Trial in Missoula District Court got underway Monday for a 57-year-old man accused of raping a woman on the lawn just outside the courtroom.
"This is a case of a vulnerable, incapacitated woman being publicly and sexually exploited in broad daylight," Missoula County Deputy Attorney Ryan Mickelson said in opening statements.
William Curtis Small was charged in May 2018 with one count of sexual intercourse without consent after two men walking downtown, and later a police officer, said they saw him raping an unconscious woman on the courthouse lawn.
One of those men, T.J. Machado, testified Monday that he had just moved to Missoula from California. He and a friend parked on Broadway and were headed to dinner when he saw a man moving against another person.
"That's what caught my attention," he said.
Machado said he and his friend realized the woman lying in front of Small was unconscious. Machado said he tried to intervene, then called 911, and the man, who police identified as Small, was still "pursuing" sexual intercourse with the unresponsive woman when officers arrived.
Machado, appearing by video from California, identified Small in the courtroom on Monday.
But Small's defense attorney, public defender Robin Hammond, told the jury in opening statements that no witnesses actually saw sexual intercourse, and investigators could not recover any evidence that supported the rape claim.
This is Small's second round at trial; Judge John Larson declared a mistrial in the case last October after one of the officers mentioned in testimony the charge's distinction between misdemeanor and felony.
During that trial, the prosecution played the dashcam video from officers that captured audio of Small, a homeless man known to law enforcement, telling police, "I was just having sex with her," several minutes before first responders were able to rouse the woman, also homeless.
Trial is expected to continue Tuesday.