Criminal charges won't be filed in near-drowning

The Jackson County District Attorney's Office has determined no criminal charges will be filed in the case of a 6-year-old Central Point boy who strayed from a special education class at Jacksonville Elementary School and was found, unconscious and not breathing, in a nearby irrigation ditch.

District Attorney Mark Huddleston completed his review of police reports on the Oct. 7 accident involving Luke Baehne and announced his findings Monday.

Separately, on Monday an attorney representing the boy's family sent out tort claim notices and notices of legal representation, necessary steps in any future civil suit.

Medford attorney Michael Kellington said that the Baehne family, who remain at Luke's bedside at Doernbecher Children's Hospital in Portland, agreed that criminal charges weren't warranted.

"Our position is that somebody is at fault," he said.

Kellington sent notices of legal representation to Jacksonville Elementary and its principal, Rick Snyder, and to the Southern Oregon Education Service District, which operated the special education class Luke attended.

Those legal notices preserve a plaintiff's right to sue and more could be forthcoming as details come out about who is responsible for the safety of the pupils, the school grounds and the irrigation canal, Kellington said.

He also sent tort claim notices, a legal requirement before a civil suit can be filed against a municipality, to the cities of Medford and Jacksonville.

The ESD has completed an internal investigation that found employees followed protocol and weren't negligent in the incident. That report has been forwarded to the district's insurer without being made public.

The police reports reviewed by Huddleston and released Monday include those by Jacksonville Police Chief David Towe and Sgt. Dan Moore and Jackson County Sheriff's Department Detective Steve Holthus.

The reports indicate that Luke Baehne, who has autism, attends a STEPS classroom at Jacksonville Elementary. The program, offered by the Southern Oregon ESD, teaches life skills to students with a range of serious disabilities, including severe autism. The ESD operates 23 such classes across Jackson, Josephine and Klamath counties. Two of the classes, which can accommodate up to 14 children each, are at Jacksonville Elementary, ESD Superintendent Steve Boyarsky said.

The class Luke attended has seven children and was overseen by a teacher and four assistants on the day of the incident, Snyder told Towe. The class went to recess from 1 to 1:20 p.m. with other pupils in kindergarten through third grade.

Four teacher's aides accompanied the two classes of STEPS students: two aides who were assigned to care for three students in wheelchairs and two aides — Susan DeVlaeminck and Krista Cavanaugh — who were assigned to watch over eight other students, including Luke, Sgt. Moore's report said.

Snyder told Towe that five of the seven adults monitoring the playground that day knew of Luke's condition. Snyder said the school doesn't have any written policy for control of children on the playground, but that monitors try to keep the STEPS students close to the main play structure.

DeVlaeminck reported seeing Luke about three minutes before recess ended. However, when the bell rang and the children assembled to be counted, Luke was missing, the accounts all said.

DeVlaeminck and Cavanaugh immediately started looking for him across the playground in bushes and the parking lot. When they couldn't find him, DeVlaeminck asked another teacher with a handheld radio to call the school office for more help searching the campus and the surrounding community, Moore wrote.

At 1:39 p.m., the school secretary called 9-1-1 to report a missing child, reports said. At 1:40 p.m., teacher's assistant Gail Durst called 9-1-1 to report that she had found the missing boy floating in the Medford Irrigation District canal next to North Fifth Street.

Durst told Towe that she noticed a gate on the north side of the playing field at school was open. It usually is closed, she said.

While walking over to check it out, she remembered fish in a water feature in front of businesses on North Fifth Street, a few blocks from school, and thought the boy might have been attracted to them. She hurried in that direction and saw what she first thought was a jacket floating in the adjacent Medford Irrigation District canal. When she realized that it was Luke floating in the water, she jumped in. Although she couldn't lift him out of the ditch, she held up his head until Towe arrived and could pull the boy out.

Towe and firefighters had gone first to the ditch behind Pioneer Village, on the west side of Fifth Street, and found nothing, Towe's report indicates. He was headed toward the school, but realized the ditch was covered along the campus. Dispatchers advised him to stop and listen for Durst's cries for help and he was able to find her and pull Luke from the water.

Luke was unconscious and not breathing, he said.

Jacksonville fire department emergency medical technicians started cardiopulmonary resuscitation and an ambulance rushed the boy to Rogue Valley Medical Center. He was revived and flown to Doernbecher Children's Hospital in Portland.

Kellington said Luke is still hospitalized in Portland with his parents Phillip and Crystal Baehne by his side.

"He is improving," Kellington said, noting that Luke looks at people, smiles and has been eating applesauce. He doesn't have control over his arms and legs, but they do move.

The family is guardedly optimistic and is considering moving Luke to a rehabilitation center for therapy to aid his recovery, Kellington said.

Reach reporter Anita Burke at 776-4485, or e-mail

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