Both the prosecution and the defense rested Wednesday afternoon in a trial of a Clinton man charged with alleged sexual abuse in the third degree.
David DeSimone, 53, is currently being tried for allegedly assaulting a 17-year-old female on Oct. 16, 2004. He was convicted of this alleged crime in 2005, but the conviction was thrown out late last year by the Iowa Supreme Court, which ruled the prosecutor did not disclose evidence that would have discredited part of a witness’ testimony. Attorneys Scott Brown and Denise Timmins, from the Iowa Attorney General’s Office, now are prosecuting the case.
Wednesday morning, the prosecution called the police detective who investigated the case and a nurse who examined the alleged victim the morning of the alleged assault. Cpl. Brian Pohl testified that he began investigating this case on Oct. 19, 2004. At that time, he interviewed the alleged victim, whom he described as visibly upset, but coherent. A picture of the victim taken by Pohl was entered into evidence and he verified that a cellphone shown in the photo was not hers.
Pohl testified that he spoke with the defendant twice. The first conversation occurred when DeSimone came to the police station on another matter and Pohl asked him what happened on Oct. 16 and Oct. 17, 2004, the night of the party at which the alleged victim claims the attack occurred. Pohl said DeSimone was aware he had been accused by her and stated that he did not assault her or have any sexual contact with her.
Pohl testified that he questioned DeSimone a second time on Nov. 16, 2004 and the approximately 15-minute video tape of that interview was entered into evidence and played for the jury. This taped showed Pohl questioning DeSimone about the party and his interaction with the alleged victim. In the interview, the defendant stated that the alleged victim arrived at the party intoxicated, which contradicts her testimony from Tuesday. He also stated on tape that she was never in his bed to his knowledge. DeSimone was arrested on June 17, 2005.
Kris Melenbacker was the nurse in the Mercy North Hospital emergency room on Oct. 17, 2004 when the alleged victim came in. She described her as upset and added she was crying and later became ill. She testified that she was not the first nurse to speak with the alleged victim, but did perform part of the exam for the rape protocol kit and was present for the entire process. Both Timmins and Defense attorney Harold DeLange had her explain the procedure for the kit.
Melenbacker testified that she did not see any cuts, redness or bruises on the alleged victim’s throat or body. The alleged victim testified Tuesday that at the start of the assault, DeSimone grabbed her by the throat. However, Melenbacker told Timmins that if the defendant had held her by the trachea, he could have cut off her air supply without leaving a mark. DeLange asked if a mark would not have been visible depending on the amount of pressure and where the defendant allegedly grabbed her throat. Melenbacker could not say.
DeLange also asked Melenbacker about details from the alleged victim’s statement on what happened, which contradicted the exact order of the alleged sexual assault that she gave in her testimony Tuesday. He asked the nurse if the alleged victim ever complained of pain. Melenbacker said she thinks the alleged victim did, but noted that she did not mark it down in her report.
The prosecution also called DeSimone’s cousin whom he used to be close with, Toni Zmuda. Brown asked her about a conversation she previously claimed to have with DeSimone at a bar in Morrison, Ill., in November 2004. She did not remember the conversation, but Brown read a deposition she had given on Sept. 6, 2005. In this deposition she relayed a conversation where DeSimone allegedly said the alleged victim performed oral sex on him. Zmuda said in court that she did not remember making this statement, but did agree with Brown that the conversation would have been fresher and her memory would have been more accurate in 2005 than now.
DeLange had Zmuda confirm that she spoke to the defendant on the phone Tuesday and told him she did not remember the conversation. He also pointed out that at the time of the deposition, DeSimone was allowing her ex-boyfriend, Mike Riddle, to live with him. DeLange asked her if she was angry with and felt betrayed by her cousin at that time. She agreed that she might have been.
Wednesday afternoon the defense began its case by calling Nichole Long to the stand. Long testified that she met the alleged victim in July 2005 through a mutual friend and began socializing with her a couple times a month. DeLange asked her about a statement she made to the police in August 2005. She said that she and the alleged victim were driving along Camanche Avenue one night when the alleged victim pointed out a house and said she was raped there in October 2004. Long said that reminded her that around the same time, she almost hit a young woman crossing Camanche Avenue when she was driving home from work at Burger King, at approximately 2 or 2:30 a.m. She testified that they put two and two together and realized it must have been the alleged victim that Long almost hit.
After speaking to his client, DeLange asked her what time her time card at Burger King said she had punched out on Oct. 17, 2004. She did not know and asked to see the time card. During a small break given to find the time card, Brown objected to Judge Mark Cleve that DeLange’s sole purpose of calling Long was to impeach her. After discussion, DeLange agreed not to continue asking about the time card, but did try to prove inconsistency in her testimony through a few more questions.
DeLange recalled Pohl and asked him if he received Long’s timecard and what time it said she punched out on Oct. 17, 2004. He testified the e-mail he received from the corporate office showed she punched out at 3:30 a.,m., after the alleged victim was at Hy-Vee and had called 911. Brown had Pohl verify that he could not find any paperwork on her hours at the local restaurant and asked if he could verify that the corporate office’s hours were correct. Pohl said he could not, but said a representative from the Burger King corporate office felt it was correct.
DeLange called the alleged victim back to the stand and asked her about her cell phone and if she used it to call her friends and 911 after the alleged attack. She said she used the Hy-Vee phone and testified she had her cellphone in her purse, but did not know what happened to it.
After Cleve ruled that prosecutors could not use two felonly theft convictions from almost 20 and 30 years ago to impeach the defendant, DeSimone agreed to testify in his defense. DeLange asked DeSimone about the party on the night in question and about the allegations. He asked DeSimone if he raped the alleged victim, had any sexual relations with her or choked her.
“No I did not,” DeSimone replied to each question.
DeLange asked about an incident in the downstairs bathroom that led to a fight in which DeSimone was injured by some male guests. DeSimone said he saw the alleged victim about to vomit and after finding the upstairs bathroom occupied, he rushed her to the downstairs bathroom. He added that she vomited and it splattered on the walls, floor and so on. It was at this point that the guests shouldered the door in and the first altercation began.
DeSimone testified that after the second altercation in which he was injured, he told everyone to leave. He then went downstairs to watch them leave and make sure no one damaged any of his property. In a long narrative, DeSimone claimed that when he finally came back upstairs he found the alleged victim having sexual relations with Joe Baker. Baker testified for the prosecution on Tuesday that he saw DeSimone in his bedroom and the alleged victim sleeping in his bed. Cleve told the defense to move onto the next question. DeSimone said he went to his bedroom at that time.
DeSimone testified Baker woke him that morning when it was daylight to use his phone. DeSimone went back to bed. He said his cousin came to do laundry in his basement while he was sleeping and police arrived with the search warrant shortly after.
During cross examination, Brown had DeSimone verify that he was saying the testimony from Zmuda, Baker and the alleged victim was incorrect. He agreed. Brown had DeSimone confirm that he never mentioned Baker to the police. He asked DeSimone why he never directly asked the alleged victim to leave if he did not want her at the party. Brown had the defendant confirm that after everyone left the morning of Oct. 17, 2004, he was alone and had total access to the house before police arrived. DeSimone said that would be true. Brown asked the defendant when he cleaned the alleged victim’s vomit from the downstairs bathroom and DeSimone said he waited a day or two. Brown then showed a picture taken by police in the search which showed the downstairs bathroom and commented that the bathroom looked cleaned. He asked the defendant if it is not true that he did clean the bathroom and the bedroom before the police arrived. DeSimone said he did not.
In re-direct, DeLange asked DeSimone if he destroyed any evidence or washed any bedding. DeSimone said he did not. The defense then rested.
Court was set to reconvene at 9 a.m. today for closing arguments, jury instructions and deliberation.