Molest Suspect to Be Tried Despite Videotape Erasure

A family gardener Wednesday was ordered to stand trial on charges of molesting a 7-year-old girl whose stepmother has admitted erasing a videotape that the defense lawyer says contained crucial evidence.

The videotape, which was several years old, showed the stepmother and her husband, the girl’s father, having sex. The 7-year-old, who was playing in the room that contained the television set, saw part of the tape when the defendant, Rony F. Rubio, 24, played it several months before the alleged molestation in late 1987.

The couple, from Orange, were under court order to preserve the tape pending a ruling on whether it was admissible as evidence.

The woman, after being given immunity from prosecution for destroying evidence, testified Tuesday that she erased the tape last February because she considered it too personal to be revealed to others.

Her husband, a Los Angeles County prosecutor, testified Wednesday that he and his wife had heated arguments over what to do with the tape. “These were emotional, difficult, confrontational, marriage-ending-type discussions,” he testified.

Orange County Deputy Public Defender Mary Derby said the videotape was essential to Rubio’s defense.

According to Derby, the couple had been recorded using an old, commercial videotape cassette of the movie “Superman.” Rubio--who with his mother, a housekeeper, worked for the couple and lived at their home in Orange--thought he was about to play “Superman” when he started to show the tape, his lawyer said. The girl was playing in the room and saw the tape.

Defense attorney Derby claims that the tape would have been important both in attacking the credibility of the victim’s testimony--the girl has denied seeing some of the scenes on the tape--and in convincing a judge or jury that she may have sought revenge against Rubio for showing it to her.

Also, Derby told the court, it would have helped challenge any prosecution argument that the girl must have been molested because she had no other way to know about sexual conduct. She also said it was important to show the tape to a child psychologist to see if it might have had any effect on the girl’s statements against Rubio.

Municipal Judge James P. Gray said Wednesday at Rubio’s preliminary hearing in Santa Ana that the tape was no doubt material to the case, even if its value had to be left to speculation. However, Gray said there was sufficient evidence to order Rubio to stand trial.

“It certainly is an unfortunate set of circumstances,” Gray said.

He set Rubio’s arraignment in Superior Court for Dec. 23.

The legal squabble over the defendant’s right to use the videotape as evidence made its way through both the 4th District Court of Appeal and the state Supreme Court earlier this year.

The Court of Appeal ruled in July that the couple had to produce the tape for a magistrate to determine its value to the case. However, by that time, the stepmother had destroyed it.

The husband said his wife had insisted on maintaining control of the tape, and he had not been certain what she did with it until her testimony this week.

Immunity Decision

Deputy Dist. Atty. Dennis D. Bauer said that because he had no case against the stepmother without her own testimony, he decided to grant her immunity to at least learn what happened to the tape. He said the judge also suggested granting her immunity.

Bauer also said that, due to other circumstances in the case, his office did not want to prosecute her.

“Even if we could have proven she committed a crime, we would not have prosecuted,” Bauer said. “Here you have a family torn apart by the molestation of the little girl, and then to have to discuss in public something so personal as a videotape of you and your spouse having intercourse--that’s enough.”

Derby called the erasure of the tape “a travesty of justice” for her client.

Tape Called Essential

“He loses all the way around,” she said. “Clearly, clearly that tape was essential to this case.”

She said outside the courtroom that she does not think her client has much chance of winning by pursuing the erased-tape issue any further.

“The next step is to prepare for trial,” she said.

Rubio is charged with one count of child molestation, but prosecutor Bauer said a second count will be added based on the victim’s testimony at the preliminary hearing. Rubio could be sentenced to as much as 16 years in prison if convicted, he said.

It also came out during testimony at the preliminary hearing.