Uber driver wins new trial in passenger rape case

SHARE: Share on Facebook Share on Facebook Share on Google+

By 

SOUTH FLORIDA SUN SENTINEL 
FEB 12, 2020 

 

Gary Kitchings testifies in a Palm Beach County courtroom on March 15, 2018, in his own defense against charges of raping a woman after giving her a Uber ride from SunFest the previous year.

A South Florida Uber driver convicted of raping a passenger nearly three years ago deserves a new trial, a state appeals court ruled Wednesday.

The decision for Gary Kitchings also wiped out a 22-year prison sentence in a case where prosecutors had accused him of “trolling for women every night while he was at work.”

But Kitchings, 60, did not receive a fair trial because the jury never heard his full statement to detectives after his arrest, when he insisted it was a consensual hook-up with his accuser, the Fourth District Court of Appeal found.

Kitchings’ defense wanted that statement to be admitted as evidence, to rebut a charge from a prosecutor that he changed his story when he took the witness stand. Palm Beach County Chief Circuit Judge Krista Marx, who presided over the trial, refused to allow it.

“Once the State implied that Kitchings’ trial testimony was fabricated, the defense should have been permitted to show that Kitchings had provided an earlier, consistent statement to the police,” Judge Robert M. Gross wrote for the appeals court, joined by Judges Dorian K. Damoorgian and Mark W. Klingensmith.

Gross added that Marx “abused her discretion by refusing to allow the admission of Kitchings’ statement to the police.”

The 20-page opinion also says Kitchings’ conviction and sentence must be tossed because Marx mistakenly allowed the jury to listen to the 38-year-old woman’s entire recorded statement to investigators at a hospital.

“We’re ecstatic,” said Kitchings’ appellate attorney Ashley Litwin, with law partner Marc Seitles of Miami. “Mr. Kitchings has maintained his innocence the whole time and he has elderly parents who he was worried would die before he was ever vindicated. This means the world to him and to us.”

Both the accuser, who lives in New York City, and Kitchings testified during a 2018 trial, offering entirely different accounts of their encounter.

Prosecutors argued the former part-time driver for the ride-sharing service terrorized the passenger he had picked up May 7, 2017, following SunFest, the West Palm Beach arts and music festival.

They accused Kitchings of locking the doors to his Nissan Versa and forcing the woman to perform sex acts in the car, before breaking into her Jupiter home and raping her.

She told the jury that Kitchings was a “monster” who threatened to shoot her unless she performed a sex act and then busted through her front door.

Gary Kitchings appears in this May 8, 2017 booking photo.

But Kitchings said once they got to her place, the woman said it wasn’t necessary for him to grab a condom from his trunk. He recalled, “She had this nice grin on her face,” and he thought they had a “good time.”

Kitchings even returned to his Uber driving after the encounter, completing two more trips before calling it a night.

The jury, after nine hours of deliberations over two days, rejected Kitchings’ account. A juror later told the South Florida Sun Sentinel that the panel viewed it as a “a classic case” of he-said, she-said, and ultimately decided she was raped.

He was convicted of three counts of sexual battery with a deadly weapon or physical force, one count of burglary with assault or battery, and false imprisonment. The jury acquitted him of one sexual battery count, over alleged oral sex in the car. Because of the nature of the allegations, the South Florida Sun Sentinel is not naming the victim.

Former Uber driver Gary Kitchings sits with his attorney shortly before he was sentenced to 22 years in prison Wednesday morning, June 13, 2018. He was convicted of raping a passenger he picked up after SunFest in 2017. Lannis Waters / The Palm Beach Post/Pool
Former Uber driver Gary Kitchings sits with his attorney shortly before he was sentenced to 22 years in prison Wednesday morning, June 13, 2018. He was convicted of raping a passenger he picked up after SunFest in 2017. Lannis Waters / The Palm Beach Post/Pool (Lannis Waters / The Palm Beach Post)

“What Gary did to me has been life changing in the worst possible way,” she said before Kitchings was sentenced, describing repeated nightmares about dying, severe anxiety and panic attacks and difficulty continuing her career running an online skin care products company.