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Hearing to determine attorney in new Bingamin trial

Posted: Wednesday, October 22, 2003

A court hearing has been scheduled for Friday to determine who will represent a Soldotna man in a retrial after the state overturned his conviction on sexual abuse of a minor and assault charges.

Kenneth L. Bingaman, 51, was convicted by a jury in Kenai Superior Court in March 2001 of third-degree assault for threatening to kill his girlfriend and of three counts of sexual abuse of a minor for fondling his girlfriend's teenage daughter.

The Alaska Court of Appeals, however, reversed the judgment of the Superior Court and ruled Bingaman is entitled to a new trial.

The appellate court decision was based on court rules regarding the admissibility of evidence in domestic violence cases.

Although in prosecuting crimes involving domestic violence, an Alaska rule allows evidence of other domestic violence crimes to be admitted, the appellate court questioned whether the evidence should be admitted.

The Alaska rules allow evidence from previous acts to be admitted in order for the state to show the defendant characteristically commits such acts so the defendant's character can be taken as circumstantial evidence in the current case.

However, the appellate court ruled that in the Bingaman case, the question of his character and his previous acts actually weighed too much and may have prejudiced the jury in the case being tried.

At the onset of the original trial, Judge Harold Brown issued a pretrial ruling that the state's evidence was admissible, but he indicated he would "proceed with caution" at trial to make sure none of the testimony was inordinately inflammatory.

"As things turned out, none of the state's evidence was excluded," the appellate court said in its reversal.

Brown allowed the prosecution to present evidence of about 60 prior instances of Bingaman's conduct, some involving the current victims.

"Not once did the trial judge exclude offered evidence of a prior bad act, even though some of these had little or nothing to do with the offenses charged against Bingaman assault and sexual abuse of a minor," the appellate court said.

"As a result, only 20 percent of the testimony presented at Binga-man's trial dealt with the acts for which Bingaman was charged. The remaining 80 percent of the testimony dealt with other acts or occurrences."

In 2001, Bingaman was ordered to serve a total of nine years in jail on the four counts.

The reversal order allows him to be freed on bail pending the new trial.

During an initial representation hearing Oct. 3, Bingaman said because of the amount of bail he posted, he was not sure if he could afford the attorney he wished to have represent him Anchorage defense attorney James H. McComas.

That matter will be addressed Friday.

Judge Brown tentatively set a preliminary hearing for Nov. 19, with the retrial to begin during the week of Jan. 5.



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