Prosecutors take too long to submit evidence to defense, can’t introduce it at hearing
Editor’s note: This story contains details about an alleged sexual assault.
Prosecutors who failed to turn over several pieces of evidence in a timely manner to defense attorneys have been barred from introducing that evidence in a key hearing for one of three men accused of sexually assaulting a 17-year-old girl at the home of Ouray Police Chief Jeff Wood last year.
Seventh Judicial District County Court Judge Sean Murphy ordered Deputy District Attorney Ryan Hess to not use any evidence in a March 13 preliminary hearing for 18-yearold Ashton Whittington that wasn’t provided to Whittington’s attorneys by Jan. 17. He also instructed Hess to submit the remaining evidence he has to public defenders Patrick Crane and Cody Seboldt by the end of the day March 15.
Evidence prosecutors won’t be able to use in the preliminary hearing includes video of a search warrant being executed at Wood’s house and information extracted from the cellphones of the accuser and three defendants.
The March 13 hearing was continued to March 29 after attorneys spent more than two hours arguing over the defense’s motion to dismiss the case against Whittington or issue sanctions against prosecutors.
Whittington, 18-year-old Nate Dieffenderffer and 20-year-old Gabriel Trujillo are each charged with felony sexual assault in connection with an alleged May 2023 rape the accuser says happened at Wood’s home. Dieffenderffer, who is Wood’s stepson, was 17 at the time of the alleged crime and has been charged as an adult.
The district attorney’s office earlier this month filed two additional charges against Whittington — a felony count of contributing to the delinquency of a minor and a misdemeanor count of providing alcohol to a minor. The felony count alleges Whittington aided or encouraged Dieffenderffer to sexually assault the girl.
Whittington’s attorneys blasted prosecutors during the March 13 hearing, with Seboldt alleging there is “an extreme record of negligence in this district” on the part of District Attorney Seth Ryan and his staff failing to supply evidence to defense attorneys in a timely fashion.
The district attorney’s office dropped charges in a felony stalking case in Montrose last year after taking more than a year to provide evidence to the defendant. In a current homicide case in Gunnison County, Crane claimed it took prosecutors eight months to turn over evidence to defense attorneys.
Murphy declined to dismiss any charges against Whittington but made it clear he was concerned that prosecutors took so long to supply defense attorneys with evidence. Under state law, prosecutors must turn over several types of evidence — including law enforcement reports, witness statements, photographs and video — to defendants within 21 days of filing charges. Whittington was charged Dec. 27.
“Frankly I’m concerned because these are rather serious assertions, and if this goes beyond some sort of pattern of negligence into some sort of willful ‘hide the ball’ exercise, then I want to make sure we have access to known information supporting that,” Murphy said.
The judge excluded several pieces of evidence from the preliminary hearing, including bodyworn camera video of law enforcement officers executing a search warrant at the Ouray police chief’s home in July, as well as multiple police reports and photographs. Seboldt said prosecutors didn’t provide the reports and photos until March 4, and didn’t turn over the search warrant video until the morning of the preliminary hearing.
Seboldt and Crane also pointed out they still hadn’t received information that was extracted from the cellphones of the accuser and the three suspects. Murphy ordered Hess to provide that by March 15 while also excluding it from the preliminary hearing.
Hess told Murphy the evidence in the case is voluminous, and that prosecutors ran into some technical glitches, such as broken web links, in obtaining and organizing evidence from the Colorado Bureau of Investigation, which investigated the alleged sex assault.
He also claimed prosecutors couldn’t communicate electronically with defense attorneys for a few weeks due to a cyberattack on the Colorado State Public Defender’s Office. Seboldt, however, pointed out the attack happened after the deadline had passed for prosecutors to turn over evidence. The cyberattack happened Feb. 9, according to reporting by the Denver Post.
Hess also insisted Murphy had no jurisdiction to dismiss charges against Whittington, claiming only a district court judge could do that. Crane disputed that notion and said this case is the latest example of prosecutors failing to fulfill their legal obligations.
“The excuses that are being used, I’ve been a part of numerous cases that are on that list,” he said. “I have heard of all of this before. Nothing has changed, even as cases have been dismissed or sanctions (have been imposed) or people have been excluded from testifying.”
Whittington’s attorneys asked Murphy to dismiss the case in its entirety, or at least the most serious count — the felony sexual assault charge — but the judge declined to do so, choosing instead to limit evidence at the preliminary hearing.
The arguments over what sanctions, if any, prosecutors should face left little time for the preliminary hearing, in which a judge considers whether there is enough evidence to support proceeding with criminal charges. It’s a relatively low bar for prosecutors to meet in a hearing where the judge considers the evidence in a light most favorable to the district attorney.
The only witness called during the March 13 hearing was the accuser in the case, who was surrounded in the courtroom by several family members, friends and supporters. The Plaindealer is not naming her in reports, as it is the newspaper’s policy to not name accusers in sex assault cases.
The girl, now 18, testified she went to Dieffenderffer’s house the night of May 13, bringing with her an empty vodka bottle filled with gin and water. She said Whittington brought whiskey shots and alcoholic seltzers. She said she knew Dieffenderffer and Whittington would be at the house, along with the police chief and his wife. Trujillo also showed up, though the accuser said she didn’t know he would be there.
The accuser said she drank one of the seltzers, and then another she said Whittington handed to her. Within a few minutes, she said, she started feeling lightheaded and her body went numb. Prosecutors implied — but did not directly claim — the seltzer had been drugged.
She said she blacked out, and when she regained consciousness she was being assaulted.
“Did you (give) consent?” Hess asked. “No,” she replied. She said she grabbed a sweatshirt — later determined to be the police chief’s — and left the house. She said she was bleeding and had scratches and bruises and a chipped tooth.
The accuser said she called and texted friends and drove home. One friend encouraged her to go to the hospital. She testified she had no intention of reporting the rape to police but decided to go to the hospital to make sure she was OK and to try to preserve evidence, should she change her mind and report a crime.
The prosecution’s questioning of the woman lasted about 15 minutes.
Crane, who said he anticipates cross-examining the accuser for several hours when the preliminary hearing resumes March 29, told the judge Whittington was not involved in the sexual assault, that his DNA was not found in any of the tests performed and that there is “zero evidence” of a plan to commit an assault. He said prosecutors have to prove not only that an assault occurred, but that Whittington knew an assault was going to occur and took steps to aid in its commission.
“Mr. Whittington being there, even if a sexual assault occurred, isn’t a crime,” Crane said. “Legally someone could stand and watch someone rape someone and that is not complicity. It is a moral issue, no doubt. But there is no legal duty to jump in and stop it.”
The other two defendants in the case, Trujillo and Dieffenderffer, are due back in court March 26 and April 2, respectively.
If you or anyone else needs assistance with sexual assault resources, please call either the National Domestic Violence Center 24/7 hotline at 1-800-799-7233 or the National Sexual Assault 24/7 hotline at 1-800-656-4673.
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