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Judge turns down motions to delay Kingston sentencing
But defense can still seek new trial

David Ortell Kingston, who was convicted in May of having sex twice with his niece, will be sentenced next month, a judge has ruled.

Third District Court Judge David Young on Friday denied defense attorney Todd Utzinger's motions to continue the July 9 sentencing and grant a new trial."The sentence date will hold," Young said.

The ruling will not prevent Utzinger from filing a motion to arrest sentencing, which could still result in a new trial for Kingston.

In May a jury convicted Kingston, a member of a polygamous clan, of one count of incest and one count of unlawful sexual conduct with his then 16-year-old niece, who testified she was her uncle's 15th wife.

Kingston, 33, faces up to five years in prison and $5,000 in fines for each count. He was acquitted of two other incest charges.

Kingston hired Utzinger to shepherd an appeal of the convictions one week after the trial ended. Defense attorneys Steve McCaughey and Susanne Gustin-Furgis will still handle the sentencing.

Utzinger immediately filed a motion for a new trial, saying prosecutors introduced "irrelevant and highly inflammatory evidence" about Kingston's polygamous background and defense attorneys failed to keep it out of the trial. Prosecutor Dane Nolan said in Friday's hearing that he was "extremely irate" at Utzinger's hasty decision to file his motions before reading a transcript from the trial. He blamed Utzinger with "recklessness" for alleging prosecutorial misconduct and inadequate assistance of counsel.

"He did that apparently without doing any research," Nolan said. "I worked very hard to try to earn a good reputation as a prosecutor and in five minutes of typing a motion . . . that reputation took a major hit."

Gustin-Furgis also expressed her frustration, telling the judge she felt the motion libeled her, co-defense attorney McCaughey and prosecutors.

She also said she was concerned by the fact Utzinger advised Kingston not to speak with Adult Probation and Parole officers preparing a presentence report.

Young said he had not seen any evidence of misconduct by the prosecution or incompetence by defense attorneys. On the contrary, "there were significant benefits that (defense attorneys) caused."

"They succeeded in getting acquittals on two of the incest charges," he said. "As far as I'm concerned . . . they did an excellent job in representing the interests of Mr. Kingston."