AMERICAN FORK — When young father Victor Gardea punched his crying 4-month-old baby, everyone agrees he committed child abuse.

But aggravated murder?

That's where prosecutors and defense attorneys have very different ideas.

Defense attorney Richard Gale argued Tuesday in 4th District Court that prosecutors haven't presented enough evidence that Gardea showed "reckless indifference to human life" — a necessary element of the aggravated murder charge — when he punched young Jasmin twice in the face on Sept. 8.

Gale has petitioned that Gardea's aggravated murder charge be dropped to a lesser charge, citing both the failure of prosecutors to present enough evidence and the unconstitutionality of a new Utah law that allows child-abuse homicide cases to be charged as capital murder cases — punishable by the death penalty.

"He was frustrated with a child; the child was crying," Gale told Judge David Mortensen while Gardea stood at his side with his head bowed. "In very few cases will parents take an action as extreme as Victor's case. But it does not show reckless indifference to human life because … there was a reason for his anger."

Gale acknowledged that Gardea's anger was not proportional to the situation but pointed out it was in reaction, not just "for no good reason."

But then why, asked prosecutor Ryan Peters, would Gardea, a former boxer, punch his little girl twice?

After Gardea was arrested, he told police he had hit his child because he had been up all night helping his wife study, and if the baby kept crying, she would wake the couple's other young son, and then Gardea wouldn't get to sleep.

"That was one of the hits," Peters said. "Another one of the hits … according to (the detective), was for no reason at all. The fact that he hit her so hard it could have knocked himself out certainly goes to reckless indifference to human life."

Prosecutors oppose Gale's motion to lessen the charge.Mortensen said he would rule by June 5 about whether the state presented enough evidence for the aggravated murder charge, but said he wouldn't rule on the constitutionality of the aggravated murder statute as it relates to the case.

He explained to the attorneys that in his review of the case law, such constitutional issues cannot be raised until after a defendant is convicted or enters a plea to an aggravated murder charge.

Gardea will be in court again June 9 to enter a plea.

E-mail: sisraelsen@desnews.com