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Cruelty to a child, false imprisonment, corporal injury to a child and assault

Colfax-, Calif. – Two men learned the hard way today that there’s a difference between “rough-housing” with young children and abusing them.

Jason Anthony Barr, 29, of Colfax and his ex-roommate, Mark Alan Swan, 30, each received more than one year in the Placer County jail and four years of probation for conduct that included sitting on the chest of a 10-year-old boy while play wrestling with him, tying him up with duct tape, blowing marijuana smoke into his face and rubbing “Icy Hot” on his body, including his private areas.

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In addition, the boy’s sister, who is 5, had Icy Hot rubbed on her arm and once had liquid soap squirted into her mouth for reportedly saying a bad word.

Barr and Swan each weigh over 200 pounds. The boy weighs 60 pounds and stands 4 feet, 6 inches tall. The girl stands 3 feet, 3 inches tall and weighs 40 pounds.

Barr and Swan, who had originally been charged with felony torture, which could have resulted in life sentences, each entered a plea of no contest to eight misdemeanor charges on Tuesday. Placer County Superior Court Judge Jeffrey Penney sentenced the men today.

The charges included two counts each of cruelty to a child, false imprisonment, corporal injury to a child and assault by means of force likely to produce great bodily injury.

Prosecutor Estelle Tansey of the Placer County District Attorney’s Office was pleased with the convictions.

Guilty on all 8 counts

“By pleading to all eight counts, the defendants admitted responsibility to all of the acts charged against them and committed on the children,” she said.

The convictions also will spare the two children from having to testify in court in a trial, Tansey said.

“The kids may have needed to take the stand a number of times because there were two defendants and that means being cross-examined by the defense attorneys for a minimum of two times,” she said.

“If there had been a trial with two separate juries for the defendants, it may have meant four cross-examinations. If there had been a mistrial, you may have been looking at even more than that.”

Tansey said the original felony count of torture was dismissed because of insufficient evidence.

During the defendants’ preliminary hearing on May 5 and 6 before Judge Charles Wachob, Placer County Sheriff’s Detective Mike Simmons testified that the county’s Child Protective Services contacted him in February regarding possible abuse of the two children.

Horrific conduct

His investigation uncovered that Barr, who was the boyfriend of the children’s mother, was the legal guardian of the boy and girl and that Swan was Barr’s roommate.

The misconduct by the two men began in November and concluded in early February, Simmons said.

A video interview with the boy was played for Judge Wachob during the preliminary hearing and the youngster described the wrestling incidents and the times Icy Hot was rubbed on his body.

He said he had trouble breathing when the two men would sit on his chest during the wrestling. When the men rubbed Icy Hot on him, it was “hot like fire” and caused him to run to the shower for as long as 45 minutes as he scrubbed himself with soap.

Regarding the marijuana smoke, the boy said Barr put him in a wrestling hold while Swan blew smoke in his face. The boy said he tried unsuccessfully to hold his breath so that he wouldn’t breathe it in. The boy said he felt “weird” for most of the day.

On another occasion, the boy said he was locked inside a car by Swan, who began smoking marijuana in the vehicle. The boy said he repeatedly asked to get out of the smoke-filled car but that Swan wouldn’t unlock the doors.

During the preliminary hearing, the attorneys for the defendants Dan Koukol for Barr and Jonathan Richter for Swan told the judge that their clients may have rough-housed with the children but that there was no intent to harm them.

“The play may have gone too far, but there was no evil intent and there was no intent for great bodily injury,” Koukol said.

Tansey countered that the rough-housing, even if the children initiated it, “would not excuse an adult from laying on top of (the children) or applying Icy Hot or duct-taping them.”

Wachob ruled that the two defendants should stand trial on the eight counts. But on Tuesday of this week, the two men appeared in court before Judge Penney and changed their pleas of not guilty to no contest.

At today’s sentencing, a woman now fostering the two children told the court that the kids “were afraid of their own shadows” when she received them five months ago. The boy was reserved and quiet and was failing in school while the girl would not eat and would throw temper tantrums. Since then, the children have improved and are happier, the woman said. The boy received four A’s on his last report card, she said.

Penney sentenced Barr and Swan to one year in the county jail a term that does not include 39 actual days that Barr was in jail in March and April and 111 actual days that Swan has been sitting in jail. Officially, Barr’s term will be recorded as 416 days in jail and Swan’s as 578 days.

Both men waived their rights to appeal their sentences and both were ordered by the judge to have no contact with the children.

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