FELONY SEXUAL ASSAULT and FELONY SURREPTITIOUS VIDEO TAPING NOT CHARGED – State v. Mr. T (DMC No. 14041) (Tempe Police Department DR No. 2014-138947): Mr. T, an ASU student and member of the Delta Kappa Epsilon fraternity, was accused by another ASU female sorority member of having engaged in sexual intercourse with her and Video Taping her without her consent. These accusations came after a party at Mr. T’s residence. During the course of the gathering at the home, Mr. T, along with another fraternity member, engaged in sexual intercourse with the alleged victim. This threesome was video recorded by Mr. T. After the sexual interaction, the parties left Mr. T’s room and went back to the party. The sorority girl left the party with her friends at that time. While she was leaving with her friends a discussion ensued causing her friends to have her transported to the hospital for an evaluation. Once at the hospital, Tempe police were called regarding an alleged Sexual Assault per Arizona Revised Statute ARS 13-1406, and Surreptitious Video Taping per Arizona Revised Statute ARS 13-3019. When police arrived to the hospital they interviewed her and her two friends about what had occurred at the house. Medical staff informed the officers that they believed she had been acting precarious, as she was upbeat and joking with her friends while at the hospital, not a demeanor expected for somebody having just been Sexually Assaulted. She then indicated at this time that she did not desire prosecution.
Approximately 10 hours after the initial report was made, police were re-contacted by her, and she indicated that she had just found out that a video of the alleged Sexual Assault that occurred the night prior was being shown to a variety of pledge members in the fraternity. The Officer conducted an investigation regarding the video and interviewed one of the fraternity pledge members. He told officers that Mr. T and the other male involved in the threesome were showing the video of the sexual encounter to the pledges on a laptop. At this time, the sorority girl indicated she was willing to prosecute for the Sexual Assault and Surreptitious Video Recording.
Based on the information provided a search warrant was executed at Mr. T’s home in Tempe, Arizona. During the execution of the search warrant, Mr. T’s laptop was seized and impounded into evidence. After the police contact and execution of the search warrant, Mr. T contacted our office. Once our services were retained, I met with the Pre-Charge team and we decided to (1) retain the services of a private investigator, (2) conduct initial Internet and Facebook research on the alleged victim, (3) contact the Detective regarding the status of the investigation, (4) obtain a copy of the search warrant Affidavit, (5) schedule a polygraph examination and forward that information to the Detective if the results were favorable, (6) obtain a copy of the police report from Tempe Police Department, (7) send a Trebus letter to the Maricopa County Attorney’s Office, and (8) retain the services of a forensic expert and submit a spoliation letter to the Detective regarding the video and computer.
Within days of being retained we retained the services of our Private investigator. Additionally, we retained the services of a computer expert in order to obtain a clone of the computer and video seized during search warrant execution.
We had constant contact with the Detective case agent. We were told by the Detective that the video seized from our client’s computer clearly showed and established the consensual sexual contact with the three individuals. However, it does not show any evidence of Sexual Assault. Additionally, the Detective indicated there would be no charges for Surreptitious Videotaping as the sorority girl clearly looked into the camera while engaging in the sex acts. Based on the fact that the video appeared to show consensual sex acts, this case was closed.