"It is difficult for a child to express how a molestor is feeling"

"In a case like this, there is no map, no physical evidence," is how Deputy District Attorney Zack Curtis started his closing remarks to the jury in the John Kufner case. "The power point is the elements of the crime. This is not law, this is attorney's remarks. The law comes from the Judge. These are my remarks about how the facts apply to the case, the evidence comes from the witnesses."

The first point he addressed was continuous sexual abuse of a child under 14:

The defendant lived in the same home or had access to the child. "Mr. Kufner lived in the same house as Jane Doe from April 2012 to July 2013."

The defendant engaged in three or more lewd or lascivious acts with a child. "Here, I think there will be a little dispute. According to what Jane Doe said, he touched her in her private parts, he used his hand and that is different from when he touched her in one state."

"As to under the age of 14, the child was under 14."

There were three or more acts. "Detective Williams didn't remember the exact CAST interview, he said 20 times. We have to bear in mind that this is a child, she indicated the best she could. This is a child under 11 years old, there was not a great part of the time when he did not touch her. She said he touched her daily and then modified not every time. He pushed her underwear aside and put his fingers inside. He touched her private parts."

"Jane Doe # 1 is still not 14, she was born in 2003, she is pushing 12."

The second point he addressed was three or more lewd and lascivious acts. "Any willful touching with intent to sexually arouse the child or the perpetrator. Intent is key. Touching of private parts is important. Contact with the child's bare skin is not required."

"Jane Doe said he took off her pants/underwear; his private parts touched her private parts, you can come to the conclusion that the times he touched her, the touch was lewd and lascivious."

He then went onto "wilful." Mr. Curtis reiterated what Judge Cissna had said that the prosecution is not required to prove that the defendant intended to break the law, but that he did it on purpose.

In his presentation, the definitions and statements that Mr. Curtis used were exactly the words of the law and closing instructions the jury had just heard minutes before and it was very effective, especially when he used it with examples of the testimony.

"You need to agree that continuous sexual abuse occurred over three months, you do not need to agree on the three acts."

Regarding "ongoing', Mr. Curtis again, said that "it is not expected that the complaining victim will remember the specific of each circumstance."

Then he went over the elements of lewd and lascivious acts and said they were "similar to continuous sexual abuse."

"Any touching may suffice, bare skin or clothing." He stressed intent, again. Used an example of someone with a foot fetish touching the foot to arouse himself. "It is difficult for a child to express how a molestor is feeling. I don;t have to provide evidence of actual sexual abuse."

Referring to "consciousness of guilt", Mr. Curtis brought up how false statements apply to this case. "Mr. Kufner admitted on the stand he made a false statement. If the defendant made false statements before the trial intending to mislead, you can consider this as evidence of guilt."


"The question is what evidence do we have?"

"The defense will dispute Jane Doe, say he said, she said. There was one pretext call, one law enforcement interview."

"What was Mr. Kufner's response to initial allegation? It is easy when you have a year and a half to come up with a story, maybe not easy but he had a chance."

Mr. Curtis then played a part of the pretext  call where the mother says, "She (Jane Doe) is just adamant that it was wrong." Kufner is silent, the mother asks, "Are you there?" Kufner says, "Yeah, I'm here." Mr. Curtis pointed out, "long pause, no answer."

"What camping trip. We went on several camping trips. That is not the response of an innocent person."

Then he played a part from the law enforcement interview where Detective Cheryl Franco questioned Kufner and she asked him how come he only talked about Jane Doe #1 and not Jane Doe #2. Kufner's response is that in the phone call, the mother only mentioned Jane Doe #1.

"First of all is that (statement) reality?" said Mr. Curtis. Then he played a part of the pretext call where Kufner says Jane Doe # 2 had rash. Then he played a part where the mother specifically asks Kufner if he only slept with Jane Doe #1, but not Jane Doe #2. Mr. Curtis said there were four mentions of Jane Doe #2 in the pretext call.

Then Mr. Curtis pointed out in the law enforcement interview, Detective Franco asks if both girls were wearing diapers and Kufner goes immediately to Jane Doe #1. The detectives asked about baths/showers/bunk beds and if Jane Doe # 2 also had "problems with bedwetting."

Mr. Curtis played snippets of the law enforcement and pretext call. Again, Mr. Curtis told the jury that Kufner does not talk about Jane Doe #2, he only talks about Jane Doe #1.

Mr. Curtis used the long pauses and silences in the pretext call and law enforcement interview he played point to Kufner "pondering answers. After three denials, he thinks he remembers."

Mr. Curtis said that in law enforcement interview, Kufner says yes to "rubbing on her (Jane Doe #1). when asked how long were you rubbing on her, he then changes his response."

Mr. Curtis said that Kufner showed emotion and brought up Kufner's statemement that his body betrayed him "by waking up in bed with her like that."

Mr. Curtis said that "states of altered consciousness" is a defense Kufner uses. "He makes excuses that he was either asleep or drugged up on meds." He then played part of the pretext call where Kufner says, "Unless I touched her in my sleep."

"At time of law enforcement interview, Mr. Kufner had no idea what evidence we had. he is just throwing stuff out there to cover whatever we had."

"He doesn't remember any bad activity that might cause him a conviction."