Mr. Gomez was convicted of Third Degree Child Molestation after a bench trial in March, 2024, and sentenced to 20 months in prison. He challenged his conviction by arguing there was insufficient evidence of intentional sexual contact. There was no testimony or appearance by the alleged victim, for reasons stated below.
Mr. Gomez lived with his children in a home owned by a couple who employed him at their coffee shop. The couple’s two children, G.S. (17 years old son) and A.S. (15-year-old daughter – alleged victim), also lived in the home. Mr. Gomez and A.S. worked at the coffee shop, and several witnesses testified about their close relationship.
One day, G.S. got home early from a camping trip and discovered Mr. Gomez in bed with A.S. He confronted them, believing something sexual was occurring; Mr. Gomez was nude and on top of his sister, who was nude from the waist down. When discovered, they both jumped up and covered their faces. A.S. went upstairs to change her clothes. She initially cried, but then became angry. She begged her brother not to tell her parents. She then left the house. Mr. Gomez told G.S. she had taken his gun and was going into the woods behind the home. They looked for her. G.S. found her body; she died of an apparent suicide.
Mr. Gomez appealed, claiming G.S. did not see any actual sexual contact. However, his statements to G.S., law enforcement, and A.S.’s mother were highly prejudicial. He told G.S. he had a “weak moment,” and A.S. “came on to him.” He told the police that A.S. was young and dumb and made a “mistake,” trying to take it further. The mother received a text from Mr. Gomez, “Michelle, please do not call the cops and let me explain. I have no excuses.” Several witnesses from the coffee shop testified that Mr. Gomez’s observed interactions with A.S. were inappropriately affectionate.
Mr. Gomez argued there was insufficient evidence of intentional sexual contact with A.S., which means on appeal he “admits the truth of the State’s evidence” and “all reasonable inferences that can be drawn from that evidence.” State v. Salinas, 119 Wn.2d 192, 201 (1992). The inferences “must be drawn in favor of the State and interpreted most strongly against the defendant.” Id. Direct and circumstantial evidence are equally reliable. State v. Milley, 179 Wn. App. 91, 105 (2014). The test for the sufficiency of the evidence is whether “any rational finder of fact could find that all the elements of the charged crime were proven beyond a reasonable doubt.” State v. Roberts, 5 Wn.2d 222, 231 (2023).
Mr. Gomez’s downfall was “sexual motivation” (necessary for the mens rea element of “sexual contact”), which may be proven by circumstantial evidence when the “surrounding facts and circumstances plainly indicate such an intent as a matter of logical probability.” State v. Woods, 63 Wn. App. 588, 591 (1991). Gomez argued G.S. saw no actual touching of A.S.’s intimate areas, because “mere proximity” is not enough to establish “actual touching.” Mr. Gomez’s argument bordered on the absurd, based on what G.S. observed, and Mr. Gomez’s actions and words after he was discovered. Just what did he think a “rational trier of fact” would infer from being completely nude face down on top of A.S., who was nude from the waist down. He quickly jumped up. His statements to G.S. afterwards were “admissions of sorts” such as having a “weak moment,” “A.S. [had come] onto him,” it “only happened once,” and “that it was a mistake.” Gomez, at 8. A.S.’s statement to G.S., begging him not to tell their parents, is consistent with an inference of sexual contact, not inadvertent conduct. The appellate court would not second guess Mr. Gomez’s subsequent denial on appeal. Id. at 9.
Mr. Gomez went to a bench trial on the allegation of third-degree child molestation. This writer assumes his risk analysis of going to trial involved the State having to prove its case without a victim! While an empty-chair prosecution is always difficult, the circumstantial evidence was strong, and there was the additional, incredibly sad fact that A.S. committed suicide, apparently as a direct result of being caught by her brother with Mr. Gomez. Mr. Gomez was given the “high end” of the sentencing guideline range of 15–20 months, which seems inadequate with all the human tragedy present.