The judge denied a states motion in the 2nd degree murder trial of a Hutchinson woman charged for the death of her 2-month old child.

The state tried to bring evidence of prior acts into the last trial for Brigit Hippen after the defense presented evidence of how good a mother Hippen was prior to the incident where the child died. That ended with a mis-trial.

Now, with the new trial, the again state wants to opportunity to present evidence that Hippen had been stopped because of driving with no headlights, and it was discovered that she had been drinking and was arrested. In the last trial, Judge Trish Rose denied the states request to present that evidence. But, Thursday, Assistant District Attorney Cheryl Allen argued again for the right to present that evidence when the case goes to trial saying the trial should be fair to both sides.

She says in the last trial, the defense presented evidence that Hippen was a good mother, taking her child to the doctor and getting medicine. She agrees that the judge granted a motion of limine to present that evidence prior to the first trial, but believes the defense opened the door when they presented their case.

Hippen’s attorney, David Harger argues that allowing this evidence would be highly prejudicial to his client, and believes Hippen committed no crime, even though she was under 21, when she was stopped and it was discovered she had alcohol in her system. He says she was not intoxicated under the state limit at .08, instead had an alcohol level of .03. He says saying she has a DUI is “extremely misleading.” He says she was not convicted of any crime, but Allen argues that her having alcohol at all is a crime and she wasn’t convicted of having a DUI, because she was granted a diversion in the case. She believes the limit for anyone under 21 is .02.

Apparently, she was arrested and had the child with her at the time. Allen says the child was taken to intake and assessment, and then released to a family member.

But, Judge Rose denied the motion by the state, however agreed they could take the issue again at a later time. She says she can’t rule on the issue, not knowing at this point what the defense testimony will be. Harger wanted the motion of Limine granted in the last trial, granted in this one as well. That was also not agreed to at this point.

Hippen is accused of being reckless and showing extreme indifference when she placed a blow dryer on a counter near the bassinet where her child was sleeping. She says she did so because of concern for her child being cold. Once she did, she went and laid down and went to sleep for 3-hours. When she woke up, the child wasn’t breathing. The child was taken to nearby Promise Regional Medical Center where she was pronounced dead shortly after. The child reportedly died from hyperthermia as a result. All this occurring on February 23 of last year. The child, Karina Perez, had a body temperature of 108 degrees when she died. The defense contends the incident was simply a terrible accident.

The defense did get a continuance for the trial because Harger has conflicts with other cases in McPherson County, including a child molestation trial.

So, the trial is now set for January 10, 2012, but that could be continued because Harger could have a trial in Sedgwick County that week.