News and Tribune

July 5, 2013

New Albany dad charged in battery of infant

Daughter suffered head injury while in his care

By GARY POPP
gary.popp@newsandtribune.com

NEW ALBANY — Benjamin Smith, 33, of New Albany, appeared in a Floyd County court Friday following his 7-month-old daughter’s admission into Louisville Kosair Children’s Hospital with a closed-head injury Monday.

Smith, of 1103 West St., has been charged with battery resulting in serious bodily injury to a child and neglect of a dependent resulting in serious bodily injury, both class B felonies.

He appeared in Judge Susan Orth’s Floyd County Superior Court No. 1 in a blue Tommy Hilfiger V-neck shirt and jail-issued orange pants.

Smith is being represented by private counsel, George Gesenhues Jr., of New Albany.

As Gesenhues requested a bond reduction for his client, he told Orth that Smith is employed at Ford Motor Company and is the primary financial provider for the family, including his wife, who is the injured child’s mother.

Smith’s bond was previously set at $150,000 court-cash, which requires a $15,000 payment for his release from Floyd County Jail.

Gesenhues told Orth that Smith’s father and a church pastor were in the court and prepared to make statements on his client’s behalf concerning his possible release if the bond is reduced.

Orth asked the acting Floyd County Deputy Prosecutor Maria Joshi for her recommendation concerning the bond, to which Joshi responded the bond should not be considered for modification until a later date.

Orth then ruled the bond will not be reduced during the initial hearing, and a bond modification hearing was set for Tuesday.

Smith’s father and the pastor were not given the opportunity to speak during the hearing.

Also during the hearing, Gesenhouse said the child’s prognosis is “very good.”

If Smith is found guilty of each B felony charge, he will face a maximum penalty of 40 years in the Indiana Department of Correction.

A presentence hearing was scheduled for Aug. 8.

As Smith was officially charged, the probable cause affidavit leading up to his preliminary charges was made available to the public.

According to the document, the New Albany Police Department was contacted Tuesday, July 2, by the Department of Child Services in reference to the child being admitted into the hospital for a head injury the day before.

NAPD detectives responded to the hospital and later spoke with Smith and the child’s mother at the police department.

Police reported the child had been in Smith’s care while the mother was away from the home.

The mother reported the child was “her happy self” before leaving her in Smith’s care. When the mother returned home Monday evening she found the child “breathing very abnormal and was limp.” The woman could not give an explanation how the child was injured.

According to the affidavit, when detectives questioned Smith, he admitted to being too rough with the child while trying to calm her down.

“Benjamin [Smith] stated [the child] went from spitting up and fussing to going limp in his arms and not breathing,” according to the report. “Benjamin [Smith] stated he got impatient and got too rough, too fast.”

Detectives reported that Smith said during the interview, “I don’t know why I did it” and it was “my fault.”