When Is It Not a Crime for an Adult to Hook Up With a Seventh-Grader?

[Moxley Confidential] Are there too many holes in the case against John Stuart Moses?

New Orange County resident John Stuart Moses was eager to find friends in December 2007, and not anticipating a looming law-enforcement disaster for himself, he felt elated when a horny local girl sent an e-mail message to his personal profile on Vampirefreaks.com.

Moses, 23, and the girl chatted on AOL Instant Messenger and discovered similar interests in Gothic and industrial music; they exchanged telephone numbers. The next day, they began a series of dates that, depending on who is telling the story, included varying degrees of physical intimacy.

Police, who learned of the relationship from a tip, arrested Moses, and prosecutors charged him with committing lewd acts on a minor. To get out of jail, he paid $100,000 bail. The girl—we’ll call her Jane Doe—had presented herself to Moses as an 18-year-old. According to court records, Doe’s looks suggested otherwise to Moses, but she addressed his suspicions by explaining that everyone in her family had “baby faces.” In fact, less than two months earlier, Doe celebrated her 13th birthday.

Skip ahead two years to last week: On the eighth floor of Orange County’s Central Courthouse in Santa Ana, a tense Moses asked a jury to acquit him of three sex-crime felony charges because, he explained, he’d been duped by a teenage “liar.”

“I really feel like I’m the victim, if there’s a victim,” Moses testified. “I feel like I was fooled. I still feel like I did nothing wrong.”

In this case, Doe—the animated, hair-tossing Anaheim Hills seventh-grader who admitted to using Ecstasy pills, alcohol and marijuana at the age of 12—told police she’d been a willing sexual partner who lied about her age in an effort to advance her relationship with Moses. In California, however, minors cannot ever give legal consent for sex. A suspect can’t even take comfort if the underage person instigated the intimacy. According to Deputy District Attorney Robert Mestman, state law also blocks as a defense the ignorance or mistaken judgment about a minor’s age.

Would a jury ignore the law and feel sympathy for Moses?

Events leading to the jury’s deliberations were relatively swift. Though there was a pretrial estimate the case would take three days to complete, Mestman, the prosecutor, and Christian Jensen, the defense lawyer, presented the entirety of their evidence to the jury in about 90 minutes. The government’s main witness was Doe, now 15 and admittedly reluctant to be in court. On the witness stand, she played with her long brown hair, made faces, chewed on a finger, occasionally stuck out her tongue and, at one point, sucked on a cloth string attached to her black hooded coat.

Under the guidance of Mestman, Doe testified she’d sneaked out to meet Moses on three occasions in the public-library parking lot across the street from her mom’s home. They’d talked, listened to music, took car rides, shopped, ate together, hugged and French-kissed. She acknowledged massaging Moses’ crotch through his pants, allowing him to fondle her breasts and, turning red-faced and stealing quick glances at jurors, declared, “I sucked his penis with my mouth.” She even admitted she gave him directions to an industrial area in the city of Orange where they parked and hopped into the back seat. The prosecutor got Doe to confirm Moses had put on a condom and attempted to engage in sexual intercourse.

“We tried to have sex, but we couldn’t,” she testified. “Not that we couldn’t. We didn’t. He was frustrated.”

“John put the tip of his penis in your vagina?” Mestman asked.

“Yeah,” Doe replied.

“Are you being truthful?”

“Yeah, it just wouldn’t go all the way in.”

At the defense table, Moses’ shoulders slumped. He exhaled and slowly shook his head. A lone male juror, who’d been watching the defendant’s response, scribbled a note.

But Doe’s assertion had been prefaced by some of the weakest testimony I’ve ever witnessed.

For example, the prosecutor asked about the first evening Moses and Doe met.

“What did you do?” Mestman asked.

“I don’t remember,” she said.

“Did you talk?”

“Oh, yeah.”

“What else did you do?”

“I don’t remember.”

“Did you hold hands?”

“Maybe.”

“Did you kiss?”

“Maybe,” she said. “Oh, yeah, maybe. But I don’t remember.”

Regarding another alleged encounter, Doe fared no better.

“What did you do that night?”

“I really don’t remember,” she responded. “It’s hard to remember specifics.”

Mestman repeated his question.

“Ummm,” she said. “Ummm, I don’t remember.”

“Did you make out?”

“Probably.”

“Did John get erect?”

“I don’t remember.”

“Do you remember rubbing his penis?”

“Yeah.”

During Jensen’s cross-examination, Doe—whose mother is a felon awaiting trial on burglary, forgery, grand theft and narcotics possession charges—couldn’t decide what to say to a simple question about her physical contact with Moses, answering, “Yes, no, uh, I don’t remember.”

With his case crumbling, Mestman held his composure, directing the panel’s attention to four photographs Moses had taken of himself and Doe in the back seat of his car the last time they met, Dec. 8, 2007. In two of the images, the couple is embracing. Doe wears the face of a silly 13-year-old while a clearly much-older Moses looks worry-free and content. Two other images show Doe on top of Moses as they passionately French-kiss.

After huddling with his father, Moses decided to testify. In response to questions from Jensen, he said, “She contacted me. She asked for my telephone number. She called me later that night.”

Regarding Doe’s age, Moses said he “thought she looked young,” adding that she insisted she was 18—“otherwise, why would I bother? She lied about everything.”

Moses also relayed the story that they had looked at OC Weekly and seen an advertisement for the Bitchfits, a punk band, playing at the Doll Hut in Anaheim. He suggested they go, but Doe told him that her driver’s license had been suspended, and she had no other identification to enter the club. He accepted her lie; instead, they went shopping.

Critically, Moses disputed Doe’s claim of three encounters, saying they’d met only twice—on a Tuesday night and a Saturday afternoon. He said the Thursday-night date that Doe claims involved sex never happened.

“Nothing of a sexual nature ever happened,” he said, though he didn’t quarrel that Doe “kissed me,” “I kissed back” and they’d hugged on the other dates.

During his closing argument, Mestman urged jurors to use their “common sense,” noting that Moses had wrecked his credibility by claiming he’d had no romantic intent hopping in the back seat of his car at night with a girl.

“He’s a liar and will say anything to save his own skin,” said the prosecutor, who argued that Doe “wasn’t the best witness I ever had” and “is troubled,” but “she’s not exaggerating what happened.”

Jensen’s closing-statement theme was simple: This case reeks of reasonable doubt.

After less than four hours of deliberation, the jury of seven women and five men returned verdicts of not guilty on two of the charges. They didn’t accept Doe’s story about the sex. But even the strongest portion of Mestman’s case—the photographic evidence of lewd acts—was met with a hung jury. Three jurors refused to find Moses guilty on that count either.

Afterward, a disappointed Mestman indicated he would find “a better jury” to retry the remaining charge. But one juror told me, “I hope he doesn’t have another trial. This case is really weak, and I’m not sure there was a victim.”

rscottmoxley@ocweekly.com

This column appeared in print as "Victimless Crime: When is it not a crime for an adult to hook up with a seventh-grader?"

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