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Last updated on Thursday, May 9, 2013
(BLOOMFIELD) - A Greene County jury found Allan J. Kirkley guilty of one count of child molesting, but not guilty on a second count of child molesting, Wednesday afternoon.
Anna Rochelle of the Greene County Daily World reports that after another long morning in the courtroom, the jury went into deliberations around noon. It was after five before their verdicts were announced. It was not a clear-cut, open and shut case -- both prosecution and defense presented strong arguments.
Kirkley, 46 at the time of his arrest in March 2012, was accused of two counts of child molestation, both class C felonies.
The crime of child molestation is when a person performs fondling or inappropriate touching of a child under the age of 14 with the intent to arouse the sexual desires of either the child or the defendant.
The trial began Monday with jury selection lasting most of the day followed by opening arguments. It continued on Tuesday with witness testimony.
Court was set to reconvene at 8:30 a.m. on Wednesday but a potential problem with two jurors surfaced and delayed the start time. A witness in the trial reported she overheard two jurors talking in the hall after Tuesday's proceedings and there was a suspicion they might have been talking about the trial -- that's not allowed.
After the judge and the attorneys met in chambers, reviewed surveillance footage from the courthouse security system, then questioned the witness and the two jurors outside the presence of the public, the media and the other jurors, the suspicion was put to rest but it took a couple of hours.
Closing arguments got under way around 10:30 a.m. with both the prosecution and defense attorneys recounting and analyzing witness testimony.
Kirkley was accused of fondling one male and one female child. He was found guilty on count one involving the male. He was found not guilty on count two involving the female.
The incidents allegedly happened in 2008 when the children were 6-7 years old. They are now 11 years old. The children didn't tell anyone for some time -- the sheriff's department began an investigation early in 2012.
Both the prosecution and defense said the children's parents had gone through a horrendous divorce including a nasty battle over the custody of the children. The mother and the children had moved into Kirkley's residence in Scotland. The boy shared a room with Kirkley's son, the girl shared a room with Kirkley's daughter. Besides the two victims, there were four other children in the home.
Greene County Deputy Prosecutor Keven McIntosh said the two children involved were sharp kids and their testimony was not rehearsed.
McIntosh said the boy identified Kirkley as the person who came into his room, woke him up, fondled him multiple times and told him not to tell. This allegedly occurred when Kirkley's son was also sleeping in the room. He said the boy testified he was afraid to tell and he didn't know what to tell.
He said the girl identified Kirkley as the person who came into her room when nobody else was in the room, told her to flip over and touched her behind. It only happened once and she was never told not to tell. She testified she just tried to forget it but she wasn't going to let it happen again.
McIntosh, relying primarily on the victim's testimony to make his case, asked the jury, "Did it sound like something that was made up? Or did it have a ring of truth to it?"
He recalled the investigating officer, Greene County Sheriff's Deputy James O'Malley, testified that he didn't have a lot of previous experience investigating this type of case, but he got assistance from more experienced personnel.
The children's father also testified. He had remarried, and McIntosh said he already had custody of the children when they finally came forward and told their stepmother they had been touched by Kirkley.
Greene County Prosecutor's Office Investigator Julie Criger, who had interviewed the children, testified. McIntosh cited her training and experience in sexual abuse cases and that she said victims do not always report abuse right away - no two are alike.
The children's mother testified that she was an insomniac, diagnosed when young, but she didn't take medication so she was awake most of the time and would have heard Kirkley going into the children's room, especially because it was an old creaky house.
McIntosh expressed doubt with her truthfulness and said she was more concerned about Kirkley than her kids, that she hadn't seen them in over a year, and that she didn't believe her own children. McIntosh asserted the mother had a bias in her testimony, because if the abuse happened and if she knew about it, she had a duty to report it but had not.
McIntosh said the children stood to gain nothing from this case, and they had no motive to lie.
Greene County Public Defender Alan Baughman, representing Kirkley, brought up a lot of questions casting doubt on the state's case.
Baughman said the children's behavior and the way they reacted to questions was different in previous interviews from their behavior on the stand.
He said they had, despite the divorce, several people in their lives, a father, a mother and a grandmother that loved them and gave them opportunity to talk about good touch--bad touch, but they didn't. They also attended a school program with opportunity to talk to someone, but they didn't.
During the divorce, they spoke with Judge Viola Taliaferro in her chambers about their request to live with their father instead of their mother. Their reasons were because, at that point in time, they were living in a tiny apartment with no dogs, no cats, no yard, and no private room. They never mentioned a problem with bad touch.
Baughman said the children continued to request to see Kirkley even after they and their mother had moved away from him. The boy had even spent time and stayed overnight with Kirkley at his cabin.
Baughman told the jury, "Use common sense. When someone has hurt you or offended you just with words, do you go back for more?"
Baughman said the touching would have been a physical hurt, and you don't go back for more.
While the prosecution said the defense wanted the jury to believe the stepmother planted ideas into the heads of the children and that wasn't the case, Baughman said children can be manipulated and they can do things to try to please their parents.
Baughman also talked about the fact that Kirkley had called DCS (Department of Child Services) to report concern about the children long after the mother had moved out -- something a person guilty of child molestation would not do.
"When he made that call, he put himself in a position to be investigated," said Baughman. "It just does not make sense."
Regarding the mother's bias to support Kirkley in her testimony, Baughman said that didn't make sense either because Kirkley had called DCS to turn her in.
In addition, Baughman questioned the thoroughness of the investigation.
He said one time when Kirkley was allegedly in the room with the boy, Kirkley's son got up and went to the bathroom and when that happened, Kirkley allegedly crouched down beside the boy's bed. Kirkley is a large man and it was a very small room. Baughman asked why the son was not questioned about what he might have seen or heard.
Baughman asserted the state had a duty to protect all of the children who were in the house, but the other four children in the home were never interviewed.
"If there's a suspicion that there is inappropriate touching going on in this house, why didn't they act to protect the other children, to interview them?" asked Baughman.
"There's so many things in this case that don't make sense."
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