Brandon Michael Acosta wants all criminal sexual conduct charges against him dropped. His main argument? The government hasn’t proved when the sexual activity occurred or if Timicca Nauta was even alive when it did.
Brandon Michael Acosta’s attorney William Pole says that unless the government can prove any sexual activity happened before she passed away, none of the sexual assault charges can stand.
He says it all comes down to establishing a timeline of events that transpired the night Timmica was murdered and that’s something he says the government has failed to do.
“At best, the government can show that there was sexual activity not even an assault, but that there was sexual activity … that there was sperm found in her cavities … but that doesn’t lead a reasonable jury to believe that A, a sexual assault happened and B that it happened before she passed away,” Pole said.
He added: “When we look at the facts presented and the fact that you normally need to have a live human being in order to have the sexual assault, you can’t find that here. The government didn’t develop a theory, the government didn’t provide the evidence and so here, taking the evidence, which is DNA was found in Timicca … that doesn’t prove assault.”
Pole also argued that if one believes the testimony of GPD Detective Angel Santos, that Acosta confessed it was all mistake, that would preclude any sexual activity happening before she passed away.
He says that if the sexual activity occurred after her death, it would only warrant a misdemeanor charge of desecration of a body and not a felony.
The government, however, contends that there is testimony addressing when the sexual assault occurred.
Government prosecutor Lenny Rapadas said: “Our answer is at least on the specific issue of whether or not the victim was alive at the time of the sexual conduct. There is testimony from the doctor who testified that the back wounds were perimortum, meaning near death. So the victim was still alive at the time that she was bent over the bed when the defendant criminally sexually assaulted her.”
He added: “By his argument, it almost sounds as if the defendant was having sex with a dead victim at this point. That might be the case, that might be the case but it started when she was alive.”
Superior Court Judge Vernon Perez has taken the matter under advisement and will issue a decision on the motion.