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Case 2:15-cv-02064-DLR Document 82-7 Filed 05/16/19 Page 1 of 47
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND EOR THE COUNTY OF PINAL

THE STATE OF ARIZONA,

Pl-aintiff,

VS. No. CR201103026

AppeaI No.

FERNANDO SEGOVIANO ALMANZA, 2 CA-CR 20I4-0034

De fendant .

Florence, Arizona

October 'l 

, 2013

!:20 p . m.

BEFORE: THE HONORABLE BOYD T. JOHNSON, JUDGE

REPORTER'S EXCERPT TRANSCR]PT OF PROCEEDINGS

JURY TRIAL - DAY 5

Prepared for Appeal by:

MICHELLE L. WELLNER, CR, RPR

Certified Reporter #507 42

n coPY

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APPEARANCES

On Behal-f of the State:

MR. MATTHBW LONG

MR. THOMAS KOHLER

Deputy County Attorneys

Pinal County, AZ

On Behalf of the Defendant:

MR. PAUL GREEN

Attorney at Law

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PROCEED]NGS

Closing Argument by Mr

Closing Argument by Mr

Einal Closing Argument

INDEX

Long

Green

by Mr. Long

PAGE

4

30

40

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(Proceedings were had which are not herein

transcribed. )

MR. LONG: Thank you, your Honor.

As I tol-d you at the beginn j-ng of the trial,

the facts confirm that the defendant is a hunter. Not a

regular hunter, no; not an honorabl-e hunter, a poacher.

And what he searched for, this poacher, was the right

time, place/ and manner where he coul-d strike, strike the

prey that he had already selected, four-year-o1d Ada. He

picked this p1ace, the time, October 22, 20L1, where he

lured his prey to a hidden placer dn isolated pIace, where

he lured her and forced his finger into her vagina. He

control-l-ed everything, so if that four-year-ol_d ever to1d,

it would be his word against the word of a child. He

control-1ed everything so she wouldn't be believed, and he

woul-d get away. But what he couldn't control, he coul_dn't

get rid of, was Ada's body, and the truth it spoke when he

scratched the insi-de of her vulva.

made it up.

that inj ury

rlght.

Now, he is asking you to bel-ieve that Ada

He's asking you to guess about what caused

Your verdlct wi-11 decide whether or not he's

This hunter, this poacher, had his target

selected. As f said, he wasn't looking for who he was

going to attack, but when, where, and how. Hls selection,

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his target, was right there in front

ACCCSS

ranch

to her. He had access to her

where her home was.

There may have been certa j-n

about her that caused him to rea1Iy to

the one. Her d9e, the way she looked, the

on October 22, 2017.

It is a fact that her mother

He thought she might be easy, easy prey.

fact that the defendant pursued her mother

rebuffed by her mother.

of him because he had

by working on the

things that

decide, this is

way she dressed

was divorced.

Maybe it was the

and had been

But he knew this was his target. But where,

when, and how. Wel-1, that was answered because the

defendant knew the layout of the house. And you've seen

the Double Check Ranch and these pictures of Double Check

Ranch a number of times. Def endant woul-d be around the

pigs, back here in the back area, isolated, hidden. No

one will see, knowing that her mother spends so much time

when she is working in that cuttlng house, workJ-ng,

putting food on the tabl-es of our community, where he

woul-d have an opportunity to make it his word against the

word of a four-year-ol-d.

The isol-ation is evident by the different

angles, the cover, the mesquite trees. That even having

the same viewpoint of where they are, you can't see. And

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the defendant took advantage of this, ftnding his p1ace,

so now it was a matter of when and how.

He was abl-e to engage Ada f or a number of

reasons. Her comfort 1evel, at the ranch, the fact that

she was familiar with him, that he was known to be around

there, that he helped out, getting more and more

comfortabl-e with being around him, even being alone with

him. That's a form of engagement.

As you heard Carl-i Moncher tal-k about, the

fact that her brother would trust him to help would have

an impact on her. The fact that she's young, innocent,

has no reason to suspect what he is, that he was hunting

for that time, pface, and location, not knowing that all

he was looking for was an opportunity to isolate her from

those who coul-d protect her so it would be her word

against his.

So the when was October 22, 2011, when he

used something that she 1oved, the pigs. Used something

that wou1dn't be suspected. The f act that he would be

back there watering or helping with the pigs, and that's

what he used, knowing that no one woul-d suspect it woul-d

be odd that he was al-one wlth this little girl with his

target, with his prey.

But he had to get rid of her l-ittl_e

brother her ol-der brother, Jack. And you've seen these

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photos over and over again, the way that you have to go

back there, the isol-ation, the distance that you have to

travel- in order to get back to his huntinq grounds, to his

trap, the trap that he had l-aid. And when he got her back

there, he was able to get Jack to go back, back to the

house to go get some treats for the pigs, knowing that

that was his opportunity to strike, to pounce. And he

did.

But he has some other stuff he had to take,

he had to prepare. He dj-dn't just get to it assaulting

her, plunging his f inger i-n her vagina the way he wi11,

the way he eventually does. No, he wants her comfortable

with touch, breaking down these physi-cal barriers. And he

does that in a very short period of time that he does

that. He does that by picking her up, carrying her, has

her sit on his lap, and he kisses her on the cheek

tenderLy, as she's gotten so many times by her family

members, by people who Iove her, a f our-year-ol_d equating

a kiss with saf ety, protection, l-ove. That's how he sets

her up.

I think whatever is coming, a1l- these

touches are good touches with this quick, quick and dlrty

grooming done, he assaults her. And he moves quickly

because he knows he's got a short period of time before

her little brother her older brother, Jack, comes back.

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And this is the how. He penetrate her with

his finger. Thinking he coul-d control things, thinking no

one woul-d believe her, not knowing that her body was about

to Scream the truth, Scream the truth her voice never

could He hurt me.

This was the site of that assault Unde r

the cover of the mesquite trees,

away from her family, away from

brother. And you heard her look

pigs, Tinkerbell, and where she

the isol-ation, the

her mother and her

at one of her favorite

stood there and told You,

that's where he did it. Vivid. Her memory clear because

she experienced it.

But the defendant has his own ideas of how

this might be concealed, how no one will bel-ieve a

f our-year-ol-d. A f our-year old? She' s so young. They

were a1one. He created that. He set that up. He hunted

for that, setting that trap. He used the fact that Jack

was nearby. Who would ever bel-ief a f our-year old if

there was somebody nearby.

And maybe she won't telI. Maybe my touching

her, my hugging her, my putting her on my lap and the

kissing her will be enough for her not to know that this

was wrong. Maybe she won't even tell.

And you heard from the experts that say so

often this is true, when the engagement is good, when the

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engagement i-s long, more Iikely the kids don't tell-. And

you heard the experts talk about how if the engagement is

quick or if there is pain, the child is more likely to

tel1. And when he touched her in the most sensitive of

areas / he caused pain

fIesh, the

caused her

talk about

tissue, and

to tell-, to

about what

fre, and he' s got sharp

the

His

Ianguage of a chil-d, the

Causing that abrasion, tearing her

that left pain, which ultimately

tal-k about what she experienced, to

her body went through He touched

nails Trying to process things in

language of a four-year o1d.

scratched the inside of my

Not, it was a bad touch.

nail-s are sharp Not, he

vuf va. Not, he mol-ested me.

His nails are sharp.

Later her body is screaming the truth that

her voi-ce te11s, so she tell-s Mom, talks about the nai1s,

and they call police. Find the blood in the underwear as

you would expect when tissue has been torn away, and she

is seen at the emergency room in Tucson. And she tel-ls

again what happened, in the words of a child.

And you've got to hear Dr. Klein rel-ate to

you how she said it, how Ada said it that way. Fernando,

he scratched me. And, yeah, he was kissing me. Very

matter of fact because she experienced it. Fernando asked

me if I wanted to go check the pigs with him. When we

went to check the pigs he pulled my panties down and he

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1 was kissing me. He put his f ingers inside Itr€ r and his

2 fingernails are so sharp he scratched me. Pain, s€nsory

3 experj-ence. Telling what happened, what rea11y happened,

4 she experienced.

5 And Dr. Klein got to examj-ne her body,

6 revealing the truth that the body told, that it screams

7 out, confirming that what her words say is true. Is it

B protocol-? fs it good practices?

9 Dr. Klein, although a qualified emergency

10 room doctor, sends her to the forensic nurse examiner,

11 Sharon WeIch. Again, another opportunity that this girl

12 has to speak her truth, say this is what happened to me.

13 And she does that with Sharon Welch. Eernando stuck his

14 fingers and his nails in me where I go pee from. Where I

15 go pee f rom. The words of a chi1d, of a f our-year-ol-d.

t6 He tol-d me to get on his lap . He puIled my panties down,

tl then he put his fingers 1n me. He kissed me on the side

18 of my cheek. He touched my butt, too.

19 The concept she tel-Is Dr. Klein and Sharon

20 We1ch are exactly the same, but the words are different.

27 Exactly as you'd expect when somebody is telling the

22 truth. Sharon Welch conf j-rms the exact same thing. And

23 you heard her, little eggshell abrasion right at the 6:00

24 o'cl-ock position inslde her vulva. You heard Dr. Kl-eln

25 talk about this dye that's used revealing the torn and

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shorn tissue, revealing the trauma, the blunt force trauma

to this 1ittle girl's most sensitive areas that he caused.

You heard Sharon Wel-ch talk about

demonstrations that Ada tal-ked about, showed, I was

crossing my legs like this. And even though she resisted,

even though she tried to stop him, could, as wel_I as her

little four-year-o1d body couId, he plunged that finger in

her. And when he did it, he tore that flesh And Sharon

Welch confirms it, confirms that Ada's body screams the

truth of what she's already told.

The defendant the defendant is contacted,

and we see his ragged longer nails, we al-so see that his

hands are clean. Defendant trying to control everything,

took an opportunity to remove any tissue, any cel-l-s that

might be left behind.

Now, the defendant is interviewed where he

changes hls story a number of times. No, don't know Ada.

AII f know is Paul-. And he is asked, but did you see a

little girl yesterday? Remember it's a day later when he

1s interviewed by police. A day where he has to wash his

hands, rub off those skin se11s, anything that might be

l-ef t behind. Did you see Ada yesterday? Oh, yeah, I saw

her by the pigs. Corroborating, confirming what Ada said.

She was al-one with him, alone with him by the pigs.

While he's talking to police, he says a

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number of things. No, never touched her, never put my

hands on her. WeII, I mean, I might have picked her up

and moved her somewhere. Thatrs it, no more.

What about this kissing? What about

kissing? Oh, yeah. I gave her a littl-e kiss on the

cheek, exactly as Ada said. But j-t' s innocent, right? I

mean, the kiss on the cheek, it's tender, it's something

that's innocent. Maybe. UnIess you're kissing in order

to set her up to sexually violate her, to sexually

penetrate the way he did. But he confirms he kissed her,

just like Ada said.

So Ada says he's alone by the pigs, and the

def endant conf i-rms it. Ada says he kissed her, and the

defendant confirms it. Ada says he touches my butt, too

He touched my butt, too, that day, and the defendant

confirmed it. Said he cradled her up, picked her up, and

his hand might have touched her butt. Confirmlng

everything that that littl-e girl woul-d sdy, but he won't

admit to being the poacher he is. He won't admit

certainly to plunging his finger into her vagina, tearing

her skin because after all, there's trouble, and then

there's troubl-e.

But that's not the l-ast time the def endant

spoke because in jail he comes in contact with John Boggs,

who you got a chance to hear from, who helped the

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defendant out with a number of things But

defendant says he' s confused. He' s confused

charges that we ' 11 tal- k about in j ust a minute

confused with how they charge him with sexual

He didn't put his penis in her, he says, just

confirming agaln what Ada said. The truth she

eventual 1y

about his

the

Hers

intercourse

my finger,

spoke and

truth her body screamed out he tells John, yeah, the

middle f inger, but j ust a 1ittle bit, j ust a l-1ttle bit

Just a litt1e bit

his mark.

Enough to tear skin tissue, leaving

So these pictures that Sharon WeIch took

were sent to Jackie Hess, nurse practitioner, who

confirmed exactly what two other medical professionals

said al-ready. That is where you would expect to find an

lnjury related to assault, the way she said it happened,

thatrs what I would expect.

A11 this that Ada experienced confirmed the

defendant is a poacher, that he searched not for his prey,

who he already had selected, but searched, hunted for the

time, place, and manner where he coul-d strike.

Now, he's asking you to guess about what

caused that in j ury and to believe that Ada made it al_l up.

So we're here and submitted to you al-I after hearing all

of the witnesses, all the exhibits, seeing a1l- the

exhibits, hearing from Ada herself, and this is what

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youfre asked to find. There is

consideration. One thing that

was when he plunged his finger

So

Now, we are not

or somebody else

1egal definition

one Count for

the defendant

in her vagina,

your

did, and that

he committed

sexual conduct with a mi-nor

And there are a couple elements that the

State must prove in order to show he is that poacher, and

that is that he intentionally or knowingly engaged in

sexual intercourse or oral- sexual- contact. In this case,

we are not talking about oral sexuaf contact, we're

talking about sexual- intercourse. And that the person

that they engaged in sexual- intercourse with was under

15 years ol-d. There is also a special f inding that the

victim in this case was t2 years old or younger.

what is sexual intercourse under the 1aw?

taJ-king about the BilI Clinton definition

's definition, we are talking about the

of sexual intercourse, and th j-s is what

it is.

any body

Any part

slight,

be the

Boggs,

sexualThe penetration of the vulva, however slight, by

part of the body. By any body part of the body.

of the body, a finger in this case.

When he penetrated her vulva, however

that is sexual intercourse. So it doesn I t have to

defendant can be educated now, his questions to Mr.

doesn't have to be a penis. Digital penetrat j-on is

intercourse.

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The vulva. You heard three different

2 medical- prof essionals talk about what that means, and i-t' s

3 this; anything on the inside of the l-abia ma j ora. And you

4 heard all the medical- professj-onals tal-k about what that

5 means, that when this little girl would be standing uP,

5 not trapped with traction like you see in the diagram/ the

1 injury is tucked away on the inside, protected. So any

B penetration into t.he vulva i s sexual- intercourse .

A couple of things legally. Consent is

10 never a defense to sexual conduct with a minor. The

11 defendant, dlthough he knew her d9e, she was four, doesn't

12 even wouldn't even have to know that the child was

13 under 15. But in this case, there j-s no question. I only

L4 stuck my f inger in a I j-ttle bit. That is not a def ense to

15 sexual- conduct with a minor.

t5 As we talk about the elements, talk about my

71 burden, it is this. And I want to talk about reasonabl-e

18 doubt because you're going to hear about it. Mr. Green is

tg going to get up and talk about reasonable doubt and what a

20 high burden it 1s. Going to make it out to be almost

2L impossible td reach, but it's not.

22 The j udge read t.o you the instruction on

23 reasonable doubt, this is it. It's proof that leaves you

24 f irmly conv j-nced. HonestIy, there wil-1 be ho1es, there

25 will be questions that certainly might be unanswered, but

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I those questions alone are not reasonabl-e doubt. If you're

2 firmly convinced the defendant put his finger, penetrated

3 her vulva, and you' re f irmly conv j-nced of that, then the

4 defendant is guilty. So worded another woY, is there any

5 real- possibility, a real possibility he is not guilty?

6 Now, we're going to talk about

1 possibilities, mere possibilities, speculation, guesses.

8 It is not that. If you can, in your own mind, come up

9 with a mere possibility, that is not reasonable doubt.

10 You must feel real possibility based upon the evidence,

11 based on the evidence presented here. Proof that leaves

t2 you firmly convinced.

13 What are the ways that you should be firmly

14 convj-nced that the defendant is that poacher, the

15 defendant hunted for the time, Pface/ and manner that he

16 could strike his prey, who he sel-ected. Wel1, in this

Ll case, again, if you find that he penetrated her vuIva,

18 however slight, Ada, the six years ol-d now, was f our

19 years old at the time, You must find the defendant guilty

20 of sexual- conduct with a mi-nor.

2l Fortunately there are a number of thi-ngs

22 that you guys don't have to you don't have to consider.

23 There are a number of things that just aren't in dispute.

24 Number one, the age of Ada. Defense isn't going to get up

25 here and sdy, wait, wait, wai-t, maybe she was 2l . Maybe

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she was 19 Maybe she was 18. You got to see her, you

got to hear from her. There is no question that Ada is

under L2 years old because she sits here today, she is

six. But the defendant was with Ada on October 22, 2017.

That's not in dispute. Defendant confirmed it, Ada

confirmed it, Jack confirmed it, Ada's body confirmed it.

pigs

The defendant was alone with Ada near the

That's not in dispute. But Ada had an abrasion on

her on her labia minora. No one disputes that. But

the injury that we're talking about is on the inside of

her vulva. So with lust that first one and the fifth one

there, most of the elements have been resolved for you.

Ada was under 15 years old, and the penetration here was

inside the vulva.

The other thing

the defendant was in j ail with

things aren't in dispute. The

that is not

John Boggs

only issue

her vagi-na,

in dispute is

. So al-l these

then is the

defendant's finger penetrated penetrated her

vuIva.

With these things not in dispute, ladies and

gentlemen, when you go back and get the verdict form,

there will be two verdict forms. One of them will say not

guilty, the other one, Ilke this one, will say guilty.

Because there is no question about her d9€, immediately

you all- can go back there and agree Ada is six. She was

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1 four at the time that the victim, beyond a reasonabl-e

2 doubt, was under 72 Years of age.

3 So if the defendant isn't a poacher, then

4 what is his theory? It's this; maybe she lied or was told

5 to l-ie about what she sald happened. Maybe she in j ured

6 her vagina Some other way. And there was no DNA, So he

7 must be innocent. And there is a number of reasons, three

B specifically, that prove that that is not real-, that that

9 is not true, but what is true is the defendant is that

10 poacher who hunted for the tj-me, P1ace, and manner that he

11 could strike, that Ada spoke her truth, and her body

72 Screamed that it was true. The three things are Ada's

13 testimony, John Boggs, and the injury itself.

L4 Let' s tal-k about Ada ' s testimony. In j ury

15 selection we were asking questions, and one of the

16 questions you might recal-l- is whether or not you coul-d

t7 bel-ieve or convict on the word of a child. And 1et's

18 start with the word of this child. Not a child, but this

19 child, the child you heard from, let's talk about her.

20 Eirst of aII, the defendant hopes you will

2L not believe her simply because of her age. He wants you

22 to hold her to a different standard than all the other

23 witneSses. But aS you're instructed, you can't do that

24 and should not do that, and I'm not going to ask you to do

25 that. What f'm asking you to do is evaluate her testimony

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1 when you got to See her and hear from her. Consider her

2 Language, not just last week, but at the time of her

3 interview. Language to the medical professionals, Dr.

4 Klein, Sharon Wel-ch when she said what happened. Think

5 about her sensory experience. It hurt. His nails were

5 sharp. He stuck his fingers in me.

7 Consider the corroboration. Jack has her

8 alone with the defendant for a short period of time, but

9 long enough for him to strike.

10 There's a number of reasons why it makes

11 absolutely no sense why Ada would make this up. What does

12 she have to gaj-n, a four-year-o1d? Go through two

13 different medical exams, have that toluidine blue placed

t4 on her. It hurt, it burned, ds she told the forensic

15 interviewer. Again, talk about her sensory experience.

L6 And let's talk about this for a minute. Defense wants you

l7 to believe, oh, Dor this is something she coul-d make up.

18 Yet, when she talks about what she experienced in the

79 medical exam, She put some blue stuff on ffier it hurt, it

20 burned.

2L You heard f rom Sharon Wel-ch that i-t's

22 acidic, Iike lemon juice on a cut. A little girl, when

23 she experiences pain, she can tell you the source of that

24 paln. We know that based on that toluidine blue uptake

25 that was put on her when she was examined. This is a

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1ittle girl who knows when she experiences pain and can

articul-ate it.

So she goes through that. She goes through

these interviews She has to come to court, be called a

liar. Makes no sense. WelI, Ada's mom put her up to it

Again, for the same reasons, it makes absolutely no sense,

given how Ada responded. No evidence that Ada's mother

did this. No evidence that Ada did anything but speak her

truth. The truth that was confirmed by her body. WelI,

maybe they don't like the defendant or Mom has it out for

him. Wel1, the defendant, in his own interview with

police, no probl-ems, we were f riends. It makes no sense.

What you're left with, what the defendant

must ask you to do to find this true, is guess. Do the

very thing in your first instruction as a duty to the jury

you are instructed not to do. You should not guess about

any fact. And thatrs what he's going to do, over and over

and over aga j-n, is beg you to guess.

Again, talking about the Ianguage. Fernando

scratched me. Yeah, he was klssing me. Not he molested

fl€ z not I 've been mol-ested. He scratched flte , and he was

kissing me. Again, we went to check the pigs. He put his

fingers inside me. His fingernails were so sharp, and

they scratched me. Sensory experience.

And again, to Sharon WeIch, he kissed rtr€r

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1 put his fingers in fle, he touched my butt, too. How does

2 she describe it, the place where he put his finger in,

3 it's the place where I go pee. Not my vul-va, not my I

4 don't even know the word that the doctor usedr dD

5 anatomically correct word that she uses. No, the place

6 where I go pe. The words of a child speaking her truth.

7 And you got to experj-ence that. And you got

B to see the demonstrations that this child gave in her

9 interview.

10 ( Playing video. )

11 MR. LONG: Less than a minute. Look at all

72 demonstrations right here, right here. I do like this.

13 It hurting. It doesn't feel- good. Right here. Showing.

14 I don't need to tel-l you, I can show you because I

15 experienced it. That's what that minute of tape proves.

76 And ask questions. Right here. We1l, was

L1 it on the skin? It was right here. I can show you.

18 .Being abl-e to demonstrate what she experienced. And she

L9 does it again. Just a couple seconds are very telling.

20 At about !1 minutes in she is asked a

2l question about who she tol-d and how they reacted.

22 ( Playing video. )

23 MR. LONG: She said what? Experiencing

24 what, the shock, the dismay that the woman he wants you to

25 believe put her up to it? Over and over again for

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1 30 minutes, this little girI, speaking her truth,

2 demonstrating what he did to her, only to be called a

3 liar.

4 But that's not all we have. And I submit

5 that alone is enough. Just the word of this child, the

6 way she confirmed the, the way she talked about what

7 happened to her is enough to be firmly convinced that what

B she said happened, happened, and he did it.

9 But that's not all you have. You have Jack,

10 who confirms along with the defendant that he left them

11 al-one at the pigs, isolated, hidden. The trap the

72 defendant had l-aid, a success without Jack knowing he was

13 a part of it.

14 Another factor that confirms, to prove the

15 defendant is this poacher, his theory maklng no sense,

76 John Boggs and his admissions that the defendant's

7'l admiss j-on to John. Put his f ingers in Ada' s vagina. He

18 stopped when Jack came back. His confusion about what

19 sexual intercourse means. Confused how he can be charged

20 with sexual- intercourse when he didn't put his penis in

2L her, he just put his finger in her. The fact that John

22 Boggs had absolute absolutely nothing t.o gain by

23 speaking his truth, tdlking about things that no one knew

24 about but the defendant, sits up here speaking his truth

25 about what he experienced talking to the defendant with

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1 absolutely nothing to gain except what he tol-d you. The

2 fact that he didnrt like the defendant admitted to

3 penetrating this girl.

4 But that ' s not all- we have . I submit then

5 only this , Lf that' s all- you have, that woul-d be enough to

6 leave you firmly convinced that what Ada said happened,

7 happened the exact way she said it did. But you've got

8 more. You have the truth that screamed by Ada's body.

9 And Ada tal-ked about his fingernails being sharp, that

10 hurts her, not feeling good, it hurted. But the defendant

11 wants you to guess, to guess without evidence about what

12 caused it.

13 I s it reasonabl-e to conclude that Ada

t4 injured her vagina in some other way? It is not. You

15 heard that by the medical- professionals. It is not

76 reasonable to conclude that. And there's a couple of

77 reasons why. Again, the objective evidence that can't be

18 controlled, that he coul-dn't control, teIls us that Ada' s

L9 telling the truth. If it was a fal-l- or barbed wire, you'd

20 expect to see some other injuries. And Sharon Welch

2l didn't note any. In f act, sai-d there weren't any on her

22 armsr on her legs, oD the back, the back part of her body.

23 She had none of those. No hol-es 1n the panties.

24 Now, Mr. Green asked a number of questions.

25 But isn't it possible that somebody could have done this

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1 without causing inlury to the underwear? And the one

2 d,octor said, ffiy medical my prof essional opinion, no. I

3 mean, I suppose it's possible. I suppose that at some

4 point there might be some technology that somehow goes

5 through cloth and only injures skin. I mean, I've seen

5 movies about it. I've seen all types of stuff. So I

7 guess when technology advances to the point where time

8 travel- exists, then, yes, it's possible. That 1s the

9 ridiculousness that he is asking you to believe.

10 Or you can use what you've been instructed

11 to continue to use. In your instruction page 3, consider

72 all of the evidence in light of reason, common sense, and

13 experience. His version makes no sense, and it is not

74 supported by facts or the evidence. But what is supported

15 by the facts and the evidence, the fact what that littl-e

L6 girl said happened, happened exactly the say she said it

l1 did. She spoke her truth, and her body confirms it.

18 The def endant wants to sdY, wel-l-, there's no

19 DNA, therefore that's the answer. He's reaIIy hoping that

20 you forget about what Peggy Toporek talked about, where

2l she talked about skin ce11s, how volatile they are, how

22 easy they are to get rid of.

23 And there are a number of reasons,

24 reasonable, real world explanations, how real science,

25 real evidence works. The fact that he wasn't contacted

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1 until a day 1ater, having washed his hands, removed any

2 ev:-dence. The fact that simply skin cells aren't left

3 everywhere where it's touched or where you touch. The

4 fact the defendant having worked and the way he works,

5 dirt on his hands and fingernail-s. And you heard the

5 expert tal-k about how dirt is DNA I s enemy, prevents

7 adherence and breaks it down. His hands were set up both

B before he violated her, before he penetrated her, and

9 after to insure you wouldn't have DNA.

10 But you don't need DNA. What you have is

11 the 1itt1e girl speaking her truth, what she experienced

\2 with her own body, the fact that her body confirms that

13 what she said happened, and the fact that all the other

74 witnesses, Jack, John Boggs, everyone el-se who came up

15 here confirmed everything she said. The fact the

L6 defendant washed his hands afterwards, of coulse. And you

t1 got to see that just with the photos.

18 Eor the defendant's theory to make sense,

19 there's a number of things that must be true. Ada would

20 have to be a medical expert. She would have to know she'd

27 undergo a genital exam. She'd have to know that what she

22 felt would feave some sort of a mark. She'd have to know

23 it wou.l-d still be present and know that a finger could do

24 what the doctor said it would do in the l-ocation that they

25 said it woul-d be. Ada would absolutely have to be the

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1 most skilled four-year-old in the world as far as an

2 actress. And you'd have to see again, just a couple

3 minutes d9o, her demonstrations, her talking about. pain,

4 and the sensory experience. Talking about the reaction of

5 her mother, providing the context, the pigs, Iocation, the

6 f act that her brother wasn't there, and al-l- those

7 demonstrations over and over and over again. Not just in

8 the interview, not in the recorded interview, but to

9 medical- professional-s exactly as they would expect to see

10 this inj ury.

11 In the language of a child, albeit an

L2 intelligent chiId, an articul-ate chi1d, but the language

13 of a child nonetheless, Ada told you what happened. And

74 her body not only confirms it, it screams the truth of it.

15 Defendant chose that spot, hunted for the

16 time, location, and manner that he coul-d strike where she

!1 would be alone, for it to be his word against the word of

18 a f our-year-oId, not knowing that he l-ef t behind his mark.

L9 Isolating her, setting a trap not just for Ada, but for

20 you al-l- hoping that j-f it was isolated enough, Lf it was

2L just her word against his word, You would fall into his.

22 trap, that he could control- you all- to ignore the medical

23 evidence, not just ignore it. Act.uaIly to guess about

24 facts that just aren't there, and ignore al-1 the things

25 that confirm what Ada said.

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1 Now, that is a shot from the piq p€n, a shot

2 that shows what Ada could have seen from when he vi-olated

3 her, when he penetrated her, shearing off that tissue and

4 that skin, seeing the packing house, the cutting house

5 where her mom is isol-ated, alone, feeling pain.

5 That's another angle showing the isolation

7 that she must have f el-t. So what would we expect to see

8 if the defendant is in fact the poacher that Ada talked

9 about, that he did do what Ada said happened. What would

10 we expect her to say. Here is what f experienced, it

11 hurt, it didn't feel, he scratched fler his nails are 1ong.

L2 And that's exactly what happened.

13 You see the condition of the defendantrs

74 nails, and you got to see them in the photos. You woul-d

15 expect to see an in j ury, the doctors tel-l- you, not

t6 necessarify, but in this case, they did. And we have one.

71 And is the injury consistent with what Ada said? Exactly.

18 The resisting, the crossing her 1egs. A11 that is what

79 she said happened, what she experienced that the defendant

20 did to her. Over and over again talking about her senses,

2t what she fel-t, where she was. And hopefully her underwear

22 show us she was injured. The bl-ood stains rlght in the

23 l-ocation down there in her crotch area near the anus,

24 right where the doctors the doctor and the nurses,

25 nurse practitioner saw that injury with that oval shape,

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the serologist confirming it's bIood.

We know that this injury was recent. We

know that because of how quickly this area of the body

heals. And you heard that. But because they were able to

see the damage to the extent that they were, that i.s al-lthree medical professionals, we know that thi-s happened

quickly or recently, which is exactly what Ada said. Been

less than a day before she was seen by doctors, by a

doctor and the nurse and the nurse practitioner, and

ultimately nurse practitioner seeing the photos.

Dr. Klein said that this is absolutely

consistent with what Ada said happened, as did Sharon

Wel-ch, ds dld Jackie Hess. A11 medical- professionals tell

you it was not reasonable to concl-ude that the other

things that other things that might have possibly

caused this i-n j ury, that that requ j-res you to guess about

facts. And it just doesn't make sense, given everything

that happens in this case, everything that exj-sts in this

case.

question.

And there was

You remember Mr.

a couple of things *- another

Green decided to get up here

in his opening statement and said, okay, yeS, the injury

is consistent with what she said happened, but in many

ways j-t' s inconsistent. And yet, one af ter one doctors

tol-d you, the doctor, the nurse, and the nurse

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practitioner said that not only is this consistent, but

there is nothing inconsistent about what she said

happened. Nothing.

The defendant is a poacher. A poacher that

already had his place sel-ected, a poacher who was

searching for the right time, pface, and manner where he

coul-d strike so it woul-d be his word against the word of a

child. Controlling everything so that she wouldn't be

bel-ieved and he'd get away. Finding that h j-dden locati-on,

but not being abl-e to control Ada's body, the truth that

cries out proving, showing evidence of his sexual crime.

For the defendant to be not guilty, ladies

and gentlemen, there are a number of people who must be

wrong. Jack, Katie, Ada's mother, Carli Moncher, who gave

you the backdrop to understand about interviews and the

way children can respond appropriately, tal-k about sensory

perceptions, talking about context, language; Cathy

Bodwe11, the person who conducted the interview; John

Boggs, who had nothing to gain about te111ng what the

defendant tol-d him, about being confused about sexual

intercourse, that he didn't put his penis in her, just his

finger, which is exactly what Ada said happenedi Detective

Snyder, Peggy Toporek, the DNA criminal-ist that educated

us on DNA and how volatil-e it is, part j-cul-ar1y s kin cells;

Dr . Jul ie Klei-n, Sharon WeIch , f orens ic nurse examiner;

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1 Jackie Hess, nurse practitioner. These medical

2 professional-s trained to deal with children, to deal with

3 trauma, to tal-k to children and Ada.

4 Because as I told you, Ada's word is enough

5 to convict. Ada's word, the way she describes it, the way

5 she spoke her truth should leave you firmly convinced

7 about what she said happened. She'd have to be wrong,

B too. Wrong about what she experienced, and her body would

t have to be wrong when it cried out the truth that Ada

10 spoke.

11 Ladies and gentlemen, the defendant is a

L2 hunter. Not a regular hunter, not an honorable hunter, a

13 poacher. One who already had his prey sel-ected. What he

t4 searched f or was the ti-me, place, and manner that he could

15 strike, and now having struck he is asking you to ignore

76 the medical evidence, to guess about things and to ignore

71 Ada.

18 And, Iadles and gentlemenr we're asking you

t9 to speak your truth by finding the defendant guilty of

20 sexual- conduct with a minor in maklng that finding that

2t Ada, being six years oId, was under 72. Thank you.

22 THE COURT: Thank you, Mr. Long.

23 Mr. Green?

24 MR. GRBEN: Good afternoon.

25 Once again, fadies and gentlemen, this is my

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1 opportunlty to address you directly rather than through

2 the use of witnesses.

3 My client, Fernando Almanza, is a worker.

4 He worked to support his family and himself, and he worked

5 part time as a l-aborer at the Doub1e Check Ranch in

6 Willcox. He had worked there for approximately two years,

7 and prior prior to the to Katie Quinn j oining the

8 ranch. Katie joined the ranch about six months after

9 Fernando and brought her family and her two children, and

10 eventually they moved onto the ranch and lived in the

11 mobil-e home that you saw there on the land.

t2 Katie had three children. She had Jack, who

13 was eight at the time; Ada, who was four, and a baby boy

14 who doesn't play a role in this.

15 Jack and Ada, you heard tel-1 basically had

16 the run of the ranch. They played together among the

77 buildings and the equipment on the ranch, and they both

19 fun living on the ranch. It was a great place to live.

20 Now, on October 22nd, a Saturday, the event

2I that you've heard about allegedly took pIace. At that

22 time Fernando was working on the ranch. He had arrived on

23 the ranch at about 6:00 o'cl-ock that morning. He wasn't

24 rea1Iy supposed to be worklng that day because he had had

25 a hernia surgery two weeks prior. There was there was

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1 some probl-ems with the irrigation system, so he came in at

2 Kat-ie's request.

Arr j-ved around 6: 00 o'clock and began his

4 work out in the fields. He didn't spend a rot of time on

5 the ranch. He spent most of his time out in the f iel-ds

6 deallng with the irrigation system. rt wasn't his job to

7 take care of the animal-s. rt wasn't his j ob to f eed the

B pigs. He worked for Pau1, not for Katie.

Now, on that day, we've heard several

10 stories about what happened. First, we heard a story from

11 Ada in a forensic interview that happened two days, I

72 believe, after the after that dry, so on the 24Lh of

13 october in 2011. During that interview, Ada said that

!4 they were out by the pigs, she and Fernando. She said

15 that Mom was in the packlng house, and that Jack was in

t6 the house. Now, walt a minute. I mean, he was picking

71 wormsr so Mom is in the packing house, Jack is in the

18 house or picking worms, one or the other, and Jaime wasn't

19 there.

20 At tria1, j ust during the l-ast week, Ada

2l told us that she and Jack and Mom always fed the pigs

22 together. Mom was always there. They never Jack and

23 she never went to feed the pigs without Mom. Now, if Mom

24 was always there, how does Fernando come into the picture

25 and why is he needed?

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1 We heard f rom Jack, and Jack tol-d us r I was

2 tn charge, he said. f 'm the guy whose job it was. It was

3 my chores to feed the pigs. And on that duy, he and Ada

4 went to the shed, 9ot the food, put it in buckets, put the

5 buckets in a wagon, and puIled the wagon across the

6 central- part of the ranch through the gates of the corral,

7 over a large pipe, and he told us how he did that.

8 Remember, he moved the buckets back and forth in order to

9 get over the pipe out to the pigs where they were going to

10 feed the pigs.

11 But, you know, Jack wasn't able to reaIIy

72 remember where Eernando was. He doesn't remember when

13 Fernando j oined them, and he didn't remember whether

14 Fernando was able to help him with the wagon, 9€tting that

15 wagon up over the pipe that he had to do. He did say that

76 there were more than one occasion when Fernando helped

Ll with the plgs. So the question is, was he talking about

18 that day, that Saturday, or was he talking about some

19 other d.y, or did he have a whole bunch of days al-l mj-xed

20 up in his story.

2l Jack told us that sometimes the hose didn't

22 work. There was a knob on the hose that he had to turn on

23 in order to get water to the pigs. And sometimes they'd

24 have to get help from Fernando to get the water. And

25 sometimes t.hey'd have to j ust go over to the cows and

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I scoop water out of the tank.

2 Now, speaking of Jack just for a second, the

3 deputies probably could have helped you out with your job

4 and made it a lot easier. Jack was reported ear1y, early

5 on in the intervi-ews with my cl-ient. He was mentioned

6 earIy, early on when Johnny Boggs reported his story to

7 the police, but the police never interviewed Jack. They

I never asked Jack what had happened on this day. They

9 simply ignored that information.

10 Now, Jack, two years ago might have

11 remembered better. He might have known what happened the

!2 day before or two days before or a week before, but two

13 years has passed, and police did not interview Jack untilL4 he was they were asked by me for a defense interview of

15 Jack.

76 The detectives didn't go to the ranch unti-I

77 almost a year l-ater. They never looked at the site. They

18 never checked the crime scene. They never looked for

L9 evidence to either corroborate or prove false any of the

20 information that they were receiving from Ada and Jack and

2L Katie and my cl-ient.

22 Now, we heard from Katie. Katie told us

23 another story. And in Katie's version, she and Jack were

24 in the packlng house, and Ada was not with them until Ada

25 arrived to tel-l what happened. Now, Ada was four years

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old. That concerns me a littIe. But the question is,

which story is true. Is it true that Jack was with Ada?

Is it true that Jack was in the packing house working with

Katie? Which story is true?

On her way to the forensic interview and on

the way to the police station, the sheriff's substation,

Ada took a car ride with her mom. It was just Mom and Ada

in the in the car on the way down to the substation.

Now, Katie testified to my question as to what they tal-ked

about when they went down that ride, and she said, we

didn't talk about what happened. But she must have tal-ked

to Ada at some point about what happened and at some point

before the forensj-c interview because during the forensic

interview Ada stated that she was that she was aware

somehow that the police had already talked to Fernando.

she had to get that information from somewhere, so someone

must have tal-ked to her.

I find it difflcult, and f'm confused by the

fact that a mother who cares about her daughter, and I

have no doubt that Katie cares about her daughter,

wouldn't tal-k to her daughter about what happened by way

of comforting her, by way of trying to get more

information so that when they get to the po11ce station

she can give an accurate account to the sheriff's deputies

so that the actual information about what happened coul-d

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1 come out.

2 We l-earned f rom two, and actually today now

3 three separate witnesses that young children are

4 impressionable, that it's very important when questioning

5 a young child that the questioning be done carefully, and

5 especially when you are questioning about traumatj-c events

7 that the interviewer ask no questions that lncl-ude details

8 that might influence the child that would either cause the

9 child to suppress her story or embellish it in an effort

10 to seek approval or to avoid consequences.

11 We also l-earned that the response of the

72 party receiving the report of sexual- abuse can have a

13 si-gnif icant i-mpact on the chil-d's disclosure. rt' s not

74 necessary for Katie to have coached Ada intentionarly.

15 It's not necessary that Ada be lying in order for there to

76 be inaccuracies in the story. Ada could have been

l7 influenced by a well--meaning conversation with her mother.

18 Ideas could have been put in her head about what happened.

19 The story that she told could have been altered by the

20 conversation that they had.

27 We also heard, and the State went through in

22 great detail- with a fancy sl-ide show, w€ learned from the

23 experts that where there's an allegation of sexual abuse

24 along wlth corroborating facts, that there are

25 characterj-stics and behavi-ors that may assj_st in

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1 determining whether a child has been victimized. Among

2 luhese things are fantastical- stat.ements, statements of

3 aggression or power over the perpetrator, statements of

4 physical sensation, disassociation or separating the

5 cognitive sel-f from the physical- se1f, and the ability to

6 recal-l- details . A child who has been victi-ml zed in sexual

1 assault cases, the child may exhibit aggressj_on or

8 lsolation or seducti-ve behavior, a fl-at affect,

9 inappropriate laughter, they may climb on things or under

10 things, or they may exhibit inappropriate touching or they

11 may exhibit no behaviors at al-1. Unfortunately r dccording

12 to the experts, we heard from them that none of these

13 characteristics is def initive. And all- of them requ j_re

74 some leve1 of corroboration before they become helpful in

15 determining whether abuse has occurred or not.

16 Regardless of whether these factors are

!1 definitive in general-, in this case there are no facts

18 that any of these characteristics or behaviors are present

19 in Ada, who is alleged to be the victim in this case. The

20 Ada we saw on the stand was a precocious, wonderful, cute

2l little girl. There was no hiding within hersel-f . She was

22 not shy. She was not laughing inappropriately. She was

23 not behaving in any way other than a four-year-old girl

24 would behave.

25 The experts also gave us some tools to use

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when defining what i-n attempting to identify what a

perpetrator l-ooks like. They described this process, a

victimization that included targeting, engagement,

grooming, assault, and conceal-ment . Again, the State put

those up on the screen.

When we apply these processes to my c1i_ent,

we have a ranch worker who kept to himself, did hls work

unl-ess he was needed by the other workers, and then he

wou1d help out. There's no evidence of a history of

behaviors that would indicate an inappropriate interest in

children. As a matter of fact, the only evidence that we

have that he was interested in anyone is that he was

interested in Katie and not the chil-dren. There' s no

evidence that Fernando dld anything to ingratiate himself

into the family or with the children. There's no evj-dence

that Fernando and Ada and their family had a rel-ationship

of love and trust, nor is there evidence that Fernando

ever had exerted power and control over Ada. No evidence

had been presented that Fernando had been grooming Ada.

In fact, afl- the evidence suggests against

that, suggests that Fernando was focused on his work,

concerned about getting home to his own ranch, and he did

what he could to remain separate from the chirdren and

only had polite contact with them, and then onry when they

sought him out. He didn't seek them out,

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Final1y, there is no evidence that Fernando

did anything to conceal anything. Detective Snyder

indicates that he was cooperative in the questioning in

the questions asked, answered the questj-ons to the best of

his ability, considering the confusion that was caused by

the language barrier and his own ignorance. Fernando has

no education. He has never been to school. He speaks

no or he speaks English, he speaks Spanish, but he

writes neither, and he reads neither.

The facts that we know for sure are that Ada

said what she said. she said what she said, using not the

exact same words, but very similar words over and over

again to her mother, to the doctor, to the same nurse, and

to the forensic interviewer. We know that Ada has a

superficlal .319-centimeter abrasion to her posterior

commissure. r had to write it down. r didn't remember it

either. Posterior commj-ssure. That spot at 6: 00 o'clock

that all the doctors described. we know that that's there

or was there. we know that despite the state's efforts to

prove a negative, that there is no DNA evidence here that

links Ada and Fernando. None. we al-so know that despite

the state's heroic efforts to provide a negative to prove

a negative, and despj-te the fact that no sexual contact

was ever alleged that could have produced semen or

spermaLozoa, that there is no evidence linking Ada and

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Fernando with semen, spermat ozoa r or bl-ood.

Eina11y, there's onl-y one person who truly

knows what happened or didn't happen here beyond a

reasonable doubt, only one, and thatrs Ada. And Ada is

not on the j ury.

During his defense of the soldiers in the

Boston Massacre in 1110, John Adams stated in his closing

arguments, facts are stubborn things. And whatever be our

wishes, our inclinations are the dictates of our passj-on,

they cannot al-ter the state of f acts and evidence. f n

this case, I leave it to you, the jury, to fo1]ow the

f act s and evidence or the l-ack thereof and to f ind my

client not guilty of the charge of sexual conduct wi-th a

minor.

Thank you.

THE COURT: Thank you, Mr. Green.

Mr. Long?

MR. LONG: f'd like to correct one

statement. There are two people who know what happened,

and the defendant is the other. The defendant also had

his own sensory experience when he plunged his finger into

her vagJ-na, proving him to be that poacher.

I'm going to address a couple of things that

defense suggests because quite frankfy, as I tol-d you when

I got up and now that he's gotten up, a number of things

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haven't changed. There are still all those things I told

you that are not in dispute, it is stil1 not in dispute.

Ada is still six years old and was four years ol_d at the

time. Ada was with the defendant on the ranch on

October 22, 20L7. Ada was al-one with the def endant by the

pigs. That is sti1l not in dispute. Ada has the abrasion

consistent wlth what she said happen. That abrasion is on

the inside of her vul-va. And def endant was in j aiI with

John Boggs. It has never been in dispute and it stil-I

isn't in dispute.

So again, what defense has asked you to do

is guess about facts. First of all, he says there is no

evidence 1i-nking the defendant to Ada with semen, sperm,

or blood. Let's talk about semen or sperm. We agree with

him. There is also no video of it. We agree with that,

too. So I accept that when there is no allegation of

someone ejaculating, there will be no evidence of semen or

blood. In this case, what we're talking about is skin.

And what the def endant again, what I tol_d you he'd do, I

told you he'd do it, he hoped you'11 ignore or forget what

the DNA criminalist said. There's nothing to be seen

here. Please ignore what they said. Ignore what they

said because that's required for you to accept his

version. You must ignore the expert.

There is no blood linking the defendant to

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her underwear. To say

defendant to Ada is not

Adams suggested. Itr s

Ada Real1y? fn fact, there 1s because there's blood in

is not blood linking the

the facts as Samuelinformation in a

that, they took away his

an argument than the

that there

following

ignoring them.

Now, there was a number of misstatements

about what the experts said. There's no need to go point

by point through them because you have your reason and

common sense and experience to rely oD, and that's what

the State is asking you to rely oDr j-s the instruction

asks you to rely on. And she says the defense says,

wel1, I don't believe or should be concerned that Mom

didn't talk to her more. Right. Because Mr. Defense

Attorney, detectives have been in trlal- with people like

you, and so they have instructed her, don't tal-k about it.

Let a person trai-ned tal-k about it. And what he's mad

about or f rustrated about is that they f ol-l-owed protocol.

They used best practices to make sure that you would hear

what that litt1e glrl said from her. And by doing that,

by these detectives doing good work with their training

and experience and how children are tal- ked to, they tol-d

her mother, don't talk to her. We'11 get a chance to talk

to her on the way to j-nsure good

narrative. And because they did

argument because he rather have

fact s .

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1 And again, in talking about, weIl, maybe

2 your reaction coul-d have got Ada to say the way she said

3 things. But there's no evidence of that. Where is the

4 evidence of that? There isn't any. It's not found on

5 anything the experts said because he had an opportunity to

6 speak to every one of these experts.

7 And you notice what he never asked them, let

8 me tal-k about this case, let me tal-k about what we're here

9 to talk about. Nor oor no. Because he rather have an

10 argument than the facts. So 1et's talk just generally in

11 the worl-d that might be out there. I mean, could it

L2 happen in some remote, however remote, I think one of his

13 questions was. WeIl, yeah, if we're talking about however

74 remote in other cases, I suppose. But he thought that was

15 reasonable in asking you to flnd that what his concl-usi-ons

76 are, are reasonable, then why didn't he ask the expert in

L'l this case, is that reasonable. In this case, could that

18 have happened. Because he rather have an argument than

19 the facts because in this case there is no evidence that

20 Ada was impacted. There is no evidence that anything that

2l she said was influenced by anyone, but rather the

22 evidence, the facts say otherwise. They say that Ada

23 spoke her truth, that her body confirmed it, and the

24 defendant is a poacher.

25 I did enjoy, I guess, the fact that on the

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one hand he says, this guy did nothing to engage these

children, this child in parti-cu1ar, nothing. I mean,

except when they'd come and ask him to do things. Again,

reason, common sense/ and experience. What child goes and

asks help f rom an adu1t they don't trust or don't think

will help them? Defense acknowledges with that statement

alone that he engaged her in setting up the opportunity to

strike, having selected his prey, j ust l_ooked f or the

where, the when, and how, and he confirms it.

There is one thing that defense and I and

the state certainly agree oo, is that when Ada spoke from

this chair, she was finally not hiding within herself.

She was speaking her truth, what she experj-enced, what her

body experienced.

Ladies and gentlemen, the facts do indeed

or it can be fol-1owed to only one reasonable concrusion,

and it is a concl-usion that must be found beyond a

reasonable doubt, and that is that what Ada said happened

in fact happened. She experienced it, she tol_d you what

she experj-enced, and all the evidence confirms it and

should leave you firmly convinced.

Again, closed away, I closed earlier, as Ada

spoke her truth, I ask you to go back there and speak

yours and confirm that you know after listening to Ada,

after looking at the evidence, that her body screams the

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truth, and that the defendant is not a hunter, not a

regular hunter, but a poacher, whose search for the time,

p1ace, location, the manner in which he could strike, tell

him that.

(Proceedings were had which are not here j_n

transcribed. )

(The proceedings were adjourned

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I, M]CHELLE L

certify that the foregoing

and accurate transcript of

foregoing matter, all done

ability.

20L 4

CERT]E]CATE

. WELLNER, CR, RPR, do hereby

pages constitute a fu11, true,

the proceedings had in the

to the best of my skill and

WITNESS my hand this 25th day of Aprit,

M]CHELLE L. WELLNER, CR, RPR

Certified Reporter #501 42

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