The prosecution and defense made their closing arguments Thursday and Friday in the trial of Michael Airo, a former Ohlone Elementary School teacher accused of sexually abusing his ex-girlfriend's daughter more than a decade ago in Palo Alto.
The jury is now deliberating the case and must unanimously agree on separate verdicts for each of the charges he faces.
The prosecution, which has the burden of proving beyond a reasonable doubt that he is guilty, argued that that Airo, now 36, groomed the young girl and that what he did "behind closed doors" was corroborated by witness testimony and other evidence throughout the nine-day trial in Palo Alto.
"Beyond a reasonable doubt" is defined by law as "proof that leaves you with an abiding conviction that the charge is true."
Airo has denied all allegations and pleaded not guilty to the charges brought against him.
Santa Clara County Prosecutor Lindsay Walsh urged the jury to "reject the unreasonable" and convict Airo of the four felonies he's been charged with: one count of continuous sexual abuse of a minor under the age of 14 and three counts of lewd or lascivious acts with the use of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person.
In her closing argument, Walsh focused on the relevant law in this case and how the evidence applies. The first charge Airo faces, continuous sexual abuse of a minor, requires that the jurors agree that Airo willfully engaged in at three or more acts of abuse and that there was at least three months between the first and last act, but they do not have to agree that the same three acts took place. The prosecution did not have the burden to prove that they took place on a particular date, but rather proximate to a time range.
The girl, who is now 26 and the Weekly will refer to as Anne Doe to protect her privacy, testified this week that Airo touched her inappropriately in the shower at the home they shared in Palo Alto in the early 2000s at least once or twice a month from her fifth grade through eighth grade years.
A sexual assault conviction can be made based solely on the complaining witness' testimony, if the jury finds it credible beyond a reasonable doubt, Judge Allison Marston Danner told the jurors in their instructions. Character testimony for Airo is also sufficient to introduce reasonable doubt, she said.
Walsh described behavior Doe and others testified to — Airo frequently holding Doe's hand in public, Doe sitting on Airo's lap, Doe calling him "daddy" and taking his last name — as "desensitizing" her.
For the jury to find Airo guilty of the other three counts, there must be evidence of force, violence, duress, menace or fear.
Duress, Walsh argued, is central to this case. Duress is defined under the law as "a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person … to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted." The law asks that the "total circumstances," including a victim's age and relationship to the defendant, be considered when determining if duress exists.
Doe was 11 to 13 years old at the time of the alleged abuse and viewed Airo as a father and authority figure she couldn't say "no" to, Walsh said. Doe also testified that when she sometimes crossed her arms over her body to cover herself in the shower, Airo physically moved her arms so he could allegedly kiss her breasts, stomach and buttocks.
The jury can decide Airo is not guilty of the charges he faces but still find him guilty of two lesser offenses. The lesser charge to continuous sexual abuse is lewd or lascivious acts. The lesser charge to lewd or lascivious acts is battery, or willfully touching a person in a harmful manner.
Michael Armstrong, Airo's defense attorney, argued in his closing statement that Airo was not a calculated abuser but a naive participant in a complex family dynamic. Armstrong also suggested that Doe's sister, with whom Airo had conflict, prompted Doe to falsely accuse Airo of sexual abuse.
Major family decisions the prosecution portrayed as Airo's efforts to insert himself in Doe's life as her father, including moving into their home and her taking his last name, were decisions her mother initiated and Airo agreed to, Armstrong said. Doe's mother, about 20 years older than Airo, was the primary decision-maker, Armstrong argued.
He said that Doe's half-sister, who is two years younger than Airo, resented Airo's age difference with her mother and the "adult" role he assumed in their house. She previously testified to conducting a periodic "anatomy analysis" with her younger sister — asking Doe if Airo had touched her inappropriately on specific body parts. (Doe always said he hadn't, her sister testified.)
Armstrong argued that this perpetual questioning resulted in Doe having dreams about Airo touching her in these specific body parts years later, prompting her to see a therapist and eventually disclose the alleged abuse in 2014.
"I submit to you that that's not a coincidence," Armstrong told the jurors.
Armstrong questioned why Doe changed the date of when the alleged abuse began, from sixth grade in her preliminary hearing deposition to fifth grade when she testified this week, after she had conversations with her sister.
Several character witnesses for Airo — two mothers of children he taught at Ohlone, an instructional aide, a school psychologist, his longtime friend and his half brother — all testified that Airo was honest and had never behaved sexually inappropriately with children in their presence. The parents described ways in which he helped their children and his positive reputation at Ohlone as a caring, popular teacher.
A forensic psychologist retained by the defense to evaluate Airo, Brian Abbot, also testified that he found Airo is not disposed to commit sexual offenses against children and is not a pedophile.
Walsh, in her cross-examination of Abbot, questioned the veracity of his findings by reading from his report on Airo: that the results should be "reviewed with caution" because Airo "tended to portray himself as being relatively free from common shortcomings to which individuals admit."
"This response style does not reflect an intentional effort to manipulate the test but it rather indicates that Mr. Airo lacks insight into himself and he tends to repress undesirable characteristics," Walsh said Abbot's report states.
The 12 jurors have through next week to deliberate. Danner instructed the jurors not to consider the lawyers' closing arguments as evidence, but rather rely on the sworn testimony and evidence presented during the trial. They must reach a verdict without any consideration of potential punishment for Airo.