State rests in Childers case

November 11, 2011

Aubrey Phillip Childers

The state rested their case against Aubrey Phillip Childers shortly before 3 p.m. on Thursday afternoon, Nov. 10, 2011 at the Nolan County Courthouse. Mr. Childers is on trial in regards to a male-on-male sexual assault which occurred in the southwest part of Sweetwater on or around Aug. 15, 2010.
The fourth day of the trial allowed the jury — comprised of nine women and three men — to hear testimony from involved law enforcement, witnesses from the night in question and scientific experts who analyzed evidence.
Sweetwater Police Department (SPD) detective Sam Cunningham was on the stand in the morning for cross-examination in which he was shown photos from the defense of the victim's clothing. It was noted that a girls' duffel bag was found in the car when the act took place, but it was never looked through.
A picture of an overgrown field near the scene was also shown, with the defense raising the question of if the area was canvassed. Paul Hanneman, the attorney for Mr. Childers, asked Mr. Cunningham if he recalled the victim stating he fell when getting up from the car, in which he said no.
The defense discussed the video interview with the victim and the written statement he brought in to Mr. Cunningham, recalling the details of the night in question. Mr. Hanneman noted that the victim's rights were not read to him during the interview and asked why his previous interactions in purchasing cocaine hadn't been investigated.
Also brought up was the fact that Mr. Robert Carey, Jr., a bouncer at Club Phoenix (the Cafe) who punched the victim that night, was never charged or arrested though the victim initially stated he wanted charges made. Mr. Cunningham said that the victim later changed his mind about the charge and in both instances, there was no concrete evidence to pursue.
Mr. Hanneman also inquired as to the techniques used by Mr. Cunningham while interrogating Mr. Childers. When asked why he mentioned to Mr. Childers, if he went to prison, that he would possibly interact with the Aryan Brotherhood, Mr. Cunningham stated that the issue was a legitimate safety concern.
He also noted that Mr. Cunningham, in one of the video interviews, had told Mr. Childers about possibly taking a polygraph test though one was never administered. Mr. Cunningham testified that they were unable to schedule a test and that the test only measures certain aspects of deception and would not prove beneficial to this case.
The defense also questioned Mr. Cunningham's reiterations to Mr. Childers in telling the truth during the interviews as well as the methods he used to gain the information from Mr. Childers. Mr. Cunningham stated that he does not try to gain the confidence of the person but will says things or mention practices — some of which he does not personally believe or enacts in his own life — to ease the person.
Evidence that was found was also discussed when the defense asked about what DNA tests were performed. Mr. Cunningham stated he was not a DNA expert but was asked by Mr. Hanneman about techniques used. However, Mr. Cunningham said he has not received training to do so through fluorescing or using black lights, with the defense wondering why someone in Mr. Cunningham's position had not learned such techniques.
Officer Robert Clark took the stand next, relaying to Assistant District Attorney Barrett Thomas that he came into contact with Mr. Childers on Circle Drive. Mr. Childers, described as very nervous, began offering information willingly to him regarding the assault in that they would add things to his charge.
Mr. Clark said that he knew about the case regarding Mr. Childers, who stated that his DNA would be found on the victim. When questioned by the defense, Mr. Clark acknowledged that Mr. Childers gave the information voluntarily and without begin asked.
Mr. Childers, according to Mr. Clark, asked to speak with Mr. Cunningham and calmed down when informed he would be able to do so. It was also noted that Mr. Childers seemed fearful of going to jail because of the rumors he had heard and the possibility of being harmed while incarcerated, though Mr. Clark was unaware of the extent of the rumors.
In addition, Mr. Childers told Mr. Clark that he had been fooling around with the victim that night and was concerned that his sexual orientation would place him as a suspect from the event.
Next to be called by the state was Breanna Havner, a friend of Mr. Childers since childhood who was with him on the night in question, first on Throckmorton Street before going to the Cafe along with three other people named Lonnie (Mr. Childers' uncle), Tyrone (his brother) and Megan. She stated that she didn't know the victim but later saw him in the evening.
Ms. Havner said that the victim had been drinking and stopped at her car but she didn't stay the whole evening. She along with Mr. Childers left the Cafe to take Tyrone and Megan; the three of them went back to the Cafe, where she saw the victim — who looked drunk, and the victim joined them and left back to Throckmorton Street where Lonnie lives.
Upon arrival, Lonnie and the victim got out of the car followed by Mr. Childers. Later, Mr. Childers sent a text to Ms. Havner to ask her to have her take him back to the Cafe.
The defense brought Ms. Havner's sworn written statement, which described the car as a red Pontiac GrandAm. She was in the area when the victim was punched but did not witness the event as she only saw the commotion that ensued.
She noted that she saw the victim talking to her in a group of people about being messed with, but noted that she wasn't particularly paying attention to him. As she was talking with the girlfriend of Duna, or Robert Williams, Jr., Mr. Childers told Ms. Havner that his uncle was ready to leave. Before getting into the car with them — which he was not forced, the victim had a small conversation with his niece.
Ms. Havner said that they arrived at Lonnie's house around 2:30 a.m. and received a text message to pick up the victim from Mr. Childers. The victim and Mr. Childers were talking friendly and the victim went into the back seat on the passenger side of the car and appeared to be coherent and know what he was doing though he looked drunk.
She also noted that it appeared as if Mr. Childers and the victim were flirting with each other, but when asked by the state, Ms. Havner mentioned that she never included that in her statement.
Brent Hester, the forensic scientist at the Lubbock Texas Department of Public Safety (DPS) Crime Lab who examined the evidence of clothing and swabs from the case, took the stand next. Initially objected by the defense to offer his testimony, presiding judge Glen Harrison ruled that Mr. Hester was qualified to testify.
Mr. Hester performed several tests during his time with the evidence, including an alternate light test, an AP test and sperm search test. The AP test can sometimes lead to presumptive and confirmatory steps in the process.
The findings from Mr. Hester stated that on the boxers of the victim, a mixture was found which named Mr. Childers as a major component though the minor component was insufficient. The victim was not excluded but Mr. Williams, a previously named suspect, was excluded.
On the t-shirt, a mixture was found that did not exclude Mr. Childers as a major component, while the minor component was insufficient. On a sample of the lower part of the shirt, a mixture was found that could not exclude Mr. Childers with the victim and Mr. Williams not a contributor for the skin DNA. However, the sperm test found that it was consistent with Mr. Childers.
On the penile swabs of the victim, no semen was found but a DNA mixture was found with the major component as the victim. On the anal swab, semen was found in two instances but no sperm heads were present.
However, on the anal swabs that found semen, the skin test found a mix that did not exclude Mr. Childers or the victim and the sperm test was found consistent with Mr. Childers. The conclusion was that Mr. Childers' DNA was present on the shorts, shirt and anal swab of the victim, though not on the penile swab.
The defense asked Mr. Hester if the DNA could be wiped off or washed off, to which he answered yes. Even walking over a period of time, according to Mr. Hester, can allow for DNA to come off. It was also noted that DNA transfer can come from a variety of ways through anything that can cause friction.
Mr. Hester noted that for his analysis, he used 16 loci, or positions within the DNA molecule, to determine what made up a profile or partial profile (for instance, five out of 16 loci can be concluded as a partial profile). The DPS has no rule as to a minimum before a person can be considered a contributor.
However, each agency makes that determination of what is considered as major and minor. In Mr. Childers' case, for example, the defense noted that on the t-shirt — while he was found as a major contributor, other DNA was found and that the minor DNA found was that of another person. If more places were looked at, a better distinction could be determined.
Amanda Seals was the last person to take the stand for the state, a lifelong friend of the victim. She recalled getting her daughter ready for church the morning of Aug. 15, 2010 when the victim came to her house with a swollen face. He appeared intoxicated and was almost sober, a common thing for Ms. Seals to see with the victim. However, she noted that his drinking had escalated since the death of his father.
The victim appeared upset, according to Ms. Seals, and told her he had been jumped by some black men. He drank a beer and when he got up from sitting, Ms. Seals saw the blood on his shorts. She asked the victim if he had been raped because of his demeanor and because of the blood. She also made sure he did not shower or clean up.
Her advice to him was to go to the hospital, and though the victim was reluctant at first, she eventually convinced him to go with the thought that the act could happen again — even using the scenario that it could happen to his own family members, and Ms. Seals dropped him off at the hospital.
She told the defense that the victim said he saw a man in the front seat of the car, where he woke up at, that seemed smaller in build than he was. He also told her that he couldn't find his boxers and that he ran from the car to find a gun and seemed as if he wanted to take revenge but later decided to do the right thing.
Ms. Seals stated that the victim told her he went to one friend's house, who wasn't there, before going to her house because he knew her husband, Chris Cantu, had a gun in a safe. The victim also wanted to go to his sister's house before going to the hospital but decided against it when the police got involved.
She also recalled a past time when the victim, prior to the event, had been beaten up while working at Days Inn because of a debt he owed. Her husband gave him the money in an attempt to stop the beatings, but the victim never gave the group the money or paid back Ms. Seals or Mr. Cantu.
The defense also mentioned the victim's interaction with the house on Runnels, a drug dealing house bulldozed down by the city. He noted that he could get the people in trouble with the law by going to law enforcement, but Ms. Seals stated that he said it in anger.
She said she thought the victim only drank one beer but that she left the room briefly to compose herself after learning about the incident as she felt sick to her stomach about it. She did state that she wanted to make sure he didn't leave from her house.
Ms. Seals said she did everything possible to help him and that sometimes the victim would get in trouble from his drinking and actions that followed, but on several occasions had been victimized. The defense asked about the victim's tattoos, but she told the state that because he loves art and tattoos themselves, he has them to only promote his interests.
With the conclusion of Ms. Seals, the state rested their case around 2:50 p.m. Alexander Nham, a forensic biologist at the Dallas County Crime Lab, took the stand first for the defense.
Mr. Nham was asked to examine several pieces of evidence from the SANE (Sexual Assault Nurse Examiner) kit, such as samples from the victim's boxers and shorts, along with some swabs. He noted that his results in comparison to the report from the DPS crime lab were consistent.
He stated that he found no blood on the shorts, but when they were shown to him by the state Mr. Nham acknowledged the presence of blood. However, no DNA test was performed to determine who the blood came from.
Mr. Nham, who cited his educational background and three years in serology, went through his report which noted what items he received from the SPD: samples of the clothing and penile and anal swabs of the victim. After the testing, some of the information was stored while others were returned to the evidence registrar. The information was then analyzed by another person, who reviewed and confirmed the report as acceptable and accurate.
Kenneth Balagat, another forensic biologist at the Dallas County Crime Lab, took the stand next for the defense and offered a breakdown of the information which was tested by him along with the DPS crime lab.
For each item, two tests were performed to look for epithelial (skin) DNA and sperm. The three comparisons for the test were the victim, Mr. Childers and Robert Williams, who was a early suspect when the case was initially underway.
On the anal swab, the skin DNA matched the victim, while the sperm DNA had no complete profile. It compared, however to all three men as they all had the similar marker. On the penile swab, there was no complete DNA profile but two comparisons were noted with a match found with the victim.
One t-shirt sample came with a skin DNA mixture with two contributors with one being male. The markers were similar to all three men. A second t-shirt sample found no complete DNA profile; one male was found which could include Mr. Childers in the sample. The boxers also matched the profile of Mr. Childers.
The conclusion was that Mr. Childers could be included as a contributor on the anal swab as well as the t-shirt and boxers. Mr. Williams' DNA could also be included as a source to the sperm test of the anal swab, along with the skin and sperm test to the t-shirt.
While it could have come from Mr. Childers, there are genetic markers people have in connection with others but, as the shirt proved, a specific combination makes them unique to each person. It was noted that Mr. Williams had one genetic marker that the other two men, Mr. Childers and the victim, did not have.
Mr. Hanneman also asked Mr. Balagat about skin DNA transfer. When asked if it could be wiped and washed off, along with bodily fluids, Mr. Balagat said yes to all the instances.
Ms. Reed asked Mr. Balagat about the difference in marker and loci, which was mentioned by Mr. Hester. The DPS lab used 16 loci, whereas Mr. Balagat tested with 13. The difference in numbers, according to Mr. Balagat, came as the result of each lab using different kits, as was the case in this situation.
The state also considered the fact if the difference in loci shows a difference in the results and percentage numbers. While there are more locations to use in testing, the numbers will be different but the main thought is how strong the match is.
Again, it was noted that on the anal swab, the only match on the skin DNA test was for the victim, while the sperm test found a genetic marker for all three men. The t-shirt found two contributors, Mr. Childers and the victim and the skin DNA test found all three.
Once the marker is found and is matched, a statistical probability is determined to show the strength of the match. Known as random match probability, the state presented the issue that in one instance for Mr. Childers, a rare match of one in 214 trillion (Earth's estimated population multiplied by 30) was found for him.
However, Mr. Balagat noted to the defense that according to his protocol in his agency, they do not identify the person. They only draw up the results and probabilities in order for other people to draw their own conclusions.
The final witness called to the stand for the day was SPD Sergeant Matt Counts. Mr. Counts stated to the defense that he met with the victim, who told him he went to the Cafe and drank.
During the night, he was jumped by four or five black men who threw him into the back seat of a brown Buick, in which they left the Cafe. The victim recalled to Mr. Counts that he had been punched and knocked out, waking up around 8 a.m. still in the car which was located on Coke Street.
Mr. Counts testified that he was informed by the victim that his shorts and boxers were pulled down and an unknown black man was beside him in the back seat. The victim then walked to his friend's house to get a gun — who wasn't at home, and then walked to the emergency room.
When questioned by the state, Mr. Counts noted that the victim was angry, upset and was hesitant to offer information, possibly from embarrassment. He could tell that the victim had been drinking and that he smelled of alcohol.
Following Mr. Counts' testimony, around 4:40 p.m., the court stood in recess for the day. As the Nolan County Courthouse observed the Veteran's Day holiday, the trial will reconvene on Monday morning, Nov. 14, 2011 starting at 9 a.m.

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