SANTA FE (NM)
Santa Fe New Mexican
May 1, 2023
By Phaedra Haywood
A state district judge late last year rejected a consolidated plea prosecutors had offered a former school health aide accused of molesting four children after parents of two of his alleged victims spoke in opposition to the agreement.
An attorney representing one of the accusers says in a new court filing the First Judicial District Attorney’s Office days later dismissed the charges related to his client — the most serious of those leveled against Robert Apodaca — and is making access to the teenager’s protected mental health records a condition for refiling them.
Paul Linnenburger filed an emergency motion last week, requesting a protective order for the records, which he says the District Attorney’s Office has “demanded as a precondition to further prosecution.”
The state never interviewed his client or asked for the records prior to dismissing the case “pending further investigation” in December, according to the motion.
New Mexico law specifically prohibits compelled production of such records by sex crime victims, the motion says, but Linnenburger’s client has been willing to produce them — provided the state seek a protective order that would limit how the records could be used.
Linnenburger’s client, now 19, is the only one of the four alleged victims who says Apodaca raped him. The other three accusers reported alleged criminal sexual contact but not penetration.
Asked to address Linnenburger’s motion, District Attorney’s Office spokeswoman JoHanna Cox wrote in an email: “When this matter was dismissed, this [court] was divested of jurisdiction on this matter. This means that the Court can handle ministerial requests, but this motion is not that. Also, the filing attorney is not a party to this matter.”
Pressed to address the substance of Linnenburger’s motion, Cox told a reporter to file a written request for correspondence between the District Attorney’s Office and the attorney.
Apodaca, 32, resigned from Santo Niño Regional Catholic School in 2021 after a fellow employee reported she had discovered him in a dark, locked room with a 9-year-old boy on his lap.
He has since been charged with molesting that child and another student as well as a 12-year-old student at Gonzales Community School — one of several public schools where Apodaca worked as a health aide between 2012 and 2020.
The teen was a student at Gonzales Community School when Apodaca was working as a district health aide, according to an arrest warrant affidavit.
The District Attorney’s Office initially offered Apodaca a plea that gave the court discretion to sentence him to 18 to 30 years in prison but would have allowed him to plead no contest and would have resulted in the dismissal of charges stemming from allegations made by Linnenburger’s client.
“It’s always been our client’s position anything shy of a conviction or admission of guilt followed by prison in unacceptable,” Linnenburger said Friday. “We are talking about yet another alleged pedophile in our schools.”
After rejecting the plea in December — which would have settled all four cases — District Judge Mary Marlowe Sommer in January rejected a second plea that would have resolved only one of the cases after Apodaca said he hadn’t spoken in person to his public defender about possible defenses he could have used at trial.
Linnenburger’s client was 16 when he told New Mexico State Police in 2021 that Apodaca raped him at a Santa Fe residence in 2019 after “grooming” him for several years, by giving him food and other gifts such as video games, according to an affidavit for an arrest warrant.
The teen initially sought homework help from Apodaca and was hired by him to assist in medical duties at the Gorham Scout Ranch in June and July of 2019. He told state police Apodaca had molested him three times at the ranch by grabbing his genitals while he was sleeping.
The abuse culminated in June 2020, he said, when Apodaca gave him alcohol and invited him to stay the night at a home near Fort Marcy.
The boy told police he drank four or five bottles of Mike’s Hard Lemonade until he felt “pretty messed up” and fell asleep on a futon. He woke up later with physical signs he had been sexually assaulted, according to the affidavit.
Attorneys representing Apodaca’s three other alleged victims were scheduled to meet with prosecutors to discuss possible resolutions to their cases Monday.
Neither the court or the District Attorney’s Office has responded to Linnenburger’s motion. However, online court records list the status of the case as “reopened.”