CHARLOTTE, N.C. -- An attorney for the law student charged in the death of a man outside Ed s Tavern contends in new court documents that his client pushed the victim through the open front door of the bar -and then the victim, who was intoxicated, stumbled into the street into the path of a car.

That was a tragic accident- it was not murder, stated a motion filed Tuesday in Superior Court seeking Kenan Gay s release from jail. He was released around 2:15 a.m. Wednesday on $100,000 bond.

Gay, 23, a student at Charlotte School of Law, is charged with second-degree murder in the March 3 incident.

The account of what happened the night Robert Kingston was killed is based, the defense motion said, on interviews with several witnesses. It differs dramatically from an earlier statement by bar owner Alan Cole, who said Gay ran up to the edge of Park Road and tossed Kingston into the street.

In the motion, attorney Christopher Fialko alleged that witnesses said Kingston, who was 30, approached Gay s girlfriend several times that evening. She and Gay had gone to Ed s Tavern, the motion said, after watching the Duke-UNC Chapel Hill basketball game on television.

She tried to be polite, but Kingston kept bothering her, the motion said. It said neither Gay nor his girlfriend knew Kingston.

We ve got the video and at least three, maybe four times you see Mr. Kingston go over to Liz, said defense attorney David Rudolf. And it gets increasingly--for lack of a better word- aggressive.

Over about a 30-minute period, Rudolf said, the video shows that Kingston first talked with the girlfriend, next rubbed up against her and then put his arm around her shoulder.

The girlfriend was dancing by the open door, Rudolf said, when Gay overheard Kingston tell friends, Watch this. Kingston then approached the girlfriend again, the motion said, put his arms around her, grabbed her by her buttocks and attempted to kiss her on the mouth.

To stop Kingston from assaulting Elizabeth, (Gay) simply grabbed Kingston and pushed him outside the bar, the motion said. He did not punch Kingston, or otherwise retaliate. What happened thereafter, according to several witnesses, was that Kingston, who was intoxicated, stumbled into the street in front of a passing car.

In an email to the Observer the day after the incident, Cole, the bar owner, gave a different account: Two men exited the building and one of the men grabbed the other and ran him toward the street. He ran right up to the edge of the street and tossed the other man into the traffic lane, with no pause or delay. The victim didn t even have a chance to get to his feet before he was hit by an oncoming car.

Contacted Wednesday, Cole said, I can t give out any further information.

A witness quoted in the motion also declined to comment. Kingston s family could not be reached. Kingston worked as an operations manager at a Charlotte transportation company and was supposed to marry in August, according to an engagement announcement.

After the car hit Kingston, Gay ran off. Rudolf said Wednesday that he went about two blocks, then turned to go back.

He never intended, Rudolf said, to hurt Kingston. This is not a bar fight, Rudolf said. Most men in (Gay s) position would have done exactly the same thing. All he did was try to get him away.

Gay is distraught over the death, Rudolf said. Now that he is out of jail, he hopes to return to law school, awaiting trial.

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