Chicoine began her opening statement referring to this theory when explaining how the case drew the attention of police and the Children Youth and Families Department. But when she described what testimony from the boy's father, Anthony Apodaca, will show, she indicated that Apodaca found the child pinned under a dresser after hearing him whimper, and that he was never tied up.

The ligature theory arose partly because the victim had some marks on the back on his legs. It now appears that the marks were caused by the victim's legs being pinned between the dresser and a rounded metal safety rail on his bed, which was brought into the courtroom.

Alleged crime now negligent, not intentional

The state is not making the case that Stephenson deliberately pinned her son under a dresser. Their argument is that after it apparently fell on him she ignored his cries for up to 12 hours, and possibly checked on him at one point when he may have already been pinned. They are also arguing Stephenson showed negligence by stopping at her parents' house on the way to the emergency room.

"Up until late December police insisted to me in interviews that [the victim] was bound, that this was not the result of an accident," West said in her opening statement. "So a lot of what I was going to tell you you've already heard."

West tells SFR that until she heard Chicoine's opening statement, she didn't know the state was abandoning the ligature theory. But she said the defense team reconstructed the scenario with a 27-pound dummy knocking over the dresser, and showed the state it was possible given the victim's size.

Stephenson's outburst

During a recess after opening statements, Stephenson burst into tears after the jury left the courtroom.

"It's not my fault," she sobbed. "I hate that stupid DA!"

West then turned around to see if opposing counsel were still in the room, but they had already left.

Hear no evil?

According to Chicoine's opening statement, Apodaca came over to Stephenson's apartment around 2 a.m. the morning the victim's injuries were discovered. Stephenson went out to get McDonald's, which was shared between Stephenson, Apodaca and the victim's younger sister, while the victim was apparently asleep. Apodaca will testify that around 3:30, he told Stephenson to check on their son, and Stephenson indicated that he was fine when she came back from his room. In the defense's version of events, neither parent checked on the little boy overnight, but Stephenson heard a noise that she thought was a door opening and closing.

In West's opening statement she said the state could find no neighbors that heard a child screaming that night. Since the prosecution says a medical witness will testify the child was never unconscious, the defense theory was that the boy had the wind knocked out of him. But emergency room doctor Dr. Mayer Best testified that would only affect the child's ability to scream for a few seconds.

Best also testified that Stephenson seemed "casual" about the injuries and was vague regarding when the dresser fell on the boy, leading Best to assume she was claiming it had just happened.

High burden of proof

In many criminal cases, a charge has a lesser offense that the jury can choose to convict on if they don't feel the burden of proof for the larger crime was met. The charge of first-degree child abuse doesn't have one of these lesser included offenses, however, meaning the jury will only decide if they believe Stephenson's actions fit that crime.

To prove first-degree child abuse, which carries a basic sentence of 18 years in prison, the state must show that Stephenson "knowingly, intentionally or negligently, and without justifiable cause" permitted the victim to be cruelly confined, causing great bodily harm. To prove negligence, the state must show Stephenson acted with "reckless disregard" for the child's safety. For a second or third degree felony charge of child abuse, the burden of proof on the state would be lower.

Prosecutor Dori Smith tells SFR that the state won't amend the charges.

"I'm mad," West tells SFR. "They made everybody think that they bound this kid and they've known for a long time that they didn't...it's so maddening because they've influenced the case, they put out information they knew was wrong."