David James McGarry new mugshot

David James McGarry

POCATELLO — A Jerome man on felony probation for inappropriately touching a 15-year-old female relative in 2017 and allegedly raping one of his ex-wife’s first-grade students in 2008 will soon be serving prison time, a judge ruled Wednesday.

Wearing an orange jumpsuit and shackles, David James McGarry, 51, appeared in front of Judge Stephen Dunn at the Bannock County Courthouse in Pocatello for a probation violations hearing that involved McGarry allegedly staying out past curfew, refusing to take a polygraph lie detector test mandated by his sex abuse treatment program and accessing pornography on his cellphone.

After McGarry admitted to the violations, which occurred in Jerome County between December 2018 and January 2019, Dunn revoked his probation, sentenced him to serve six years in prison and retained jurisdiction for up to one year.

Known commonly as a “rider,” Dunn retaining jurisdiction on the 2017 case allows McGarry to complete a sexual conduct rehabilitation program in the custody of the Idaho Department of Correction for up to one year. If McGarry disobeys program orders, he could serve the six years in prison; however, Dunn said McGarry, who is currently incarcerated at the Bannock County Jail with no bond, will not begin the “rider” until he’s resolved the charges of rape and lewd conduct against the first-grader that Bannock County prosecutors charged him with via a grand jury indictment in January 2019.

“You’re not going anywhere until the other case is resolved,” Dunn told McGarry in court on Wednesday. “I know some things need to happen for that case to get resolved, but you’re going to sit (in the Bannock County Jail) and this ‘rider’ will continuously get pushed out until the other case is taken care of.”

Dunn imposed the retained jurisdiction sentence despite Bannock County Deputy Prosecutor Alan Boehme arguing McGarry did not deserve a sentence of supervision that starts with a sexual abuse treatment program at an IDOC facility because he failed to complete the sexual abuse treatment ordered via the felony probation sentence that he violated on numerous occasions for the case involving the 15-year-old relative. Boehme had argued Dunn should instead send McGarry straight to prison.

The felony probation McGarry violated began after a Pocatello police investigation determined he molested a 15-year-old girl he’s related to at his former Pocatello residence in February 2017, according to police reports. Bannock County prosecutors charged him with one felony count of sexual abuse of a minor under the age of 16 four days after the inappropriate sexual conduct occurred, court records say.

McGarry pleaded guilty to a reduced charge of felony injury to a child in November 2017 and Dunn sentenced him in April 2018 to serve six years in prison, which Dunn suspended, and instead placed McGarry on felony probation for a term of four years, according to court records.

Though he was not required to register as a sex offender, McGarry was ordered to complete sexual abuse treatment as part of his felony probation sentence. One aspect of McGarry’s probation violations stemmed from concerns he had about a polygraph lie detector test including questions about both the case involving the 15-year-old relative and his alleged sexual abuse of the first-grader, McGarry’s Pocatello attorney Kent Reynolds said in court Wednesday.

In January 2019, Bannock County prosecutors filed a grand jury indictment stating McGarry allegedly engaged in sexual intercourse and other sexual acts with a first-grade student of his former wife, Tiffany Marie Petersen, starting in August 2008 while Petersen was the boy’s teacher at Washington Elementary School in Pocatello.

The sexual abuse of the 8-year-old male student allegedly happened at Washington Elementary School while McGarry, who was Petersen’s boyfriend at the time, was apparently allowed into Petersen’s classroom while she was teaching, according to a civil lawsuit filed by the victim’s family against Petersen and Pocatello/Chubbuck School District 25 in August 2018.

McGarry would later become a non-certified substitute teacher for School District 25 in October 2009 and served in that capacity until September 2015, according to School District 25 records.

Petersen is a Pocatello/Chubbuck School District 25 teacher who transferred from Washington Elementary School in March 2009 to her current position at Syringa Elementary School, according to District 25 records. She has been on administrative leave from the district since January 2018.

Last week, Petersen, who was indicted on identical charges at the same time as McGarry, entered an Alford plea on a misdemeanor injury to a child charge and Bannock County prosecutors dismissed the felony rape and lewd conduct charges involving the first-grader. Peterson received a sentence of two years misdemeanor probation and a $1,000 fine.

By pleading guilty to misdemeanor injury to a child via the Alford plea, Petersen admitted no wrongdoing but conceded that there was likely enough evidence to convict her if the case had gone to trial.

Petersen remains on administrative leave and can resume teaching so long as her employer is aware of her criminal history, Judge Eric Hunn ruled.

McGarry has retained Reynolds to represent him at the trial involving the charges that he allegedly raped the first-grader. That trial is expected to begin on March 17 at the Bannock County Courthouse.

Though Dunn is assigned the case he said Wednesday he is to retire before the expected trial date. It remains unclear which 6th District judge will take over the case.

If convicted of the rape and lewd conduct charges against him, McGarry faces up to life in prison.