Shay Dickinson (Photo from mugshots.com)
A Roswell man who had pleaded no contest to molestation charges involving three young girls has been found not guilty on all charges during two jury trials in 5th Judicial District court in Roswell.
Shay Dickinson, 49, most recently of 119 Oliver St., was allowed to leave the Chaves County Detention Center two weeks ago after spending two and a half years in the jail while his case was pending.
Dickinson was initially charged in March 2012 with three counts of criminal sexual penetration in the first degree and three counts of criminal sexual contact of a minor in the second degree — one each for each of the three young sisters he allegedly molested on March 14, 2012.
According to court records, Dickinson had sexual contact with three daughters of his ex-girlfriend, ages 2, 4 and 7 at the time. Prosecutors said the girls’ mother was present at her home on South Birch Street at the time of the alleged assaults.
Assistant District Attorney Debra Hutchins, who was prosecuting the case in 2012, said the mother of the three girls noticed changes in their behavior. The mother reported to Roswell police that her daughters were mimicking sexual activity with each other. The girls said they had learned the sexual behavior from Dickinson, court records state.
The three girls were forensically examined by Esperanza House and all three sisters were put into counseling.
The three counts of criminal sexual penetration in the first degree each carried a maximum possible sentence of 18 years in prison and a $15,000 fine.
The three counts of criminal sexual contact of a minor in the second degree each carried a maximum possible sentence of nine years in prison and a $10,000 fine.
In total, Dickinson faced a possible 81-year prison sentence and $75,000 of fines on the six felony charges.
The charges stemmed from a March 14, 2012, incident during which Dickinson allegedly touched the private areas of the three girls. One of the girls also made contact with Dickinson’s penis, court records alleged.
Dickinson, who was arrested on the charges on March 17, 2012, entered into a plea agreement in June 2013, in which four of the charges were dismissed.
In exchange, Dickinson pleaded no contest to one felony charge of criminal sexual contact of a minor in the second degree and one felony count of criminal sexual contact of a minor in the third degree.
He was originally scheduled to stand trial June 11, 2013.
After entering into the plea agreement, Dickinson’s sentencing was scheduled for Aug. 15, 2013. He faced a maximum possible sentence of 15 years in prison on the charge of criminal sexual contact of a minor in the second degree, and a six-year sentence on the count of criminal sexual contact of a minor in the third degree.
Dickinson was ordered to undergo a 60-day psychiatric evaluation conducted by the New Mexico Corrections Department. He also was ordered to register as a sex offender for the rest of his life, with parole lasting from five years to life.
Dickinson’s defense attorney, S. Doug Jones-Witt of Roswell, said Dickinson during his processing at DOC expressed that he wanted to withdraw his no-contest pleas.
“When he got to the Department of Corrections in Los Lunas, and was evaluated by the diagnosticians, he very clearly informed them that the only reason he accepted the deal was because his lawyer had kind of talked him into it, which actually is not true,” Jones-Witt told the Daily Record Tuesday.
“When he gets up to corrections, he tells them ‘I didn’t do this. I did not touch these girls and I only agreed to this compromise plea agreement because my attorney thought it was in my best interest, given the evidence.’
“I did, based on his statement to police, which I thought was just overwhelmingly damning. He says in the statement ‘I’m a loser, I am piece of (expletive), I need help.’ When you’re confronted with child molestation and you begin to say those things, I think it would be fairly easy for a jury to find you guilty.”
At a Sept. 18, 2013, sentencing hearing, District Judge Freddie Romero allowed Dickinson to withdraw his two no-contest pleas.
Romero sat a new trial date of June 24, 2014, on the original six charges.
According to the criminal complaint filed by Det. Alberto Aldana of the Roswell Police Department, Dickinson admitted tickling one of the girls while she was wearing a night gown. Asked if he had touched the girl’s genitalia, Dickinson said he might have done so while tickling the girl’s inner thighs, court records state.
Aldana also wrote that Dickinson said he might have accidentally penetrated the girl’s vagina with his finger while tickling her.
“Shay advised he might of and that it was possible,” Aldana wrote.
Dickinson also admitted tickling another girl and taking pictures of the girls while they were bathing, according to the criminal complaint.
Prosecutors said no evidence of Dickinson photographing the girls inappropriately was found on Dickinson’s phone.
Dickinson also said the girls had seen his penis while he was in the bathroom and that they had touched his penis by accident, court records state.
“(I) also learned that this penetration occurred when he was living with (the girls’ mother) from November 2010 through 2011, with all three children,” Aldana wrote.
When confronted further, Aldana said Dickinson began to cry.
“Shay then told (me) that he had thought about committing suicide before coming in to speak with (me),” Aldana wrote, adding Dickinson told him he had left a suicide letter under his bed.
Jones-Witt said Dickinson told police he had written a suicide note, that he had a problem and needed help, and that he was a piece of (expletive). Jones- Witt described Dickinson as a naive and uneducated man who was intimidated by police.
“My guy said some very controversial things in his statement to police,” Jones-Witt said. “He wrote a suicide note. If you didn’t do it, why are you writing a suicide note? Our attack on that at trial was that he was only admitting that it accidentally happened. If it happened, it happened accidentally. Of all the evidence in the case, that was the most problematic obviously for us, his statements.”
After several delays, Dickinson’s first 12-person jury trial began June 24, 2014.
The oldest of the three sisters, their mother, and sexual assault nurse examiner Kim Hansen all testified for the prosecution.
Hansen performed a sexual assault examination of the girls.
“I can tell you that the state’s own expert — this is the thing that really helped us — she could not positively rule in or rule out the idea that criminal sexual penetration or contact had occurred,” Jones-Witt said. “The state’s own expert in the case, I think this ultimately tactically really hurt the state, because they are the ones that put the evidence on. I just got to cross-examine her. The ultimate conclusion to that was the state’s own expert could not give an opinion as to whether or not she thought this happened. That’s problematic.”
Jones-Witt credited Hansen for her objective testimony in a highly sensitive case.
“Thank God that Hansen was honest about it,” he said. “She’s doing her job. The reality is when she said that, I think she’s doing a service to all of us, because she’s saying this evidence doesn’t rule in or rule out. I think she’s absolutely right on that. I think that that was a good thing for everybody, not just for us.”
Chief Deputy District Attorney Michael Murphy, who prosecuted both trials against Dickinson, agreed that Hansen was unable to make a definitive conclusion as to whether Dickinson had sexually assaulted the girls.
Murphy said Hansen is one of the most experienced forensic examiners in the state.
“She was unable to definitively say,” Murphy told the Daily Record Wednesday. “She also testified that in her expertise, which is very extensive, that that’s not uncommon.”
Murphy said no DNA or other forensic evidence implicating Dickinson was obtained.
“Without forensic evidence, this sort of case is always challenging,” Murphy said.
On June 25, the jury found Dickinson not guilty of one count of criminal sexual contact of a child under 13.
Romero granted a defense motion for a directed verdict and dismissed three of the other charges against Dickinson.
“Judge Romero, who is a very fair judge, determined that three of those counts were not going to go to the jury,” Jones-Witt said.
The jury was unable to reach verdicts on one count of criminal sexual penetration of a child under 13 and on one charge of criminal sexual contact of a minor under 13.
Romero declared a mistrial on those two charges and the jury was discharged.
“So then, the state comes right back at it,” Jones-Witt said.
“Once we bring a case, unless there is some evidence that leads us to no longer believe that there is sufficient evidence to sustain a conviction, we’ll continue to try to bring the case to a resolution before a jury,” Murphy said. “It’s not uncommon for us to retry a case.”
Dickinson faced the two charges on which the jurors deadlocked at a second trial that began Aug. 12.
A whole new jury was impanelled for Dickinson’s second trial.
The oldest of the three girls and their mother again testified at the second trial, as did Roswell police and the forensic expert.
Jones-Witt said the prosecution’s case was based on testimony from the oldest sister, Roswell detectives and Hansen’s forensic examination.
“Those are the three main pillars of the state’s case,” Jones-Witt said.
On Aug. 13, the jury of the second trial found Dickinson not guilty on both the charge of criminal sexual penetration of a child under 13 and the charge of criminal sexual contact of a minor under 13.
Both trials lasted two days.
Dickinson was released from the Chaves County Detention Center shortly after his second trial.
“I leave it to the jurors,” Jones-Witt said. “I think it’s simply that there was a reasonable doubt. There was a reasonable doubt as to whether or not Mr. Dickinson committed those offenses.”
Jones-Witt described the trials as a “straight-up fight in the street.”
“This was a knockdown, drag out fight,” Jones-Witt said. “This was a really tough case for the defense. This is as bad as it gets for a defense attorney. Even us defense lawyers are sometimes surprised. Can you imagine being charged with the molestation of a child? Does anybody really think they can get a fair trial in this country when you’re even charged with it? We automatically kind of skip forward to guilt.
“He’s been in jail for two and a half years, ultimately on a crime that the jury acquitted him on. The state’s case ultimately was not sufficient to justify a conviction in the jury’s eyes. I think that’s borne out not only by the ultimate acquittal, but also borne out by the judge directing the verdict on the three counts that didn’t survive, on the jury acquitting in the first trial on the one count and then hanging. We kind of knew we were onto something.”
Murphy conceded the prosecution team was unable to present sufficient evidence to overcome reasonable doubt.
“Clearly, the state didn’t meet its burden of proof for the jury,” Murphy said. “I certainly don’t know what that is. We’re not permitted to speak to jurors until after their term of service has ended. In this case, the panel’s term of service is over Sept. 5. I haven’t spoken to any jurors. Typically, I like to try and follow up with jurors and ask them what they thought about the case and what they found compelling and what they thought possibly could have made a difference in their decision, if they can tell me that. Sometimes the answers surprise you and sometimes they don’t.”
Murphy said the lack of DNA or other forensic evidence might have been factors with the jurors.
“Cases that lack forensic evidence are always challenging,” Murphy said. “In that way, I guess it’s not as big a surprise as it could be in some other cases. As prosecutors. we’re always disappointed with not-guilty verdicts, but we have to respect the jury’s verdict.”
Murphy said the two younger sisters were not called to testify at either trial because of their young ages.
‘The other two girls were not old enough to qualify as a witness,” Murphy said. “For a person to be competent as a witness, they have to understand the difference between right and wrong and have a recollection of the event. When you’re talking about a 4- year-old and a 2-year-old, they are essentially extremely unlikely to meet that standard.”
Murphy said the testimony of the oldest girl, now 9 or 10 years old, was courageous.
“I think it’s extremely courageous for her to go into a courtroom full of strangers and discuss a very private and scary situation,” Murphy said.
Asked if he believed the girls and their mother were credible, Murphy said he would not have pursued Dickinson’s prosecution if he believed Dickinson were not guilty.
“Yes, it would be unethical for me to present a case in which I didn’t believe there was sufficient evidence to seek a conviction,” Murphy said. “Basically, the jury rendered a verdict and we’re bound to honor it.”
Asked if he believes Dickinson is a threat to the community, Murphy was hesitant to comment.
“Mr. Dickinson is entitled to a presumption of innocence and he was found not guilty,” Murphy said. “That’s kind of the end of it.”
Asked if Dickinson is under investigation for similar offenses, Murphy said he is unaware of any other molestation or any other criminal allegations pending against Dickinson.
“I have no reason to believe it’s under further investigation,” Murphy said. “Mr. Dickinson is not facing any charges of which I’m aware.”
Murphy said the prosection team did the best it could with the evidence it had.
“We put forth the evidence and testimony that we could pertaining to the charges that we had,” Murphy said. “To the extent that there were other matters discussed, I can’t really talk about that because at this point, he’s been found not guilty. I don’t want to invade the privacy of the victims or somehow bring something up that he never had a chance to defend in court.
“The jury made their findings and we have to essentially accept them.”
The mother of the three girls could not be reached for comment.
Staff Writer Jeff Tucker can be reached at 575-622-7710, ext. 303, or firstname.lastname@example.org.