I think any abuse to a child should be considered (for) capital punishment. Children cannot defend themselves. ... Children should be protected and if we put the death penalty out there for child abuse, then something would stop. —Anissa Martinez, member of Ethan's Army

FARMINGTON — A judge ruled Thursday that he had heard sufficient evidence to order Nathan Sloop to stand trial for capital murder in the death of his 4-year-old stepson, Ethan Stacy.

Second District Judge Glen Dawson's decision came almost four months after he heard the evidence against Sloop, 34, who faces aggravated murder and other charges in Ethan's death.

Dawson, however, declined to rule on the constitutionality of pursuing the death penalty at this point in the case.

Ethan died in 2010, days after he arrived in Utah from Virginia to spend the summer with his biological mother and her then-fiancé — Sloop. Court documents list "severe abuse" as the cause of death and investigators say Ethan was abused between April 29 and May 8.

Prosecutors have said the child was scalded, beaten, overmedicated and not given the medical care that he needed. But defense attorneys have countered that Ethan didn't die of severe abuse, but of dehydration from overmedication.

Both Sloop and the child's mother, Stephanie, 30, are charged in Ethan's death. Prosecutors have already filed notice of their intent to seek the death penalty against Nathan Sloop.

They are seeking the ultimate punishment under a 2007 amendment to state statute that no longer required proof that a murder was committed intentionally as long as it can be shown that certain crimes such as child abuse, child rape or child kidnapping were committed with "reckless indifference to human life." The change was prompted by the death of 10-year-old Shelby Andrews, who was tortured and killed in her Syracuse home in 2006 by her father and stepmother.

But defense attorney Richard Mauro argued Thursday that the change in statute is too broad and unconstitutional. He said a parent who spanked a child, for example, and then gave medication that the child was allergic to could possibly be eligible for the death penalty under the law.

"This statute expands, exponentially, the people who could be eligible for the death penalty," Mauro said. "The problem with our statute is you don't have to have the intent to cause the death of a person under these circumstances."

Prosecutor David Cole countered that the preliminary hearing, where prosecutors present evidence to support the charges they have filed, was not the appropriate time to discuss the death penalty issue. He said the argument should be brought later, possibly even after evidence is presented at trial.

"The preliminary hearing is designed to do one thing only — to decide whether there is probable cause," Cole said. "It is not designed to ferret out constitutional issues. The preliminary hearing is not a full record. It is not, from our perspective, our entire case."

The judge agreed and said that it was too early in the case to look at the constitutionality of the statute, but said the argument could be revisited at a later date.

Mauro said he expected the outcome of Thursday's hearing, but does plan to again raise the issue.

"It is on a case-by-case basis, but our laws are supposed to be written in a narrow fashion," he said. "Our argument is (Nathan Sloop) did not intend to kill Ethan Stacy."

Anissa Martinez, a member of "Ethan's Army" who said she attends the hearing on behalf of the boy's family who lives back East, said she agrees with the new law.

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"I think any abuse to a child should be considered (for) capital punishment," she said. "Children cannot defend themselves. ... Children should be protected and if we put the death penalty out there for child abuse, then something would stop."

In addition to capital murder, Sloop is also charged with obstructing justice and intentionally inflicting serious injury on a child, second-degree felonies; and desecration of a dead body, a third-degree felony.

Stephanie Sloop faces identical charges. A preliminary hearing in her case has not yet occurred, but she is scheduled for a status conference next week.

Nathan Sloop is next scheduled to appear in court for an arraignment on Aug. 13.

Email: emorgan@deseretnews.com, Twitter: DNewsCrimeTeam