McAlester News-Capital, McAlester, OK

Local News

May 16, 2009

Child rapist takes a plea

By Kandra Wells

A Wister man who raped and sodomized a 5-year-old girl last year has been sentenced to a year in prison.

David Harold E. Earls, 64, pleaded no contest Wednesday to charges of first degree rape and forcible sodomy of the girl, and 19 years of a 20-year sentence were suspended. The charges allege the crimes happened between May and August of 2008.

A charge of performing lewd acts in the presence of the girl’s 6-year-old brother was dismissed in the plea bargain agreement between prosecutors and Earls, who was represented in the case by defense attorney Tim Mills.

The News-Capital was unable to reach Mills Friday for comment on the case.

Earls told McAlester police in September that he was a “grandpa-type figure” who had baby-sat the girl and her young brother several times while their mother was at work. He also told police that mothers near his home would allow their daughters to come sleep with him, according to the court affidavit filed in the case by McAlester police Det. Frankie McClendon.

The plea bargain notes the victim in the case was unable to testify “and it is in the best interest of the children’s emotional well-being not to testify at this time regarding these allegations,” Assistant District Attorney Lisa Birdwell said.

“Our victim, who is 5, we had two or three different hearings to attempt to qualify as a witness,” Assistant District Attorney Mike Miller said Friday. He referred to a legal term about the ability of a prospective witness to tell the difference between truth and a lie, “and to be able to get up and testify and take the oath, the oath that prompts to tell the truth, the whole truth and nothing but the truth.”

Miller said the child was unable to qualify as a witness. “We couldn’t keep her in the chair long enough to get the questions out of her,” he said.

“You could tell, having to do that, and having gone through some of this process already, was having an effect on her and we didn’t want to further traumatize her.”

McClendon, the detective with the McAlester Police Department, also reported the girl who had been attacked told an interviewer that Earls hurt her “til I got used to it,” and that he gave her an ice cream cone, according to the affidavit. He also reported that the findings of a physical exam were consistent with the allegations.

“We thought it was better to take a plea bargain to secure a conviction rather than risk not getting a conviction at all based on (the victim’s) inability to testify,” Miller said.

The prosecutor said the victim’s family and police were consulted and approved of the plea bargain before it was handed down by District Judge Tom Bartheld, who also fined Earls $1,000. In addition, Earls was ordered to register as a Level 3 sex offender within three days of his release from prison, a level that requires registration for life and address verification every three months.

In Oklahoma, sex offenders are required to register with local police and the Department of Corrections, even if they move out of state.

They must also submit a DNA sample, and the law regulates their loitering, working or living near schools, parks and other areas frequented by children.

The charge against Earls had been filed with the prior conviction enhancement for a 1992 burglary in Pushmataha County that resulted in a five-year sentence, and a 1996 conviction in Hughes County for assault with a dangerous weapon that resulted in a 20-year sentence.

Contact Kandra Wells at kwells@mcalesternews.com.

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