A plea agreement that required no jail time for a man who exposed his genitals to a female gas station attendant for several minutes was rejected Tuesday by La Plata County Court Judge Dondi Osborne.
Kyle McCaw, 27 at the time of the offense in June 2019, was before Osborne for a sentencing hearing after pleading guilty to a charge of indecent exposure for the incident, which occurred at 4 a.m. and left the gas station attendant fleeing to a restroom where she locked herself in and called police.
McCaw left a note at the Durango gas station with his phone number and first name, which led police to track him down.
“The plea agreement here does not adequately take into account the punitive aspects of the sentence,” Osborne told McCaw. “This is not a plea agreement that involves any jail time. And I’ll tell you now, if you came before me, with any room in the plea agreement to impose jail, I would have imposed jail.”
Before Osborne rejected the plea agreement, McCaw expressed regret for the incident.
“I am deeply filled with remorse for the situation, and I take full accountability for it. I want to make this right,” he told the court.
McCaw said the incident has led him to lose contact with many of his family members, including his young daughter, and he suffers punishment daily from repercussions from the incident.
He also said publicity about the incident has harmed his landscaping business.
“But even as bad as that is, I mean, I can’t imagine the type of turmoil I put (the victim) through,” he said. “You know, I’m sure it’s been hard on her. I know. She said it was hard in the beginning, but I’m sure it hasn’t gotten any easier.”
McCaw said the agreement would ensure he received “treatment that I need be able to continue being a contributing member of this community.”
Osborne said the plea agreement only stipulated a two-year period of supervised probation, and the sex-offender evaluation report said McCaw could need as many as six years of treatment before he could be viewed as less likely to reoffend.
The period of supervised probation, Osborne said, could be extended another two years, but even with an extension, the possibility remained that McCaw might be free of supervision before he completed sex-offender treatment.
Osborne questioned McCaw’s sincerity in expressing remorse.
“It appears that the primary reason you’ve (pleaded guilty) is not because you necessarily feel guilty, but that you feel you were captured on video, and that you would have been convicted at trial,” she said. “It doesn’t appear to me that you’re recognizing the problem that you have.”
District Attorney Christian Champagne said his office’s main goal was to ensure the community was protected by channeling McCaw to sex-offender treatment as soon as possible.
“That was the impetus behind the plea that we crafted, and we felt that our plea agreement did achieve those goals,” he said. “And Judge Osborne disagreed, she felt that there were other priorities that we should have addressed that she wanted it to be more punitive. And we will take those comments into consideration as we move forward in the case.”
Before a plea agreement is agreed to, Champagne said his office discusses the agreement with the victim.
“We did discuss this with the victim of the case. And she agreed to this plea agreement, she was on board with it. That says a lot to us as prosecutors,” he said. “The victim’s wants always influence our decision-making. And she was comfortable with this plea, and that was a big part of the reason we went forward with it.”
Osborne scheduled McCaw to appear for a status conference at 10 a.m. Oct. 14 to determine how to proceed with the case after her rejection of the plea agreement.