‘Defendants can’t present affirmative defense at preliminary hearing’

Camacho

Superior Court Associate Judge Joseph N. Camacho yesterday ruled that former Department of Public Safety commissioner James C. Deleon Guerrero and former police officer Jesse S. Concepcion are not allowed to present affirmative defense of mistake of age at the preliminary hearing stage.

In an 11-page order, Camacho said the affirmative defense of mistake of age must be proven with admissible evidence, by a preponderance of the evidence, to the jury.

Concepcion and Deleon Guerrero, through their counsel, have asserted an affirmative defense that they believed then that the girl they allegedly sexually assaulted was not a minor.

Camacho said he will issue a separate order on whether there is probable cause to charge for any of the offenses against Deleon Guerrero and Concepcion.

Camacho said at a preliminary hearing, the Commonwealth must show probable cause for the charged offenses.

“Since the low standard of proof of probable cause is required at the preliminary hearing, the rules of evidence do not apply,” the judge said.

Camacho said the affirm defense of mistake of age must be proven by a preponderance of the evidence, which is a higher standard of proof than probable cause.

The judge noted that although some jurisdictions allow affirmative defenses to be raised at a preliminary hearing, their preliminary hearings follow different procedures and standards than the CNMI.

Camacho started the preliminary hearing last April 22 and continued it last May 9 after defense lawyers Richard W. Pierce and Matthew J. Holley raised the affirmative defense issue.

Camacho then ordered the parties to submit briefs on the affirmative defense issue.

After hearing the parties’ arguments about the probable cause and affirmative defense issues, the judge placed them under advisement.

In an order issued yesterday, Camacho said since the defendants bear the burden of proving mistake of age by a preponderance of the evidence, allowing such a defense to be argued or proven in a preliminary hearing (which typically applies the lower standard of probable cause), where the rules of evidence do not apply, is problematic.

In effect, Camacho said, inadmissible evidence and testimony would be used to establish whether the defendants reasonably believed that the victim was 16 years old or older, despite the fact that the statute requires that affirmative defenses be proven by a preponderance of the evidence.

The judge further noted that that Commonwealth Criminal Code explicitly states that the affirmative defense must be presented to the “trier of fact.”

The Office of the Attorney General 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.

In the government’s brief, assistant attorney general Matthew Baisley said the court should not allow Deleon Guerrero and Concepcion to sidestep a jury trial by permitting them present an affirmative defense at the preliminary hearing stage.

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, FBI special agent 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.

Deleon Guerrero and Concepcion are both under house arrest after posting $25,000 and $10,000 cash bail plus property, respectively.