October 8, 2013 in City

Sex offender’s fate may depend on NorthTown Mall video

By The Spokesman-Review
 

Two minutes of surveillance footage taken at a NorthTown Mall arcade last year will likely decide if a Spokane child molester, back in court for allegedly fondling and exposing himself to a 5-year-old girl, will spend the rest of his life in prison.

Prosecutors said Richard Payne, 56, can clearly be seen twice touching the girl inappropriately near a coin-operated ride in the mall’s “Bumpers” arcade. But defense attorney David Hearrean told jurors that explanation was speculative at best, and suggested at one point his client’s behavior, including shifting his pants and shirt, could be explained by an enlarged prostate.

“Thank God we’ve got video of this,” Hearrean said. “Because this has gotten way out of control.”

The jurors who will decide which version to believe are scheduled to resume deliberations this morning.

Before the most recent allegations, Payne was convicted on similar charges stemming from a 2001 incident at a North Division Street store. He served a little more than four years after his conviction and was released from probation in 2009, according to court records. A second guilty verdict would render Payne a persistent offender and put life imprisonment on the table.

Prosecuting attorney Eugene Cruz first talked the jury through the surveillance footage. He gestured repeatedly toward Payne, clad in shirtsleeves, a tie and eyeglasses, saying there was no doubt why the 56-year-old approached two unattended girls in the arcade.

“When he (Payne) parked in that mall parking lot, he had a plan,” Cruz said, adding that jurors would see “the lust in (Payne’s) face” on the surveillance video.

Hearrean countered the jury had not heard from the victim in the case. She was not called as a witness because the victim is receiving counseling, prosecutors said. As a result, both sides leaned heavily on video evidence in closing arguments, with Hearrean contending witness statements created a patchwork narrative based on speculation, not fact.

“That’s scary,” Hearrean said. “He (Payne) is on the line here.”

The trial, which began last week, ended months of legal wrangling by Payne’s defense to get statements from underage witnesses thrown out of court as hearsay and to keep parts of his criminal past from being admitted into court. Presiding Judge Kathleen O’Connor allowed much of the evidence to be introduced during two days of testimony, as prosecuting attorneys attempted to show Payne’s behavior followed a pattern that endangered the community.

That included testimony from the victim in the 2001 incident and her mother. Hearrean said their appearance needlessly damaged his client, while Cruz seized upon the testimony to argue Payne’s behavior showed intent. Earlier in the day, Payne said he had gone to the mall to blow off steam after a bad day at the casino. In light of the previous conviction, Cruz asked jurors to reject that argument.

“There was no reason for him to go up to that child,” Cruz said.

Payne is listed as a Level 3 sex offender by the Spokane County Sheriff’s Office. The classification, determined by the courts, indicates the highest risk for repeat offenses.

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