David James McGarry new mugshot

David James McGarry

POCATELLO — A 52-year-old former School District 25 substitute teacher indicted in 2019 for allegedly raping one of his ex-wife’s first-grade students in 2008 was sentenced to probation Thursday as part of a plea agreement with Bannock County prosecutors.

Judge Robert C. Naftz ordered and then suspended a unified six-year prison sentence against David James McGarry, of Pocatello, and instead placed him on felony probation for six years.

McGarry was sentenced after pleading guilty to one felony count of injury to a child in June following a plea agreement that dismissed charges of rape and lewd conduct, both felonies, filed against him in January 2019 via a Bannock County grand jury indictment.

The rape and lewd conduct charges stemmed from allegations that McGarry sexually abused a then-7-year-old male student of his ex-wife, Tiffany Marie Petersen, inside her Washington Elementary School classroom between August and December 2008.

Both McGarry and Petersen allegedly engaged in sexual intercourse and other sexual acts with the first-grade student starting in August 2008 while Petersen was the boy’s teacher at Washington Elementary School in Pocatello, according to the indictment.

But in both cases the charges were reduced as part of plea agreements so that neither Petersen nor McGarry had to register as sex offenders and neither received any jail time.

McGarry, who was Petersen’s boyfriend at the time of the alleged incidents, was apparently allowed into Petersen’s classroom, according to a civil lawsuit filed by the now-adult victim against Petersen and School District 25 in August 2018.

The suit, which has been placed in a pending status until McGarry’s criminal cases are resolved, states the family of the first-grade boy has experienced extensive pain and suffering and will encounter future medical and counseling costs in the amount of $500,000. The civil suit remained in a pending status as of Thursday afternoon.

Petersen’s criminal case was resolved in February 2020 when she pleaded guilty via an Alford plea to a misdemeanor charge of injury to a child that didn’t require her to register as a sex offender or serve any jail time.

McGarry pleaded guilty to the felony injury to a child charge via an Alford plea in June. An Alford plea like the one McGarry entered allows a defendant to maintain his or her innocence while facing the consequences of a guilty verdict. In this case, it involved McGarry admitting that the prosecution’s evidence would likely have resulted in a guilty verdict had the case been brought to trial.

McGarry’s Pocatello attorney, Brad Willis, declined to comment on the outcome of the criminal case against McGarry due to the pending civil litigation against his client.

Though McGarry will not have to register as a sex offender, he will be required to participate in specialized programming and treatment for offenders placed on probation who have been convicted of sex crimes against children, according to the plea agreement.

McGarry invoked his 5th Amendment right during his sentencing hearing Thursday and did not provide a statement, though the now-adult victim in the case did provide a victim impact statement.

“While I was in first grade at Washington Elementary I was raped repeatedly by Mr. McGarry in the classroom,” the now-adult victim said. “His crimes against me have affected me in nearly every part of my life. I have struggled in school, both socially and academically. It was never a place that I felt safe. I struggled to trust people and develop close friendships. His actions have caused me to suffer from severe anxiety and depression. Because of Mr. McGarry’s selfish actions I have had suicidal thoughts and attempts and been angry for as long as I can remember.”

The now-adult victim continued, “Many times I have questioned if reliving the pain of Mr. McGarry’s crimes against me through the courts is worth it, but I believe that Mr. McGarry is a true threat to society and especially a threat to children. Any additional suffering on my part, I believe, is worth it if it helps prevent Mr. McGarry from ever harming a child again.”