A Brooklyn appeals panel has overturned the conviction of a mother accused of shaking her baby to the point of serious injury, saying the trial court did not properly establish she had the mens rea, or guilty mind, required to commit the crime.

A unanimous panel of the Appellate Division, Second Department, in People v. Robinson, 2012-61762, dismissed the indictment against Tina Robinson for endangering the welfare of a child.

After the prosecution finished offering its evidence, and the defense presented its first witness, the Brooklyn District Attorney’s Office sought permission to bring in another witness, a maternity ward nurse, to testify she had warned Robinson that shaking the baby could cause injury. Kings County Supreme Court Acting Justice Danny Chun (See Profile) granted the motion over Robinson’s objection, and a jury found her guilty.

The Second Department panel—consisting of justices Mark Dillon (See Profile), L. Priscilla Hall (See Profile), Sandra Sgroi (See Profile) and Betsy Barros (See Profile)—noted in an unsigned opinion that courts have discretion to permit parties to present evidence in rebuttal so long as it is not seriously contested and does not unduly prejudice the defense.

“Here, the missing element of the People’s case was not a simple, uncontested fact, but instead was the mens rea of the subject offense,” the justices wrote. “Indeed, the People’s own evidence established that the defendant denied knowing that her actions could result in injury to the child.”

The court also pointed out that the expert witnesses of the parties “hotly contested” whether shaking could cause the kinds of injuries the baby suffered or whether the mother knew the point at which rocking or shaking could cause injuries.

Robinson was represented in her appeal by attorney Mark Vorkink of Appellate Advocates. The district attorney’s office was represented by Leonard Joblove and Ruth Ross.