Appeals court upholds molestation conviction

June 07--Print Article

MOSES LAKE -- A former Grant County reserve deputy candidate had his child molestation conviction upheld by the Washington Court of Appeals, Division III.

Kevin McMains' appeal comes after he was convicted of second-degree child molestation by a Grant County jury and received a low-end standard range sentence of 15 months in prison, with 36 months of community custody. The jury found McMains not guilty of second-degree rape of a child.

The conviction relates to two separate incidents involving McMains and a 12-year-old girl in November 2015. In one of the incidents the girl told police she fell asleep on a couch with McMains, which "the two described as a normal occurrence," and he fondled her underneath her shirt, according to the appeals court decision. A similar incident happened the next day between the girl and McMains, who was a friend of the victim's family and was enrolled at the Grant County Sheriff's Office's reserve academy at the time.

During the trial the victim testified McMains did not touch any other part of her body, despite previously stating in an interview that McMains had inappropriately touched her. The victim changed her story after meeting with the prosecutor during a trial recess. McMains denied all of the allegations.

McMains appealed his molestation conviction and argued the prosecution engaged in misconduct by telling the jury that McMains cooperated with police because a "lack of cooperation would create suspicion." The appeals court judges ruled there is no basis for reversal because the prosecutor's statement was in response to the defense counsel's questioning.

"Counsel asked both a police officer and Kevin McMains about McMains' voluntary decision to speak with police and provide a DNA sample," wrote Justice George Fearing. "The implication from that line of questioning suggested that McMains' cooperation spoke to his innocence. Only after this implication arose did the prosecution render the challenged comment."

Fearing notes the jury ended up acquitting McMains on the child rape charge, which was related to the DNA sample and indicates the jury did not side with the prosecution's argument. The appeals court judges also affirmed the imposition of a $200 clerk's filing fee against McMains. In addition, McMains filed a motion to deny the imposition of appellate costs against him.

Due mainly to McMains' being found as indigent/financially limited for purposes of the appeal, as well as his indigent status showing no improvement, the judges "hold that McMains' status of indigency continues and award the State no costs on review."

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