Pima County Prosecutor Tracy Miller grilled the defendant in a sexual assault case involving a 15-year-old girl, during his testimony at Superior Court on Thursday.
Orestes Roberto Ybarra, 35, was charged with two counts of sexual assault, and one count of sexual abuse and indecent exposure on May 30, 2015.
At the time of his arrest, Ybarra was a clinical assistant at Ideal Physical Therapy, now ATI Physical Therapy, a national rehabilitation center that owns 600 clinics operating in 24 states.
According to court documents, during a deep tissue massage Ybarra allegedly rubbed the victim’s vulva, and penetrated her buttocks with his finger and penis. She resisted, attempted to flee and Ybarra blocked the door, according to her original interview with a sexual assault specialist.
Ybarra scheduled the physical therapy session on Saturday, a day the clinic is normally closed, and for work he was not authorized to do. Although he received clinical training in-house, he understood a licensed physical therapist must be working at the time of treatment.
During his original interview with Tucson Police Department, Ybarra admitted he had broken multiple company protocols the day of the incident.
“I was concerned,” he said. “I thought I opened the door for a lawsuit.”
But Ybarra said he realized the implications were far more serious when he was contacted by TPD Detective Gerardo Diaz, and throughout his interview with police.
Ybarra told the court his direct supervisor was getting married the week of the incident, and he was under a lot of pressure to keep the clinic busy.
He denied assaulting the girl in any way, but he admitted during the massage treatment the pair was arguing about her boyfriend.
Earlier in the day, the state called TPD Criminalist Cheryl Langdon to testify against Ybarra. Langdon processed the DNA evidence used in the case, explaining the typical procedures for criminal investigations and later fielding questions from the grand jury.
One juror asked why it took until September for law enforcement to process DNA evidence for the case. After an initial objection from the defense to allow Langdon to speculate, Judge Casey McGinley asked based on her experience is this type of delay abnormal.
“Based on the urgency of the sample, some DNA requests are shelved, while others are collected with urgency,” Langdon said. One factor that contributes to expediting DNA analysis is whether the suspect poses a public threat, she added.
Can DNA evidence deteriorate over time, another juror asked? As long as the evidence is stored properly, DNA samples can last indefinitely, she said, and the evidence for this case met that threshold.
Diane Kerrihard, a forensic nurse at Southern Arizona Children’s Advocacy Center, conducted the initial interview with the teen. Kerrihard was certified as a sexual assault forensic nurse in the 1990s, she explained, and earned her credentials for youth cases more than three years ago.
Kerrihard has testified in at least 40 sexual assault cases throughout her career, but she is always more concerned with the wellbeing of her patients. The crux of the initial testing determines what type of treatment a victim may need and collecting evidence is secondary, she said.
“I personally don’t care about evidence, it’s more for their safety,” Kerrihard said.
Parents can be present during the process and an advocate also observes the procedure, she said, and at any time the child can stop the examination.
Kerrihard told the prosecution she did not find any bruises on the girl, but that doesn’t rule out sexual assault. She further said she wasn’t expecting to find any bruising, because less than 5 percent of children who are victims of sexual assault show signs of battery.
“People don’t want to leave evidence,” she said. “And if it’s been a while, the victim could have healed.” And physical penetration does not necessarily leave marks of any kind, she added.
Ybarra looked dazed after prosecutor Miller fired questions at him during the cross examination: why didn’t you contact the parents about a minor storming out of an off-hours session; why didn’t you contact your supervisors; why did you lie to your supervisor when he contacted you after talking to police?
A juror asked Ybarra why he wasn’t wearing underwear during the incident, or at the time of his arrest. “Typically, I don’t wear underwear,” he said.
He prefaced his testimony by saying he was nervous, especially as a father of two children — a daughter, 12, and a son, 9. As he answered the last two juror questions, Ybarra began to ramble and was lead back to his point by Judge McGinley.
Bail was set at $100,000, and he failed to make bond until his parents placed a lien on their home, which was valued at $120,525. He was released on bond in December 2015.
The modest courtroom was packed, forcing a handful of law enforcement officers and county employees to stand aback the room. During Ybarra’s cross examination, a note was passed from the audience to prosecutor Miller, who handed the communication to the bailiff. The quieted disruption was addressed by Judge McGinley after the jury left for the day. He praised the county staff and family members in attendance, and urged them to continue to care, but reminded them acting rather than reacting is the cornerstone of legal proceedings. He ended with a pointed quip, lightening the heavy mood of the day.
Final arguments and sentencing will proceed on Friday at 10:30 a.m.