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State v. Mr. W (DMC No. 14931)

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.”

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