I know this idiot //content.invisioncic.com/y282845/emoticons/rolleyes.gif.c1fef805e9d1464d377451cd5bc18bfb.gif
http://www.fairmontsentinel.com/page/content.detail/id/506875.html
Local man acquitted in *** case
Jenn Brookens — Staff Writer
FAIRMONT - A six-man, six-woman jury found Joshua Brenon Smitherman innocent of two counts of criminal ****** conduct after two and a half hours of deliberation Thursday afternoon.
The 28-year-old Fairmont man had been accused of molesting an 8-year-old girl.
Throughout the day and a half trial, Smitherman maintained the incident was a case of mistaken identity. He said he believed he was lying next to and touching his ex-girlfriend, an adult cousin of the girl. //content.invisioncic.com/y282845/emoticons/eek.gif.771b7a90cf45cabdc554ff1121c21c4a.gif
When the verdict was read, there were gasps in the courtroom and one woman was heard crying. Smitherman put his head in his hands and appeared stunned.
On Thursday morning, defense attorney Troy Timmerman called two people to testify: a female friend who had been drinking with Smitherman prior to the incident and Smitherman himself.
Smitherman admitted he is a man with a past. He admitted convictions for drug use, check forgery, attempted robbery and even criminal ****** conduct for having a 15-year-old girlfriend when he was 19. But this marked the first time he had been on trial.
"When I've done things wrong, I haven't beat around the bush," he said. "I try to take responsibility for my actions."
Six months ago, according to Smitherman's testimony, he was at a crossroads. That evening, he argued with his ex-girlfriend, with whom he had and on and off relationship.
"I said some hurtful things," he said. "I even told her I liked someone else."
Despite the heavy drinking that occurred that evening, Smitherman was able to recall things that happened that night, from where he was, to whom he saw, to a woman who came back to his apartment for a short while.
"I started thinking about how going out and drinking was getting old," Smitherman said.
He said he realized the ex-girlfriend he argued with earlier was the woman he wanted to be with.
"No one else made me feel that way," he said.
So at 4 a.m., he walked the six blocks to her house, and found the door unlocked. He took it as a sign she was waiting for him.
"Even when they're at home making supper, she keeps the door locked," Smitherman testified.
Because Smitherman had been at the house so many times, he thought nothing of it when he saw what appeared to be a figure with long blonde hair on the couch, a place he found his ex-girlfriend sleeping in the past.
"It was like a routine, a habit for us," Smitherman said. "We'd done this so many times before."
But he didn't realize the woman he thought he was touching was the woman's 8-year-old female cousin. It wasn't until the lights were switched on in the living room and the woman told Smitherman that it hadn't been her on the couch that he realized what happened. And then he became angry.
"I thought she was lying. That she was doing this to get back at me," Smitherman testified. "I told her, 'Great, I just touched your cousin's butt, now I'm a *********.'"
It wasn't until under cross-examination by Assistant County Attorney Mike Trushenski that Smitherman acknowledged touching the girl's genitals, but he never gave a direct answer on whether there was any penetration.
Smitherman's admission to police about the ****** contact was the point Trushenski concentrated on in his closing arguments.
"A 28-year-old man who admits to touching an 8-year-old's ****** is a crime," he said. "Alcohol does not give him a free pass ... His idea that he got confused between an 8-year-old girl and an adult woman is not credible."
Trushenski also pointed out how clear Smitherman's memory was of everything that occurred that night except that moment.
"(The girl) has nothing to gain from this by testifying," Trushenski said. "He keeps saying he couldn't remember ... You know who does remember? (The girl) remembers."
In Timmerman's closing arguments, he stated that to convict, there needs to be a proof of intent, and through the trial it was shown Smitherman did not intend to inappropriately touch the girl.
"No one is denying that (the girl) was touched in a ****** manner," he said. "The tougher question is if he is guilty of a crime that he did not intend to commit. This isn't a case of the girl was touched, so he's automatically guilty."
He argued that intention to touch the girl would involve ****** gratification, which there wasn't.
"In fact, it was just the opposite. He was sick to his stomach over it," Timmerman said. "Even the girl said that Josh thought that she was her cousin ... No one has given any reason to believe that he would intentionally touch the girl. The state has failed to prove that intent."
Trushenski fired back that just because Smitherman said he got the woman and the girl mixed up doesn't necessarily mean that he actually did. He stated that by first bending down by the girl, then getting up on the couch and lying next to her before he touched her, his intent was clear.
"Just because he said he got them confused doesn't mean he actually did," Trushenski said. ""How do you show intent? By what you do."
After the verdict, Timmerman said: "We appreciate the jury doing what they were asked and making the hard choice and doing the right thing. It's obvious they put the time into it, because it was a fair amount of time to discuss the case when the facts were not in dispute."
