Jury hears grueling testimony by alleged victim in sex assault case

fili@samoanews.com

The victim in an alleged sexual assault that happened earlier this year spent more than three hours on the witness stand, where she recalled for a jury of five women and two men what she says defendant, Chand ‘Bob’ Mukesh, did to her sometime on the evening of Apr. 6.

The trial began Monday with jury selection followed by opening arguments by both sides in the government’s case against 53-year old Mukesh, who is charged with one count each of sodomy, deviate sexual assault, and first degree sexual abuse.

According to the court documents, the alleged victim — who was 17 years old at the time of the alleged incident — is friends with Mukesh’s teenage daughter and the alleged sexual assault occurred while the victim was at Mukesh’s home working with the defendant’s daughter on putting together pasta food plates for a fundraiser.

The victim was the first witness for the government yesterday and when asked by Assistant Attorney General, Woodrow Pengelly, to identify the name of her friend’s father, the victim paused and cried unable to speak the defendant’s name. It was only after Pengelly said the defendant’s name that the victim said yes.

 And when asked to say if the defendant was in the courtroom, she cried and pointed to the defendant who was sitting just behind his defense team, headed by Joshua Rovelli, an attorney with the RDA Law Firm- American Samoa.

It took a while for the victim to compose herself, wiping away tears before questioning continued.

When the government asked the victim what kinds of things the defendant had told the victim, during the first time that she visited her friend’s home, the defense objected and requested a brief moment at the bench.

When the trial resumed, Acting Associate Justice Elvis Patea informed the jury that the witness would not answer the question.

“You may recall my instructions to you [on Monday] that questions and statements made by attorneys are not evidence,” Patea told jurors, who were also asked to disregard the question and not to speculate as to the answer.

This was just one of the more than five times that a side-bar at the bench was called yesterday by either the defense or the government over certain questions that came up during the trial.

During his line of questioning, Pengelly walked the victim through the events of the night leading up to the alleged assault. The victim recalled that she was in her friend’s room, but decided to come out to the living room to sleep on the couch because the bedroom was cold, with the air conditioner on.

She didn’t go to sleep right away, but instead ended up talking with her boy friend, using messaging or video chat on her iPad. (Later in the trial, the defense questioned as to whether the air conditioner was on in the living and the victim said “no” it was already turned off when she got there.)

Eventually, she fell asleep on the couch sleeping on her stomach, but was awakened when the defendant touched her legs and back. Asked as to any other parts of her body touched by the defendant, the victim was in tears, and a court recess was called.

The questions were asked again when the trial resumed, and the victim — after taking a deep breath said, “my butt”.

On the night of the incident, she was wearing a sweatshirt and “boxers”, according to the victim.

“How did you know, it was [the defendant] that touched you?” Pengelly asked, to which the victim replied, “I woke up and I saw him.” She said the defendant didn’t say anything and she ran for the bathroom, but she didn’t make it.

Wiping away more tears and in an emotional voice, she alleges the defendant “stopped me” and “tried to kiss my neck” and he put his hand inside the front section of her boxers.  She further alleges that the defendant pushed her against the wall.

When asked what the defendant did when he put his hand inside her boxers, the victim took a long pause — as another side-bar at the bench was called. The victim continued to cry holding napkins to her face and then wiping away more tears.

When the proceedings resumed, Pengelly repeated the question twice but the victim couldn’t give a clear and precise answer, as she became more emotional with tears rolling down her cheeks. A court recess was therefore called and when proceedings resumed, the government repeated its question, and this time the victim said the defendant “penetrated my vagina” with his fingers.

She then pushed him off and ran to the bathroom where she locked the door and waited for someone to wake up or when she could hear someone come inside the house. When she heard a door open (somewhere inside the house), the victim came outside of the bathroom and saw the defendant.

She alleges that the defendant then asked her for her number and that the defendant allegedly told her, he knows where she lives. That’s when, she ran towards her friend’s bedroom to wake her up. The pair, along with another female friend, later in the daylight went to deliver the food plates for sale.

It was later (on the following day) that the victim told another friend who helped with the delivery of food plates about the incident. And this was done through messaging. Asked who in her family did she tell about the incident, the victim said it was her brother, who then contacted her other brother, who then contacted her to confirm the incident. Afterwards the brothers told their mother, who later told the dad.

During cross examination, Rovelli raised many questions, and started off focusing on the victim’s iPad, which she said belongs to her and was bought by her mother. Her testimony also revealed that she has no cellular phone but communicated with her friends as well as her boyfriend, via messaging and video chat using her iPad.

Rovelli also sought to get a specific time frame on some of the victim’s testimony as well as what she said in her written statement to police. Many times the victim, would reply “I don’t recall” or “I don’t remember” and there were times that she asked the defense to “rephrase your question” so she could understand and provide an answer.

Rovelli raised the issue of the victim going into the defendant’s bedroom with the defendant’s daughter. The victim responded that the defendant talked mostly about business.

“Do you recall [the defendant] telling you, that you’re too young to have a boyfriend?” Rovelli asked — to which the victim said, “yes” adding that the defendant had asked his 17-year-old daughter, who she was dating.

The defense also asked several questions regarding the victim’s written statement to police. For example, part of the statement says that the defendant’s “house [was] completely locked down.”

The victim explained that she “didn’t try to run” — but noted that the house is in a gated area and the exit door is locked from inside and the defendant has the only key.

“Did you make any effort to get out of the House and gate?” the defense asked and the victim replied, “no”.

Rovelli also asked if anyone suggested that she go to the hospital to be checked. The victim said yes, it was her mom and a female police officer. However, she said she didn’t go after “they” said it was two days after the incident and that she had not heard back yet on an appointment to get the check up.

“Who is ‘they’?” the defense asked, and the victim responded, that it was the female police officer, who discussed it with her mother and later told her about it.

According to court documents, around 10a.m. on Apr. 9, 2017, a police lieutenant walked into the Tafuna police station with a man who wanted to file a police report regarding his daughter, who he alleged was sexually assaulted by the defendant. Forty-five minutes later, the victim and her mother showed up at the police station.

The jury trial continues today, and Patea who was flanked on the bench by Associate Judges Satele and Muasau reminded the jury that they are not to discuss the case with anyone else and not even with another juror until the case is presented to them for deliberation.

Additionally, they were cautioned not to allow anyone to approach them about this case or to discuss it.

“Keep an open mind, until the case is presented to you” for deliberation, said Patea, who also made clear to the victim not to discuss the case or her testimony with anyone else.

Witnesses who were at the court yesterday were told to wait outside until they are called one-by-one to the stand.

The defense is looking at calling seven witnesses but Samoa News wasn’t able to confirm as to the number of witnesses the government plans to call.

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