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DJ throws out some charges in rape, incest case

Frustrated district attorney vows to re-instate dismissed counts

Zachary T. Smith

LOCK HAVEN — Zachary T. Smith came into the courtroom Tuesday morning charged with 13 counts of rape of a child, one count of involuntary deviate sexual intercourse with a child, 18 counts of aggravated indecent assault of a child and 13 counts of incest of a minor.

He left the lengthy preliminary hearing with fewer charges on his plate, as District Judge Frank Mills threw out nine counts of rape and numerous other serious felony sex offenses.

That didn’t sit well with Clinton County District Attorney David Strouse, who had argued vehemently that the emotional testimony of the victim, who was 12 years old at the time of the alleged crimes five years ago, “should be more than enough to convince the judge of a prima facia case on all counts. She was compelling, she was credible.”

“This victim gave specific numbers… the charges don’t require a day, time, position… that’s to be argued at the time of trial,” Strouse said after Mills expressed aloud his concerns that the now 18-year-old victim had not given the court enough testimony on each count to move them all on to the next stage.

He then recessed the proceeding to mull over the testimony, at one point calling the court reporter to his office to read specific parts of the victim’s testimony. Both Strouse and Philip Masorti, attorney for the defendant, accompanied the reporter.

When Mills pronounced his decision, the district attorney’s frustration was evident.

The judge held over four counts of rape of a child, seven counts of aggravated indecent assault, four counts of incest of a child and the one count of involuntary deviate sexual intercourse with a child.

“I wholeheartedly disagree with the decision to dismiss any of the charges, and the commonwealth intends to pursue the re-instatement of any charges dismissed,” Strouse said after the hearing.

Smith, now 21, was 15 years old when the alleged acts occurred. He was serving as a Marine at Camp Lejeune, N.C. when the charges were filed in September 2017.

The victim spent at least an hour on the witness stand Tuesday, describing the incidents that led to the charges being filed by state police at Lamar and then responding to a grueling cross examination by Masorti.

An attractive young lady, she tried to hold back her emotions, but tears fell often and her legs swayed from side to side throughout her testimony. At one point, she asked for a break and a brief recess followed, giving her time to be with family members and the district attorney outside the courtroom for a short spell. When she returned, she was more composed for a while as she tried to keep her eyes focused on Strouse, rather than looking at the defense attorney, seated beside the defendant, as Masorti questioned her.

As the hearing began, Masorti asserted his objection to the delay in filing of the charges, five years after the fact. The alleged incidents occurred between April and August of 2012, according to court documents.

Masorti said there was a delay in reporting the alleged incidents and prosecuting the case until Smith turned 21 in July 2017.

Strouse, however, said it took time for the 12-year-old to fully absorb what had occurred.

“There’s nothing to show that the commonwealth purposely delayed this to get out of the juvenile system. The juvenile court loses jurisdiction after age 21,” he said.

He pointed to a recent case where similar charges were filed against a man after he had reached 21 and where the alleged violations occurred when he and the victim were both juveniles and the defendant was tried as an adult.

Judge Mills left the courtroom and took a few minutes to consider the objection.

“I can’t dismiss this case at this point. You can submit something after the hearing,” he told Masorti.

During the brief recess while the judge was outside the courtroom, it appeared an attempt was being made by the attorneys to come to a plea agreement of sorts. Masorti spoke to Smith and his mother, but there didn’t appear to be any interest in the agreement. When Strouse returned to the courtroom, he said the “agreement” was a one-time deal and is now “off the table.”

The victim was the only person to testify during the hearing.

She told the court that she was raped by the defendant 13 times during the spring and summer of 2012, and the incidents occurred in her bedroom, in the living room on the couch, at the boat launch and at her father’s river lot. She said she kept track of the number of times by cutting herself on her body with a razor or other sharp object and has scars from those cuts.

He always used force, she said, putting her arms above her head and taking off her clothes. He never had a weapon and never said anything during the acts, she said. But afterwards she said he told her, “nobody will believe you.” And, she said he threatened to hurt her guinea pig.

At the boat launch in Wayne Township, she said the acts occurred in the water while they were there fishing. “I can’t swim… he grabbed me by my neck and hands,” she said. “He was a lot bigger than me. I was four-feet, 11 inches… he was a lot taller and stronger,” she said.

In 2013, the victim said she moved to South Carolina to live with her mother and she didn’t have any contact with Smith.

“In 2017, I was lashing out at people all the time. My mom suggested I see a therapist. Then she said said I should go to Zach’s graduation and I freaked out. She stopped the car and asked me what was wrong. I told her,” the tearful victim said.

She said she also told a therapist, Children and Youth and state police.

“Did you tell the truth when you told the therapist, Children and Youth, state police and the court today?” Strouse asked.

She responded yes.

“This happened over five years ago and it was hard for me to go to therapy and remember what happened to me,” she continued. She said she felt violated and very angry.

On cross-examination, she told the defense attorney that she did not tell Smith in 2016 that she loved him. When he showed her an envelope and asked if it was her handwriting, she responded, “No, my mother’s.” Shown a postcard by the attorney, she said it didn’t look familiar. Shown handwriting inside the card, she said it was hers, “but I wrote it because my dad told me to.”

As Masorti pressured her to describe details of the sexual acts, she began crying profusely. “I can’t remember,” she said.

“I was 12. I didn’t know it was inappropriate. It didn’t feel right, but I didn’t know what was going on,” she said when asked about the first occasion. She said she didn’t realize it was wrong and thought it was normal.

Asked how he treated her at other times, she said he taunted her on the school bus, slapped her with condoms, blew up condoms and made an inappropriate sculpture of a man’s body parts.

Then the Commonwealth rested and the defense made a brief statement saying that so many of the victim’s answers were contradictory and she “lacked maturity and is not competent.”

After Judge Mills declared his decision on the charges that would move on, there was the issue of bail.

Smith has been out on $35,000 unsecured bail with specific conditions. Since he is residing at the family home where two minor children also reside, the conditions were that he not be left alone with the minors at any time and that a parent or his 20-year-old brother had to be present at all times when the children were there with him.

The district attorney requested that monetary bail be established at this time.

“It’s not sufficient to protect the public in cases such as this… especially with the assault of a child. This may be the only time I’ve ever seen non-monetary bail for a case like this… felony rape, felony aggravated indecent assault, felony deviate sexual intercourse, felony incest… He shouldn’t be residing in a home with minor children,” Strouse argued.

Masorti spoke up, saying that the defendant is staying with his mother and is supervised at her house by probation.

Judge Mills took another brief recess to call probation and returned to say that the bail will remain the same and the conditions include the defendant must be supervised by “any adult,” not solely his mother or brother, when the minor children are present.

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