PRESTONSBURG — Jurors returned a guilty verdict Wednesday in the trial of Marion Kilburn in Floyd Circuit Court. Kilburn was involved in a two-car accident in February 2011, during which he was driving under the influence and on the wrong side of the road.
Kilburn was found guilty of first-degree assault, fourth-degree assault, driving under the influence, and no insurance.
On Thursday, jurors sentenced 61-year-old Kilburn to 23 years in prison. Kilburn’s charge was enhanced for being a persistent felony offender.
“I’m very happy with the decision. I’m thankful to the jury for coming in and giving that verdict,” said Assistant Commonwealth’s Attorney Amy Tufts Jervis.
During her closing arguments at Thursday’s sentencing hearing, Jervis told jurors that over a 30-year period, Kilburn had been convicted of a crime 41 times, nine of which were felony convictions. Nineteen of those 41 convictions involved alcohol.
Kilburn appeared on the witness stand during the sentencing phase and became agitated when Jervis called him “a drunk.” Kilburn insisted that he was an “alcoholic” and not a drunk.
“What is a drunk then?” asked Jervis. “What would you call someone with 19 alcohol convictions?”
“No comment,” Kilburn replied.
After three hours of deliberations, the jury returned its recommended sentence.
On Friday, Feb. 4, 2011, Joey Conn and his then 5-year-old daughter Olivia, were returning home on U.S. 23 just past the Allen traffic lights. The evening became life-altering when the vehicle that Joey Conn was driving was struck head-on by an intoxicated and severely impaired Kilburn. According to testimony, Kilburn’s blood alcohol level was nearly three times the legal limit.
During court Wednesday, jurors heard testimony from Capt. David Hay, a collision expert with Kentucky State Police, who testified that the Conns were traveling at roughly 51 miles per hour in a full size Chevy pick-up, when they were struck by Kilburn’s Pontiac four-door sedan. Hay testified that the weight difference between the two vehicles, and the fact that the Conn’s vehicle was knocked backward 17 feet, led investigators to approximate Kilburn’s rate of speed at nearly 80 miles per hour.
Court members also heard testimony in regard to the severity of Olivia Conn’s injuries. Dr. Joseph Iocono, a general pediatric surgeon with the University of Kentucky Medical Center, told jurors via a taped deposition that when she arrived in the hospital, 90 percent of Olivia Conn’s blood supply was pooling in her stomach. She suffered a complete rupture of her duodenum and bruising to her colon and pancreas. She also sustained a fracture to her back.
“This was a life-threatening injury,” said Iocono.
The Conns, who appeared in court Wednesday, said they were satisfied with the verdict. In a previous interview with Times staff, Stephanie Conn said her family was eager to put the matter behind them and move forward with their lives. The Conns were not present during Thursday’s sentencing.
Following the verdict, Jervis was asked if she believed, after trying a case that involved a habitual drunk driver, if DUI laws need to be strengthened. “That’s why we have persistent felony offender laws,” said Jervis, though she clarified that even that law is not perfect.
“When you have somebody who spends a lot of time in jail, and when you’re trying to calculate the number of felonies, some of those prior DUIs fall off his record because he’s been in jail, and then you have to start over with three DUIs before it gets to felony level again.”
Jervis pointed to Kilburn as an example of the hole in the persistent felony offender law. “With somebody like him, that’s the issue you deal with.”
“But he is where he belongs now.”