An Oklahoma County District Judge will decide the fate of former Luther band director Kyle Whitmus on Monday. Sentencing is scheduled following Whitmus’ May acceptance of a blind plea on sexually related charges against his student who was 12-years-old at the time. The state dropped the most serious charge against the 34-year-old former teacher, first degree rape, and several other counts. Whitmus pleaded guilty to two counts of soliciting sexual conduct with a minor and no contest to one count of lewd acts with a child under sixteen years old.
“Based on the crimes Mr. Whitmus committed while employed as a school teacher, the State will be asking for a significant prison sentence in this case,” Oklahoma County Prosecutor Gayland Gieger told The Luther Register.
That significant prison sentence could be up to 30 years. However, Whitmus’ attorney has filed a brief maintaining that such a punishment would be “unnecessary and excessive.” The defense asks for no additional jail time beyond the 17 months. Whitmus has been in the Oklahoma County Jail since his February 2016 arrest.
From the defense brief: “A great deal of punishment has already been served upon this Defendant. Mr. Whitmus has already served seventeen months incarceration for his admitted acts of sending inappropriate texts to a minor. He has had no treatment for his issues. He has lost his tie with his children and has faced the punishment (rightfully so) of being shamed and disgraced in the community. He will be a sex offender for a long period of time, and because punishment fitting the crime has been met, the best solution, moving forward is to allow Mr. Whitmus to be on probation, and undergo sex offender treatment.
Also, registering as a sex-offender will prohibit Mr. Whitmus from teaching which reflects the main concern of both the Pre-Sentence Investigation and Psycho-Sexual Evaluation. Mr. Whitmus will not receive equivalent therapy or counseling while incarcerated.”
Whitmus’ attorney Sam Talley said that post-incarceration, Whitmus would live with his father and would be able to seek employment upon his release as he did following his suspension and resignation from LPS in April 2015 and his arrest in February 2016. “Mr. Whitmus voluntarily participated with the investigation … he admitted his wrongdoing and was honest. He resigned in disgrace,” and this was his first involvement in the criminal justice system, he said.
The criminal case stemmed from a relationship between the teacher and his student from December 2014 – January 2015. In the six-inch thick case file at the Oklahoma County Court Clerk’s office, a prosecutor’s fact report by Ryan Stephenson, assistant district attorney, outlined that the defendant was the Luther Middle School band director in 2015 when he engaged in a sexual relationship with a student who was 12.
The report said “a relationship developed between the defendant and student as a result of the student needing to confide in someone about troubles at home with her parents, that the relationship was noticeably flirtatious by other students, that defendant and student sent text messages to one another throughout the day, defendant had conversations with student that indicated physical, sexual contact with student while at school, student was given access to the office and computer within the band room that other students were not; defendant was sending and receiving texts against school policy.
The defendant’s actions clearly indicate that he is both attracted to and interested in engaging in relationships with students … by using his position to not only gain access to these young girls; but to gain the trust of both these children and their parents.
Had the case gone to trial, the prosecution listed as one of its 57 witnesses, another former student who allegedly had an inappropriate relationship with Whitmus. However, Talley said that there is no evidence of that so it shouldn’t factor in to this case. The defense brief also said that Whitmus was active in the lives of his daughters before his incarceration, and there has never been allegations from anyone that he has ever been inappropriate as a father.
The file also contained a report from the lengthy OSBI investigation which said the relationship between Whitmus and the student began as a counsel type in which the student would confide in Whitmus about kids at school picking on her and that they made fun of the way she dressed or that she did not fit in.
Talley’s sentencing report said the “complaining witness was in counseling prior to texting Mr. Whitmus and the counseling indicates that the issues the complaining witness suffers from were not cause by Mr. Whitmus … the victim is the one that reached out to Mr. Whitmus initially, she was not preyed upon or groomed but was a more normal reach out from a student to a teacher due to family problems and stress at her house. It was not initially sexual and did not start this way.”
The “complaining witness” also known as the alleged victim is not identified because she is a minor. She testified at length during a preliminary hearing in June 2016 and covered by The Luther Register.
(Former Assistant District Attorney SuAnne- June 2016) Carlson asked the witness whether the defendant indicated to her that the relationship should be kept secret. The girl said yes and that they knew “this entire situation could happen” referring to the criminal case now against him. Carlson asked her whether he knew he could to go jail, and the girl answered, “yes.”
Carlson asked if it was her idea to tell (authorities) about the relationship. She said, “no.”
Carlson asked, “you still don’t want Mr. Whitmus to get in trouble do you?”
After a long pause, the witness said, “I really don’t.”
The witness said the relationship discontinued because it was too risky, and during the next semester she left Luther and went into long-term inpatient intensive counseling “to get away from accusations and my habits of self-harm.”
The case file includes a phone record transcript of one of the last text messages Whitmus allegedly sent to his student in January 2015. “”I feel like a paedophile (alternate spelling) though when I think of you like that but I’m not.”
A pre-sentence investigation, victim’s impact statements and attorney’s pleas will be part of the sentencing hearing with Judge Glenn Jones Monday beginning at 9 am. In addition, the defense has a psycho sexual evaluation. Talley said that Whitmus “tested on the “moderate-to-low end on risk of reoffending. He will drop to the low risk in August of 2017.”
An interesting and eye-opening part of Talley’s argument against a lengthy prison sentence was his firm’s research on the sentences of other teachers convicted of similar crimes. Talley lists more than 20 cases, mostly in Oklahoma County just since 2011 where teachers or adults have been in trouble for actions with children. The cases involved lewd molestation, solicitation and rape. He said that many sentences were less than 30 years or involved time-served. He said his client should also have a suspended sentence.
Talley said, “a suspended sentence is the most appropriate sentence for Mr. Whitmus, who has served seventeen months, has a low risk of reoffending, a high risk of rehabilitation with appropriate counseling and therapy, no criminal record and has admitted guilt to the court.
According to the blind plea agreement, Whitmus signed his name to a document that said, “as to counts three and five (inappropriate texting with a minor), I admit that in January 2015 in Oklahoma County, I had text messages with a minor that were sexually explicit” …as to count 2 (lewd acts), “I understand the State has evidence which might be sufficient to convict me at trial, and I choose not to have a trial because I am guilty of counts three and five, and plea no contest.”
The sentencing hearing is expected to last most of the day Monday, July 24, before Judge Glenn Jones who will impose the sentence.