By HEATHER SMITH
Judge Mark A. Karl heard emotional testimonies from family members of a victim in the case against Dusty Todd Kendall on Nov. 19.
Kendall, 27, of 230 Wood St., Apt. 209, Sistersville, was in court Thursday afternoon after pleading guilty to a battery charge in a bench trial in magistrate court in 2008. However, he appealed the conviction that resulted in a sentence of one year in jail.
Since his sentencing, Kendall has not served any jail time.
Karl heard testimonies from both sides of the table. Joyce Duty, Doug Tawny's life-long partner and mother of their children, stated to the court that she thinks Kendall has an anger management problem and if he had not beat Tawny, he would still be here today.
"I think two years is long enough for him (Kendall) to be free", said Duty.
She also stated Kendall never once said that he was sorry for what happened and never showed remorse to her family.
Roger Weese, Kendall's attorney, cross examined Duty. He asked her if Tawny and Kendall were friends, to which Duty replied, "Yes".
Weese also asked her if at one time, Dusty lived with them. Duty replied, "Yes".
Weese commented on the irony of the situation. "Doug had surgery on his jaw and while it was wired shut, he started to throw up and died as the result."
According to Weese, Duty settled a lawsuit with Ruby Memorial Hospital in Morgantown for wrongful death. Official reports point out that the cause of death was undetermined.
Doug's sister, was next to take the stand. "Dusty took my brother away from me and our family," she said. She also stated Kendall never showed remorse for what he had done.
Weese cross examined her and stated to the court that since Kimberly does not live here, she could not know Kendall did not show remorse?
Kimberly replied, "People have told me that he didn't."
An emotional testimony was heard by Tawny's daughter, Jessica, who nervously took the stand.
She said that since her father's death, she has been hospitalized several times due to the stress his death has caused her. "He will never be able to give me away when I get married or see my children," Jessica said.
She also said that her father treated Kendall like a son. "Some people this holiday season will go home and see their fathers, I will have to go to the grave site to see mine", Jessica concluded.
Weese declined to cross examine.
The minor son of Tawny then took the stand.
He stated that his father used to take him fishing, but he has not been fishing since his father's death.
"My dad didn't get to see me play my last baseball game or see me play soccer this year and didn't get to see us go to regionals", said Tawny's son.
Weese declined to cross examine the son as well.
Then, Kendall took the stand to explain his side.
He started off by saying that he is remarried now and is raising a stepdaughter and his own daughter who he gets as part of a shared custody agreement. He said he just started a good paying job and he needs to take care of his family.
He stated to the court that he worked for Tawny in the construction business since 2004. He recounted the events that led to Tawny's injury. He stated that Doug Tawny, the defendant's employer hit him with a backhoe while he (Kendall) was down in the hole digging in a ditch. Kendall climbed out of the ditch and got up on the backhoe and slapped Tawny in the forehead. Kendall said that Tawny had been drinking that day. Kendall then jumped off of the back hoe and started to walk away. Tawny then got out of the backhoe and got up in Kendall's face, provoking again. The defendant struck Tawny in the jaw, breaking it. Tawny fell to the ground and Kendall noticed that Tawny was unconscious. Kendall and some of the other employees noticed blood coming out of his mouth and decided to take Tawny to Sistersville General Hospital to treatment. Tawny was released from Sistersville later that evening and sent home. Later that night, he was sent to Ruby Memorial Hospital in Morgantown after having complications and was on life support for two weeks and later died.
Weese's argument to the case was that Tawny had been drinking on the day he was injured, impairing his judgement.
Kendall stated to the court that he did call Tawny's house and asked how he was doing but when Tawny was taken to Morgantown, Kendall said the State Police advised him not to have any contact with the family members.
After the testimony, Karl asked Kendall if he had anything to say to the Tawny family.
Kendall told the family that he was sorry for what happened. "Doug was like a brother to me and I miss him," he stated.
Kendall is asking for leniency from the court and requested to be put on probation and be placed on work release home confinement to be able to continue his job and support his family.
Furbee then cross examined Kendall. "Did it feel good to hit a drunk", asked Furbee.
"No", relied Kendall.
Furbee continued to question Kendall and asked him if he ever stated that if he didn't get his paycheck, he would go over to Morgantown and break his other jaw?
Kendall replied, "Yes, I did say that but I was joking because I thought at the time that Tawny was going to be okay."
Furbee then asked Kendall if he thought he had an anger management problem?
"No, I don't", replied Kendall.
Furbee reminded the court that Kendall had two prior domestic violence reports against him from two different women that were brought up against him in the past.
Tasha Starkey, Kendall's ex-wife took the stand next. Weese asked her a series of questions. She stated that she was married to the defendant at the time when the incident occurred.
Starkey remarked that she shares custody of their daughter with Kendall. "He watches her while I am working or when I have classes,: she said.
Weese then asked her if Kendall ever showed remorse when they were married.
She replied, "When Dusty saw Doug's picture in the paper, he broke down and cried. He wanted to go to the funeral home but he was told that he couldn't."
Furbee then cross examined Starkey. He asked her if Kendall had an anger management problem.
She replied, "No."
He then asked her if she filed a domestic violence report on Kendall in the past to which Starkey replied, "Yes, I did but it was just a shoving match."
Karl then heard closing arguments from Furbee and Weese.
Kendall is to return back in court on Dec. 2 for sentencing.
Also appearing before Karl was Sherie L. Kemp, 37, of P.O. Box 355, Friendly.
On Aug. 25, Kemp entered into a guilty plea to one count of reckless driving, one count ATV on centerline of road, and one count of left of center.
She was sentenced to serve 90 days in the North Central regional Jail and pay restitution. She was placed on two years probation and ordered to report to Probation Officer John Lantz before she left the courthouse.