A Douglas County judge Friday declined the request for a new trial from a rural Lawrence man who is serving a life sentence for molesting a 4-year-old girl at a day care center in 2009.
Defense attorneys for Richard Gonzalez, 69, alleged Friday that the Kansas Bureau of Investigation tested swabs taken from the girl’s body after the January verdict in the case and determined Gonzalez’s DNA was not found on the swabs. Defense attorney Carl Folsom said they would have likely used it “forcefully” at trial.
A jury in January convicted Gonzalez of sexually abusing the girl at a rural Lawrence day care center. They found him guilty of aggravated criminal sodomy and aggravated indecent liberties with a child. Prosecutors had said the girl alleged the acts occurred several times over a six-week period. Pokorny sentenced Gonzalez in May to serve 25 years to life in prison.
“This evidence tends to show that this did not happen,” defense attorney Branden Bell said.
But prosecutor Amy McGowan, a chief assistant district attorney, said the defense had information that the KBI had the swabs, even though they weren’t tested. McGowan also argued that on the day the first allegation was made to her mother, the girl had already changed her clothing and gone swimming.
It was hours after she had left the day care center, and her mother then took her to the hospital where a nurse performed a sexual assault examination, McGowan said. Investigators also collected the girl’s underwear, and a KBI agent testified he could not exclude that Gonzalez’s DNA was found on the girl’s underwear.
Pokorny in her decision on Friday to deny the defense request for a new trial also relied on the DNA found on the underwear.
“I do not believe a reasonable jury would have reached a different result even if this evidence would have been presented,” she said.
Gonzalez is still expected to appeal the verdict and sentence to the Kansas Supreme Court.