A Red Deer massage therapist has been found not guilty of sexually assaulting a client in 2016.
Harold Lasquite Fuentes, 32, was cleared of a single count of sexual assault following a trial before Red Deer Court of Queen’s Bench Justice Eric Macklin on Monday.
Macklin said while he was troubled by elements of Fuentes’ testimony he could not say without reasonable doubt that his version of events did not happen.
Fuentes was charged in 2016 after a 23-year-old woman went to police alleging she had been sexually assaulted during a massage appointment in Fuentes’s home on April 27.
The woman testified in court on Monday that during a full body massage Fuentes inserted a finger or fingers into her vagina for three to five seconds. She pulled off a towel that had been covering her eyes and said Fuentes’ face was 12 inches away and he appeared to be leaning in to kiss her.
She immediately ended the massage, paid Fuentes and left. She contacted the RCMP the next day.
Testifying in his own defence, Fuentes denied he penetrated the woman with his fingers. He said he may have accidentally rubbed or brushed the woman’s genitals as he massaged her.
A text message he sent the woman shortly after the massage apologizing for “getting carried away” related to massaging too hard, not an assault, he said.
In closing submissions, defence lawyer Kevin Schollie pointed out that following the text about getting carried away, Fuentes recommended the woman drink lots of water and stretch.
Who would follow up a supposed apology for a sexual assault with advice to drink water and stretch, he said.
“It just doesn’t make sense in the context of the event.”
In making his decision, Macklin said the woman’s testimony was “forthright” and not embellished. He said he believes that she believed Fuentes had penetrated her.
However, the judge said he had concerns with her description of where Fuentes was standing when the alleged assault occurred.
The judge agreed the text message about drinking water and stretching is more consistent with a response to massage pain than a sexual assault.
While troubled by Fuentes’ testimony, the judge said he was left with reasonable doubt and must find him not guilty.
The judge referred several times to what is known as the W.(D) test set out by the Supreme Court in 1991. The test says a judge can have a reasonable doubt based on the totality of the evidence even if the accused’s testimony is not believed. The test affirms that the real issue is not who is telling the truth but whether based on the entirety of the evidence the Crown has proven the case beyond a reasonable doubt.