Man accused of masturbating in court faces deportation after plea deal

Oregon Live – by Emily E. Smith

A sex abuse defendant who was accused of masturbating during a pretrial court hearing will face deportation under the plea agreement he signed Wednesday.

Prosecutors said Roberto Hernandez-Fabian sexually touched a 13-year-old girl in a car in 2010. He was 26 at the time. He told investigators that the touching was not sexual and he only meant to tickle her.  

A Washington County jury that year found him guilty on two counts of first-degree sexual abuse and acquitted him of two additional counts. He was sentenced to six years and three months in prison.

But the case returned to Circuit Court after the Oregon Court of Appeals found that prosecutors had failed to give adequate notice of their intent to offer hearsay statements at trial.

Before his scheduled retrial in February, lawyers went before a judge to argue over evidence. As the 13-year-old victim’s video-recorded interview played in the courtroom, a court deputy noticed something strange.

While the girl on video described the sexual abuse she’d suffered, it appeared to the deputy that Fabian-Hernandez, now 31, was masturbating in the courtroom.

At the lunch break, the deputy told the judge what she’d witnessed.

In a later hearing, the man’s defense attorney said he was only 6 inches away from his client and he saw nothing indecent.

Judge Thomas Kohl, who’d been viewing the video at the time, said he hadn’t seen anything inappropriate either. Nevertheless, he recused himself and sent the case to be handled by a different judge and a different defense lawyer.

Defense attorney David Rich took the case, which resolved Wednesday with a plea agreement.

Deputy District Attorney Paul Maloney said the victim was distraught over the idea of testifying in front of another jury. She strongly supported resolving the case with a plea deal.

Presiding Judge Charles Bailey accepted the plea agreement, in which Hernandez-Fabian admitted to two counts of attempted first-degree sexual abuse. The agreement called for a sentence of nearly four years in prison but gave the defendant credit for time served.

Because Hernandez-Fabian has already served five years and two months, his lawyer said, he’ll be released in this case, taken to immigration jail and eventually be deported to Mexico.

— Emily E. Smith

esmith@oregonian.com

http://www.oregonlive.com/hillsboro/index.ssf/2015/06/man_accused_of_masturbating_in.html