FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. E (DMC No. 13760) (Phoenix Police Department DR No. 2013-XXXXXXXX): Mr. E, a 17-year-old high school student, found out through the grapevine at school that his ex-girlfriend, was making allegations that he had Sexually Assaulted her per Arizona Revised Statute ARS 13-1406. After learning of this he and his family retained our services. This was prior to any police contact. Once our services were retained, I met with the Pre-Charge team and we decided to (1) determine if we could obtain text messages through T Mobile, (2) send a Trebus letter to the Maricopa County Attorney’s office, (3) order a copy of the police report if available, (4) have our client submit  to  a  polygraph  examination,  and  (5)  contact  the  Detective  and  provide  any  passed polygraph to the Detective. After submitting a Trebus letter to the Maricopa County Attorney’s office and submitting a request for the police report, we immediately reached out to the Detective from the Phoenix Police Department.

Two days after being retained, we had our first contact with the Detective where she discussed the alleged allegations being made by the former girlfriend. It was learned at this time that this report was made a year after the alleged Sexual Assault occurred. Immediately following this conversation and obtaining information regarding the specific allegations, we scheduled Mr. E for a polygraph. The Pre-Charge team crafted the three questions to be asked during the polygraph examination including, “Have you ever had nonconsensual sex with Ms. M?”, “Did you ever force Ms. M to have sex with you?”, “Did Ms. M ever say ‘no’ during any of your sexual contact with her?”. These questions along with a letter were submitted to the polygraphist.

After receiving a passed polygraph report from the polygraphist, the Detective was informed of the results. The Detective requested the passed polygraph results and indicated, after reviewing it, she would let us know if the case was going to go any further. That same day we emailed a copy of the report to the Detective. A month after getting on board on Mr. E’s case, we received word from the Detective that the case would be “closed” as there was no evidence to support that a crime was committed.

FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. W (DMC No. 14200) (Glendale Police Department DR No. 2014-XXXXXX): At the time of these allegations, Mr. W was a 49-year-old male who had been involved in a very tumultuous sexual affair with the complaining alleged victim for about 3 years. They has met online and developed a purely physical relationship from Mr. W’s point of view. Their somewhat tumultuous ‘adventurous” sexual relationship led them to engage in consensual sexual intercourse numerous times in various locales both in and out of doors. Eventually, the complaining victim was tired of a purely physical relationship and pressed Mr. W to become more emotionally involved. Mr. W was loath to do so, as the complaining alleged victim, in addition to her sexual proclivities, demonstrated significant emotional liability, or craziness, in lay terms.

Mr. W eventually became involved in a romantic relationship with another person and decided to terminate his relationship with the complaining victim. That termination did not go cleanly and the complaining victim continued to contact and harass Mr. W. Eventually the victim harassed Mr. W to the point of getting him to meet with her at his house. Her continual harassment had driven him to become quite upset. They both went into his house where they engaged in an argument. The argument turned from a loud, volatile confrontation into a heated passionate clench in which both the parties were kissing. That subsequently devolved into a session of very physical sex. At the end of that unusually physical sexual encounter between them, Mr. W told the complaining victim that they could not continue to do this as he was in a relationship.

They were apart for a couple of weeks, but then met up again to renew their sexual relationship on another two or three occasions. Their contact was then terminated for an extended period of time until months later the complaining alleged victim went to the police department and claimed that she had been Sexually Assaulted per Arizona Revised Statute ARS 13-1406 during the encounter at Mr. W’s house. The complaining alleged victim gave multiple interviews to the police department including one videotaped forensic interview. The complaining alleged victim then agreed to cooperate in a “confrontation call” that was unsuccessful in reaching Mr. W. Subsequently, the investigating Detective contacted Mr. W directly and informed him that he was investigating an alleged Sexual Assault occurring on the date the two had sex in Mr. W’s house. He was understandably quite overwhelmed by this allegation and asked to contact the Detective at a later time.

Mr. W then came to our office and retained our services. At the meeting with Mr. W, we immediately reached out to the investigating Detective and advised him that we represent Mr. W. We followed that up with a written notice of representation to the Detective. We also sent a letter to the Maricopa County Attorney’s Office advising them that if the grand jury was impaneled, Mr. W requested that they be informed that he was prepared to be present and testify. When the Detective got back to us he was loath to provide us with significant information on the case as it was still under investigation. We were able to confirm however that was an allegation of nonconsensual sex between the two parties. We were also able to confirm that the investigating Detective was well aware of the lengthy sexual history between the two parties.

Our Pre-Charge team decided that the best way to proceed was to have Mr. W immediately undergo a polygraph regarding the issue of any nonconsensual sexual activity. Our investigation further revealed that this allegation was made approximately a week after Mr. W became engaged to his new girlfriend. Apparently the complaining alleged victim was continuing to stalk Mr. W as she then found out who Mr. W’s fiancé was and sent a face book posting claiming that Mr. W was a “rapist.” Shortly after that allegation was made to the police and the police contacted Mr. W, Mr. W submitted to and successfully completed a polygraph indicating that he was being truthful when he said that he had never had sex with the complaining alleged victim without her consent.

We then drafted a detailed letter and provided it to the Detective and to the Maricopa County Attorney’s Office. The letter included specific information about the tumultuous and somewhat unconventional sexual relationship between the 2 parties. We specifically pointed out that Mr. W had always advised the complaining alleged victim that the relationship was only sexual in nature and would not turn into something more serious. We also advised them of the fact that after the alleged sexual assault, complaining victim had consensual sex with Mr. W on multiple occasions. We pointed out the coincidental timing in the alleged victim’s sexual assault allegations with regards to Mr. W’s engagement. We also pointed out the threatening and harassing contact from the reported victim to Mr. W’s fiancé. Lastly, we provided them the polygraph showing Mr. W being completely truthful when he stated that he never engaged in non-consensual sex with complaining alleged victim.

All of this information was included in the Detective’s final report on this matter. The Detective stated “at this point of the investigation there is nothing to support an arrest or submittal of charges.” The Detective also stated “this matter is being closed pending permission from [Mr. W’s] attorney to speak with him. At this point of the investigation there is no probable cause for arrest in this matter.”

FELONY BURGLARY and FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. W  (DMC No. 14931) (Peoria Police Department DR No. 2015-XXXXXXXX): At the time of this allegation, Mr. W was a 49-year-old male.  Mr. W was a local businessman who maintained a residential boat on the Lake Pleasant Marina. He occupied the boat with his girlfriend. One evening at the Marina, Mr. W and his girlfriend were having dinner at a restaurant with another couple they had known for a period of time. There was a substantial amount of drinking going on. The parties left at different times starting with the female friend leaving and going to her own boat earlier in the evening. The female friend alleged that she was sleeping in her boat when she was awoken by a male lying behind her in her bed kissing her and digitally penetrating her. She apparently engaged in the sexual activity for a short period of time, believing the person to be her boyfriend, until she reached back to touch the person’s head. When she touched the person’s head, she immediately realized  it  was  not  her  boyfriend  and  then  realized  it  was  Mr.  W.  The victim claims she confronted Mr.  W  and  he  indicated  he  was  drunk  and  thought  he  was  with  his girlfriend. He immediately left the boat.

The victim called her boyfriend and the two of them exchanged calls and text messages with our client and his girlfriend. Some of the text messages from Mr. W were alleged to have included “send me to jail”, “beat me to the ground”, “please don’t do this to me”, and “I will do anything to make this right”. The complaining victim’s boyfriend confronted Mr. W and claimed he apologized for going onto the boat. Mr. W also have alleged to have told his girlfriend that he “fucked up”, but did not state specifically what had occurred.

Mr. W retained us and we immediately discussed with him police procedures and policies with this type of investigation. Mr. W was advised of “confrontation calls” and how those can appear to come from the listed victim or other parties. Subsequently, confrontation calls were attempted by both the listed victim and her boyfriend. Mr. W was prepared and made no inculpatory statements. We then immediately reached out to the Detective in this matter and advised her of our representation. We provided her with a written personal invocation of Mr. W’s constitutional rights. We also immediately sent a letter to the Maricopa County Attorney’s Office advising them that Mr. W wished to testify to the grand jury should they wish to hear from him.

We then researched the facts and the law extensively on Mr. W’s case to address a specific legal issue, i.e., the elements of Burglary per Arizona Revised Statute ARS 13-1507, Sexual Assault per Arizona Revised Statute ARS 13-1406, particularly the requirement that any sexual activity be “without consent.” Based on our research it did not appear that any potential sexual contact between Mr. W and the complaining victim would meet the requirements of “without consent.” Since the alleged Sexual Assault was also the underlying basis for the Burglary it appeared that there would be no basis for either charge. Technically however, these legal issues were fallback positions that would have to be raised if Mr. W was charged.

After a relatively short period of time of four months, the case was closed as “inactive” based on, among other things, “Mr. W retained an attorney and did not make any admissions or give a statement to officers about the allegations. [Mr. W] did not make any admissions during two confrontation calls with [victim] and [boyfriend].” The Detective further stated “at this time, the facts of this case do not meet the elements required for the successful prosecution of the alleged crime. This case is inactive.”

FELONY SEXUAL ASSAULT NOT CHARGED – State v. Mr. Z (DMC No. 14391) (Chandler Police Department DR No. 2014-XXXXX): At the time of the allegations Mr. Z was a 43-year-old male who was living with his girlfriend. Mr. Z and his girlfriend hosted a large party for friends and coworkers. The party was a somewhat bacchanalian affair, with copious amounts of alcohol, karaoke and pornographic videos being played. Reportedly, some guests had also brought other substances to ingest.  The complaining victim was a 30-year-old female who had attended the party with another friend. Reportedly, the complaining victim was drinking significant amounts of alcohol, as were many others, and occasionally smoking marijuana. At some point in time, the complaining victim was flashing her breasts at other party attendees. The complaining victim later claimed to have little to no recollection of the party itself. She claimed that she awoke the next day at a friend’s house wearing a T-shirt and shorts that were not her own.

She learned that another individual at the party had dropped her off at the friend’s house sometime in the early morning hours. The man who had dropped her off told her friend that she might want to call the police as he felt something inappropriate had happened. The male, a man by the name of Timothy, advised the complaining victim’s friend that he had walked in to a bedroom to find the complaining victim passed out on a bed with her pants and underwear down. He stated that he saw our client leaning over her and that it “just didn’t seem right.” He stated that our client’s girlfriend and another woman awoke the complaining victim and took her into the bathroom to clean her up. They stated that the complaining victim had vomited on herself and had urinated on herself.  Timothy then volunteered to take the complaining victim to her friend’s apartment.

After waking up at her friend’s house, the complaining victim was then taken to the hospital by her sister and her friend where a forensic examination was conducted. The police were called regarding a Sexual Assault per Arizona Revised Statute ARS 13-1406, and the complaining victim gave her statement to the police.  The complaining victim’s sister told the police she had also spoken with Timothy. She stated that Timothy had told her that when Timothy walked into the room he saw our client on his knees behind the complaining victim with his back to the door. Timothy advised that he did not see or notice whether or not our client had his pants buttoned or unbuttoned.

With the police present, the complaining victim’s sister contacted Timothy by phone. Timothy indicated that the entire event made him feel really uncomfortable. He thought our client was up to something and that his girlfriend was trying to cover up something. Timothy told the complaining victim’s sister that he noticed our client going in and out of the room on numerous occasions which felt odd and he finally went to check on the victim. He then found our client in the room with the complaining victim. Timothy stated that our client and his girlfriend are known to be possible “swingers.”

Mr. Z came to our office and retained us because he began receiving suspicious texts and calls from the complaining victim’s sister. We advised our client of the normal police techniques in these types of cases, including “confrontation calls.” Our Pre-Charge team met and staffed this case and laid put together plan to deal with the matter. We immediately reached out to the Chandler Police Department and advised the sergeant in charge of the Sex Crimes detail that we were representing Mr. Z. We followed that up with written notice of representation to the Police Department as well as to the Maricopa County Attorney’s Office. We further advised Maricopa County Attorney’s Office that should a grand jury be impaneled, our client requested that they be advised that he was willing to appear and testify.

Subsequently, “confrontation calls” were attempted to both our client and his girlfriend. Those calls were unsuccessful in obtaining any information due to our advice to Mr. Z. In his report, the Detective states “no suspect interview was ever obtained from [Mr. Z] on this case investigation and no more pretextual phone calls were attempted.” The Detective was forced to conclude that he had no evidence of a crime being committed and no probable cause to arrest our client. The case disposition was “closed –exceptional means (no proof of crime).”