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Appeal claims Billingsley victim approached another teacher

Published March 7, 2011 8:29 pm

Retrial • A.G.'s office appeals judge's decision to throw out woman's conviction.
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The retrial for a 31-year-old former aide at West Jordan Middle School accused of sexually abusing two teenage students in 2009 is on hold as the state appeals a judge's decision to throw out her conviction.

The outcome may hinge in part on a fact jurors weren't allowed to hear at Andrea Billingsley's trial but outlined in documents filed with the Utah Court of Appeals on Monday. One of Billingsley's alleged 15-year-old victims had made sexual advances toward another teacher who filed a sexual harassment claim against the student, according to documents filed by the Utah Attorney General's Office.

Cara Bailey, an art teacher at West Jordan Middle School, told a school principal that the victim in Billingsley's case, known as M.M. in court documents, sexually propositioned her at school, according to the documents.

Bailey's claims weren't presented to the 3rd District Court jury that convicted Billingsley in November because of Rule 412, a state law that protects victims of sexual abuse from having aspects of their sexual history discussed in court as a way to discredit their allegations against a defendant.

But defense attorneys say Bailey's testimony was important to Billingsley's defense. Billingsley testified at trial that M.M. concocted a rape story as a mode of revenge after she reported him to a school principal for making inappropriate sexual remarks about her breasts during a lunch detention she oversaw. She said the second victim, D.P., played along.

Defense attorneys wanted to call Bailey as a witness to demonstrate that Billingsley did not entice M.M., rather the teenager had "improper sexual desires" and disrespected Bailey and Billingsley, according to court documents.

Bailey filed a report with school officials when the boy propositioned her, and administrators in turn admonished M.M. for his behavior, according to court documents.

Judge Robert Adkins' decision not to allow Bailey on the witness stand played a role in his later decision to lift the jury's verdict against Billingsley in December, just days before she was scheduled for a sentencing that could have given her up to life in prison.

"The court should have permitted the defendant to confront the witnesses against her by allowing at least a limited inquiry into their prior sexual knowledge, experience and behavior," Adkins wrote in his ruling to overturn Billingsley's conviction.

The judge also ruled that a nude photo of Billingsley's breast taken from her cell phone should not have been used as evidence at her trial, because attorneys couldn't prove when or why the photo was taken. Billingsley's attorneys had argued the photo could have unfairly influenced the jury into believing that Billingsley took the image to seduce her alleged victims, when she claimed she took the photo for her husband and the boys stole her phone to set her up.

The Utah Attorney General's Office is appealing Adkins' ruling on behalf of the Salt Lake County District Attorney's Office.

At a pre-trial conference in West Jordan's 3rd District Court on Monday, Judge Charlene Barlow set a review hearing for June 13. Billingsley's attorney, Rhome D. Zabriskie, noted in court that it could be months before an actual retrial is put on the calendar.

Billingsley, meanwhile, will remain free as court proceedings continue.

The court documents filed Monday allege the nude photo was relevant at trial, because one of the aide's victims claimed she showed him the nude photo to entice him. The documents also claim Adkins misinterpreted a law that does not allow minors to consent to any sexual situations with adults.

The state also argued the jury's verdict shouldn't be set aside because the jury found sufficient evidence to convict and considered Billingsley a person of special trust since she worked at the school, according to the appeal.

Jurors convicted Billingsley of three counts of first-degree felony sodomy, three counts of first-degree felony forcible sexual abuse and one count of rape.

mrogers@sltrib.com