D.A. has to drop abuse charges

Deepa Bharath

The Orange County district attorney was forced to drop child

molestation charges against an admitted pedophile who has been locked

up for four years in a state psychiatric hospital, officials said.

Cary Jay Smith, 42, was put in the hospital after writing a letter

fantasizing about raping and killing a Costa Mesa boy.

Earlier this year, the district attorney had charged Smith with

performing lewd acts on a different Costa Mesa child between

September 1996 and March 1997.

But an Orange County Superior Court judge on Tuesday dismissed all

30 counts against Smith at the request of Deputy Dist. Atty. Beth

Costello. The prosecutor said she had no choice because the victim

was 14, not 13, when the alleged crimes happened, which caused the

statute of limitations to run out.

“The victim had told us he was 13,” she said. “But his school

records showed that he was actually 14 at the time.”

While the statute of limitations is eight years for cases

concerning children 13 years or younger, the law states that it is

only three years for children 14 years or older, Costello said.

“So unfortunately, the statute of limitations has expired,” she

said.

Smith was charged in January 2002, and the case was set to go to

trial in July 2003, but prosecutors refiled the case after learning

that the victim was 14 at the time.

But Costello could not make an exception to the statute of

limitations for showing “substantial sexual conduct” because the

victim would not say Smith had abused him so severely.

After the decision, Smith was sent to a San Bernardino County

hospital for a 72-hour psychiatric evaluation. Costello said his fate

is still undecided.

“They could keep him there for one more week for further

evaluation,” she said. “They could send him back to [the hospital],

or he could be released. But so far, it’s been determined he is a

danger to himself and others.”

Smith was convicted in 1983 on child molestation charges and has

been listed as a “serious sex offender” through the public disclosure

policy established by Megan’s Law.

Whatever the outcome, Costello said she as well as other agencies,

including Costa Mesa Police Department, that investigated the case

and the Orange County Sheriff’s Department “will be keeping a close

watch” on Smith.

Costa Mesa resident Lynn Vogt will also watch closely, she said.

Vogt is the mother of the 7-year-old boy who was featured in the

letter Smith wrote, describing in lurid detail sexual acts he wanted

to perform on the child. Smith was sent to the hospital after his

wife found the letter and reported him to officials.

Initial news of the letter caused an uproar in Vogt’s Mesa North

neighborhood where Smith lived at the time.

On Tuesday, Vogt said she was in the Santa Ana courtroom where

Smith’s preliminary hearing took place.

“It was horrible,” she said. “I don’t think it’s the district

attorney’s fault, though. They’ve done everything they could.”

Vogt said Smith would have been put behind bars for good if he

were convicted of these charges.

“I’m disappointed,” she said. “I’m not afraid for my safety, even

if he gets out. But I’m afraid for others who may not know who he

is.”

The dismissal was “extremely unfortunate,” Costello said.

“I can’t influence what happens to Cary,” she said. “But I’ll be

monitoring him closely, at least for the sake of the victim.”

* DEEPA BHARATH covers public safety and courts. She may be

reached at (949) 574-4226 or by e-mail at [email protected].