New State’s witness at second trial tips the scales
A family is torn apart. Lines have been drawn and sides chosen. Two sisters, once the closest of three daughters in the family, no longer speak to each other, no longer attend the others’ parties, no longer talk on the phone every day. The cause of this division played out in the courtroom of Pima County Superior Judge Danelle B. Liwski, but, for the second time.
The re-trial of Alberto David Moreno began on Wednesday March 20, 2019 and ended one week later. Moreno was facing felony charges of sexual abuse of a minor in the second degree, molestation of a child and continuous sexual abuse of a child.
It was alleged between 2011 and 2013 Moreno, on different occasions, inappropriately touched the young daughters of one of the sisters with sexual intent. The girls’ ages ranged between 13-14 and 8-9 years old during the alleged incidents of contact.
The first trial took place approximately a year ago under a different judge and ended in a mistrial. The jury, unable to reach a unanimous verdict harbored some reasonable doubt about the allegations.
In the current trial, most anyone hearing testimony from only the first six witnesses called by county attorney, April Holley might perhaps see why the previous jury could not reach consensus.
But this time around the prosecution had a new witness to testify. He took the stand and provided charged testimony previously unheard by any jury.
The State’s first six witnesses included the two victims. One is now 20-years-old and the other only 15. They’ll be referred to as ‘the girls’ throughout this story but only to keep their ages at the time of the incidents in context.
For both girls, now young women, it was the second time they took the stand, the second time they faced drilling questions from the defense attempting to discredit the timeline of the allegations and the testimony of the often-forgetful, girls.
Their mother, Cathy Tellez, a longtime employee of the Pascua Yaqui Police Department, testified first. She explained why it took her over two years to report the alleged incidents to the Pima County Sheriffs.
Because, when the girls told her and her sister Alicia Tellez about the alleged incidents, Alicia, pregnant with Moreno’s daughter, responded defensively. When Cathy told the rest of her family, but none of the men, “It just didn’t seem like it mattered to them,” Cathy testified.
“I was scared to put them [the girls] through the system,” Cathy said. She was worried about many things, including the health of her sister Alicia who miscarried a previous pregnancy.
Cathy was complicit in the ignorance her family displayed, acquiescing to their indifference and keeping the family secret.
But she said she did not let the girls spend the night at their “Isha’s” house anymore and mostly kept them distant from “Beto”, the defendant.
As time passed, Cathy’s oldest daughter began to resent her for doing nothing about the allegations. Manifestations of this resentment, like running away and talking back, culminated in the oldest daughter leaving home for her Nana’s house for a number of days.
Cathy eventually went to retrieve her and after an initial fight, the two broke down crying. It was then in 2015 that Cathy decided she couldn’t keep the secret any longer.
Cathy finally told the girls’ father. They took the girls to the Pima County Sheriff’s Department where Deputy Ryan Hilborn took statements from Tellez and the girls’ father but did not interact with the girls.
In her opening statement to the jury Pima County Public Defender Sarah Kostick indicated the reason Cathy reported the alleged incidents to the sheriffs was because she did not want Alicia to go back to Moreno. “The allegations are tools to gain something else,” Kostick said.
Alicia had been staying with Cathy prior to the time sheriffs were notified of the alleged incidents because of problems at home with the defendant, according to Kostick and Cathy.
But Alicia went back to “Beto.” Cathy testified that she didn’t care that Alicia went back to him and was concerned about her oldest daughter, first and foremost. That’s why she went to the sheriffs.
In her cross examination, Kostick questioned Cathy about knowledge of the State’s new witness. Cathy said she disclosed to the previous prosecutor that someone had told her about this witness, “I can’t remember when I found out…don’t think they really pressed on it,” Cathy testified.
Each of the girls testified next. Neither looked at the defendant when asked to point him out by the prosecution. Jurors watched attentively as the girls testified. Most jurors took notes. The girls fidgeted with rings on their fingers in between questions, all eyes on them, again.
The oldest girl testified to three separate alleged incidents where she was touched by the defendant, two happened during sleepovers. The younger girl testified to three incidents as well.
The oldest allegedly awoke to him touching her pubic region in the first incident, she pushed his hand away and then he touched her breast. When she opened her eyes, he made a sound, “like he was annoyed,” she said, and then he walked away.
Another alleged incident happened some time later. The oldest girl testified she and the defendant were playing video games, he paused the game and asked if her parents had ever talked to her about sex. He then poked at her pubic area, she jumped back because it hurt. He took her hand and put it on his thigh. She said she pulled her hand away, but the defendant then took it again and put it closer to his penis.
She said she could not sleep that night.
An encounter with Moreno in their own home prompted the girls to tell Cathy. The oldest girl testified the defendant came up to the room where the two girls and their cousin were hanging out. The defendant told the oldest that when he gets a bigger house they could do “what they did the last time.” The younger girl was there when it occurred, she noticed a look on her sister’s face and after the defendant left the room, the youngest told her sister the defendant had touched her too.
According to all witnesses, the girls went to the room where Cathy and Alicia were hanging out and told them the defendant had touched them inappropriately. Cathy claimed the younger girl did most of the talking. Alicia later testified it was the older girl who did so.
State’s witness number seven, Ruben Antonio Santacruz Jr, took the stand before court let out for the week. The jurors would have a long weekend to think about Santacruz’ testimony.
“He confessed to me what he had did,” Santacruz said. “I felt uncomfortable after that and haven’t talked to him since.”
“He had said he was playing video games and when she was falling asleep he would touch her private parts,” Santacruz continued, the victims sobbed and left the court room.
On cross examination the defense called out a discrepancy in testimony Santacruz had given in an interview transcript taken one month prior regarding Santacruz keeping in contact with the defendant.
“He knows what he told me,” Santacruz shouted, out of order, staring intently at the defendant.
Wednesday of the following week, after the defense called their own witnesses, poked some holes in the official investigation and presented the jury with rivaling timelines, the verdict came back.
In closing arguments lead defense counsel, Sarah Kostick, recounted testimony of Alicia Tellez who said the girls never spent the night at one of the alleged incident locations.
Kostick argued the timelines did not add up and the investigation was full of missteps. And Santacruz, the “magical new witness” was “wildly inconsistent and wildly uncredible.”
“You have an obligation to vote not guilty because there is reasonable doubt all over this case,” Kostick said.
Then came the rebuttal.
“The girls have gone through years of pain because of what happened to them,” Holley said.
“What do they have to gain?”
“They just didn’t want this to happen to them or anyone else,” Holley choked up, “Every adult in their lives failed them…they failed them every step of the way.”
“But now it’s your turn, don’t fail them, find him guilty.”
When the verdict, finding Moreno guilty on the first two charges, came back, the girls and their family cried, relieved.
Alicia sobbed too, shaking, and at one pointing yelling back at the girls and her sister, Cathy.
Other family members of Moreno started crying loudly in disbelief as he was handcuffed on the other side of the galley.
Jurors could not agree on the third charge which involved the younger of the two girls. A juror said the timelines didn’t add up. But one thing was certain, testimony given by Santacruz left them no reasonable doubt the defendant was guilty of the incidents alleged by the oldest.