VALPARAISO, Ind. (STMW) – A tutor accused of child molesting was convicted Thursday night of a Class B misdemeanor count of battery.

Jurors deliberated after the defense presented no testimony but relied on its rebuttal to prosecution witnesses.

Brett Zagorac, 27, was charged with felony child molesting, although jurors had the option of convicting him of misdemeanor battery.

The option for the jury to choose the lesser charge was added by request of Zagorac’s attorney, T. Edward Page.

Both sides agreed in closing arguments that Zagorac touched a 5-year-old Portage boy, but the question was motive.

Page argued it was the head and back patting that teachers do to encourage students, not something sexual.

“The state is asking you to destroy someone on the mere speculation that that touch on the back somehow gave him the jollies,” Page said.

Deputy Prosecutor Cheryl Polarek maintained that if the pats were innocent, they would’ve continued when the boy’s mother sat in during one session.

“The intent to gratify can be very different for very different people,” Polarek said. “Maybe that was enough for this defendant.”

During the session where the victim’s mother watched everything, the parents took down Zagorac’s license plate number and found he used an assumed name, B. J. Wilhelm.

Polarek reminded the jury that Zagorac told police he used his mother’s maiden name because of allegations against him on the Internet, and he said his mother made the ad. But when his mother was on the stand, she denied making it for him.

Neither the victim nor his family has anything to gain through lies, Polarek said.

“One person has something to gain by lying,” she said. “This case is wrought with Brett Zagorac lying.”

Page said he doesn’t think the boy’s mother overreacted, but law enforcement, including the boy’s uncle, did.

He maintained that detaining Zagorac in the family room without informing him of Miranda rights was illegal, although the prosecution likened it to getting information about identity at a traffic stop and Porter Superior Court Judge Mary Harper allowed it as evidence.

Page also told the jury that they should be curious about what the family found on the Internet, but Zagorac wasn’t being tried for that.

Zagorac used the alias because you can’t fight accusations on the Internet, he said.

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