By Coco Wang
WOODLAND – A short video clip allegedly captured a previously registered sex offender waving at a minor while touching himself underneath his clothing for roughly 10 seconds at his apartment door.
In a jury trial on Monday, closing arguments were presented for the case against defendant Nouphoy Phetphayboune, who was charged with felony contact or communication with a minor with the intent to commit a sexual offense after the video allegedly captured him touching himself underneath his clothing in front of a minor.
At around 9:30 pm on July 15, 2019, the alleged victim, who was 12 years old at the time, was in her apartment complex and took a Snapchat video of the defendant who was standing at his apartment doorway. The video began with the complaining witness saying, “You want me to kiss you? No,” while the defendant made several hand gestures that resembled touching his lips and waving his hand with the palm facing toward himself. Soon, the defendant said, “You come” and postured himself as if he were touching himself underneath his clothing and remained in that posture for roughly 10 seconds.
In the closing argument, the prosecutor reminded the jury of the testimonies of a witness who was a neighbor in the same apartment complex. The witness testified that she saw the defendant at his doorway on the night of the incident, heard arguing in the defendant’s apartment, saw the defendant’s wife hit the defendant, and on a previous occasion the defendant had tried to obtain the witness’s attention from his window to have her come inside of his apartment. The prosecutor argued that this witness did not have any incentive in this case and therefore should be trustworthy.
Further, the prosecutor questioned the reliability of another witness, the defendant’s wife, for the contradictions in her testimonies. The defendant’s wife testified that she was with the defendant the entire day on July 15, 2019, which was a Monday. Yet, she also testified that her work schedule is from Monday to Friday and occasionally on Saturday. Moreover, she also claimed that she believed July 15, 2019, was a Sunday, which is not factual.
The prosecutor informed the jury that the defendant had been convicted of felony sexual battery in 2006 of a victim who was 13 years old at the time and that the defendant had been a registered sexual offender for this case. In the 2006 case, the defendant knew the victim and their families were friends. According to the prosecutor, the defendant had grabbed the victim by her waist and left breast, kissed her, and told her, “It’s okay.” This victim had therapy for two years after the incident occurred.
In the defense’s closing argument, the attorney argued that this incident was a joke played by the victim who did not realize how far it could go. The defense informed the jury that the victim had just started middle school a year before the incident and had already allegedly switched schools due to drama. The defense argued that the victim was a teenager who enjoyed using social media and she planned to play a joke on the defendant and have it recorded via Snapchat on the night of the incident.
The prosecutor’s theory, as the defense argued, is too speculative and beyond reasonable doubt. The defense told the jury that the prosecutor had done nothing to help with the understanding of this case; all the prosecutor had done was to reiterate that the alleged victim was 12 years old.
The theory proposed by the defense depicted that the alleged victim knocked on the door of the defendant’s apartment and hid behind a tree to film the defendant.
Further, the defense argued that the word “kiss” was only mentioned by the alleged victim throughout the entire video and there had been no other evidence to support that the defendant asked the alleged victim for a kiss. Moreover, the defense argued that the defendant, in order to actively prey for teenagers, would have to know the exact time when the alleged victim was passing by his window and then invite her to go inside his apartment.
In addition to these, the defense pointed out to the jury that there were at least three inconsistencies within the victim’s testimonies and the reports. One of the inconsistencies was that the alleged victim contradicted herself when answering whether she had known the defendant prior to the incident. On one occasion, the alleged victim said that she had never seen the defendant before, while on another occasion she claimed that she had seen the victim passing by in the apartment complex a year ago.
The alleged victim also had contradictions in her testimony regarding whether her mother had hit the defendant. Moreover, the defendant also claimed that the defendant was completely bald and was bigger than he is now. The defense concluded that the alleged victim was not truthful because she once claimed that she was hiding behind a tree in the apartment complex to film the defendant.
The defense reminded the jury that the alleged victim did not realize that the defendant was touching himself underneath his clothing until she played the video to her friends and that videos did not always present the truth. The defense showed the jury two photos of Prince William, and in one he appeared as if he was showing his middle finger, while in the other photo, he was simply curling his hand. Also, the defense argued that there were reasons why parents warn their children to stay away from strangers who give out candies, and the action of touching oneself in front of a minor was hardly considered a successful appeal to invite a minor into one’s house.
The defense requested that the jurors play the video frame by frame and argued that the video never clearly expressed that the defendant placed his hand underneath his clothing, and it was likely that the defendant was only scratching. Also, the defense argued that the phrase “you come” very likely indicated that the defendant was trying to figure out who knocked on his door at 9:30 pm when he was about to go to bed with his wife.
Lastly, in the prosecution’s final argument, the prosecutor argued against the defense’s theory and stated that there was no joke in this incident since nobody testified about a joke and no other evidence supported that this was a joke.
Regarding the inconsistencies in the testimonies made by the alleged victim, the prosecutor claimed that the only contradictions were minor details and the alleged victim had maintained a consistent big picture throughout the trial. Moreover, the prosecutor claimed that the alleged victim, being only 12 years old, was not familiar with the procedures of the court and there were possible times when she did not fully comprehend the questions directed at her.
In responding to the defense’s argument that the defendant was only scratching himself, the prosecutor took out a timer and allowed the jury to experience how long 10 seconds felt like and asked the jury to decide whether if it were reasonable for a person to scratch oneself for a full 10 seconds. Furthermore, the prosecutor argued that although it was a possible theory that the defendant was only scratching himself, it was not a reasonable one.
Also, the prosecutor argued that the defendant was touching himself because he was aroused, not because he was trying to invite the minor into his house; he attempted to invite the alleged victim in by saying “you come” and by waving his hands.
The jury was sent into deliberation after the closing arguments.
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