After deliberating for about an hour and a half, a local jury has acquitted a Somerset man of all charges connected with the alleged abuse of his adopted daughter.
Russell D. Burton, 52, was found not guilty of nine counts pertaining to rape, sodomy, incest, and criminal abuse.
Burton and his attorneys, Robert Norfleet and Scott Foster, were relieved by the decision. Had he been convicted, Burton was facing 20-50 years in prison. Now he and the family faces the prospect of healing.
“At the end of the day, he’s innocent,” Norfleet said of his client. “The jury got it right and the system worked the way it was supposed to work.”
Burton had initially been indicted last February on a total 13 charges: two counts of first-degree rape, two counts of first-degree sodomy, two counts of incest (victim under 12), one count incest (victim under 18), one of second-degree rape, one count of second-degree sodomy, one count of first-degree criminal abuse, two counts of first-degree sexual abuse (victim under 12), and first-degree sexual abuse.
However, the sexual abuse charges were essentially merged as “lesser includeds” under the rape counts when Pulaski Circuit Judge David Tapp granted defense motions for directed verdicts. Judge Tapp agreed that testimony didn’t support that sexual abuse occurred separate from three alleged rapes in November 2013 and February 2014.
On Thursday, the third day of trial, Assistant Attorney General Barbara Maines Whaley rested her case without calling any more witnesses. Foster and Norfleet called only five — all of which were designed to rebut prior prosecutorial testimony.
It was the final witness, however, which earned the lion’s share of questions.
Dr. Gerald Harpel, an obstetrician-gynecologist from Cynthiana, Kentucky, was retained by the defense to review the medical records from local OB-GYN Dr. Tara Horn’s examination of the alleged victim in July 2015.
Dr. Horn testified Wednesday that she performed an external examination on the girl, which Dr. Harpel called Thursday “incomplete.” While he agreed that the exam took place too long after the last alleged incident for a rape kit, Dr. Harpel maintained that cultures should have been collected to rule out sexually transmitted disease.
Dr. Horn’s report indicated that her findings were “within normal limits,” which Dr. Harpel interpreted as normal for a 13-year-old female.
Horn had checked on the exam form “Behavioral Manifestion — Patient Disclosure Suggestive of Sexual Abuse” but Harpel considered this more a psychiatric finding or the doctor’s opinion.
“The conclusion should mirror the facts,” he said.
“Are the exam findings consistent with a 13-year-old having sexual intercourse 200 times?” Foster asked, referencing testimony that abuse had occurred twice a week for two years.
“No,” Harpel responded.
But on cross examination, Dr. Harpel acknowledged he had had no specialized training in child sexual abuse beyond his residency that ended in 1977. He also agreed that Horn’s talking with the child prior to the physical exam would be an important part of the whole report.
Testimony concluded shortly after 11 a.m., and the jury — comprised of eight women and four men following the release of an alternate — began deliberations at approximately 3:10 p.m. after closing statements and jury instructions. The not guilty verdict was returned at approximately 4:40 p.m.
Norfleet praised the jury as “one of the most engaged” and attentive he’s ever presented to. He attributed their decision not only to problematic testimony from the complaining witness — including a contradictory timeline — but also the lack of corroborating evidence.
“There were allegations of more than 200 incidents of rape,” the attorney said. “For a 13-year-old girl, there’s going to be physical evidence, if not permanent damage…What a scary precedent that would set if the state had gotten a conviction with a complaining witness stating she was raped forcibly and not a shred of evidence.”