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10-10-02: Judge keeps aggravated murder charge

Defense sought dismissal of all
three charges against Kimberly Anderson

By SHELLEY GRIESHOP
The Daily Standard

    DEFIANCE - Auglaize County Common Pleas Court Judge Frederick Pepple ruled this morning that Kimberly Anderson still will face all three charges against her including an aggravated murder charge.
    His ruling follows a motion by the defense late Wednesday for dismissal of the charges.
    Kimberly Anderson's attorney, Alan Konop of Toledo, moved for an acquittal of aggravated murder, murder and voluntary manslaughter in the
Sept. 2, 2001, shooting death of her estranged husband, Celina attorney Brent Anderson. Pepple immediately denied acquittal on the two lesser charges and ruled this morning that the most serious charge also would remain.
    Family members of Brent Anderson burst into tears this morning when the judge ruled that Kimberly Anderson still faced the aggravated murder charge. Pepple explained his decision in open court, but without the jury present.
    "The statement from the defendant was that she went into the room to get the telephone. She indicated that after she fired the first shot, he fled. She was alone in the room with the phone. Thatšs why she said she went upstairs to begin with," Pepple said. "A reasonable jury could conclude that she had not on a spur of the moment followed him into the closet because evidence showed she had to lower the gun to the level of the shot that struck him in the groin."
    Citing precedent cases he studied and evidence presented so far at the trial, Pepple concluded that a reasonable jury could find there was prior calculation and design to the killing. Pepple also told courtroom spectators that evidence regarding the downward angle of the bullet wounds is of great interest to him. Such evidence was presented at length during testimony Wednesday afternoon.
   The case is being heard in Defiance County Common Pleas Court after being moved there from Auglaize County due to pretrial publicity.
    A conviction for aggravated murder would mean Kimberly Anderson would serve a sentence of life in prison with possible parole after 20 years. She was indicted in December 2001 on all three charges in connection with the shooting death that occurred at a rural Wapakoneta home the couple once shared before separating more than a year ago.
    Brent Anderson, 37, was reportedly returning his two young sons to the home following a weekend visitation when he was shot to death.
    The prosecution completed its presentation of witnesses Wednesday afternoon and the defense began calling their witnesses this morning. Kimberly Anderson was the first witness called by the defense to the stand this morning.
    Jurors were dismissed late Wednesday afternoon before Konopšs motion to acquit the aggravated murder was verbally presented to Pepple. The judge then asked both sides to prove whether prior calculation and design did or did not take place during the shooting incident. Those two elements are among several conditions that must be proved to sustain an aggravated murder conviction.
    "Storing of a weapon under a nightstand and jacking one (fully loading the gun) in the chamber might show prior planning to use the gun, but mere storage of a loaded gun is not," Pepple told Auglaize County Prosecutor Ed Pierce.
    Pierce said prior calculation, and not self-defense, was evident when Kimberly Anderson chose to follow Brent Anderson into a nearby closet after firing the first shot at him.
    "In that same area, less than five feet away, is the landing to the stairway," Pierce said, explaining that the 38-year-old mother of four had a choice to flee after firing the first shot. "Instead, she turns and fires at him not once, but seven additional times."
    Pierce reminded the judge that evidence presented this week showed Brent Anderson was struck eight times, including three shots to his back and a shot to the groin.
    "We believe when the court takes into consideration specifically the areas (the victim was struck), all combined, it shows the matter of prior calculation and design and should go to the jury," Pierce explained.
    Testimony on Wednesday showed there were no more than 11 bullets
involved, but there were more bullet holes due to several exit and entry wounds in the body.
    Early testimony from prosecution witnesses had indicated that Kimberly Anderson fired 11 or more shots, which would have meant she reloaded the weapon. Later testimony, however, indicated she may have removed some bullets from the gun and that there was some confusion about how many shots were fired due to entry and exit wounds on the body and holes in walls and doors in the home.
     Pepple also put this question to Konop: "When is an aggressor no longer an aggressor and at what point does it become a plan?"
    Konop answered that he did not see any "planning" displayed by his client the day of the shooting.
    Kimberly Anderson, in her statement to law enforcement officers, said she fired at her estranged husband as he came after her in the master bedroom. Experts testifying Wednesday said they could not determine by the evidence whether Brent Anderson was in a forward motion or not at the time the first shot was fired.
    Lucas County Deputy Coroner Dr. Cynthia Beisser told jurors Wednesday that four gunshot wounds were found on Brent Andersonšs hands and wrist areas, two on both the left and right.
    Beisser also displayed a lifelike torso, which had been stuck with long,
metal skewers to show where each bullet entered and exited Brent Anderson's body. Kimberly Anderson would not look at the mannequin and became noticeably emotional at the sight of the display.
    The mannequin also was difficult for the slain attorney's siblings to look at, as several of them began to sob.
    Beisser described, in detail, entry and exit wounds to Anderson's shoulder area, back, abdomen, spine and groin and the damage the shots
inflicted on his body. She also described a graze wound on his left flank and an abrasion found below the navel area near where a bullet was found later in Anderson's shirt.
    Experts testified that Brent Anderson was struck by eight bullets, although some of the bullets entered his body twice. For example, some bullets shot through his hands and entered other parts of his body that the
hands were likely protecting, Beisser testified.
    In Konop's short cross-examination of Beisser, he asked her which of the shots struck the wall in the closet. Beisser told him it was one of two shots that entered his upper left shoulder, but she did not know which. She guessed the bullet entered the body at a 40- to 50-degree angle, a statement contrary to one made earlier Wednesday by special Agent Keith Williamson of the Ohio Bureau of Criminal Investigation & Identification (BCI&I).
    Under cross-examination of Williamson by Konop, Williamson testified that one of the bullets, likely the first shot fired by Kimberly Anderson in the master bedroom, was never tested for blood samples. That bullet ricocheted through two doors and a wall before landing on an adjacent bathroom floor, Williamson testified.
    It was stated Wednesday that the first shot may or may not have struck Brent Anderson, but Beisser theorized it may have been responsible for the grazing wound found on his back, when asked by the prosecution.
    Also under cross-examination, Williamson told Konop the gun was never tested for fingerprints. Williamson said the reason was because Auglaize County Sheriff's Det. Dennis White said Brent Anderson never touched it.
    "So we'll never know if it had his (Brent Anderson's) fingerprints on it," Konop said to Williamson.

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