SEVIERVILLE — Kayleigh Biggerstaff allegedly suffered abuse for much of her four years of life. Judge Rex Henry Ogle will have to decide how many of those allegations a jury can hear when Biggerstaff’s mother, Kimberly, and Kimberly’s boyfriend, Rico Benitez, are tried for murder in the little girl’s death.

Kayleigh died Feb. 16, 2009, at her mother’s apartment. Medical Examiner Darinka Mileusnic-Polchan said during a Wednesday hearing the child died from an infection that came from a ruptured bowel. Based on her examination, she said that injury couldn’t have been the result of disease and was not likely to resulted from accidents.

In fact, she said, there was evidence that someone struck the child repeatedly in the same area. The fatal blow that caused the ruptured bowel came within about 24 hours of Kayleigh’s death, but Mileusnic-Polchan testified she found evidence of the child suffered an injury there about a week earlier, and scars that indicated an earlier injury to the same region.

Because of those repeated blows, Mileusnic-Polchan altered an earlier stance, saying it would not have taken an especially strong blow to cause the fatal injury. She had previously said that it would have taken a large man to cause the injury, which seemed to indicate Kimberly Biggerstaff could not have been the one who struck Kayleigh.

“It doesn’t have to be that strong because the walls were weakened,” Mileusnic-Polchan said.

Based strictly on the outward appearance of her body, Kayleigh appeared to have been suffering from some ailment prior to her death.

“This was a very sick appearing child,” the medical examiner said.

Kayleigh had sunken eyes and appeared malnourished, weighing in the 10th percentile for children her age, Mileusnic-Polchan said. The autopsy indicated she’d had little to eat prior to her death.

She had suffered an atrophied thymus gland, which is a sign of stress or malnutrition in a child her age, Mileusnic-Polchan said.

Defense attorneys for Kimberly Biggerstaff and Benitez were trying to get Judge Ogle to exclude testimony about the previous injuries and other ailments Kayleigh suffered, but Ogle said by the end of the day Wednesday he would allow Mileusnic-Polchan to explain to a jury the full extent of the injuries because they all appeared to contribute to the cause of death.

Ogle also heard from several witnesses who said they’d seen signs of abuse when the couple lived in South Carolina.

Belinda Peabody, Kimberly’s mother, testified that she tried to get custody of Kayleigh in an effort to protect her daughter and granddaughter.

“I thought if I could just save Kayleigh I could save Kimberly,” she said.

At one point during that process, Peabody testified, Benitez accused her of being the one responsible for the child’s abuse.

The state of South Carolina ultimately returned Kayleigh to Kimberly, who had moved to Tennessee by then, but stipulated that Benitez could not be around them because Kimberly was still married to another man. The state never determined who was responsible for the injuries to Kayleigh that led to the allegations of abuse.

The judge in that case sent Kayleigh’s guardian ad litem — an attorney appointed to represent Kayleigh’s interests in the legal process — to see that Kimberly wasn’t living with Benitez. At the time, she said, it didn’t appear they couple was living together.

Other witnesses testified to finding bruising and other injuries they thought were signs of abuse, and notifying authorities at the time.

Ogle said he will issue a written ruling later on whether the prosecution can use that testimony as evidence in the trial.

Prosecutor Steve Hawkins argued that the testimony demonstrated a continuing pattern of abuse and neglect that led to Kayleigh’s death. Defense attorneys — Public Defender Ed Miller represents Kimberly Biggerstaff, while defense attorney Jason Randolph represents Benitez — said it could prejudice the jury, and that the alleged prior acts were remote and disconnected from Kayleigh’s death because she was in state custody for the better part of the year before coming to Tennessee.

Ogle said he would review their arguments and case law before issuing the written ruling.

The trial is currently set for April 7, but Hawkins acknowledged Wednesday that the two defendants might not be tried together.

n jfarrell@themountainpress.com