Moffat County District Judge Sandra H. Gardner sentenced Kaylee Ann Messerly to 26 years in prison on Wednesday, Oct. 12, following Messerly’s conviction for felony child abuse in June.

The case began on March 11, 2021, when deputies discovered an unoccupied Volkswagen stuck in the mud and snow near Moffat County Road 54. After a search of the area, they found Messerly and her 3-year-old daughter, Alena, alive but suffering from exposure to the cold.

However, Messerly’s 18-month-old daughter, Emma, died sometime overnight from March 9, 2021 to March 10, 2021 and her lifeless body was found about 130 yards away from her mother and sister. Emma didn’t have any shoes on, and she wasn’t dressed for the wintry conditions. An autopsy determined she died of hypothermia.

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Alena was airlifted to an Aurora hospital, where both of her feet were amputated due to the severe frostbite she suffered over a roughly 36-hour period. She also tested positive for methamphetamine. Messerly later tested positive for methamphetamine herself, while being treated for her injuries at Memorial Regional Health in Craig.

During a jury trial in June, Messerly was convicted of child abuse resulting in death and child abuse resulting in serious injury, both felonies. Testimony revealed that Messerly had a number of items in the car, including more clothing that might have helped save her daughter’s life and that Messerly had admitted to using meth before her car got stuck.

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Based on the guilty verdict, the judge ordered Messerly to serve 16 years in the department of corrections, followed by a mandatory five years on parole for child abuse resulting in death. On the other charge, Judge Gardner ordered Messerly serve 10 years in prison with five years parole. A pre-sentencing credit of 127 days time-served will apply to Messerly’s sentence. 

After the hearing, Messerly was escorted out of the courtroom in a wheelchair by local law enforcement. Several observers joined through the virtual courtroom, and several more watched the proceedings in person.

For the prosecution, Matthew Tjosvold asked that Messerly be sentenced to 16 years for causing her daughter’s death, and 10 years for causing her other daughter’s feet amputation, with both sentences being served consecutively. 

“We’re here today to do the impossible task, and that is to equate in years what punishment is appropriate for the loss of life of Emma and the loss of the use of her legs for Alena,” Tjosvold said. “We have to look at the facts of what we learned. We have to look at what (Messerly) did and what she knew when she did those things.” 

The facts of the case, as Tjosvold stated, were that Emma and Alena were completely dependent on their mother for care, and Messerly decided to drive to a remote area with no one near to help. 

The prosecution stated that Messerly knew enough about regular weather in the area and that she had an unreliable car. According to Tjosvold, earlier in the year Messerly had to have help from a tow truck, and her children were not dressed appropriately then either. 

“Taking into account her decisions, it’s blameworthy without the admission of methamphetamine use,” Tjosvold said. “But when you add in the use of methamphetamine during the event, the culpability rises and the blameworthiness rises.” 

Tjosvold said he anticipated the argument that Messerly was a victim of circumstances and tried to do her best under the circumstances. 

“Kaylee Messerly placed those children in those circumstances while under the influence of methamphetamines,” Tjosvold said. “A person in those circumstances not under the influence would have made different decisions.” 

According to statements at the trial, before being confronted by anyone, Messerly brought up at the hospital that if the children tested positive for methamphetamines it was from eating snow near a methane well. Based on expert evidence that was presented about the effects of methamphetamine and how it is metabolized, the amount in Messerly’s system two days after the event was significant. 

“What we do know about Messerly’s attitude and thinking?” Tjosvold said. “When people think, ‘substance abuse doesn’t affect me or my family,’ those are attitudes she possesses and that is wrong.” 

Messerly looked down at her handcuffs for most of the prosecution’s argument, and she cried audibly when Tjosvold brought up her attitude toward substance abuse. 

Regarding restitution, Alena and Emma’s father David Smith is seeking $30,000 in lost wages while caring for his injured child. Prosecution is still awaiting documentation to support the restitution amount.

Messerly appeared completely shocked to hear the amount Smith is seeking in restitution, in one of the more noticeable reactions she displayed in the courtroom with wide eyes and raised eyebrows.

Two of Smith’s family members, Lisa Hernandez and Cindy Vigil, were present in the virtual courtroom and spoke on behalf of the Smith family for the court’s consideration. 

“Before this accident happened, David, who is my first cousin, and I were planning to go and remove the children from her home, and she said no,” Hernandez said. “It haunts me. I am like David’s sibling. We grew up together in the same household. When he brought this amputated, disabled child home, he had no one else except for our family.” 

Hernandez, who said she has a close bond with Alena, spoke of how much pain the child is in on a daily basis and added that Messerly doesn’t have to bear that burden. 

Defense attorney Kathryn Bush said that Messerly knows she is responsible and is not trying to suggest she’s not blameworthy. 

“What I am trying to help the court understand is that nothing happens in a vacuum,” said Bush.

Bush added that she did not handle the trial proceedings, as Messerly’s previous attorney dropped the case after the trial. Bush said she didn’t have the edge of the information that was shared with the jury. Instead, she tried to shed light on the nature of addiction.

According to Bush, Messerly was exposed to methamphetamines at the age of 11 in her home and experienced trauma and neglect during her own childhood. 

“That isn’t to say Ms. Messerly isn’t responsible for the choices she made,” Bush said. “But her choices were affected by early trauma and addiction.” 

The defense attorney asked for the lowest required sentencing on each charge, with the sentences being served concurrently. 

“What a 16-year sentence does is give hope that she would be able to access rehabilitation services with the department of corrections sooner,” Bush said.

Messerly declined to speak on her own behalf, and Judge Gardner acknowledged this has been a difficult case for everyone involved. 

“There is one image that this court saw, that I have not been able to get out of my head, and that was the picture of Emma, her eyes open, lying face up in the sagebrush,” Gardner said. 

In her remarks, Gardner emphasized there were two victims in this case, and Messerly has a criminal history dating back to 2005 with several felonies and misdemeanors. Gardner said the common thread in all of these cases was controlled substances. 

Judge Gardner said that imposing concurrent sentences for the two charges would devalue the seriousness of the offenses.

“Ms. Messerly still believes that she did nothing wrong, that this was simply a terrible accident,” Gardner said. “I find that to be a very, very alarming state of mind.” 

Gardner explained that the time Messerly actually serves may be less, and it could be determined by a number of factors, including prior criminal activity, good behavior and taking advantage of correctional education. 

Because Messerly was convicted and did not enter into a plea agreement, she can appeal the sentencing after the issue of restitution is settled.