Prosecutors from the Utah attorney general's office say they will not seek to dismiss aggravated assault charges against Payson Councilman Kirk E. Mittelman, even though Mittelman's teenage daughters allegedly recanted a story where they claimed their father threatened to kill one of the girls with a gun.
"We have a lot of other evidence corroborating their story," assistant attorney general Craig L. Barlow said.However, 4th District Judge Steven L. Hansen could dismiss the third-degree-felony assault charge and two misdemeanor abuse charges filed against Mittelman and his wife, Margaret, if he believes investigators ignored evidence that the stories were fabricated.
Defense attorney Michael Esplin filed a motion seeking dismissal even before the Mittelmans make a first appearance in court. Prosecutors said Wednesday that decision should not come until after evidence is heard on the case.
"If the defendants want to challenge the reliability or credibility of witnesses, they may do so under oath before the court at either the preliminary hearing or trial," says a court motion filed by the state.
Hansen said he will review written arguments, take the motions under advisement and issue a ruling on the matter in about a week.
Mittelman, 37, and his wife, 36, were charged with two class A misdemeanor counts of child abuse stemming from an incident that occurred Sept. 22 involving their two teenage daughters. Mittelman, a Provo police officer, also was charged with aggravated assault after the girls told investigators that he held a gun to one girl's head.
According to a probable-cause statement filed in 4th Circuit Court, the councilman and his wife punched, slapped, kicked and yelled at the two daughters after they sneaked out of the house Sept. 21 without their parents' permission and didn't return until early the next day.
The incidents were reported to investigators after one of the girls told a friend at school about the incident and the friend notified a school counselor. Police were contacted, and the girls were examined in a local hospital. Physician Elmo Gruwell reported the girls sustained bruises and injuries "secondary to an altercation," and at least one of the girls must have "been beaten by another person."
According to the probable-cause statement, the Mittelmans admitted to slapping the girls but denied using any weapon. Kirk Mittelman submitted a court affidavit contending the girls recanted their story about the use of a weapon and admitted fabricating the story because they were upset with their father. One of the girls allegedly made an entry in her diary claiming she made up the story.
"The deliberate failure of (investigators) to be fully truthful to the court in failing to mention the recantations certainly creates a very different picture of the facts," the affidavit says.
State attorneys say the girls have not recanted the story to them, and investigators have a weapon identified by the girls as the one used by Mittelman.
"Even in the event that the daughters recanted their prior statements under oath, the state would have the opportunity to present their prior statements and allow the trier of fact to determine which of the statements is correct," prosecutors wrote in their motion.
Mittelman has served on the Payson City Council for nearly three years. He also served as a Payson police officer for 10 years before joining the Provo Police Department. He now is assigned to a desk job pending the outcome of the charges.