UPDATE 6:45 p.m.
The jury came with questions for Circuit Judge Christopher Hughes. They asked about lesser charges and whether they could come back Monday for more deliberations. Minutes later, the jury decided to go home for the weekend. Jury deliberations will continue Monday, March 4, at 8 a.m.
UPDATE 6 p.m.
Jurors are still in deliberations.
UPDATE 4:40 p.m.
The jury has begun deliberations.
UPDATE 3 p.m.
The jury hearing the case against Tony Martin Patillo will soon begin deliberations.
Patillo is charged with raping and sodomizing an Auburn student in September 2017 on the back of a Tiger Transit bus and on the side of the road near Aspen Heights and Creekside.
In closing arguments, Lee County District Attorney Brandon Hughes said the case is clear.
"Folks you've seen all you need to see," Hughes said. "You're as disgusted as I am, as the rest of us who have had to look through this, as the police who have had to look through this, as [the victim.]"
The district attorney's closing arguments followed arguments from Patillo's defense attorney, Jon Carlton Taylor, who said there was no evidence Patillo raped the victim and that any oral sex — for which Patillo faces the sodomy count — was consensual.
The prosecution refuted the defense's argument that the victim was even able to consent.
The district attorney quoted words from Patillo in one of the video recordings from the bus. In one of the videos, Patillo can be heard saying the victim is "knocked out."
"If somebody is 'knocked out,' then they are physically helpless," Brandon Hughes said.
One of the definitions of first-degree rape in Alabama's criminal code says a jury should convict if the victim is found to be "physically helpless" and thus incapable of consent.
"If you didn't know she was alive, you'd think she was a dead body," the district attorney said, challenging the defense's claims of consent. "Are you kidding me?"
Patillo, 51, said the entire encounter was consensual. Patillo's defense attorney said the victim willingly performed oral sex on Patillo and that no intercourse ever occurred.
"So let's see, you've got no visual proof, no medical proof, no DNA proof, and the victim can't tell you what happened," Taylor said. "How have they proved penetration? They haven't."
Joseph Lee with the Alabama Department of Forensic Sciences testified that the victim's DNA along with Patillo's semen was found on the shaft of Patillo's penis and on his underwear.
But none of Patillo's DNA was found inside the victim when a rape exam was performed at East Alabama Medical Center. Expert witnesses said it is impossible to decipher where the victim's DNA came from, meaning DNA evidence alone doesn't prove penetration, a requirement of the rape charge.
The prosecution used video evidence from the Tiger Transit bus's surveillance cameras along with testimony and circumstantial evidence to try to prove the case without conclusive DNA evidence.
Lee County Assistant District Attorney Clay Thomas leans against a television display Wednesday, Feb. 27, 2109, while the court watches body camera footage.
"Nothing on that video says consent," said Lee County Assistant District Attorney Clay Thomas in closing arguments. “This man got on a bus, saw this girl, who he had seen 30 or 45 minutes earlier drunk as could be, knocked out, and it was on. He was there to get sexual gratification from someone who had no idea what was going on.”
Video showed Patillo on the victim with her legs pulled up around him. Prosecutors said that is enough to prove penetration and that she was "absolutely raped."
“It’s the circumstances," Thomas said. "What else is he really doing?”
Lee County Circuit Judge Christopher Hughes, who is not related to District Attorney Brandon Hughes, will soon finish charging the jury, at which time they will begin deliberations.
The jury could choose to deliberate into the evening Friday, to deliberate over the weekend or to return on Monday. A conviction on any of the charges would require a unanimous vote.
The jury will have the option to consider lesser charges including attempted rape and sexual misconduct.
UPDATE 1 p.m.
The prosecution has rested its case against Tony Martin Patillo, who is accused of the rape and sodomy of an 18-year-old Auburn student on a Tiger Transit bus in fall 2017.
Closing arguments began Friday afternoon.
Patillo, 51, is charged with two felonies and one misdemeanor in connection with a September 2017 incident on a Tiger Transit late-night Tiger Ten bus from downtown.
Prosecutors allege Patillo raped the student while on the bus and continued to assault her on the side of the road near Aspen Heights, where witnesses saw them and reported the incident to police.
After three days of testimony, the jury is expected to begin deliberating once closing arguments have been made Friday afternoon.
The victim took the stand Wednesday. The prosecution questioned several witnesses and presented videos from the bus on which the assault allegedly occurred, but the defense rested without calling any witnesses.
In opening statements, Patillo’s defense attorney didn't deny Patillo had sexual contact with the victim. Instead, he argued the sexual acts on the bus were consensual.
Patillo did not testify.
The prosecution called three additional witnesses Friday, a nurse from East Alabama Medical Center, a DNA forensics expert from the Alabama Department of Forensic Sciences and a sergeant who oversaw the investigation for the Auburn Police Division.
Auburn Police Sgt. Michael Creighton testified about the difficulty police had finding the victim after the incident was reported to police. In combination with Patillo's uncooperative demeanor, he said it all made him worry.
"I had every reason to believe ... she was actually dead," Creighton said.
Prosecutors are relying on a combination of testimony, circumstantial evidence and forensic evidence in an effort to prove their case beyond a reasonable doubt. The defense has attempted to poke holes in the case — including questioning whether the prosecution proved penetration occurred, a requirement of the rape charge.
Joseph Lee with the Alabama Department of Forensic Sciences testified that the victim's DNA along with Patillo's semen was found on the shaft of Patillo's penis and on his underwear. But none of Patillo's DNA was found inside the victim when a rape exam was performed at East Alabama Medical Center.
By the time the victim arrived at EAMC, she had showered and changed clothes. Kelly Alexander, an emergency room nurse at East Alabama Medical Center, testified Thursday that showering and changing clothes washes away most of the evidence a rape kit could recover.
Another difficult aspect of the case was highlighted when Lee said it is impossible with current technology to tell whether the victim's DNA on Patillo's person was saliva, blood or another bodily fluid.
The defense attempted to have the case dismissed. Patillo's attorney, Jon Carlton Taylor, said the prosecution hasn't proved its case.
"Penetration is a requirement that the state must prove," Taylor said, noting none of the physical or DNA evidence can conclude penetration occurred.
"There is no evidence here of penetration," he continued. "There is no evidence that could be considered beyond a reasonable doubt."
Judge Christopher Hughes refused to dismiss the first-degree rape, first-degree sodomy and misdemeanor public lewdness charge.
The first-degree rape charge is a Class A felony with a minimum sentence of 10 years in prison.
The jury will have the option to consider lesser charges including attempted rape.
District Attorney Brandon Hughes argued to Judge Christopher Hughes that circumstantial evidence in combination with testimony and other evidence has long been used to prove the facts of a rape case.
“We think there has been ample evidence presented," Brandon Hughes said.
The jury will ultimately get to decide.
The judge said there is enough evidence to potentially provide a factual basis on which inferences could be drawn.
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Chip Brownlee, senior in journalism and political science, is the editor-in-chief of The Auburn Plainsman.
