Smith testifies he had consensual sex with Nicole

A 21-year-old US Marine accused of raping a 22-year-old Filipina testified in court yesterday that they had consensual sex, and that he did not rape her.

The trial resumed yesterday after a three-week break.

On direct examination by Ricardo Diaz, one of the lawyers for the defense, Lance Corporal Daniel Smith told the Makati City regional trial court the woman, known only as "Nicole," had her hands on his genitals while they were kissing in a moving van at the Subic Bay Freeport on Nov. 1 last year.

"I kinda jokingly said, ‘Are you trying to have sex right here?"’ he said.

"She said, ‘Yes.’ I started to get undressed. She was doing the same."

Wearing a dark gray suit, Smith said he initiated kissing inside the van and Nicole responded, and that after both of them pulled down their pants, he got a condom from his back pocket and that she helped him put it on.

"After that, she leaned back and assisted me in entering her," he said.

Smith said after about three minutes, the van stopped, and that he looked at his watch and realized it was past curfew and told Nicole they had to stop.

"She said, ‘Are you done already?’" he said.

Smith said he felt embarrassed by the question.

He explained to Nicole that they had to return to their ship and left her at the port after failing to find a taxi for her, he added.

Smith identified Nicole in open court as the woman with whom he had consensual sex, pointing at her three times.

Smith said he met Nicole inside the Neptune Club on the night of Nov. 1, 2005 around 10:30 to 10:40 p.m.

"I saw this Filipina girl who was kinda smiling and giggling at me," he said.

Smith said after the pleasantries, he invited Nicole to his table where they talked for a while before they danced for some 15 minutes.

When they came back to the table, Nicole sat down on his lap and they flirted for a minute or two, and then kissed in a way "between friendly and passionate," he said.

Smith said after he and Nicole kissed a second time he saw his co-accused S/Sgt. Chad Carpentier rounding up the US Marines inside the Neptune Club to go back to the USS Essex before midnight.

Nicole got disappointed so he asked her if she wanted to come with him for a short ride to the ship, and that she said "Yes," he added.

In his testimony, Smith did not say that he carried Nicole piggyback as testified by witnesses for the prosecution.

Smith said it was Timoteo Soriano Jr., the van’s driver who is also being dragged into the case as an accused, who unlocked the doors of the vehicle, and that Nicole got on board by herself and took the back seat.

Carpentier also sat in front beside the driver, while their two other co-accused Lance Corporals Keith Silkwood and Dominic Duplantis occupied the second row, he added.

On cross-examination, State Prosecutor Nolibien Quiambao confronted Smith with a report from the US Naval Criminal Investigation Service (NCIS).

Smith said the NCIS special agent, who interviewed him, misquoted a number of his answers, and that he did not drink five bottles of beer at the Neptune Club, nor did he dance with Nicole for 40 minutes, and that he did not describe her as someone who appeared to be intoxicated.

When asked if his buddies cheered when she was having sex with Nicole, Smith said all he heard was "normal drunken laughter."

When Quiambao asked him why he believes he and Nicole had consensual sex, Smith said, "she verbally and physically consented with the sex."

When confronted further, Smith said, "I know (we had consensual sex). She was a willing participant."

Private prosecutor Evalyn Ursua tried to ask the court to allow her to ask more questions after Quiambao said he was done.

However, Francisco Rodrigo, Carpentier’s lawyer, objected, saying the prosecution made it clear during the beginning of the hearing who would do the cross-examination.

Ursua had no other option but to let Quiambao do the questioning for her.

Making clarificatory questions, Judge Benjamin Pozon asked Smith what were his last words to Nicole before they parted on the night of Nov. 1, 2005.

Smith said he tried to hail her a cab, and that when he couldn’t, he told her that she will have to go back to the Neptune Club by herself, and that they can see each other again the following night.

"So there’s no reason for Nicole to be mad at you," Pozon said, asking the US Marine what he thinks is the motive behind the filing of the rape case against him.

"I’ve been trying to figure that out, "Smith said. "I still can’t find a reason."

After answering, Smith was excused and the hearing was adjourned.

State Prosecutor Hazel Decena-Valdez, in an interview later, said Smith merely denied the allegations against him. — With AP