County Attorney's Office Explains Not Charging Former Cop Christopher Balmaceda With Sexual Abuse

By James King Wed., Oct. 5 2011 at 7:36 AM

Despite the fact that police recommended that former Glendale cop Christopher Balmaceda be charged with one count of sexual abuse and four counts of luring a minor for sexual exploitation for allegedly sending inappropriate text messages to teenage girls -- kissing and touching one of them -- the Maricopa County Attorney's Office will not charge the former officer with a crime.

See our story on the County Attorney's decision here.

The MCAO has an explanation.

Following our post about the decision yesterday, MCAO spokesman Jerry Cobb sent us a detailed explanation of his office's decision not to charge Balmaceda.

"It's clear something inappropriate was going on here between a former police officer and a student. Nobody finds that acceptable," Cobb says. "The Maricopa County Attorney has never hesitated to hold law enforcement officers accountable when we can prove they've broken the law. However, in this case our office did not have the necessary evidence to prove a chargeable offense."

For starters, Cobb goes on to say, Balmaceda refused to make any statement and did not consent to be interviewed for the criminal investigation.

Apparently, the only time Balmaceda discussed his alleged crimes was during an internal investigation conducted by the Glendale Police Department, during which he admitted to sending the text messages to several girls and kissing another alleged victim.

As Cobb points out, coerced testimony -- like that given during the internal investigation -- isn't admissible in any criminal case.

The other problem, Cobb says, is that investigators were unable to recover "any of the text messages from the various cell-phone service providers, so we were unable to corroborate the content or context of the messages Balmaceda sent the victim. Without the specific content of the text messages, there was no way to prove Mr. Balmaceda intended to arrange a sexual encounter with a minor, and hence, no way to prove the luring counts."

Former Glendale police Officer Christopher Balmaceda won't be charged with any crimes, despite admitting to kissing a 17-year-old girl while on duty.

Cobb says yet another problem with the case was the age of the victim.

"The sex-abuse charge that was submitted required us to prove that the touching was without consent because the victim in this case was older than 15 (this particular burden of proof is not required in cases involving victims younger than 15, since they cannot give consent)," he says. "In the police report, the victim stated she told Balmaceda to "go for it" when he touched her, and that she was 'going along' with the texts being sent by Balmaceda in an effort to gain information on him for reporting purposes. These statements make it highly problematic for us to prove beyond a reasonable doubt in front of a jury that there was a lack of consent."

Despite the Glendale P.D.'s telling New Times yesterday that it was confident in the case it built against Balmaceda, Cobb says, the detective who led the investigation "fully supports" the MCAO's decision not charge the former cop.

He says finding "identifiable criminal acts," as the Glendale Police Department claims it has, is "not the same thing as finding sufficient evidence to meet the substantial burden of proof the State faces at trial.

"Frustrating though it may be, our office has an ethical and professional obligation not to file charges when there is insufficient evidence, and not to bring cases that have no reasonable likelihood of conviction," Cobb concludes. "It is our hope that at a minimum, the internal investigation can be used to strip Balmaceda of his Peace Officers Standards and Training (POST) certification so he can never again serve as a police officer [in Arizona]."

Tags:

arizona, christopher balmaceda, glendale police department, maricopa county attorney's office, sexual abuse

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Walter Concrete

Phil Gordon's son, the Phoenix cop who banged anything in sight while on duty and admitted to most of it in a watered down in house plea of just being a good ole boy...suspended for a few days after sitting at home with pay for months...yep, they're all just victims of circumstance. Luckily for them the main circumstance is they were cops at the time.

Anonymous

Or the son of Sec. of State Ken Bennett, Clifton, who admitted to anally "brooming" several 11-14yo boys and got a plea for 90 days in jail and reduction to a misdemeanor if 3 years probation completed

Anon

This is just a blatant abuse of power. If this were anyone other than a cop they would be charged in a heart beat. I can say this with certainty because I work in the legal field and have seen many defendants charged on less.

This wreaks of a backroom deal with the police department not to prosecute one of their own in order to keep the peace.

The idea that the context of the texts is required is bs, there were multiple victims. Were they all lying? How about letting the trier of fact, the jury decide it. That is how the prosecutors usually handle that issue, instead of deciding for the jury.

And how could the texts that were less than a year old not be recovered from the phone companies. I've recovered much older ones in other cases. And I highly doubt the memory cards had been overwritten so some of the texts would have been found on one of the five victims or the various phone companies. Interesting how every single source had no evidence.

And since when is a female older than 15 but under the age of 18 allowed to consent with someone over the age of 18, oh that's right never.

Tommy Collins

13-1404. Sexual abuse; classification

A. A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person who is fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast.

"In the police report the victim stated she told Balmaceda to "go for it" when he touched her, and that she was 'going along' with the texts being sent by Balmaceda in an effort to gain information on him for reporting purposes. These statements make it highly problematic for us to prove beyond a reasonable doubt in front of a jury that there was a lack of consent."

You make an interesting point....

I have to wonder if this case might better have been charged as sexual assault by a person in a position of trust. But, without knowing all the facts of the case I'm not sure he was using his position in such a way... Maybe you know more about it..

Tommy Collins

I will assume this guy was forced to resign, meaning he is likely drawing unemployment. Thanks for your follow up on this, Mr. King. The explanation does make sense, whether the perp was a cop or a janitor at the middle school.

This is a very classic example of the application of Garrity during internal investigations. The guy went into the internal interview and admitted what he had done, thus resulting in sustained policy violations which likely were cause for termination of employment. "Garrity" is the warning to employees that basically says they are mandated to cooperate, however any CRIMINAL evidence discovered during the internal investigation interview cannot be used in any criminal investigation. That said, he cooperated during the internal, was forced to resign and he refused to cooperate during a criminal investigation, thus forcing the officers conducting said investigation to collect and rely only on evidence from the victims and any witnesses.

The reality of this situation is that the evidence is weak, at best. If a trial occurred it would be VERY difficult to find a jury that would convict..... so the CA chose not to go forward with charges.

My experience with this type of cop is that they repeat the offense over the years, using their position of authority to attract younger victims. I can only hope his certification is denied and he doesn't go out of state and get another job as a cop elsewhere.

Eleanor

Tommy, thank you. This is one of the best explanations of Garrity I have heard and believe me I have heard many.

Maybe they don't have enough to charge him but I think they have enough to revoke his certification in Arizona. It all depends on AZPOST.

Tommy Collins

I agree completely and I am hoping he is removed from law enforcement. We have too many people hiding behind a badge of authority (MCSO shurf, for one) as it is...

Ross

That's all very well and good, but couldn't they at least wake him up in the middle of the night, handcuff him and haul him off to jail before deciding not to charge him?

seeking the truth

Ross, Good point. Which is what they do to everyone else in a sex crime-with-minor case. Then hold them non-bondable and label them "high-profile" since they are in a position of trust. One standard "tough on crime", "zero-tolerance" for the public and another for law enforcement, state senators, legislators, and others in the "system". Truly disturbing.

Guest23

Though I agree with your sentiment as well, doing such sets a dangerous precendent. I don't want to be woken up by police in the middle of the night, handcuffed and hauled off to jail, like the New Times owners were just because someone wanted to get their own form of justice. It just sets a tone that its ok to f*ck with people even though there is not enough evidence to prove they are guilty.. what if they ARE innocent? In these types of situations I always attempt to put myself in the person affecteds shoes and see how I would think anout the situation then.

Tommy Collins

Ross, I happen to agree with your emotion. However, it's likely the internal investigation was completed and the guy 'resigned' before any criminal investigation could be completed. That said, the case would have gone to the county attorney for review of possible charges, after which an arrest warrant could have been issued, or the suspect notified and given the opportunity to turn himself in to be processed and bonded. Had an arrest warrant been issued it could have been served anytime 24/7 as you suggest. The county attorney declined charges, however, thus making any type of arrest action moot. Sorry.

Carl Toersbijns

What is going to happen to his POST certification? Has anybody thought about how how he is impacted if he lost his POST cert. Too severe...maybe but let the AZ POST decide and deliver it for ethical violations and not criminal charges.. It's only right that there are legitimate consequences for misconduct proven or not to be criminal.. Good cops are great people and role models. Bad cops need to find another profession and stay out of law enforcement..

Eleanor

Ok then, Lyle Mann it's up to you and AZPOST to handle this officer who lacks integrity. Do the right thing for the community. Since no charges will be filed you still need to find a way to watch what this guy does. He obviously has a thing for girls younger than 18.

Coz

LOL...well that's a first.

>>our office has an ethical and professional obligation not to file charges when there is insufficient evidence

shadeaux14

The terms "Ethical" and "Professional:" do not seem to apply to any law enforcement agency in this state. If it did, an agency as totally corrupt as the MCSO would have been put out of business years.