Conviction Reversed and 10 to 20 Year Sentence Vacated Due to Ineffective Assistance of Trial Counsel and Other Errors
Mr. Guerra faced various counts of two crimes: promoting a sexual performance by a child and possessing a sexual performance by a child. The allegations stemmed from videos and images found on a computer where Mr. Guerra lived, which was a family house partitioned into 11 bedrooms. The defense theory of the case was that other individuals, who had access to the computer that was not passcode protected, could have been responsible for the content.
Prior to trial, the prosecutor and defense counsel entered into a “Stipulation Elements of Crime,” which was intended to shield the jury from viewing the videos and images. Accordingly, the stipulation included language that certain videos and images depicted sexual conduct by a child under the age of 17. However, the stipulation also included additional language: “whoever possessed each of the . . . videos, promoted a performance . . . with knowledge of the character and content of the videos” and “whoever possessed these videos and images, knowingly had in his or her possession or control, or knowingly accessed with intent to view, a performance which included sexual conduct by a child.”
During deliberations, after the jury requested and received a copy of the stipulation, it asked if it was “bound by” the stipulation. Defense counsel then asked to modify the stipulation or provide the jury with appropriate mens rea instructions, because if the interpretation of the stipulation was strict liability, “I am duty bound to ask for a mistrial based on ineffective assistance of counsel.” After the court refused to clarify the instructions and denied the mistrial motion, the jury convicted Mr. Guerra of various counts.
The Appellate Division reversed the conviction, primarily due to ineffective assistance of counsel. The Court found that counsel erred by signing the stipulation, which vitiated the mens rea element. The stipulation “included incorrect and prejudicial definitions of the crimes charged,” which “was not part of any legal strategy or tactic,” and its “elimination of the requisite mens rea element undermined the defense theory” that another occupant in the house was responsible.
Other errors identified by the Appellate Division included the court’s refusal to provide the jury with a clarifying mens rea instruction and improper summation misconduct by the prosecutor, which improperly conveyed to the jury the impression that Mr. Guerra knew he was guilty. The conviction was reversed and a new trial was ordered.
Hannah Kon represented Mr. Guerra