David Curtis Patton was convicted in James City County of child abuse in 2007 for shaking his son Jared, who died in 2009 of his injuries from the incident.
Now the boy's maternal grandparents are pushing for Patton to be tried for murder in Jared's death, especially since Patton is facing new abuse charges in Hampton for causing his infant daughter's brain injuries last month.
"After the charges were brought against him with the abuse of his little girl, I'm not letting it go anymore," said Kathy Stowe, Jared's grandmother.
Kathy and Steve Stowe supported an effort by JCC prosecutors to pursue murder charges against Patton when Jared died in 2009. However, Jared's mother, a key witness in the 2007 abuse trail, will no longer testify against Patton.
"I was floored. I was hurt and I was angry," said Kathy Stowe of her daughter's change of heart.
JCC Commonwealth Attorney Nathan Green told NewsChannel 3 the case said while they want to pursue murder charges against Patton, trying him for murder could fall into double jeopardy territory.
Green also referenced the old "year and a day" rule. The rule said someone could not be charged with murder if the victim died a year and a day after the incident. However, the Virginia General Assembly did away with the law in 2009, before Jared died but after the 2006 incident. Green's not yet sure if Jared's case would be "grandfathered" into the law.
The Stowes say they'll keep pushing as long as it takes.
"If he would have been convicted of murder, he would have not been free to have another child and abuse them," Kathy Stowe said.