Trying an aggravated sex assault with a runaway victim

On June 26, 2013, Dana King (not her real name) was placed in a residential treatment center in Austin. She was there for only three days before she found a way to crawl out of the bathroom window, in the only room where she wasn’t monitored, and ran away. Three days later she returned, barefoot, shaking, and speaking in an unnatural accent. She explained to her case manager that she had been sexually assaulted many times by many different men. She was 13 years old and had just been introduced to the world of sex trafficking.
A heart-wrenching story
Dana’s life story is heartbreaking. CPS was a normal fixture in her life until she was adopted at age 7. At age 12 she began running away, and she was 13 when she made an outcry about sexual abuse by her adoptive father. Her adopted parents refused to parent her any longer, and CPS became her guardian. About a month after her outcry, Dana was placed in the Austin residential treatment center. She ran away initially to get to her adopted brother in a nearby central Texas town, but he hung up on her when she called. This left her alone on the streets in a bad part of town with nowhere to go.
    She was originally picked up by a couple of men who took her back to their apartment. In that apartment lived eight to 10 men who all worked at the same landscaping company. All but one participated in giving her alcohol and took turns sexually assaulting her. After they were done, they dropped her off at a convenience store near where they had met her the day before. From there she met a prostitute named Jeana, who introduced Dana to her pimp, Don Lewis. Don, in turn, introduced Dana to crack and prostitution. He sold her to a number of men who came into his apartment, each of whom sexually assaulted her in every way possible. It was from Don’s apartment that Dana ran and found her way back to the residential treatment center.
Tracking down suspects
After Dana told her case manager that she had been assaulted, the case manager called the Austin Police Department. Officer Nathan Blake took Dana’s statement, and Dana felt comfortable enough to ride along with him and point out the places she had been. The officer then returned her to the residential treatment center so her case manager could take her to a local hospital for a sexual assault forensic examination. As Dana began the long and invasive process of a sexual assault exam, Officer Blake parked his car at one of the apartments Dana pointed out so he could observe it while writing up his report. When he noticed two men exit the apartment, Officer Blake met them, identified them, and included that information in his report. This would prove to be an important chance encounter as the task of investigating this complex set of crimes began.
    The case was assigned to Detective Brent Kelly at the Austin Police Department. He first spoke with Dana’s adopted brother, who confirmed that she had called and that he had hung up on her. He fortunately still had the phone number Dana had called from. Next, Detective Kelly interviewed Dana and separated the different incidents of sexual assault that took place at different locations. Dana gave very specific identifying information about the various apartments where she had been, including their layouts and items she saw while inside. She even drew pictures of the apartments’ interiors. A few days after this interview, Dana went on another ride-along, this time with Detective Kelly, to confirm the locations of the different incidents.
    Once he had detailed information from Dana, Detective Kelly went about identifying suspects. He was able to trace the phone number from Dana’s brother to a man named Juan Lozano. Detective Kelly found that Lozano’s address was in the apartment complex Dana had identified as the first location where she was taken. Additionally, Detective Kelly communicated with the manager of the apartment complex where “Don” (the pimp) lived and determined that a man named Donald Lewis leased the specific apartment that Dana had identified. This was the same apartment Officer Blake had watched when the offenses were reported.
    Based on this information, Detective Kelly obtained search warrants for the two apartments. The search of Lozano’s apartment yielded identifying information on many additional suspects, and the search of Don’s apartment yielded seizure of many items Dana had described, including a small Hello Kitty-themed television. There were also a couple of people in Donald Lewis’s apartment at the time of the warrant’s execution, including a woman named Jeana. Detective Kelly was able to create photo line-ups that were shown to Dana, during which she positively identified multiple men as her assailants, including Juan Lozano and Donald Lewis.
    Detective Kelly then began interviewing suspects. He had to call in help from Spanish-speaking detectives for the men from Lozano’s apartment, but he was able to interview Donald Lewis himself. Lewis, who had been arrested on a parole warrant while officers were executing the search warrant, agreed to the interview and orally waived his rights, but he refused to sign the Miranda card. Detective Kelly didn’t feel comfortable interviewing him without that signature, but Lewis nevertheless began talking for nearly 25 minutes without being asked a question. During his soliloquy, Lewis indicated that “the girl” had been in his apartment but that he did not rape “the girl.” He also said that “his roommate’s girlfriend” was teaching her how to get into “the business” and that he knew “the girl” was young because of her braces. Lewis further stated that he talked with Dana about her parents, that she said she didn’t have parents and was staying in a juvenile home. After Detective Kelly left the room, Lewis mumbled an expletive and placed blame on “Jeana.” He specifically had not used that name when talking with Detective Kelly directly.
    Despite the excellent police work, only five men were arrested. Some suspects fled, and many men who paid Donald Lewis for sex with Dana were never identified. The five defendants’ cases were set in the same district court, all charged with aggravated sexual assault of a child. We did not charge any of the defendants with human trafficking, even though what Don Lewis did to Dana (prostituting a child to other men and giving her crack) does fall under Texas’ definition of Trafficking of Persons in §20A.02 of the Penal Code, and Dana did exhibit many of the signs of trauma common to survivors of human trafficking. (Read more about that in a companion piece to this article on page 24.) However, we had so much evidence of aggravated sexual assault of a child—and that charge is easier to prove and for a jury to understand—that that’s how we charged Lewis as well as the other defendants.
    The perpetrators all had different backgrounds, with some having no or minimal criminal history (Juana Lozano was one such man), while Donald Lewis had an extensive criminal background. The cases moved slowly as we waited for the evidence from the sexual assault examination kit to be tested.

Biological evidence
DNA testing took on a life of its own. The vaginal and cervical swabs from the kit tested positive for semen, as did stains from Dana’s underwear. The DNA results came back seven months later and showed that the semen on the cervical swab belonged to Donald Lewis. The statistics attributed to the findings indicated this was source DNA. Results from the vaginal swab and underwear stains were also positive for Lewis’s DNA, but other DNA was present with no known contributor. One sample had a mixture of at least four different contributors, meaning that we had semen from men who had yet to be identified as suspects.
    Additionally, two hairs were found in Dana’s vaginal canal. Testing on the hairs did not begin until after completion of the semen analysis. DPS first examined the hair for trace analysis, after which APD completed DNA testing. That process took a couple of months, and the results were inconclusive. Dana was the major contributor of DNA on the hairs; however, the minor component was too small for comparison. It was believed that Y-STR testing could produce helpful results, and at least one of the defense attorneys requested we do the Y-STR test. But this test would deplete the sample, and because of that we hit a wall. The five different defense attorneys could not agree on what to do next. Ultimately the judge gave them a deadline to find a lab they could all agree on or the State would be allowed to send the hairs to a lab of our choosing. The deadline passed with no agreement on the defendants’ side, and we sent the hairs to the University of North Texas Center for Human Identification to complete the tests. In the end, Donald Lewis could not be excluded as a contributor to the minor component of the DNA from the hairs. This evidence further corroborated Lewis’s guilt and, most importantly, meant we could finally proceed to trial.
    As these cases were slowly trudging through the criminal justice system, Dana was reacting in the way many girls in her situation do: She was running away. A lot. Each time she ran away, she found herself at the mercy of a new pimp and the men who were purchasing her. She would either be found or turn herself in, but each time, new criminal cases began in other jurisdictions. We had to keep providing this information to defense counsel, and all of them were very aware that we had no idea if we would be able to produce her to testify at trial. Due to this reality, a couple of defendants, such as Juan Lozano, pled out to lesser sex-offense charges. We knew we had to focus on the worst of the worst, Donald Lewis. He refused to take any plea deal, and we spent some time determining whether we really needed Dana to testify to prove our case against him.
    We believed we had one real chance to do so, and it rested on the shoulders of Joseph Quander III. Quander was one of the men identified by Officer Blake when he watched the apartment on the day the crimes were first reported. Quander was actually arrested for his offense at a later date than the four other defendants. Detective Kelly had originally sought arrest warrants for multiple men in the first apartment where Dana was assaulted and for Donald Lewis, and he continued his investigation and eventually interviewed Quander. In that interview, Quander took responsibility for his crime (penetrating Dana’s sexual organ with his mouth) and stated that he was in the room when Lewis was penetrating Dana’s mouth with Lewis’s sexual organ. Quander said that Lewis asked him to leave the room, which he did.
    We believed that if Quander would testify truthfully to these facts, then we would have the evidence necessary to convict Donald Lewis. We traveled to the Wynne Unit in Huntsville to speak with Quander and held our breath. He had already pleaded guilty to sexually assaulting Dana and was doing his time—we didn’t know how he would react to the very prosecutor who had a hand in his incarceration showing up to ask for his help. Quander met with us and recalled what he could about the incident, which was almost everything, and while he did not agree to testify, we left with the impression that he would be truthful if we brought him to court. With his testimony, we felt we could proceed with or without Dana.
    Dana was in a drug treatment facility in March 2015 when the judge set Lewis’s case for trial the last week of April. She was then 15 years old. Before we could let her know about the trial setting, she ran away again. We had about a month for her to be found or turn herself in so she could testify at trial. At this point, we had to prepare for two different trials: one if she appeared and one if she did not.

Preparing for two trials
We first began preparing as if Dana would not appear to testify. Without her as a witness, we couldn’t call any outcry witness or anyone else under the hearsay exception who could testify about what Dana said because that testimony would violate the Confrontation Clause. We also had to decide what to do about the sexual assault examination. The nurse noted many injuries to Dana’s sexual organ as well as bruises over her entire body. If we attempted to discuss the physical findings, then we would have to discuss the fact that there had been different incidents at different apartments with different men. Our concern was that even though she had been only 13 at the time of the assaults, the jury would blame Dana. That’s all the defense had wanted to talk about prior to trial, and it was the main reason we had hoped the jury would get to meet the girl. If jurors could only see her in person, they would understand that she was a broken child, not an over-sexualized teen. It’s truly hard to articulate what exactly it is about Dana that makes her brokenness so apparent, but every single person who has come into contact with her feels it profoundly. In the end, we decided to have the sexual assault nurse testify only to what a sexual assault examination is and how she collected evidence. We would use her to begin the chain of custody on the DNA, and that was it. What would normally be one of the strongest testimonial accounts in a child abuse case—a nurse who could describe Dana’s physical injuries as well as whatever statements Dana may have made during the exam—became merely perfunctory.
    Next, we strategized about how to prove each element of the offense without Dana. We had our investigator get a certified copy of Dana’s birth certificate to prove her age. We tried to find a picture of her around the time of the offense. (Surprisingly, nobody involved with the investigation had actually taken a photo of her.) We also noted the common observation from each witness that upon her return to the residential treatment center, Dana spoke in an odd accent. Everyone from the caseworker at the center, to the sexual assault nurse, to the detective, and even Joseph Quander mentioned that accent. In trial prep meetings we asked each one if they recalled anything unusual about her voice, and they all recalled her accent. Maybe we were being paranoid, but juries do funny things, and we wanted to be sure to present every piece of evidence we could to tie Dana to the case. Her accent was just a unique identifier to point out throughout the trial.
    Finally, CPS was able to provide some photographs of Dana from around the time of the offense. In one of the photos Dana was making a silly face where the braces on her teeth were noticeable. This corroborated Donald Lewis’s statement that she had braces, and it didn’t hurt that a mouthful of braces is one of the most well-known signs of adolescence.   
    We then tackled how we would prove that the offense happened in Travis County. We had bags full of great evidence that was seized from inside Donald Lewis’s apartment. All were items that Dana described with detail, but we couldn’t use any of them without her testimony. Our best evidence on venue and jurisdiction was Officer Blake’s observation of Quander leaving that address and Lewis’s statement admitting that “the girl” was inside his apartment.
    We knew we would not have anybody to say the magic words that Donald Lewis’s sexual organ penetrated Dana’s sexual organ, but we did have his semen on the vaginal and cervical swabs. We also had Joseph Quander stating that he had left the two of them alone in the midst of a (different) sexual act. We hoped that it would be easy for the jury to make the reasonable inference that the only way the semen could have gotten inside her vagina and onto her cervix was through penetration. It should be noted that most of our case was resting on Joseph Quander III, a convicted child abuser, testifying against a life-long, hardened criminal. Logically it seemed crazy; however, having met with Quander, we felt strongly that he would give us what we needed. Friday before trial we met with him one last time and let him air all his concerns about testifying. We said we understood but that we had to call him to testify anyway. We left a bit anxious hoping our instincts about him were right.

The trial
Our trial date arrived, and we still did not know Dana’s whereabouts. We needed to address that aspect of our case in voir dire, and luckily we came upon an organic opportunity. In voir dire, we usually discuss what types of evidence may be presented in our cases. We do this to both debunk any myths about what is typical and to explain what is admissible versus inadmissible (i.e., criminal history is not usually admissible). During that discussion, one member of the venire on her own accord stated that she didn’t expect the child victim to testify. We were easily able to open up that topic for discussion to the entire panel, and it seemed the majority of them felt that they did not need the child to testify if the State could prove its case with other evidence. In the past, we had gotten juries who claimed they did not need to hear from the child, but we have also encountered the opposite. It seemed we had a good pool of jurors to choose from and we were starting off strong.
    In opening statement, we felt it was important to introduce Dana as best we could. We also wanted to own all of the case’s problems. We started by explaining that jurors would hear evidence of why Dana was in the residential treatment center and that she had no real parents. We talked about the types of evidence we would use to prove our case and admitted that we had no idea where Dana was. We said she could walk through the front doors of the courtroom at any time and that we truly believed and maybe hoped that could happen. It set the proper tone for the State’s case.
    Our witnesses’ testimony all worked out as planned. Prosecutors know that it’s important to expect the unexpected in trial because it always seems like something unforeseen pops up, but the only real surprise in our case was that it proceeded smoothly. We had told our witnesses that they could not speak about anything Dana had told them. The residential treatment center case manager testified only to the pertinent dates as well as Dana’s demeanor when she returned. The bonus from her testimony was that we were able to get a little information about Dana’s life introduced when the case manager talked about what type of children come to stay at her facility. She also stated that many girls who stay there run away because they are used to chaos and do not know how to live in a structured, caring environment. Dana’s CPS caseworker was also able to discuss more about the generalities of the children in her care. She explained that Dana had run away multiple times and that her whereabouts were anyone’s guess.
    Joseph Quander III testified almost exactly as we had hoped. After that, we had a number of professional witnesses who were either law enforcement or forensic experts. The defense did not engage in a strong cross-examination of many of our witnesses, but they did have a forensics expert from Orchid Cellmark state that she had reviewed the DNA analysis and believed the records were sloppy. The defense expert pointed out some places in the DNA analysts’ paperwork where there were corrections and opined that if the paperwork was messy, then the actual analysis may have also been messy. But she did not claim there was any contamination or scientific reason why the evidence would not be accurate. We did not have a child abuse or human trafficking expert testify, a decision we made during trial based on how the trial was proceeding. We felt the jury had a clear picture of who Dana was and how her absence for court could happen.
    Closing arguments focused on Dana being a child of unfortunate life circumstances. The defense tried to delicately disparage her and attacked the testimony of Joseph Quander III. We reminded jurors that Dana had nobody and that we could only hope that she was still safe and alive. The evidence was clear, and it felt like we had done our job in making this child victim as real and as present as we could. It took about an hour and a half for the jury to convict Lewis of aggravated sexual assault of a child and indecency with a child by contact.
    The punishment trial was fairly technical. Lewis pled true to his prior offenses, which established he was a habitual felon. We introduced his prison records and testimony from his parole officer. His records showed he had been unsuccessful on probation in the past. He was also unsuccessful on parole as he had stopped checking in and tested positive for cocaine. His defense attorney argued in closing that Donald Lewis was a product of the prison system because his first prison stint happened when he was still a teenager. He also painted Lewis as the victim of a girl who “creates” defendants. The defense attorney claimed we were trying to put her in a white dress, even though that was not who Dana really was. We countered by pointing out that we never tried to put her in a white dress; we were honest about who she was. Dana was just a child who was born into a bad situation and never had anyone truly give her a chance.
    The jury sentenced Lewis to 40 years and jurors told us afterward that they hoped we would see Dana again to tell her that they cared about her. Jurors told us they felt like they knew her and were grateful we stood up for her even when she could not stand up for herself.

Conclusion
Saying we learned from this case is an understatement. Basic principles of being a prosecutor were affirmed. And two lessons really stand out. First, follow your gut. It just felt like we had to fight for Dana even if she never comprehended what we were doing or why. Someone needed to follow through for her just once. We had been in contact with her while the different cases were pending, and she even called a couple times when she was on the street just to check in. We felt confident we would see her one day and wanted to pass along good news.
    We had that chance a couple weeks after the trial ended. Dana turned herself in because she felt she was in danger. We met with her promptly, and she was still in the throes of weaning her body off of drugs and dealing with all the trauma she had endured. She was glad to hear of the trial results and was surprised that Joseph Quander had the guts to testify against Don Lewis (something she did not feel she could do). She talked about how scary Donald Lewis really was. It was a bittersweet moment.
    Second, lean on the talent and support around you. I am fortunate to work with many intelligent and justice-minded prosecutors. I use the pronoun “we” throughout this article because while I was the lead prosecutor, I spent a great amount of time discussing the case with my colleagues. The second chair on the case, Jeremy Sylestine, listened to me while I lamented the injustice of the entire situation and worried about Dana. He, along with my supervisors, supported and thought through the reality of trying Donald Lewis without Dana: We all agreed it was counter-intuitive to rely on a convicted child abuser to substantiate our case. We knew it was risky to proceed without the jury meeting a teenage victim who would be painted as a willing participant—and yet we believed that it just might work. When we were right, it was a great day to be a prosecutor.

Editor’s note: To read the victim assistance coordinator’s account of the same trial, please see “Our missing victim,” also in this issue.