BY MAIRE O’NEILL
maire@losalamosreporter.com
Editor’s note: This story may be disturbing to some readers.
Following a preliminary hearing and pre-trial detention motion hearing Wednesday that lasted several hours, First Judicial District Judge Jason Lidyard remanded Michael Novak to the custody of the Los Alamos Detention Center pending trial. Judge Lidyard found probable cause to charge Novak with four counts of criminal sexual penetration of a child under 13 and one count of criminal sexual contact with a minor.
The criminal complaint against Novak, 61, filed in District Court by Assistant District Attorney Heather Smallwood had 12 charges of criminal sexual penetration of a child under 13, 12 counts of criminal sexual contact with a child under 13, two charges of battery and one count of intimidating a witness. The alleged victim in the case is nine years old.
Judge Lidyard in announcing his decision said he found probable cause to support two counts of criminal sexual penetration against a child under 13 – vagina. He said testimony by the alleged victim was that there had been sexual penetration of her vagina many times over a period of two days, at night and in the morning, over and over. He said the child had testified that she had nightmares and had woken up the second day and had the same thing happen which provided the break in contact to support two separate charges.
Judge Lidyard used the same logic to support two more charges of criminal sexual penetration of a child under 13 – mouth. In addition because of testimony given by the nurse who performed the SANE examination at St. Vincent’s Hospital that the child had reported mouth to vagina contact, Judge Lidyard added one count of criminal sexual contact of a child under 13.
Two charges of battery were dropped because the child did not testify to battery during Wednesday’s hearing. Judge Lidyard dismissed the intimidation of a witness charge because the allegation that Novak told the child not to tell her mother does not constitute intimidation of a witness which requires the threat to be made in connection with a judicial, legislative or administrative proceeding.
While asking Judge Lidyard to grant the pre-trial detention motion, Smallwood said the five counts were very serious, that there had been strong testimony during the hearing and that the weight of evidence was enough to convict Novak on the charges. She also cited his prior criminal history which she said indicated inappropriate behavior with a child. Finally she said Novak is a danger to the victim and the community and no conditions of release would protect the victim and the community from him.
Judge Lidyard asked Smallwood why the state had not filed the motion for pre-trial detention until six days following Novak’s release subsequent to his initial arrest. Smallwood said she did not know Novak’s history until later. Judge Lidyard asked if there was not adequate reason for the motion without the history based on the initial charges and Smallwood responded that there were just two or three counts in the original criminal information.
Novak’s defense attorneys Damian Horne and Bill Snowden argued that Novak had been on pre-trial probation for over a month with no problems with compliance. Horne said Novak’s psychologist noted there are two types of dangerous sexual predators – while not inferring his client’s guilt – fixated and regressive. He said Novak did not fit in either of those categories. He insisted that Novak is not a danger to the alleged victim or the community and asked that he be allowed to remain on pre-trial probation. He said if the testimony proved to be smoke and mirrors or misapprehensions, the Court would be endangering a person who stands innocent at this point.
Judge Lidyard said the nature of the circumstances in the case was that a child aged nine was entrusted to Novak’s care and that during that time he perpetrated acts of sexual nature against the child repeatedly and continually over two days. He said that the fact that the acts occurred on two separate days separated by an evening and then recommenced make them a crime of violence against the “most vulnerable of our society”.
The evidence in the case is strong, Judge Lidyard said in that there was immediate disclosure by the child which allowed for a sexual assault nurse exam which revealed a number of injuries to the child’s vagina – injuries that were from trauma and not naturally occurring. The injuries were acute and were hours old and had occurred during the time when Novak would have had sole access to the child. Judge Lidyard said he had found it compelling that the child was willing to come before the court to testify.
With regard to Novak’s criminal history, Judge Lidyard noted that his prior offenses in the 1990s are significant in that they point to prior sexual assaults with charges that had been disposed of by plea. Despite the significant time lapse, Judge Lidyard noted that there is strong evidence of criminal history and characteristics regarding Novak’s sexual contact with others of a criminal nature.
Judge Lidyard maintained that by seeking out sexual gratification with a child, Novak showed his inability to comply with orders of a lawful or moral nature. In conclusion, he ordered Novak to be remanded to LAPD custody no later than 5 p.m. Wednesday, February 24.