COOPERSTOWN _ Justin Gillingham, accused of raping, assaulting and attempting to murder a SUNY Oneonta student last May, admitted on the stand Friday that he punched her _ but nothing else.
But the woman said on the stand Tuesday that Gillingham brutally attacked her and penetrated her for one to two minutes.
Several witnesses have testified the woman ran to her residence hall on campus bloody, half-naked and screaming she had been raped.
The jury will likely decide Monday on who to believe _ Gillingham or the woman he allegedly raped. The case is being heard at the Otsego County Courthouse before state Supreme Court Justice Michael Coccoma.
Gillingham, 24, of Oneonta, is accused of first-degree rape, second-degree attempted murder and second-degree assault in connection with the alleged attack on the then-23-year-old State University College at Oneonta senior at about 2:40 a.m. May 16 on a dark path between campus and Clinton Street. His trial began Monday with jury selection.
The Daily Star has a policy of not identifying the victims or alleged victims of rape.
The woman said Gillingham suddenly assaulted her, raped her and tried to kill her by attempting to snap her neck three times. The defense is admitting that an assault may have occurred, but said in its opening statement the alleged victim first bit Gillingham's tongue while they were "making out" on the path, punched her in response and fled.
Both sides agree the two had first met that night and smoked marijuana together at Gillingham's Cozy Avenue apartment before he accompanied her back to campus inside her car.
There was no DNA evidence found on swabs from the alleged victim's vagina, according to a state police forensic scientist who testified Thursday. A nurse who examined the woman at A.O. Fox Memorial Hospital also testified Thursday there was no bruising, redness or tearing in her genital area. The woman did not think her assailant ejaculated, the nurse testified.
Defendant takes stand,
tells his story
On Friday, the fifth day of the trial, was marked by six witnesses for the defense, including Gillingham. His attorney, Richard "Otto" Rothermel, rested his presentation at about 4:30 p.m.
Gillingham, who before his arrest May 16 worked with his brother laying floors and has a 4-year-old daughter, took the stand and told his version of events but occasionally stumbled over his words, especially under cross-examination by Otsego County District Attorney John Muehl.
During his testimony, Gillingham said the woman approached him and his friend, Daniel Van Etten, a Marine on leave before a deployment to Iraq, and asked if they had any marijuana. By all accounts, they eventually ended up at Gillingham's apartment.
"I rolled a joint on my kitchen table," Gillingham said, noting that he, the woman and his roommate, Michael Beilby, smoked the joint in the living room.
Gillingham said that at one point, he took the woman upstairs, where she went to the bathroom.
"She actually invited me into the bathroom," he said.
There, they kissed and fondled each other, Gillingham said.
They stopped "making out with each other" when she became uncomfortable due to the other people downstairs, Gillingham said.
No other witnesses, including the woman, have testified the two had such an encounter.
But the woman and Gillingham said they kissed in the downstairs kitchen, although the woman said it was Gillingham who leaned in to kiss her.
Eventually, the woman decided to leave and drive back to campus, Gillingham said.
He and the others at the apartment were concerned she may have been too intoxicated to drive, Gillingham testified. At first, his brother, Charles Gillingham, who also lived there, offered to pay for a cab, Gillingham said.
Gillingham said he and the woman decided that he would ride with her to campus and then he would walk back.
While she showed him the path, he and the woman began making out with each other but remained clothed, Gillingham said.
"When I was kissing (the woman), she bit my tongue, at which point I became pretty outraged and I hit (her) in the face," Gillingham said.
Gillingham said the woman fell down and he then got on top of her and punched her in the face four or five more times before he fled.
When he turned himself into police the next day, he thought he was going to be charged with assault and attempted to fool police by lying about what happened by saying he had been jumped by four men on the path, Gillingham said.
In his final questions posed to his client, Rothermel asked Gillingham if attempted to kill the woman, mentioning her by name.
"No. I did not attempt to kill (her)," Gillingham replied.
"Did you rape her?" Rothermel asked.
"No. I did not rape (her)," Gillingham replied.
"Did you assault (her)?" Rothermel asked.
"Yes. I assaulted her," Gillingham replied.
Prosecution raises discrepancies, sweatshirt
In his cross-examination, Muehl brought up discrepancies between Gillingham's previous statement to police and the testimony he had just delivered. A redacted statement to police was recorded on video and played for the jury Wednesday.
Muehl asked Gillingham why he hid the gray-hooded sweatshirt he was wearing that night in a window frame at his house. The sweatshirt contained blood that tested positive for the DNA profiles of Gillingham and the alleged victim.
Gillingham said he hid the sweatshirt because he had taken it from a friend without asking. He added that he also did not want anyone to know he assaulted the woman.
Muehl also questioned his intoxication level.
"I wasn't completely intoxicated where I didn't know all I was doing ... but I was pretty well buzzed," Gillingham said.
Muehl brought up Gillingham's statement that he rode back to campus with the woman to make sure she got home safely. Muehl asked him why he continued to ride inside the car with her after he noticed her driving erratically.
"I am the type of person that would normally put other people above myself," Gillingham said.
Muehl then asked him at what point he stopped hitting the woman.
"I stopped as soon as blood started to come from her nose," the defendant said.
Gillingham previously said under questioning from Rothermel that after assaulting the woman, he fled, but stopped about 20 feet away when she began screaming for help and thought about going back to help her.
"I was pretty ashamed. I knew if I did, I was probably going to jail," Gillingham said.
Gillingham also told the jury he probably could have burned the sweatshirt to dispose of it.
Other defense witnesses testify
Michael Beilby, 20, and Charles Gillingham, 23, testified earlier in the day Friday and said the defendant, Van Etten and the alleged victim returned to the Cozy Avenue apartment after the bars closed downtown. Both men said the woman was in good spirits when she accompanied Justin Gillingham and Van Etten home.
"They were getting along fine. They were all laughing and having a good time," Beilby said.
Neither Beilby nor Charles Gillingham said they saw any of the three smoke marijuana, but they both said they may have had some beer to drink. Both men also said they thought the woman did not have a boyfriend and that she seemed to be paying the most attention to Justin Gillingham while at the home.
The woman previously testified that she had a boyfriend at the time of the alleged attack and is living with the same boyfriend.
Charles Gillingham testified that Van Etten made a crude remark about oral sex and the woman responded to the remark that she would give oral sex for $20.
"I took it serious. She kind of laughed when she said it," Gillingham said.
Under cross-examination, Muehl asked Charles Gillingham if he had thought the woman was serious when she allegedly made the oral sex offer. Gillingham admitted he told police he laughed when the woman made the remark.
Videotaped testimony from Van Etten made last August was played for the jury. In it, he said he did make the remark and the woman responded with her own remark about oral sex for money.
"Do you believe it was a joke?" Muehl asked under cross-examination.
"Yes, sir," Van Etten said.
Also testifying Friday was Oneonta firefighter J. Michael Mancini, who was on the ambulance crew that transported the woman to the hospital, read from his incident report.
"Patient states she was dragged from a vehicle and assaulted," Mancini read.
No other witnesses have testified the woman was dragged from a vehicle and assaulted.
After Gillingham's testimony, Coccoma asked jurors to return to court at 11 a.m. Monday. They are not being sequestered.
Coccoma said he would meet Monday morning with Muehl and Rothermel to discuss jury instructions. At 11 a.m., the attorneys would begin their summations and the jury would received its instructions before deliberation, Coccoma said.
Rothermel asked Coccoma on Friday morning to dismiss the attempted murder charge due to lack of evidence. Coccoma denied the motion.