MURRAY — A case that has already provided numerous twists and turns in the Calloway County court system revealed another surprise Tuesday.
The case of four National Guard soldiers accused of taking part in an alleged 2017 sexual assault in Calloway County was scheduled for trial next month. However, that is now off the table after the attorney for one of the defendants in the case brought to the court’s attention that while DNA tests of evidence in the case had determined that the DNA belonged to one of those defendants — Anthony Tubolino of Auburn — as well as the unnamed female victim, the substance in question was not determined.
Tubolino’s attorney, Allen Simpson of Bowling Green, said Tuesday that he had filed a motion to continue the trial, set for Oct. 16, after he and others on his team realized last month that they did not have the DNA results. This led to Simpson filing the motion on Aug. 29, which was met by a response a day later from Calloway Assistant Commonwealth Attorney James Burkeen, disclosing those results.
However, upon closer examination, Simpson said something was missing.
“So I called the lab and inquired about what the results mean and, identified in this report, there is the presence of DNA of Mr. Tubolino and the alleged victim, and in this case, it was found in his boxer shorts,” Simpson told the court Tuesday. “I said, ‘But what is it? Is it semen? Is it saliva? Is it something else?’ And the person at the lab told me, ‘I can’t tell you unless we do another round of tests.’
“So I originally filed this motion because we didn’t have it. Well, now we have it and it has raised a question. I talked to my client about it and, without getting into all of the details, this could be critical if it turns out to be her saliva or something. I think it’s incumbent of me to ask the court to continue the trial and ask that this be tested further to try to identify what this is.
“It could be skin cells. It could be saliva. It could be semen. It could be a number of things that come off or out of a human being. I have discussed this with the commonwealth and I think it’s incumbent on me to know (what the substance is) because it could lean toward vindication because what Mr. Tubolino tried to tell the police initially is that he did not have sex with her.”
Simpson admitted that all of the participants in this incident were determined to be intoxicated. Still, Calloway Circuit Judge James T. Jameson agreed with Simpson’s argument.
“They’re entitled to test it themselves,” Jameson said. “I don’t think the commonwealth is under any obligation to do any further testing, although the commonwealth may want it tested anyway. I don’t think there’s a downside to asking for this.”
After a lengthy bench conference in which all four defendants — Tubolino, Tyler Hart of Bowling Green, Jacob Ruth of Munfordville and Austin Dennis, also of Munfordville — and their attorneys approached, along with Burkeen and Calloway Commonwealth Attorney Dennis Foust, Jameson made his determination.
“The trial date, because of the additional testing, will be taken off the docket,” he said before setting a Nov. 19 date for a status hearing in the case. “We will see where we are at that point, and hopefully it will end with me setting, and as quickly as possible, a new trial date.”
The four defendants are accused of taking part in an early June 2017 incident in the county as they awaited a weekend deployment with the Guard. Kentucky State Police investigated the case that resulted in the men being charged.
All four are charged with first-degree sodomy, while Hart is charged with sexual abuse in the first degree and Tubolino is charged with unlawful transaction with a minor in the third degree and rape in the first degree. Dennis and Ruth are out of jail on $5,000 bonds, while Hart is out of jail on a partially secured $50,000 bond and Tubolino is out of jail on a $25,000 bond.
Individuals facing charges are presumed innocent until proven guilty in a court of law.