A Bradfordsville man has lost an appeal of the five-year prison sentence he received for sexually abusing a young girl.
James R. Bagby, 45, of 623 Lucian Sallee Road, was indicted in December 2009 and charged with first-degree rape. According to the indictment, Bagby committed the crime in November 2007.
He faced a jury in March 2011. In opening arguments, Assistant Commonwealth's Attorney Shelly Miller, the prosecutor in the case, said the case against Bagby stemmed from a sleepover at his home involving two young girls.
Bagby did not testify in his own defense, though witnesses stated that he denied abusing the girl.
After hearing two days of witness testimony and evidence, jurors took a little more than an hour to find him guilty of sexually abusing the 12-year-old girl.
They needed only 10 minutes to decide that he should receive the maximum five-year prison sentence, ordered by Taylor Circuit Judge Allan Bertram. Bagby has been incarcerated since March 5, 2011.
After being released, Bagby will undergo sex offender treatment, register as an offender for 20 years and complete five years conditional discharge.
Shanda West-Stiles of the Department of Public Advocacy in Columbia, the attorney who represented Bagby during his trial, filed an appeal of the five-year prison sentence in July 2011. The case headed to the state's Court of Appeals.
According to an order denying the appeal, entered into Taylor Circuit Court records on Dec. 17, Bagby claims the victim in the case shouldn't have been allowed to testify. He said she was incompetent and jurors couldn't understand her. Bagby claimed her testimony should have caused a mistrial.
"In particular ... She sobbed uncontrollably during direct examination and was completely unintelligible. She would not face the camera, and the prosecutor resorted to improper touching and consoling during [the victim's] testimony," court records state.
Court of Appeals judges wrote that the victim was able to tell the facts and was adequately understood by jurors.
"There were times when [the victim] became extremely upset during her testimony, and as a result, some parts of her testimony were difficult to discern. However, the great majority of [the victim's] testimony was clear and intelligible."
The order states that the victim testified that Bagby touched and raped her and she tried unsuccessfully to push him off her.
At trial, the victim was 16. Bagby abused the girl when she was 12.
"Considering her young age and the traumatic nature of the sexual abuse, it is entirely reasonable that [the victim] would become emotionally distraught while testifying at trial."
Bagby's victim took the witness stand via closed-circuit television, the first time that technology had been used in Taylor Circuit Court. The girl, Bertram, Miller and West-Stiles moved to a nearby room for the girl's testimony while Bagby watched from the courtroom.
Bagby claimed that the victim shouldn't have been allowed to testify via closed circuit television because she was older than 12, the age that state law says is the oldest a child should be allowed to do so.
According to the Court of Appeals order, there was a hearing to determine if the victim would testify in open court or through the closed circuit television.
At that hearing, the order states, Taylor County Sheriff's Deputy Tom Finck, the investigating officer in the case, said the victim told him Bagby intimidated her and she was hesitant to talk in front of him.
The victim's mother said during the hearing that her daughter would become upset and cry when seeing Bagby. She said she believed her daughter wouldn't be able to testify in open court.
Court of Appeals judges wrote that they believed there was enough evidence to warrant the victim testifying via closed circuit television.
Lastly, Bagby claimed that jurors weren't told that some evidence in the case was missing. A tape of an interview with Bagby wasn't legible and was discarded. Bagby claimed that the interview could have been favorable to him.
The Court of Appeals order states that it wasn't necessary to tell jurors about the tape because it never existed. It, therefore, can't be missing, the Court of Appeals judges ruled.
Karen Maurer, an assistant public advocate with the Department of Public Advocacy in Frankfort, is now representing Bagby.
She said last week that Bagby will move forward with the case and ask that the Supreme Court review it.
"We are gonna continue to fight it," Maurer said. "Because I do not feel the Court of Appeals came to the right decision."
Jason Moore, assistant attorney general, represented the prosecution side of the appeal. He referred comment to Shelley Johnson, deputy communications director for the Office of the Attorney General.
"We're pleased with the court's ruling," she said, and declined to comment further.
Miller nor West-Stiles returned requests for comment before press time.