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Jury: School Custodian Not Guilty

Did not improperly touch child boy, 10.

The Fairfax County police detective peppered the Centreville man with questions, trying to get him to admit that he'd improperly touched a 10-year-old boy. And the whole time, the man maintained his innocence.

Last Thursday, Oct. 12, a jury of seven men and five women agreed with him and found Tito Paniagua, 39, of the Newgate community, not guilty of aggravated sexual battery.

Paniagua had been employed as a custodian at Oakton Elementary until Feb. 10, when a student there told authorities that, around 3:40 p.m. that day, Paniagua touched him inappropriately as they passed in a hallway. Police arrested him Feb. 13, and he was later indicted by the grand jury.

HIS CASE played out over two days last week in Circuit Court, beginning Wednesday, Oct. 11. In her opening statement, Assistant Commonwealth's Attorney Toni Fay said the boy and another student were walking down the hall and saw Paniagua and another janitor coming toward them.

"As he passed by the boy, the defendant touched his head and his hand went all the way down his back and squeezed his buttocks," she said. "He felt uncomfortable about it and reported it."

But defense attorney Daniel Lopez said his client is a legal, permanent U.S. resident, married for 20 years and the father of two children. He said Paniagua had never before been charged with any crime and is a person of good moral character.

"He didn't see the boy at first and bumped into him," explained Lopez. "He touched the boy on his head, and the boy [had a] shocked look on his face, and Mr. Paniagua said he was sorry. The whole incident took about a second. There's no direct evidence to show the touching was done with an intent to sexually gratify or molest, and he committed no act of aggravated sexual battery."

The boy [who Centre View is not identifying because he's a minor], who was in fourth grade then, testified that he didn't know Paniagua's name at the time and had never spoken to him. He said he and some others were practicing a "ribbon dance" in the gym for their principal, who was about to retire.

He and a girl were walking down the hall on the way back to their classroom when he saw the two janitors approaching, so he moved to his right, "a couple inches from the wall," to let them pass. Then, he said, he bent at his waist and knees to tuck in the laces of his right shoe.

He said he saw Paniagua's shoes and then felt his hand go from the top of his head, down his back, "around my butt and to the back of my leg. I looked behind me and saw him. I didn't say anything to him. He said something to me in Spanish, but I couldn't understand it."

THE BOY said he told his teacher about it because "it made me feel uncomfortable." He also called and told his mom, and the police were notified. Under cross examination, the boy remembered that a large, female janitor was walking side-by-side with Paniagua in the hallway. He also said that, when he felt the touch on his head, he froze and was shocked.

Police Det. Richard L. Mullins, with the Child Abuse Section, said he interviewed Paniagua on Feb. 10 at police headquarters in Fairfax. And he admitted that, as part of his technique, he said things to Paniagua that were "inconsistent" or untrue."

Then a DVD of that interrogation was played for the court. Since Paniagua only speaks Spanish, a Spanish-speaking police officer translated Mullins' questions and Paniagua's answers. Mullins told him that he "just wanted to clear this thing up." Paniagua said he's from El Salvador, has been married 14 years and has a son, 11, and daughter, 10.

He also denied touching the boy on his bottom and said he didn't know him and had never spoken to him. As for the incident, he said, "I didn't mean to do it; it was an accident. I was going to open up the back door so the kids could come through. I knocked into the kid as I was passing by. I started to fall and, when I did, I touched him on the head."

Paniagua said he apologized to the boy. He said he'd been in a hurry to get to the gym and had to make his way around the children in the hallway. "I didn't see him. I bumped into him, and that caused me to bump into the wall. I touched him on the head and said, "I'm sorry."

"Have you ever thought about touching a kid?" asked Mullins.

"No," replied Paniagua. "Why not?" asked the detective. "An accident's one thing," said Paniagua. "But to touch someone is another thing."

"If someone else did that, what do you think should happen to [that person]?" asked Mullins. "I would think that they're not right in the head," responded Paniagua. "I've got kids; to touch a kid wouldn't be right. I couldn't do that; it would be crazy."

Mullins said the boy believed it wasn't an accident. Then, he told Paniagua, "What I think happened is, you were probably just joking around with this kid like athletes do, or men in offices. I know you're a good person and didn't mean to touch this kid or hurt him."

But the janitor stood firm. "Like I said before, it was an accident," he said. Mullins said he didn't believe it was accidental or sexual, but just a joke. But again, Paniagua said, "No. I was not even joking. It was all an accident."

In his closing argument, Lopez called Paniagua "a man of impeccable character, well-respected in the community. And for him to touch a child for sexual purposes is beyond the pale."

The jury then deliberated 30 minutes and returned with a verdict of not guilty — much to the joy of Paniagua's family members, who were with him in the courtroom. Still, said Lopez, his client has already paid a high price.

"This man was innocent, and it was difficult for him to be called a child molester and lose two jobs because of it," said Lopez. "He'd worked as a janitor at Dulles Airport for seven or eight years, and at the school for many years." Paniagua had been a school-system employee since 1997.

"I feel wonderful that he was exonerated, and he does, too," said Lopez. "He wants everybody to know that he was found not guilty."