Kirton v. State

The admission of a statement in violation of the trial court's Bruton order did not require a mistrial because the statement was cumulative of other admissible evidence.

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Francis Kirton was convicted of incest, statutory rape, and two counts of child molestation based on the following evidence: i his ten-year-old stepdaughter stated on the stand and in a videotaped interview that he had repeatedly engaged in sexual intercourse with her over a period of years, ii a physician testified that she disclosed the abuse to him and that he examined her and found definite evidence of repeated and prolonged vaginal penetration, iii three other witnesses testified that she reported the sexual abuse to them, including an instance of fondling, and iv Kirton confessed to police that he had once masturbated in front of the victim. On appeal he contends that the court erred in denying a mistrial when an officer gave improper evidence and in refusing to give jury charges on the voluntariness of his statement and on the need for the State to show he had a “general plan” to use his stepdaughter to satisfy his sexual desires. We hold that since the improper evidence was cumulative, the trial court did not abuse its discretion in denying the mistrial, and that the referenced jury charges were not requested, were incorrect statements of law, or were substantially covered in the jury instructions. Accordingly, we affirm.

1. Since the victim’s mother was a co-defendant, the court ordered that under Bruton v. United States,1 the mother’s statement to police that the victim told her of the molestation by Kirton was partially inadmissible. The court ruled and the State agreed that the officer could only testify that the mother reported that the victim had told her of being molested, with no identification of Kirton as the molester. Even though the officer was present when the court made this ruling, he nevertheless testified that the mother told him that the victim had told her of being molested by Kirton.

Kirton v. State

The admission of a statement in violation of the trial court's Bruton order did not require a mistrial because the statement was cumulative of other admissible evidence.

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