'Once he grabbed me, there was no contest,' rape victim testifies

"You're OK," prosecutor Heidi Westby whispered to the 56-year-old victim Tuesday as she led her past the courtroom's brass bar and onto the witness stand to testify in the rape trial of Joshua L. Smith.

The St. Paul woman was scared -- her voice trembled and tears came at times -- but she clearly answered questions about the brutal attack from Westby and defense attorney Michael Michalski.

Smith, 18, of St. Paul, is charged in Ramsey County District Court with two counts of first-degree criminal sexual conduct. He is accused of repeatedly raping and then beating the woman not long after midnight on New Year's Day 2007 behind a Dumpster in the parking lot of the Salvation Army on Payne Avenue in St. Paul.

He also is accused of raping a 17-year-old girl with physical and cognitive disabilities after luring her into the basement of his home on Sept. 8, 2006, Westby told the jury Tuesday morning in her opening statement.

Smith was 16 at the time of both attacks and was certified to stand trial as an adult.

Defense attorney Michael Michalski told jurors during his opening statement that as the evidence unfolds they'll find that it is "inconsistent, confusing and doesn't make sense."

Testimony on Tuesday was about the New Year's rape on St. Paul's East Side. The victim said she'd shared a bottle of wine with her roommate and a couple of friends who stopped by about 5 p.m. on New Year's Eve. About 10:30 p.m., she headed to Louie's Bar, less than a block from her home, and had two beers, she testified.

She took a shortcut, ducking under a privacy fence and heading across the Salvation Army parking lot. It was well lit, she said, and she "felt secure enough to stop and have a cigarette."

"He asked me if I had a place," she said. I thought he was asking if I was homeless. I told him I was OK."

It was when the man moved quickly into her space that she began to feel uncomfortable, she said. She wished him a Happy New Year and turned to go.

Then she was grabbed by the neck and dragged behind one of the two Dumpsters next to the privacy fence. When he threw her to her knees and pulled his jeans down, she saw he was already wearing a condom, the woman said.

She described in graphic detail being raped. At one point, he took off the condom and flicked it away, she said.

When her attacker finished the rape, the woman said she remembers "thinking everything will be all right now." Instead, the man began beating her and dragging her toward a tuck-under garage behind the building.

"I didn't want to go down there 'cause I was afraid I was going to be murdered," she testified.

"I remember being kicked, blood running in my eyes," she said. "It was warm. I kept getting up and he'd hit me down. I remember pleading for him not to hurt me because I had grandchildren who lived with me. I remember falling down and deciding not to get up again."

It was only after the woman "played dead" that her attacker left. The woman said she laid there for "what seemed like forever," before getting up and running toward Payne Avenue to get help.

Beth Herzog, a heavy equipment operator at the Minnesota Department of Transportation, had gotten off work at midnight and was heading home after spending 30 or 40 minutes shoveling out a rental unit she and her husband own in St. Paul. She was at Payne and Case Avenue when the rape victim grabbed onto the passenger side of her car.

"Help me, don't leave me," Herzog recalled hearing. "She is hanging onto my car for dear life, hanging on to anything she could."

Herzog called 911 and stayed until paramedics and police arrived. There was probably a pop can's worth of blood in her car, Herzog said.

Prosecutors showed the jury closeup photos taken at Regions Hospital of the victim's blood-streaked and swollen face with a 2 1/2-inch laceration on her forehead.

Jurors also heard testimony Tuesday from a woman who heard about the rape on the news and called police Jan. 7, 2007 to say she may have seen part of the attack from her kitchen window.

They also heard from the registered nurse who did a sexual assault exam on the victim on New Year's morning.

After a long pause, the victim tremulously asked whether Smith could stand up. District Judge Margaret (Peg) Marrinan allowed it and the victim answered Westby's question with a "yes" after Smith stood.

But it was during cross-examination by Michalski that the victim was at her most emphatic. The defense attorney reminded the victim that his client was 16 1/2 at the time.

"Are you sure this gentleman is the same one who assaulted you?" Michalski asked.

"I am absolutely positive," the victim said.

"Why is that?" Michalski asked.

The trial is scheduled to resume this morning. The teenage girl who was raped in September 2006 is expected to testify today or Thursday.