IN CASE VS EX-DPS COMMISSIONER, COP
Attorney Richard W. Pierce asserted that if his client, police officer Jesse S. Concepcion, reasonably believed that the 15-year-old girl he and former Department of Public Safety commissioner James C. Deleon Guerrero were accused of sexually abusing was of age for sexual activity based on her appearance and own statements and statements of Annette Basa, then his client committed no crime.
Pierce said if the point of the preliminary hearing is to determine whether a crime was likely committed and whether the defendant likely committed it, the affirmative defense negates the existence of the crime and the liability of the defendant.
“There is no reason to proceed to trial if it is likely that no one committed a crime,” said Pierce in Concepcion’s response to the government’s opening brief on the affirmative defense issue.
Concepcion and co-defendant Deleon Guerrero have asserted an affirmative defense because they believe then that the girl they allegedly sexually assaulted was not a minor.
Pierce said the affirmative defense based upon belief dominates this case and the government knew it from the multiple interviews with the defendants and the recorded conversation with Basa.
In December 2014, Basa was slapped with a 17.5-year prison term for pleading guilty to sex trafficking of children.
Pierce said there is nothing in the record to belie a belief that the alleged victim had attained the age for sexual activity with an adult.
In fact, the lawyer said, the court does not even know her alleged age except for a hearsay statement by an Office of the Attorney General investigator.
“Before the government brings a case such as this, it must do its homework,” he said.
In the government’s brief, the Office of the Attorney General said the court should not allow Deleon Guerrero and Concepcion to sidestep a jury trial by permitting them to present an affirmative defense at the preliminary hearing stage.
Assistant attorney general Matthew Baisley said Deleon Guerrero and Concepcion, both seasoned police officers, are presenting the affirmative defense that they believed the 15-year-old girl was 24, 19, or 18, depending on which of their statements one chooses to believe.
At a preliminary hearing last April 22, Federal Bureau of Investigation special agent Haejun Park testified that Deleon Guerrero and Concepcion confessed during his interview that they had sex with a girl at a secluded San Antonio beach site in June 2013.
Park said Deleon Guerrero, 44, and Concepcion, 45, were surprised when he told them that the girl was a minor and was then only 15 years old.
Superior Court Associate Judge Joseph N. Camacho continued the preliminary hearing to May 9, 2016, at 1:30pm after an issue arose regarding affirmative defense.
Camacho ordered the prosecution and the defense counsel to submit briefs on the affirmative defense issue.
The issue was that “in a prosecution under 6 CMC 1303-1309, whenever a provision of law defining an offense depends upon a victim being under a certain age, it is an affirmative defense that, at the time of the alleged offense, the defendant reasonably believed the victim to be that age or older, unless the victim was under 13 years of age at the time of the alleged offense.”
OAG charged Deleon Guerrero and Concepcion each with one count of sexual abuse of a minor in the first degree, two counts of misconduct in public office, and two counts of conspiracy to commit sexual abuse of a minor in the first degree.
The defendants are both under house arrest after posting $15,000 and $10,000 cash bail plus property, respectively.