MARTINEZ -- It is now up to a Contra Costa jury to decide if a Pacheco man was awake, asleep or in some state between the two when he touched a 9-year-old girl inside his home in 2012.
Jurors began deliberations at about 4 p.m. Monday after daylong closing arguments in the case against Ralph Dell, who is charged with one count of sexual penetration of a child under 10 and a second count of lewd or lascivious acts on a child under 14 with an added allegation of substantial sexual conduct.
Unlike most molestation cases, where a defendant denies allegations, Dell has not refuted the girl's testimony that he touched her as she watched television during a sleepover with Dell's daughter on April 12, 2012.
What jurors will have to weigh is whether the 36-year-old man suffers from sexsomnia or parasomnia, a rare sleeping disorder similar to sleepwalking, during which a person can commit sexual acts in a state somewhere between consciousness and sleep.
The "sleep sex" defense has been used in a Texas case and successfully argued to receive acquittals for men facing sexual assault charges in Canada and New Jersey, according to the National District Attorneys Association. In those cases, and the current trial in Martinez, the defendants argued they were not liable for any criminal action because they were not conscious at the time of the assault.
In Dell's case, the 9-year-old girl testified Dell began rubbing her back, then touched her stomach and genitals. His defense attorney, Ernesto Castillo, told jurors Dell fell asleep next to the girl, was "horrified" when he awoke, and washed his hands and face in the kitchen in an attempt to wash away the memory as well.
"He looked at his hands and he couldn't believe what he was involved in," Castillo said. "He was so sick to his stomach that he got sick and threw up."
Both sides agree Dell later called his mother to seek advice, but did not call police or the girl's parents. The girl told her parents when Dell dropped her off at home the following night.
She testified that when she told him to stop touching her, Dell responded "ok, ok, ok, I'll stop," but continued touching her for another minute or two.
The girl was later examined by a doctor, who found that she had injuries consistent with sexual assault. Prosecutors said the assault was a one-time occurrence that lasted between five and 10 minutes.
For the prosecution, deputy district attorney Chad Mahalich called witnesses to dispute the defense's claims that Dell had a history of parasomnia in childhood and adulthood.
With no childhood history, Dell's alleged form of parasomnia in this case -- from consciousness, to unconsciousness and back to consciousness -- would make his the "rarest case of parasomnia in the world."
Dell, according to Mahalich, went with the "sleep sex" story because he was out of options.
"It's not parasomnia," Mahalich said. "He got caught."
Jury deliberations resume Tuesday.
David DeBolt covers breaking news. Follow him at Twitter.com/daviddebolt.