Sexual abuse of minor charge against ex-DPS chief, ex-cop dismissed

Superior Court Associate Judge Joseph N. Camacho issued an order on Friday, dismissing without prejudice the charge of sexual abuse of a minor in the first degree each filed against former Department of Public Safety commissioner James C. Deleon Guerrero and former police officer Jesse S. Concepcion.

Dismissal without prejudice means the Office of the Attorney General may re-file the charges.

In an 18-page order, Camacho said he finds no probable cause as to the charge of sexual abuse of a minor in the first degree as the Commonwealth failed to prove an essential element of the offense.

Camacho said in this case the prosecutors filed charges of sexual abuse of a minor in the first degree that Deleon Guerrero and Concepcion committed in their specific capacity as police officers.

However, the judge said, at the April 22, 2016 and May 9, 2016 preliminary hearing the prosecutor failed to produce any evidence that the alleged victim knew Deleon Guerrero and Concepcion were police officers.

Camacho will issue a separate order(s) as to whether there is probable cause for misconduct in public office and conspiracy to commit sexual abuse of a minor in the first degree charges filed against the defendants.

Concepcion and Deleon Guerrero, through their counsel, have asserted an affirmative defense that they believed then that the girl they allegedly sexually abused at a beach site in San Antonio in June 2013 was not a minor.

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 his order, Camacho said to bind Deleon Guerrero and Concepcion over for trial, the Commonwealth must show probable cause that: in June 2013 on Saipan, the defendants, at the time over the age of 18, engaged in sexual penetration with the alleged victim, who was at the time under the age of 16, and that the defendants occupied a position of authority over her.

Camacho said the Commonwealth produced evidence that the incidents occurred on Saipan in June 2013 and that Deleon Guerrero and Concepcion, who were at the time over the age of 18, are the individuals that committed the charged offense.

Camacho said the Commonwealth produced evidence that the defendants engaged in sexual penetration with the alleged victim, who was at the time under the age of 16.

The judge, however, ruled that the Commonwealth failed to produce evidence that the defendants occupied a position of authority over the girl.

Camacho said Deleon Guerrero is being charged as though his position of authority over the girl is that of then-DPS commissioner.

Concepcion is being charged as though his position of authority over the girl is that of a then-DPS police officer.

Camacho said Federal Bureau of Investigation special agent Haejun Park testified that, at the time of the alleged incidents, Deleon Guerrero was the DPS commissioner.

Camacho said Attorney General’s Investigation Division Investigator Vicente B. Babauta testified that, at the time of the alleged incidents, Concepcion was a Police Officer 3 at DPS.

Camacho said sexual abuse of a minor in the first degree requires that the defendant must “occupy a position of authority in relation to” the alleged victim.

Assistant attorney general Matthew Baisley argued that, although there is no evidence that the girl knew of Deleon Guerrero’s position, that there is no requirement that the girl actually know of his position of authority.

In the alternative, Baisley argued at the May 9, 2016, hearing that Deleon Guerrero and Concepcion occupied a position substantially similar to a babysitter in relation to the girl.

Camacho said the Commonwealth is incorrect in its argument that there is no requirement that the alleged victim actually know of the position of authority that the defendant allegedly holds in relation to her.

Camacho said the law requires that the alleged victim know of a defendant’s position of authority as it plays a large role in the harm that the Legislature sought to prevent by enacting the statute.

The judge cited that in the Commonwealth vs. Diaz case, the CNMI Supreme Court ruled that the test for determining whether a defendant occupied a position of authority “in relation to” the alleged victim is whether a “reasonable adolescent would have believed a defendant…had coercive power over him or her.”

Camacho said since the Commonwealth put on absolutely no evidence showing that the alleged victim actually knew that Deleon Guerrero was the then-DPS commissioner, there is no evidence to indicate that a reasonable adolescent would have viewed Deleon Guerrero as having “coercive power” over her.

Camacho said for Deleon Guerrero to exercise any coercive power over the alleged victim by virtue of his position in law enforcement, the alleged victim would have to actually know his position.

Camacho said it is of course possible for a law enforcement officer to use his position to exercise coercive control over a minor victim.

Camacho said since the alleged victim did not know that Deleon Guerrero was the then-DPS commissioner, then there was no coercion based on his position.

Camacho said if the alleged victim did not know that Deleon Guerrero was the DPS Commissioner then there is no probable cause for the essential element that Deleon Guerrero occupies a position of authority in relation to her.

Camacho said if she did not herself know of the position of authority then it was not possible for Deleon Guerrero to use his position of authority to coerce her into sexual contact.

Camacho said if sex did occur (for the purpose of this probable cause determination), it was not based on the defendant’s position at DPS.

In the alternative, Baisley argued that Deleon Guerrero and Concepcion had authority over the alleged victim through a transferred babysitter status from Annette Basa.

The government’s argument is that Basa, the procurer of prostitution that the alleged victim was staying with, occupied a position of authority or “substantially similar position” under the statute.

According to the Commonwealth, Basa dropped the girl off on a dark beach with the defendants, that she was transferring her authority to the defendants.

In essence, Camacho said, the Commonwealth is arguing that the defendants, who arranged a meeting with an alleged prostitute, became the prostitute’s “babysitters” when she was dropped off by her procurer of prostitution.

Camacho said the defendants were not housing, taking care of, acting as a babysitter for, or supervising the alleged victim.

Camacho said the defendants are alleged customers of Basa, a procurer of prostitution.

Camacho noted that the Commonwealth is not pursuing any prostitution-related charges.

“Even taken in the light most favorable to the government, the Commonwealth failed to produce any evidence that any position of authority existed here in relation to the alleged victim,” the judge said.

With respect to Concepcion, Camacho said the Commonwealth presented no evidence that the girl knew at the time that he was a DPS officer.

Camacho said the Commonwealth also presented no evidence that a reasonable adolescent would have viewed Concepcion as having a position of authority over her through any kind of transferred authority via Basa.

Camacho said so that guilt shall not escape or innocence suffer, he encourages OAG to carefully review a case before filing any criminal charges to make sure all the elements of a crime can be proven with facts and evidence.

Deleon Guerrero, 44, and Concepcion, 45, are both under house arrest after posting $25,000 and $10,000 cash bail plus property, respectively.