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Motion Denied for New Trial in Child Sex Case

By David Meyer

07/13/2012

(KAIR) -- Both a motion for a new trial and judgment of acquittal were denied in Atchison County District Court Thursday for a 53-year-old Effingham man convicted earlier this year of multiple child sex charges.

District Judge Martin Asher made the ruling against David Smith after hearing around two hours of testimony.

An Atchison County jury in February found Smith guilty of three counts of aggravated indecent liberties with a child.

Both Smith’s attorney during the trial, John Kurth and Smith himself took the stand to testify on Thursday.

Smith’s new attorney filed the motion on the grounds of the lack of certain execution of action by Kurth before and during the trial--including entering evidence that Smith believed would help him in the trial, a change of venue for the trial, the way the jury was selected, a violation of a gentleman’s agreement between Kurth and the prosecutor to not allow prior bad acts alleged to have occurred in other states to be brought up or kept minimal in the Atchison County case and the lack of a motion for a continuation of the trial after said allegations were brought up in testimony at the trial.

The defense also entered exhibits that showed inconsistencies in the victim’s testimony.

During the final arguments Thursday, County Attorney Gerald Kuckleman stated there were discussions to keep prior allegations of bad acts outside of Atchison County to be kept out or to a minimum, but no agreement.

During Judge Asher’s ruling, he stated most of the points for the motion were not valid enough to grant the motions.

He was arrested July 26th, 2011 by the Atchison County Sheriff’s Office for committing unlawful sexual acts with a child under 14, as well as when the child was 14, in a time period of September of 2010 to July of 2011.

He once faced 15 counts of agg indecent liberties and 15 counts of rape.

Several of the counts were dismissed by the judge during the trial and the jury found Smith guilty of three counts of agg indecent liberties and not guilty of three counts of rape.

Sentencing is scheduled for August 16th.

Since the victim was under 14 during one of the acts, under Jessica’s Law, he faces a mandatory life sentence under state law on that count.

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