Court rejects appeal

TRACY KALYTIAK/Frontiersman staff

The Alaska Court of Appeals, in a Friday opinion, affirmed the conviction of a Wasilla man who sexually abused 5-year-old and 7-year-old girls who were related to him.

Fred M. Esguerra committed the sexual assaults of the girls between September and November 2000, according to court documents.

The 5-year-old told a family friend that Esguerra digitally penetrated her, tried to force her to have oral sex and exposed himself to her and her older brother at Esguerra's home, where they lived at the time.

The girl's 7-year-old sister told her grandmother in July 2000 that Esgerra forced her to engage in oral sex, even though she resisted him, according to court documents.

The girls' older brother told authorities that Esguerra exposed himself on several occasions to him and his siblings at Esguerra's Wasilla home. The boy also said he'd heard his 7-year-old sister's disclosure to her grandmother about Esguerra's alleged abuse in July.

In his appeal, Esguerra claimed Palmer Superior Court Judge Beverly Cutler should have dismissed a second indictment against him because she had dismissed a first indictment "with prejudice" - a term that means the same action cannot be brought against him again.

According to the appeals court ruling, the motion to dismiss the first indictment alleged that the state presented inadmissible evidence to the grand jury, that the charges in the indictment weren't specific enough to allow Esguerra to defend himself and that the charges should be dismissed due to pre-indictment delay. The state did not oppose the motion to dismiss the first indictment.

Cutler signed an order prepared by Esguerra's attorney, which stated that the indictment was dismissed "with prejudice." At the same time, Cutler ordered that Esguerra would be held in jail. Handwritten on the dismissal, Cutler provided that Esguerra was to be held in custody under his present bail conditions, pending a status hearing set for 12 days later.

At that hearing, the state asked for another week before it presented the case again to the grand jury. Esguerra objected to the delay, but, the ruling stated, didn't object on the ground that Cutler had dismissed the first indictment with prejudice, nor did he argue that the state should be barred from attempting to indict him again. The grand jury again indicted Esguerra.

It was clear Cutler did not intend to dismiss Esguerra's indictment with prejudice, the appeals court ruled. "It is apparent that she dismissed the indictment because the State did not oppose the defendant's motion," the judgment stated.

The appeals court also rejected Esguerra's claim that Cutler should have thrown out his second indictment because prosecutors presented inadmissible hearsay to the grand jury, saying that there are circumstances under which such evidence is permissible and that Cutler correctedly decided those circumstances all existed in the Esguerra case.

The criteria are that the circumstances of the hearsay statement indicate reliability, the child is under the age of 10 when the statement is admitted, additional evidence must corroborate the statement and the child must testify before the grand jury or be available to testify at trial.

The appeals court ruling also stated Cutler did not err in refusing to dismiss the indictment based on pre-indictment delay.

Esguerra had argued that by the time he was indicted, "almost a year had elapsed from the date of the alleged assault [on one of the girls] and approximately eight to twelve months had elapsed from the date of the alleged assault [on the other girl]," and that because of the young age of the children, the delay of "five months is a lifetime."

According to the ruling, Cutler concluded that Esguerra had not shown that prosecutors engaged in any undue delay in bringing the charges, and found that Esguerra had not alleged any actual prejudice.

The appeals court also rejected Esguerra's claims that one of the girls was not properly sworn in before testifying, and upheld Cutler's decisions to admit that same girl's interviews with police as prior inconsistent statements, deny Esguerra's attorney's motion to withdraw from the case, deny Esguerra's motion for a postponement to obtain a psychiatric evaluation and impose a sentence of 12 years with two years suspended.

"She found that Esguerra had very poor impulse control and concluded that he did not have 'a high potential for rehabilitation,'" the appeals court ruling said. "We conclude that the sentence which Judge Cutler imposed is not clearly mistaken. Esguerra's case was clearly an aggravated case of sexual abuse

of minors."