AG files to overturn rape dismissal

By Christina Calloway
CMI staff writer

The state attorney general’s office on Friday filed a brief to overturn the dismissal of a rape case involving a former Dora middle school coach.

The attorney general’s office filed its motion in support of the district attorney’s appeal of the case in which police said girls basketball and track coach Amber Shaw had a sexual relationship with a 13-year-old Dora student-athlete in 2006. The case was dismissed without a hearing in January after a district judge ruled the prosecution failed to respond to a request for evidence from the defense in a timely fashion.

Shaw was charged with one count of criminal sexual penetration of a minor, and one count of criminal sexual contact of a minor.

Tori Varnell, now 21, says she almost lost hope when the criminal case was dismissed but now she feels she has a second shot at justice with the attorney general’s office behind her.

“I feel like for one of the first times that someone is fighting for me and I haven’t really seen that happen,” Varnell said Monday.

The alleged abuse happened in 2006. Varnell said she didn’t come forward until 2010 after she graduated from Dora. Varnell said she denied she had a sexual relationship with Shaw in 2006 when questioned about it by school officials and investigators.

Defense attorney Kari Morrisey maintains her client is innocent. Morrisey said Varnell lied during a deposition and is after financial compensation. She said a guilty verdict would help toward that end.

Dora school officials said Shaw left the school district after the allegations arose.

Morrisey said her client currently lives in Texas but it is not known if she is still teaching.

The case was set to go to trial Jan. 23, but 9th Judicial District Attorney Matt Chandler said Morrisey requested evidence of an audio recording of an interview with Varnell. When the prosecution didn’t respond to the request fast enough, the case was dismissed, Chandler said.

“The state has never had possession of that audio recording,” Chandler said. “It was handled by a former deputy with the Roosevelt County Sheriff’s Office. There’s no record of him placing it into evidence.”

Chandler said when his office tried to locate the deputy in 2012, he learned the deputy was deceased.

“The state cannot produce that particular recording but it’s our position the victim’s still available and can be interviewed,” Chandler said.

Chandler said recently retired Judge Teddy Hartley dismissed the case.

“In New Mexico case law, it’s clear a failure to respond to a written motion is not cause to dismiss a case,” Chandler said.

The attorney general’s sentiments were similar.

“Although the court characterized these conclusions as findings, the state considers these statements to be conclusions, not findings, because the court’s statements reflect the court’s view of the application of the law to the facts,” Attorney General Gary King wrote in the brief.

“This is the state’s appeal of the trial court’s order dismissing the charges with prejudice.”

Chandler expects to receive a decision from the Court of Appeals in the next few months.

“What the judge did was wrong. This is what should happen and I’m thankful that (the attorney general) did what he did,” Varnell said.