Brothers appear in Missoula court on separate sex assault charges

2012-05-10T10:15:00Z 2012-05-30T14:16:06Z Brothers appear in Missoula court on separate sex assault chargesBy GWEN FLORIO Missoulian The Billings Gazette
May 10, 2012 10:15 am  • 

MISSOULA -- The second of two brothers charged in separate sexual assault cases appeared for sentencing on Wednesday in Missoula County District Court.

But, unlike his brother a day earlier, Kyle Eugene Avery balked at the fact that his sentence would be stricter than the one called for in a plea agreement. Judge Ed McLean finally interrupted Avery's intense conversation with his attorney and rescheduled his sentencing for May 23.

Kyle Avery, 21, was accused of assaulting three women in August and September 2011. In February, he pleaded guilty to one count of sexual assault and one count of attempted tampering with evidence.

"I am guilty because I chewed on my fingernails because I knew they were going to do an evidents (sic) kit," he wrote. "I am guilty because I put Jane Doe 3's foot on my lap without her consent."

Two felony charges of sexual intercourse without consent were dismissed as part of the plea agreement.

That agreement called for six months, all suspended, on the evidence-tampering charge, and a five-year suspended sentence to the Montana Department of Corrections on the sexual assault charge. However, McLean announced on Wednesday that he intended to sentence Kyle Avery to five years, also suspended, in the Montana State Prison.

Kyle Avery is also wanted in Oklahoma for probation violation and will be returned to that state once his Montana case is adjudicated, according to his attorney, Johnna Baffa.

On Tuesday, Judge Dusty Deschamps sentenced Avery's 26-year-old brother, Russell Scott Avery, to 30 years in prison, with 20 suspended, in a rape case.

Russell Avery was accused of raping a 13-year-old girl in April 2011 while he was visiting her family and with having a sexual relationship with a 15-year-old girl in the spring of 2011.

He pleaded guilty in February to a single count of sexual intercourse without consent. As part of his plea agreement, another count of sexual intercourse without consent and a felony charge of sexual assault were dismissed.

The plea agreement in his case called for a 30-year Department of Corrections sentence, with 25 years suspended.

But Deschamps referenced a recently announced U.S. Department of Justice investigation into how rape cases are handled in Missoula, and handed down a tougher sentence.

Deschamps also told Russell Avery that he wouldn't be eligible for parole until he completed Phases 1 and 2 of a sexual offender treatment program and also a cognitive principles and restructuring program.

 

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