Judge denies molestation case dismissal

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Portales District Judge Donna Mowrer once again denied a request to dismiss charges against a Portales man accused of child molestation.

Marco Nunez, 38, was arrested in April 2015, then again in June, for charges of criminal sexual contact and penetration of a minor under 13 years old and unlawful exhibition of motion pictures to minors.

Nunez allegedly inappropriately touched and penetrated three children on multiple occasions in his home.

Defense Attorney Jennifer Burrill once again appealed to Mowrer in a motion hearing on Wednesday to have the charges dismissed due to the state’s untimeliness with producing evidence.

“It will be one year tomorrow that my client was arrested while one year ago Monday the allegations were made,” Burrill said. “The state has the duty to disclose any documents, books, papers, photographs, objects.”

Upon arresting Nunez, the Roosevelt County Sheriff’s Office confiscated three phones, two CDs, a jump drive and computer from his home.

Burrill said she filed a discovery motion for the evidence on April 24, 2015, and the state did not file a response to the motion until May 22.

Burrill also pointed out that a trial date was initially set for September 2015, which “had to be vacated because the state had not only not produced the computer lab analysis, but had not sent the computers to the lab yet. At that point, it was eight months, and the state had barely even begun to seek analysis.”

Burrill continued to say the state filed a response to her June 2 discovery motion five months later, on Nov. 23, 2015, and the second Feb. 9 trial date also had to be vacated, because of the state not having their final evidence analysis.

“So we have been denied almost a year now on access to the computer, access to two of the phones. The state even failed to give a written response to such a request for several months,” Burrill told the judge.

Assistant District Attorney Jake Boazman told the judge that his office has been addressing the issues with evidence over time, having already released the CDs and phones that were confiscated.

Burrill countered that the state did not provide any proof of ownership or of who was being contacted on the phones by producing call logs, text messages or emails.

“There was no request to the state to download any of the call logs,” Boazman responded. “There would have been no need for the state to ask for analysis on the phone logs, because there were no allegations regarding the phone logs. The phones were seized, because there were allegations made that the children were shown (pornographic) images. There were also allegations that the children were shown images and videos from the computer.”

Burrill requested to have the phones turned over to her, so she can have an independent lab recover text messages and call logs from the items.

“They could contain exculpatory information in terms of if my client was working and if he was calling people during the time the events were supposed to be happening,” Burrill said. “It would confirm his work schedule since we’ve already provided an alibi notice that he was at work (when the incident allegedly occurred).”

Mowrer ordered that the three phones and audio files from the computer be released to Burrill by Monday. She also ordered that the state issue a subpoena to the state lab for their evidence report to be submitted by the end of Friday.

Mowrer said Burrill will have seven days to review the evidence, then she can determine what else is needed by the defense to move forward.