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STATE COURT UPHOLDS PAYTON CONVICTION

By Ray King/OF THE COMMERCIAL STAFF
Thursday, October 22, 2009 10:21 AM CDT

A rural Jefferson County man convicted of sexually abusing a then nine-year-old for more than two years and attempting to convince another person to claim responsibility lost his appeal Wednesday before the Arkansas Court of Appeals.

Kevin Payton

Kevin Payton, 45, was sentenced to 55 years in prison after being convicted by a Jefferson County Circuit Court jury of rape and tampering following a three-day trial in August 2008.

Prosecutors had alleged that Payton had abused the girl from November 2005 to September 2007, when she reported the incidents to a teacher at school.

In his appeal, Payton did not challenge the evidence presented by prosecutors, but instead challenged evidentiary rulings by Circuit Judge Rob Wyatt Jr., who presided at the trial.

Among the points the appeal listed was that Wyatt erred by refusing to allow Payton’s attorneys to question the victim about her upbringing and about a New Year’s resolution where the victim allegedly vowed to “stop lying so much.”

“We find no abuse in the trial court’s discretion,” Appeals Court Justice David Glover said in the ruling. “Appellant (Payton) did not lay a sufficient foundation to establish the relevance of this testimony. The New Year’s resolution remark is too nebulous to show that the victim had a tendency to lie or that she had a pattern of lying.”

Payton also contended that prosecutors Karres Manning and Cymber Gieringer should not have been allowed to present evidence about Payton’s use of marijuana as that prejudiced the jury against him, but the appeals court noted that Payton made two references to marijuana use when questioned by investigators.

Finally, Payton contended that his attorneys should have been allowed to discuss possible motives for falsely accusing him during closing arguments and Wyatt erred when he ruled that the attorneys could not present facts that were not in evidence.

“We find no abuse of the trial court’s discretion,” Glover wrote. “At trial, not only did appellant’s counsel use the term ‘speculate’ in making his closing on this topic, he did not offer any facts in evidence that would support his comments, despite the fact that was the basis for the state’s objection. He does not get to fill in the missing pieces on appeal.”

Payton was convicted as an habitual offender because of five prior felony convictions for burglary and theft of property, and a misdemeanor conviction for carnal abuse.

He will be eligible to apply for parole in 2047.

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