By ROBERT PIERCE
• Leader & Times
One suspect was arraigned Thursday, and the other was scheduled for arraignment today in the case of a father and son accused of allegedly beating a man.
A trial has been set for Alexander Avila-Ortiz for March 29, 2011, in Seward County District Court. District Judge Kim Schroeder set that date after hearing from prosecutors and defense attorneys Thursday.
Russell Hasenbank, the state’s attorney in the case, made a motion to raise the charges for Avila-Ortiz to attempted first degree murder and conspiracy to commit first degree murder from the second degree charges he had been bound over on following a preliminary hearing earlier this year.
Avila-Ortiz’s attorney, Paul Kitzke, later made a motion to dismiss the second degree charges, saying at most his client should be tried for aggravated battery. Kitzke said there was no intent or involvement in an attempt or a conspiracy.
Kitzke also said evidence suggests that the other defendant in the case, Eliseo Avila Sr., Avila-Ortiz’s father, was striking the victim, Anthony Martinez, with a board and that the activities should be considered separately.
Avila’s attorney, Clint Floyd, agreed with Kitzke, stating there has been no proof of intentions and the state has a burden to produce more than assumptions. Floyd said Brian Tillson, a neighbor living in the area near the location of the alleged crime, had testified at the preliminary hearing that he did not see any blows to Martinez’s head, and therefore, the charges for Avila should also be dropped to aggravated battery.
Hasenbank said that the suspects were in control of all the events at the scene. He added evidence from the preliminary hearing indicates intention to commit the crime, and the state is allowed to draw proper conclusions from the factual evidence.
“You start swinging a 4 by 4 at somebody, you’re going to kill them,” he said of the weapon used to commit the alleged crime.
Schroeder ruled that because one of the suspects, Avila, had been bound over on first degree charges, and the other, Avila-Ortiz, was bound over on second degree charges by Judge Margaret Alford following the preliminary hearing, he denied the motions from both the state and the defense. He said there cannot be two conspiracies for one crime.
Avila-Ortiz pleaded not guilty Thursday to one count each of attempted second degree murder and conspiracy to attempt second degree murder. If found guilty, he could face anywhere from 55 to 247 months in the Department of Corrections for each charge.
Avila’s arraignment was scheduled for 1 p.m. today, but Schroeder said plans at this time call for both cases to be heard starting March 29, 2011. Hasenbank is expected to file a motion to have the cases tried separately, however, with Avila-Ortiz’s case being heard first.
Avila and Avila-Ortiz were arrested March 29, 2010 for allegedly beating Anthony Martinez, 20, during an altercation in the 100 block of West Hickory in Liberal.