The defense said that the jury was being asked to “excuse away” too much in the case against David Higginbotham Sr.
Defense attorney Phil DiLucente argued that the now 12- and 13-year-old girls accusing his client of sexual abuse gave inconsistent statements, showed no physical signs of abuse and continued to want to visit their family friend’s home to swim over several years, even though they claimed he had been continually harming them.
“How much are you going to excuse away to convict David Higginbotham like the prosecution wants you to?” Mr. DiLucente asked the jury of seven men and five women during his closing argument. “This is reasonable doubt, and when you add it up, it’s not guilty.”
Attorney discusses verdict in David Higginbotham case
A jury found David Higginbotham, 62, the owner of a McCandless ice cream shop guilty of sexually abusing two girls from 2008 to 2013, but also found him not guilty of some of the more serious charges he was facing. (Video by Paula Ward; 8/28/2014)
But the prosecution said that none of the evidence presented to the jury should be dismissed. Instead, the minor inconsistencies in the alleged victims’ statements should be expected.
“They’re children,” said assistant district attorney Lee Goldfarb in her closing argument Wednesday. “I would suggest children don’t remember all the details, but they remember the things that scar them for life.”
After deliberating for more than eight hours over two days, the jury found Mr. Higginbotham guilty on 12 counts, and not guilty of three, including the most serious against him, involuntary deviate sexual intercourse, which would have carried a mandatory 10 to 20 years in prison.
Still, Mr. Higginbotham, 62, of Baden probably will face a state prison term when he is sentenced Nov. 13 by Allegheny County Common Pleas Judge Donna Jo McDaniel.
Mr. DiLucente said the standard guideline range on the most serious counts for which his client was convicted, aggravated indecent assault, is 4 1/2 to nine years. Mr. Higginbotham, who was taken into custody immediately after the judge revoked his bond, was also found guilty of unlawful contact with a minor, indecent assault, corruption of minors and indecent exposure.
The jury found him not guilty on two counts of statutory sexual assault.
The prosecution’s case turned almost exclusively on the testimony of the two girls, who told their mother in November that Mr. Higginbotham, who used to own a Handel’s ice cream shop in McCandless, had been abusing them since 2008.
They said he touched them inappropriately in his office, his swimming pool, his bedroom, master bathroom, and in the case of the older girl, in his car.
Mr. DiLucente called the girls’ testimony inconsistent, and in some cases illogical, for example, he said, when referring to testimony by the older girl who said she was orally sodomized while Mr. Higginbotham drove her home from a school chorus concert.
“Or guess what? Maybe it didn’t happen at all,” Mr. DiLucente said. “Over five years, the touching was so numerous, the oral sex was so numerous, they never complained. Not once.”
The defense also criticized the investigation, noting that even though the older girl testified Mr. Higginbotham made her watch pornography with him on his office computer, the lead detective never searched the computer or Internet records to confirm that.
But Ms. Goldfarb said in her closing that because of the large time frame for the alleged abuse, it would have been impossible to get a warrant to determine that.
As for the girls’ failure to complain, the prosecutor told the jury, “They testified that they didn’t know what was happening to them was wrong.”
Earlier in the trial, Ms. Goldfarb introduced into evidence a letter written by the older girl in August 2013. She read it to the jury during her closing. It began, “David Higginbotham is his name. I was molested. This is my story.”
In it, the girl recounts what she claims Mr. Higginbotham did to her.
“I didn’t know better,” she wrote. “He won’t stop now, even though I know better now. He makes me make out with him. He scarred me for life. He does this to my sister, too.”
Paula Reed Ward: email@example.com, 412-263-2620 or on Twitter: @PaulaReedWard.
Paula Reed Ward: firstname.lastname@example.org or 412-263-2620. First Published August 28, 2014 3:25 PM