Former N.C. State football player appeals rape conviction

| August 21, 2013
Former N.C. State University football player Gavin Smith is doing six to eight years for raping a 17-year-old girl.
Former N.C. State University football player Gavin Smith is doing six to eight years for raping a 17-year-old girl.
- Photo courtesy of N.C. Department of Correction

Football scouts loved Gavin Smith's raw strength and on-field intensity. A redshirt freshman for the North Carolina State University Wolfpack, the 6-foot 3-inch, 280-pound defensive tackle was ranked No. 13 in the state for his 2006 recruiting class. He was the 4A State runner-up in wrestling at Wakefield High School in Raleigh.

Smith, now 26, is also doing six to eight years at Morrison Correctional Facility in Hoffman, N.C., for raping a 17-year-old girl at a party. He appealed his case, arguing that the prosecutor unfairly prejudiced the jury by introducing irrelevant testimony from a second alleged victim during a trial last summer.

The prosecutor included the second testimony to demonstrate Smith's "scheme" of having sex with young, incapacitated women at parties.

The North Carolina Court of Appeals considered Smith's argument last week and will issue its opinion in coming months.

The rule governing whether a previous rape allegation is admissible in a separate trial "is a big deal," says Donald H. Beskind, a Duke law professor and former trial lawyer. "It's never a slam dunk for prosecutors because defendants fight hard to keep it out, but whatever the judge decides is likely to be upheld on appeal."

Both incidents occurred at house parties where people were drinking. Both occurred in the early morning hours after guests had left. Neither woman could remember much. Both knew Smith, who claims the sex was consensual.

The incident that went to trial happened in October 2007. Smith, then 20, transferred to Tennessee Tech that fall. He attended a party with his friend Seth McInnis, a U.S. Marine. A 17-year-old Wakefield High School senior who knew Smith from high school and previous parties was also there. The petite teenager drank vodka all night. At one point, according to court documents, she vomited.

After midnight, when the party began to disperse, the teen lay on the basement couch, with Smith and McInnis on either side or her. According to testimony, her friend believed she was intoxicated and tried to convince her to leave, but Smith said, "Don't worry, it's not like anybody's going to take advantage of her."

In a police statement, the teen wrote that she passed out, and "I woke up a few hours later to Gavin raping me ... "[T]here was nothing I could do to make him stop."

"I was crying the hardest I've ever cried in my whole life. I couldn't breathe," she wrote, adding that McInnis watched the rape from a nearby chair. She called a friend at 3 a.m., crying and distressed.

The next day the teen's mother took her to an emergency room, where a rape kit was administered. The ER doctor testified her injuries didn't indicate forced penetration; however, an expert for the prosecution contradicted that finding.

During trial, McInnis testified he, not Smith, disrobed the teen, and that they both had sex with her that night. He claimed she was never asleep and the sex was consensual. (McInnis' testimony proved to be ill-advised; a grand jury indicted him on his own rape charges, which prosecutors dropped after he pleaded guilty to perjury.)

While investigating the case, police learned of a similar accusation. Eight months prior to the incident with the teen, Smith was hanging out one night near the N.C. State campus. He noticed a fellow freshman shivering in the cold. The 18-year-old woman had been drinking with friends but became separated from them. Smith invited her to his dorm, where his roommates were hosting a party. The woman knew Smith and thought he was a nice guy, according to court documents.

She downed at least one shot at the party, according to court documents. The couch was occupied, and Smith invited her into his bedroom, where they began making out. He began disrobing the woman, who testified that she passed out. When she regained consciousness she was having intercourse on top of Smith, she said. She recalled feeling like Jell-O and wanting to stop. The next morning she woke up naked.

The next day she visited a hospital but declined a forensic exam, indicating that she couldn't remember much. "I'm not saying I was necessarily raped," she told police. Later, after interviewing Smith, the police reached a conclusion that the woman had blacked out but that the sex was consensual.

The woman eventually pressed charges, and the judge allowed her testimony in the other teen's trial.

"This evidence was received solely for the purpose of showing that there existed in the mind of the defendant a plan, scheme, system, or design involving the crime charged in this case," he told the jury.

The jury found Smith guilty of raping the 17-year-old. Afterward, he pleaded guilty to the second charge, accepting a concurrent sentence.

If the victims' testimonies had been introduced in separate trials, each case could have been more difficult to prove. And if Smith is granted a new trial, he could file a motion to vacate his guilty plea in the second case.

State legal code bars testimony about a defendant's general bad behavior and propensity toward criminality. However, it gives judges discretion to allow testimony deemed relevant to the crime at hand.

Courts are "especially likely" to admit previous rape allegations in sex crime prosecutions "even when the similarity is fairly modest and the recency isn't tremendous," according to UNC professor Jeff Welty, a criminal law specialist who has written about evidentiary issues in sexual assault cases.

That argument hasn't deterred Smith, who did not respond to a letter for comment. In his appeals brief, his attorney wrote: "[the woman] got drunk at a college party and had sex with a football star ... Her testimony was not relevant because, at best, it showed that Mr. Smith liked to go to parties and was sexually attracted to girls about his own age."

This article appeared in print with the headline "On the defensive."

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