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Man acquitted of sexual assault

Posted: Friday, May 3rd, 2013

Courier staff writer

CONEJOS — For the better part of four days, Delfie Garcia’s loved ones sat quietly in district court here and listened as others questioned his character and behavior.

But many of them lost their composure in the final seconds of his trial, when 12th Judicial District Judge Michael Gonzales read the presiding jury’s verdict into the record: Garcia, the jury ruled, is not guilty of sexual assault.

At that moment, they began to cheer, even though Garcia’s lawyers advised them ahead of time to remain quiet. The cheers quickly gave way to tears and sobs, and as they streamed out of the courtroom, they began to hug each other.

It was an emotional end to a trial that subjected everyone in the room to graphic, deeply personal and sometimes uncomfortable testimony.

The 10 men and two women on the jury arrived at their decision to acquit Garcia after more than seven hours of deliberations on Thursday and Friday.

Prosecutors had alleged that the 34-year-old Antonito bartender sexually assaulted an out-of-area customer who visited his family’s Dutch Mill restaurant and bar on Feb. 28, 2012.

Attorneys for both sides agreed that Garcia had intercourse with the woman, who testified that she does not remember giving her consent. The defense, however, upheld Garcia’s recollection that the encounter was consensual.

The alleged victim, who has been in a long-term partnership with another woman, said she has no clear memory of the incident. She testified that she can picture an image of Garcia on top of her, as well as another fleeting moment when he asked her a question.

“I felt like I was having an out-of-body experience,” she said. “I didn’t feel like it was happening to me.”

Chief Deputy District Attorney Crista Maestas said there was no question that the alleged victim drank herself into an alcohol-induced blackout, while the woman herself raised the unsubstantiated claim that she may have been drugged.

Garcia, however, said the woman actively and knowingly participated in the encounter.

“I’m not accusing her of lying,” he said. “I’m saying she is very mistaken.”

He told jurors that the woman showed some outward signs of being slightly intoxicated. But there was nothing that would raise a red flag in his mind, he said.

Garcia estimated that he served the woman at least eight drinks over the course of three-and-a-half to four hours.

The woman, in contrast, testified that she could remember drinking six alcoholic beverages, including beer, whiskey and scotch.

Others who were present at the bar that night testified that the woman appeared to hold her liquor well. She interacted normally with them, they said, and she turned out to be a fantastic pool player.

They testified that the woman seemed to be capable of making decisions throughout the evening, and they said they were not worried

about her when they left the bar.

One of those witnesses, a contractor from the Denver area, brought laughter to the otherwise somber courtroom when he was asked if alcohol impaired the woman’s skills as a pool player.

“I wish,” the man said. “She kept winning.”

Maestas grabbed the court’s attention in a different way during her opening arguments, when she quoted Garcia’s initial statement to police.

“This is bull----,” she began. “Who would want to rape her? She was wearing coveralls.”

Garcia, she said, angrily told police that the woman “only” or “just” performed oral sex on him.

The word “only” seemed to be important, since it might suggest that Garcia tried to cover something up. However, he never uttered it.

Antonito Police Chief Margarita Ortega acknowledged under oath that the word did not appear in her initial report on the incident. It turned up later on, she said, but only because she made an error.

“It’s my mistake,” Ortega said. “I have no excuses. I’m sorry.”

Attorneys for both sides criticized the police investigation of the incident. Still, Maestas asked jurors to consider one possible scenario that could not be verified, since Ortega’s office did not process all of the evidence in the case.

Maestas repeatedly implied that Garcia could have spiked one of the woman’s drinks with a “date rape” drug, although she did not offer any evidence that he had done so.

Blood and urine test results came back negative for the presence of any drugs, including “roofies,” or Rohypnol.

The human body quickly expels many of those drugs. However, investigators did not collect hair samples that could have provided longer-lasting and definitive results one way or another.

Regardless of that scenario, Maestas told jurors the experienced bartender should have been aware that the woman was incapacitated.

“He was the only one who served her drinks. He knew how intoxicated she was,” she said.

Garcia said he flirted with the woman by giving her shot glasses each time she asked for regular drinking glasses. The woman seemed to enjoy it, he said.

However, the woman said she had no feelings for Garcia, and Maestas said the defense’s own witnesses testified that there were no obvious signs of attraction between the two.

The woman, Maestas said, treated Garcia the same way she treated every other man in the bar that night.

Defense attorney Mérida Zerbi said from the start that she would not attack the woman’s character, and she told jurors that nobody is accusing the alleged victim of being untruthful.

Instead, Zerbi suggested that the woman is remembering things the way she wants them to be — not as they occurred.

“It simply means that she doesn’t remember because of the guilt and shame that has blacked out that reality,” she said. “People can and do black out events that are too traumatic to accept.”

In this case, Zerbi suggested that the woman might have been traumatized by the thought that she jeopardized her relationship with someone she cares about.

“We all know stories of cheating in long-term relationships,” Zerbi said. “It happens every day.”

The defense offered one more theory that might account for the woman’s memory lapses. In 1992, a car struck her while she was riding her bicycle in Tempe, Ariz., and she sustained traumatic brain injury as a result of that incident.

According to the woman’s civil lawsuit in that case, her injuries were severe and permanent.

However, the woman testified that she has not experienced any related memory lapses since then.

“It was in my 20s. I was kind of young and I just bounced back from it,” she said.

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