A 24-year-old Lawrence man who was convicted last year of fondling a 7-year-old girl is asking a judge to grant him a new trial based on statements the girl’s mother made after the trial.
Carl Folsom, a defense attorney for Jose A. Fernandez-Torres, has argued in a motion that the girl’s mother wrote a letter last summer, eight months after the trial, to his client’s mother and said the touching allegation could have arisen out of a “misunderstanding.” The girl’s mother in the letter wrote that she was angry at Fernandez-Torres and that it could have influenced her daughter’s memory of the alleged incident.
“The letter supports the defense’s trial theory that (the victim) might have just gotten worked up about an unintentional touching based on (her mother’s) emotions,” Folsom wrote.
A jury in December convicted Fernandez-Torres of aggravated indecent liberties with a child and violation of a protective order after prosecutors accused him of fondling the daughter of his girlfriend the night of Sept. 2, 2010, at a northern Lawrence apartment. Prosecutors accused Fernandez-Torres of putting his hand in the girl’s shorts while she was in bed. The girl told her mother, who took her to the hospital for an exam. Police later arrested Fernandez-Torres after interviewing both parties.
But Forrest Lowry, the defense attorney at the trial, argued the state didn’t have physical evidence to support the accusations and claimed Fernandez-Torres caught the girl as she fell out of bed.
District Judge Peggy Kittel heard evidence, including testimony from the girl’s mother, last week and said she would rule on the motions later. The girl’s mother also told Kittel from the witness stand last week that she thought Fernandez-Torres should serve one more year in prison on top of the nine months he has spent in jail.
Currently Fernandez-Torres faces 25 years to life in prison on the indecent liberties count.
Folsom has filed a separate motion asking Kittel to acquit Fernandez-Torres, arguing prosecutors did not prove all elements required in the jury instructions.