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Duluth doctor not guilty of sexual assault

DULUTH - A Dunn County jury decided Thursday that there wasn't evidence to convict a Duluth doctor of sexually assaulting a female patient on board her parents' boat at Barker's Island.

After deliberating 3½ hours Thursday evening, jurors found Dr. Javier De La Garza, 52, not guilty of third-degree sexual assault. He was accused of performing oral sex on a

43-year-old preschool teacher without her consent on Sept. 27, 2006, and faced a maximum penalty of 10 years in prison.

De La Garza's family and supporters let out a collective sigh when Douglas County Circuit Judge Michael Lucci read the verdict. De La Garza hugged his Superior attorney, Rick Gondik, and then he and his wife, Carla, shared a prolonged hug. The doctor wiped tears from his eyes.

"The nightmare is over," De La Garza said before leaving the courthouse with his wife. He declined further comment.

David Pearson, a construction worker who was the jury foreman, said jurors took one vote to get an idea of what people were thinking and needed at least one more vote to reach a unanimous verdict.

"It was a tough issue for people to grapple with. What was true and what wasn't true?" Pearson said. "Basically, due to the fact that there was no physical evidence in this case, it came down to the point of is there enough evidence to convict. After allowing everyone to share their feelings and their thoughts and to work through things, there was a unanimous vote of all 12 of us that said there is not enough evidence to convict."

The teacher testified that De La Garza, a gastroenterologist, assaulted her after telling her he was going to perform an examination. She said she had invited him onto her parents' houseboat at Barker's Island Marina because he was considering buying a boat.

De La Garza testified that he went to see the boat, and the woman unexpectedly tried to kiss him. He said he

didn't perform any examination there and never did anything inappropriate on the boat or during the woman's office visits.

The teacher and three other women have separate civil lawsuits against De La Garza claiming he touched them inappropriately during office visits.

In his two-hour closing argument, Gondik repeatedly referred to the teacher and her husband with disdain. At various times he called the teacher a "liar" and a "crazy lady," among other derogatory terms.

"This case was, is and always has been about the money, pure and simple about the money," Gondik said.

He said all the teacher and her husband cared about was boosting their civil malpractice case against one of Duluth's highest-paid doctors. He said his client has been "drug through the rat hole," as the result of a false charge.

Douglas County prosecutor James Boughner told jurors that the only evidence the teacher had supporting her claim was "the truth."

Boughner said De La Garza abused his position as a physician by having sexual intercourse with the 43-year-old teacher without her consent. The alleged sex assault embarrassed and shamed the woman and shattered her trust, Boughner said.

"The only way the defendant could get to the point that he did [with the teacher on the boat] was he was a doctor," Boughner told jurors. "She would remove her pants and underpants -- even in this strange setting -- because she believed that she would receive medical care, medical diagnosis, medical treatment. As strange as that was, because of the imbalance of power, she submitted to the doctor for purposes of a medical examination."

Because the woman reported the alleged assault to the Program for Aid to Victims of Sexual Assault and Duluth police more than six months after she said it occurred, Duluth and Superior police said no effort was made to try to gather any physical evidence.

"We're all very happy, very satisfied that the jury did the right thing and applied the rules of law to the evidence, or lack thereof, and made the only decision they could make, which was not guilty," Gondik said.

Boughner declined comment on the verdict. The teacher and her husband were not in the courtroom when the verdict was reached.

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Gondik called the case a matter of unrequited love. He said the teacher was angry when De La Garza rejected her advance on the boat.

"She had this fantasy going on," Gondik said. "She is going to get with the doctor; he cares about her, the first doctor ever to do that. ... You could have seen little hearts above her head when she testified here. You could look at her and you could see the way she talked -- this is not the way somebody talks about their rapist. It doesn't happen. You don't go to the boat two days later to prepare it for a trip with your parents if you were raped on it. This is ludicrous."

De La Garza described the teacher as a "high-maintenance patient." He said that, in retrospect, after studying her patient history he came to believe that the teacher -- who had a 10-year history of abdominal problems -- didn't want to get well.

"What do you attribute that to?" Gondik asked.

"Most patients who do that, they are looking for attention," De La Garza said. "They get more favorable treatment by other people and people feel sorry for them. They kind of manipulate the people around them."

Gondik asked his client if he believed the teacher was such a patient.

"Today, yes," De La Garza answered.