Attorneys claim alleged victim's phone records may clear rape defendant

A physician charged with raping an Athens woman he met over the Internet has challenged a claim by the Athens County Prosecutor's office that it does not have a piece of evidence his defense attorney want to have preserved.

Attorneys for 31-year-old Charles H. Nguyen of New York have also claimed in a court filing that cell-phone records of the alleged victim "œshould conclusively show" that Nguyen was far away from the woman at the time when she claims he raped her.

Nguyen, who was doing a medical residency when an Athens County grand jury indicted him for rape, kidnapping, aggravated burglary and evidence tampering, was arrested by a regional fugitive task force after an Athens woman told local authorities that he had raped her May 19.

The woman said she and Nguyen met online. He allegedly came to visit her in Athens May 9, after which she told him she did not wish to have a relationship with him. After the woman drove him to the airport in Columbus on May 17, Nguyen returned to her home two days later and raped her, she alleged.

Nguyen has acknowledged that sex took place between him and his accuser, but claims it was consensual.

His attorneys have asked the state to preserve various pieces of evidence, including the woman's cell-phone records from May 18 and 19; documents relating to her "birth, immigration and criminal history" in the United States and other countries; and bedding from the bed in which Nguyen and the woman allegedly had sex.

Regarding the last item, the Athens County Prosecutor's office has stated in a legal filing that it "does not possess and has not possessed the mattress and/or headboard at any time."

This wording apparently has raised the suspicions of defense attorneys Derek A. Farmer of Gahanna, Ohio, and Christopher W. Chan of New York City.

"The record should reflect that while in chambers on July 6, 2009, the assistant prosecuting attorney stated that he would obtain those items," the defense attorneys wrote in a reply to the state's response to their discovery motion. "Thus, the fact that the state does not possess the mattress or the headboard is not new, but the objective in stating it is unclear. Is the state changing its position and now claiming that it will not obtain the items? Or, is the state merely reiterating part of what it said in chambers just in case it cannot obtain the same?"

Though Nguyen could subpoena the evidence he's seeking, the attorneys wrote, "the more appropriate and least intrusive manner" would be for the state to simply produce it.

"However, it is somewhat baffling to the defendant that evidence in an alleged malicious crime of rape has not been retrieved and/or tested by the state," the attorneys wrote. "Is the purported victim or someone else now claiming that the bed was not used?"

If the bed was used in a crime, they noted, it would appear to be evidence, which could be exculpatory for Nguyen "“ for example, if body fluids from someone other than him were found on the bedding.

Athens County Prosecutor C. David Warren responded Sunday that "we're not going to take this woman's bed away from her just because the defense asks us to."

In the same filing, Farmer and Chan suggested that "the phone records of the alleged victims will reveal the pings off the cell phone towers which should conclusively show that Dr. Nguyen was on the highway traveling to New York while the alleged victim was at a location (talking on the phone) either moments before or at the time she claimed to have been raped."

In addition, they have asked Judge Michael Ward to lower Nguyen's bond from its current level of $500,000, to "an amount that is reasonable and attainable," or to release him on his own recognizance.

Nguyen is being held in the regional jail in Nelsonville in lieu of bond.

In a memorandum, Farmer and Chan noted that Nguyen agreed to waive extradition proceedings. He did so, they added, despite knowing that his extradition hearing would have taken place in New York City, a place where bogus rape allegations, "motivated by hopes for future profits from an expected law suit, are not uncommon."

Thus, they suggested, Nguyen agreed to come back to Athens voluntarily, though he knew there was "a strong possibility" that he would not have been extradited.

Even if he had been, they added, the process "might have taken several months or even years to complete." And if Nguyen had fought extradition, a judge in New York would have had to set bond during the proceedings, which they suggest "would have probably been far lower" than the $500,000 set by Ward, given that Nguyen "is a licensed physician with no criminal history, who possessed a relationship with the accuser."

In ruling on bond, the attorneys argued, Ward should consider factors including Nguyen's lack of criminal convictions, and the apparent absence of DNA evidence linking Nguyen to materials allegedly used in the crime such as a rope and duct tape.

"To be blunt, Dr. Nguyen's status has changed drastically and rather suddenly, based upon the word of one person, from being a resident practicing medicine in a hospital to that of an inmate languishing in a jail cell," the attorneys wrote. "While it would be preferable for Dr. Nguyen (to) be permitted to live with his father in Philadelphia, he would not object to a court order requiring him to obtain a rented room in either Athens County or Franklin County, Ohio, wherein he would not be permitted to leave the county without prior approval of the court or the court's designee."