The vague and inconsistent testimony of a woman with disabilities is enough to dismiss the sexual assault charges against a former maintenance worker at the Pines Community Center, defense attorneys argued Wednesday.
And even if sexual contact did occur, there is no reason she couldn’t consent, they said.
The prosecutor countered those arguments by saying the woman, who was 29 at the time, “doesn’t even know the words” for the body parts where she was assaulted.
Now, a Merrimack County Superior Court judge will have to decide whether the sexual assault case against former police officer and janitor Robert Magoon should go to the jury.
Attorney Hanna Kinne made a motion to drop the woman’s case against Magoon in one of the three trials involving allegations he sexually assaulted seven children and the woman with cognitive and physical disabilities after she testified during the second day of the trial. Magoon is facing more than a dozen sexual assault charges to be spread over three separate trials
Kinne, one of two attorneys defending Magoon, argued that the woman was unable to give consistent testimony about the nature of the alleged assaults, such as when they occurred or the amount of time between each incident.
Magoon, 74, of Tilton was indicted in September on 13 counts of aggravated felonious sexual assault and one count each of felonious sexual assault and simple assault. The assaults are alleged to have occurred between August 2012 and May 2016 while Magoon was working as a maintenance supervisor at the Pines Community Center in Northfield. Prior to working at the Pines, Magoon served as a police officer in Concord and Franklin.
During Wednesday’s testimony, Catherine Flinchbaugh, Magoon’s other attorney, repeatedly asked the woman to define the period of time between assaults, referencing previous interviews the woman gave to investigators.
The woman’s answers ranged from a few days to a year.
Kinne added that the prosecution had been unable to prove the woman “has a disability that renders her incapable of freely arriving at an independent choice as to whether or not to engage in sexual conduct,” a key detail referenced in the indictments involving the case. Magoon allegedly performed sexual acts on the woman and attempted to make her do the same three separate times between January 2013 and April 2014, according to the indictments.
“Just because she has these handicaps and a speech problem doesn’t mean she can’t decide to engage in sexual conduct,” Kinne said.
Prosecutor Wayne Coull hit back hard against that reasoning, noting those who testified and are close to the survivor, including her mother and her one-on-one aide, agreed the woman had never expressed interest in men or sex. He said the woman is unable to make decisions on her own, and that her mother makes all of her medical, scheduling and living decisions. Coull added that the woman is unable to cook on a stovetop on her own because she struggles to assess the dangers associated with its use.
Perhaps Coull’s strongest argument came from the woman’s testimony earlier in the day. He asked her multiple times to say the body parts Magoon allegedly touched and had her touch by guiding her hand. Each time, she was unable to say specifically what they were, although she could describe where the parts were located. At one point, he had her highlight the areas using drawings of naked people, which included the groin and buttocks area on a woman and the groin area on a man.
“She doesn’t even know the words for these parts,” he said. “There’s no way any reasonable person would be able to believe she would be able to consent to sexual activity.”
Judge Diane Nicolosi said she agreed the woman was unable to consent to sexual activity, noting she appeared “childlike” and had a “sexual innocence,” and that she seemed unable to understand the consequences of what agreeing to sexual activity could mean.
Nicolosi will hand down a ruling on whether the woman’s testimony was clear enough to be consistent when the trial picks up again at 10 a.m. Thursday.
(Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com or on Twitter at @ActualCAndrews.)