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The fifth day of the trial against Aubrey Phillip Childers continued on Monday, November 14, 2011. Mr. Childers is on trial from an allegation and indictment of a male-on-male sexual assault that occurred on or around August 15, 2010 around the southwest part of Sweetwater.
The nine-woman, three-man jury heard a slew of testimony from the defense throughout the entire day, including testimony from Mr. Childers himself, leading up to the time when the defense rested their case around 4:20 p.m.
Mr. Childers was the last person to take the stand for the defense, starting shortly before 3 p.m. The jury was shown a video of the Club Phoenix, known as the Cafe, and the surrounding areas in which Mr. Childers informed the jury of where he was on the night in question.
Mr. Childers testified to the jury that he saw the victim two times while at the Cafe and, prior to the incident, went riding around town with the victim and a friend, Byron Blueford. When he was at the Cafe, he saw the commotion after the victim had been punched.
The vicim and Mr. Childers started talking to each other because the victim was a friend of Mr. Childers' brother. Mr. Childers stated that the victim asked him if he was gay and if he had ever been with a white guy before.
Mr. Childers described his clothing that night as well as the appearance of the victim, who didn't look drunk though he could smell alcohol on his breath. Before Mr. Childers left to go to his uncle's house, he said the victim kissed his hand.
When he arrived around 10 minutes later, Mr. Childers saw the victim talking to a friend by the name of Mary Jo and then joined Mr. Childers. He stated that while the victim was talking, he was not paying attention to him.
Then, according to Mr. Childers, the victim put his arm around his shoulder. They went across the street to check on Mr. Childers' uncle, Lonnie McKinney, who was ready to leave the Cafe. Before they got into the car, Mr. Childers stated that the victim propositioned him for oral sex. He told him no because there were cars and people in the area.
Mr. Childers noted that the victim was able to carry a conversation and could be understood, and that he entered the car willingly because they had agreed to be with each other that night. Earlier testimony from the victim stated that he had been jumped by 13-15 black men and was forced into a car.
Mr. Childers, his uncle, the victim, and Brianna Havner--who was driving the car, went to Mr. McKinney's house. Mr. Childers said he and the victim went to a car to sit and talk, continued drinking and eventually had sex. According to Mr. Childers, the victim told him that if anyone found out they were together that evening, there would be problems.
Mr. Childers testified of their sexual activity, in that he gave the victim oral sex. When asked if he had ever performed anal sex, Mr. Childers told him no because in homosexual relationships, he is more feminine. He was asked to try and eventually did so, and the victim also performed anal sex on Mr. Childers.
During the acts, Mr. Childers stated that the victim had asked and consented the entire time. He also noted that the victim was never unconscious and was even kissing him. He never asked Mr. Childers to stop, though he said he was in pain at one time. If he would have been asked to stop, Mr. Childers said that he would have done so.
Mr. Childers said that when they were finished, they began to talk until a white car pulled up and picked up the victim. Mr. Childers stayed and began to send text messages to friends to pick him up to go back to the Cafe. He never got a ride, so he continued drinking in the front seat of the car until he passed out.
When he woke up the next morning, he saw the victim in the back seat of the car with both doors open. Mr. Childers started smoking and the victim then woke up, asking what had happened to him because he said he felt he had been punched. Mr. Childers confirmed the victim's suspicions and when the victim asked if he had retaliated, he said no.
Mr. Childers stated that eventually his aunt, Linda McKinney, came and picked him up. When his aunt arrived, he was talking to the victim and once Mr. Childers left, he saw the victim walking up the street. Again, Mr. Childers reiterated that the victim consented during the night.
Defense attorney Paul Hanneman then asked questions to Mr. Childers about his interviews with Sweetwater Police Department (SPD) detective Sam Cunningham. He believed that at the time, Mr. Cunningham was trying to help him with his situation.
Mr. Childers said he had heard a bunch of rumors regarding the night in question and, as a result, was nervous to talk about it. Among the rumors he heard was that the victim had been jumped, beaten, taken to the lake, had been sodomized and even that the victim's intestines were hanging out. Mr. Childers also believed his homosexuality would get him pinned for the incident.
He also believed that, when talking to Mr. Cunningham, that he would be administered a polygraph test which the two of them discussed. Mr. Childers also became fearful when Mr. Cunningham discussed the possibility of going to prison and possibly interacting with the Aryan Brotherhood, a white supremacist prison gang.
When Mr. Cunningham told him that of the DNA results in their second interview, Mr. Childers was shocked and said that he had no reason to lie. He said he was embarrassed to talk to Mr. Cunningham about his sexual activity and throughout the entire time, Mr. Childers never believed the victim was unable to resist because he was conscious and always knew what was going on.
Around 3:40 p.m., Mr. Childers began to be questioned by the state from District Attorney Ann Reed. He said that at the beginning of being questioned by Mr. Cunningham, he held back information because of the sexual aspect. But, when he began to understand the severity of the incident, he told everything from the night in question.
He also stated that the reason he didn't tell Mr. Cunningham about him riding around with the victim and Mr. Blueford because, while they were together, he didn't know him that well and wasn't close to him like he would be to a family member.
Mr. Childers then saw documents of three criminal incidents from his past, which were entered into evidence. Initially objected by the defense, presiding judge Glen Harrison allowed for them to be admitted.
Ms. Reed also asked about the night in question, noting that the initial reason the victim was taken to Mr. Childers was to watch out for him following his actions inside the Cafe. She also inquired as to their activity inside the car and on the next morning, when the victim was inside the car, to which Mr. Childers earlier testified that he thought the victim was dead.
Mr. Childers was shown photos of the car and the front and back seat of the car, to which he stated he never noticed the stains in the back. When asked why he didn't go with the victim when he picked up by the white car, Mr. Childers said that he did not know the person.
Also, when he later told Mr. Cunningham that the night should have gone the way it did, he said that he made that comment because he had never performed anal sex before and though he did it, it made him feel uncomfortable.
He also said that he never told Mr. Cunningham about the threat the victim made because he wasn't concerned about it. When he was shown the photo of the victim's injury, Mr. Childers stated that it didn't seem like it would hurt.
Mr. Childers again stated to the defense that he didn't take the victim's pain as a signal to stop and wished that he had never had anal sex with the victim but did so because he was asked. Once more, he stated that the victim was awake and conscious.
Leading up to Mr. Childers taking the stand, several testimonies were heard. Beginning the day was Rose Baldwin, a private investigator from Abilene. Appointed to the case, she went to the Cafe in Sweetwater and took video on October 29 of this year of the activities that take place at the Cafe.
The jury was called out of the courtroom around 9:10 a.m. and the video was shown of parked cars and the front of the Cafe with music playing. Defense attorney Paul Hanneman wanted to enter the video to later allow Mr. Childers the opportunity to take the stand to know what took place and at what location of the cafe.
However, District Attorney Ann Reed argued the relevance of the video and cited that the video was made a year after the events, also noting that the Cafe had been remodeled since that time.
Ms. Baldwin stepped down but took the stand later in the afternoon again, to which she testified she followed the route the victim took leaving from Mr. Childers' uncle's house all the way to Amanda Seals' house.
She eventually got into contact with the victim and asked him about the night in question; the conversation took place in June 2011. When questioned by the state, Ms. Baldwin acknowledged that the victim said numerous times that he had been drinking and couldn't remember everything from that night.
Ms. Baldwin asked the victim if he wanted to sign an affidavit of no prosecution, to which he initially said yes. However, once he fully understood the document, which meant he wanted no case, he told Ms. Baldwin no and that he wanted justice.
She also told the defense that shortly after her conversation with the victim, his uncle made an angry and threatening phone call, stating that his nephew was confused about the matter.
The second testimony the jurors heard was from Lonnie McKinney, the uncle of Mr. Childers. Mr. McKinney stated that he was at the Cafe and left with his nephew and Brianna Havner, along with the victim.
Mr. Childers, according to Mr. McKinney, was dressing in male clothing and talking to everyone. Mr. McKinney didn't notice anything between the victim and his nephew and noted that the victim was not forced into the car and entered without stumbling.
When questioned by Assistant District Attorney Barrett Thomas, Mr. McKinney explained his position inside the car along with Ms. Havner, Mr. Childers and the victim. He stated that while he only had 2 or 3 beers that evening, he was not drunk.
However, it was noted that in his sworn statement, Mr. McKinney said he had drank about a 12-pack. He went into his house once he was dropped off and only found out about the incident between Mr. Childers and the victim after it occurred.
Kristie Pierce, the older sister of the victim, took the stand next. She met with with the victim after he had arrived at the emergency room at Rolling Plains Memorial Hospital (RPMH) in Sweetwater and was told by her brother that he had been hit, noticing his swollen face.
Ms. Pierce stated that she heard her brother tell the nurse he had been raped in which she called the police. The victim then gave his statement to law enforcement with Ms. Pierce in the area.
The victim stated that he woke up in a car and a black man told him to stay inside. However, the victim left for what Ms. Pierce believed to be for fear of his life. She was also informed later by a friend of what street the event took place.
She gave a statement to Sweetwater Police Department (SPD) Detective Sam Cunningham, in which she wrote that she suspected a man named Tongo, a drug dealer associated with Robert Williams, Jr., (known as Duna), because her brother had been in fights with him prior to the night in question.
Mr. Hanneman also asked Ms. Pierce about her brother's personality traits in regards to fighting, drinking and rapping. The state then asked about the demeanor of her brother upon meeting him at the emergency room, to which she stated he wasn't acting like himself and was very frantic.
Following Ms. Pierce on the stand was Linda McKinney, the aunt to Mr. Childers. She stated that she saw her nephew on the morning of August 15, 2011, when he asked her to pick him up from Lonnie McKinney's house.
Ms. McKinney testified that Mr. Childers was in regular clothing and his hair appeared normal, not long and wavy as some had stated. She saw the victim and Mr. Childers talking but didn't hear any of their conversation.
When she pulled up to Mr. McKinney's house, she saw Mr. Childers smoking and talking with the victim who was sitting in the back seat of the car. She did not talk to the victim--who did not seem distressed--but only called for Mr. Childers and the two of them left.
Ms. McKinney stated that her car was a 1995 maroon and white Chevrolet Suburban and was not waiting long inside the car for her nephew. She noted that later, when she gave her statement to Mr. Cunningham, she only thought the matter regarded a relationship issue between Mr. Childers, who is gay, and the victim.
However, Ms. McKinney never noted in her statement that her nephew and the victim were smoking together. She gave her statement to Mr. Cunningham after he made a visit to her home asking her to come to the police department, in which she later described the scene to him.
Amanda Munoz was the fifth person to take the stand and was at the Cafe on the night in question and talked to the victim later that night. She said that he appeared very drunk and was stumbling.
Ms. Munoz told the victim he could not go back into the Cafe because he had been banned by two people from an altercation between him and Robert Carey, Jr., a bouncer at the Cafe. The victim had been rapping and using a derogatory racial term and when asked by Mr. Carey to stop, he continued using the word and was punched by Mr. Carey, which Ms. Munoz witnessed.
The victim then left and walked toward the parked cars, according to Ms. Munoz, and she stated that she never saw Mr. Childers that evening. She also testified that before he was hit, the victim seemed intoxicated; after he was hit, he fell to the ground and seemed knocked out but was helped up by two people.
Next on the stand was Jean Raven, a cousin of Mr. Childers who she saw at the Cafe that evening. She said she the victim that night but at the time was not aware that he had been hit by Mr. Carey.
She stated that she saw the victim with Mr. Childers and both of them seemed drunk. Ms. Raven also noted that she, too, had been drinking and was intoxicated.
She went to the Cafe that night to celebrate Mr. Childers' birthday and had a drink with him. Around 20-30 minutes later, she saw him for the second time.
Ms. Raven saw the victim with Mr. Childers near a red Pontiac, standing side by side and eventually touching. The victim tried to get Mr. Childers to join him somewhere else and, according to Ms. Raven, put his arm around Mr. Childers.
The first instance, the victim put his arms around his neck; the second time, he put his arm around Mr. Childers' waist as if they were a couple. Ms. Raven said it was unusual to see her cousin with a man publicly because he didn't expose himself, and it was the first time she saw him in public in that manner.
Ms. Raven told the state that she saw the two men before she left, which was between 1 and 2 a.m. However, because she had been drinking, the state noted that she might not remember the details.
The defense asked about Mr. Childers' hair on that night, to which she stated that it was not long and wavy. She also noted that in her statement which she gave to investigator Phillip Gill, she said that the two men were acting like a couple.
However, Ms. Raven gave her statement almost a year after the incident. Ms. Raven's criminal background was also brought into question by the state.
Tina Thomas, another cousin of Mr. Childers, testified after Ms. Raven. Ms. Thomas saw her cousin at the Cafe sometime after 2 a.m., after working at the Azteca Sports Bar and Grill in Sweetwater. Mr. Childers, according to Ms. Thomas, was wearing a collared shirt and jeans and did not look feminine.
She stated that she saw her cousin together with the victim and was shocked because Mr. Childers never showed affection to a man publicly. Ms. Thomas said the two men were close to each other like they were a couple but did not see any actual contact.
Ms. Thomas stated that later, after the incident, she saw the victim at the Azteca a few times. On one occasion, he seemed drunk and did not sell any alcohol to him, in which he asked another bartender.
She also testified to the state that, on the night in question, the victim didn't appear intoxicated and saw the two men walking around. Ms. Thomas never got out of the car or talked to her cousin because she saw that Mr. Childers was occupied spending time with the victim.
Tavia Williams briefly took the stand next but when asked questions by the defense, she said that she did not remember the night because she had been drinking that night but only saw them walk by. As a result, the state did not ask Ms. Williams any questions.
Following Ms. Williams on the stand was Eliza Hinojos, who knew Mr. Childers through a mutual friend and knew the victim for about six months. She was at the Cafe that night and noticed Mr. Childers and the victim standing very close to each other and flirting.
She stated that the victim put his arm around Mr. Childers' waist and thought they were dating. The state asked Ms. Hinojos about what the two men were wearing that night and what they were drinking. She stated that they were both wearing jeans and a t-shirt but did not know what they were drinking.
Megan Treadaway testified next, stating she was at the Cafe and saw the victim laying on the ground but eventually got up and was brought to Ms. Havner's car. She said he was talking to everyone in their group but was flirting with Mr. Childers and even saw the victim kiss his hand. When she left, she also saw them hugging and holding hands.
Ms. Treadway noted to the state that she was a family friend of Mr. Childers, but never told Mr. Cunningham in her statement about the two of the men flirting. She did, however, tell Mr. Hanneman and since the event, has talked to several people about the case.
She was never asked about consent between Mr. Childers and the victim, but in her statement, when she received a text message from Mr. Childers to pick him up from his uncle's house to go back to the Cafe, she was already in bed by herself.
Marquis Buchanan then testified, noting that he saw both Mr. Childers and the victim. He only saw the victim arguing with Robert Williams Jr., or Duna around 1 or 2 a.m.
Following the two-hour lunch recess, which came as a result of scheduling conflicts, Mark Williams testified that he knew both men all of his life. When he was at the Cafe that evening, he said he thought Mr. Childers and the victim were enjoying each other's company.
Mr. Williams noted that the victim was following Mr. Childers around and saw them holding hands and being affectionate. While not surprised by Mr. Childers' action, he was surprised by the victim's displays of affection because he never took him as being gay or bisexual.
He also testified that later he saw the victim being dropped off at the Cafe, alone, around 4 a.m. The victim, according to Mr. Williams, was still in a good mood and talking.
Mr. Williams told the state that he didn't think the victim was intoxicated the first time he saw him and that he never saw the victim being punched but only saw the crowd. However, he did tell the defense that he knew the victim had been drinking because he was rapping though he was not stumbling or falling.
Next to testify was Kendra Williams, who knows Mr. Childers and saw the victim a couple of times while visiting her mother's house. She saw him at the Cafe that night with his arm around Mr. Childers and also the two of them kissing.
She stated that she only heard about the entire incident after it occurred from overhearing conversations of people coming to her uncle about the matter. She didn't go to law enforcement because she didn't believe it would become a serious issue.
Sherletha Williams, who knows Mr. Childers but only knew of the victim, testified that she was across the street from the Cafe and saw the victim all over Mr. Childers. Her cousin, Hilly Williams, was cross-dressed and Ms. Williams stated that the victim tried to get with him because he was cute. When he refused, the victim, according to Ms. Williams, followed around Mr. Childers.
The two men were touching and holding hands, and she stated that the victim was drunk because he was holding conversations with people and referring to himself as Slim Shady, a white rapper also known as Eminem. She also testified that she saw the victim kiss Mr. Childers on the neck.
However, the state questioned why Ms. Williams never gave a statement to the police about what she had been testifying about. Also, it was noted by the state that Mr. Childers never mentioned Hilly Williams in his video interviews.
Byron Blueford took the stand next and testified that he saw the two men prior to the event. He picked them both up and the three of them went riding around town and drinking. They went to Jack's to purchase liquor and Mr. Blueford stated that it appeared to him that they knew each other based on their conversations.
The idea to go riding, according to Mr. Blueford, was Mr. Childers'. He also said he knew about an incident where the victim got into an altercation with several guys while free style rapping.
One week prior to the incident, he saw the two men talking and were close enough to kiss, looking like a couple. Mr. Blueford said that he was shocked that their ride around town was never mentioned by Mr. Childers during his interrogations.
Following the testimony from Mr. Childers, the court recessed at around 4:40 p.m. on Monday. Closing arguments began at 9:30 a.m. on Tuesday before the jury began their deliberations.