Josh McNary rape trial begins; accuser takes the stand

The attorneys in the trial of Josh McNary painted two vastly different pictures of the woman who accused the former Indianapolis Colts linebacker of rape.

One is that of a woman who became scared after she tried several times — and failed — to stop the man she met at a Downtown bar from raping her. The other is that of a "troubled" woman whose account of that night has been so inconsistent that she should not be trusted.

What the attorneys agree on is that McNary and the woman flirted and kissed several times after they met last December after a night of drinking. They agree that the woman willingly went with McNary to his apartment. They agree that the flirting and kissing continued after that. What they don't agree on is whether she stopped consenting.

McNary, 27, is facing charges of rape, criminal confinement and battery in connection with the events that happened early Dec. 1. At issue, as in many rape cases, is whom the jurors will believe about whether the sex was consensual.

The jury, selected Monday, consists of 11 women and two men, including one alternate. One of the original 12 jurors has been excused and replaced with one of the two alternates.

The woman, who no longer lives in Indianapolis, was one of the first witnesses to testify.

Marion County Deputy Prosecutor Courtney Curtis, in her opening arguments, recounted the woman's version of events from late Nov. 30 several hours into Dec. 1.

Curtis said the woman went to three Downtown bars with friends and co-workers after she got off work earlier that night. She had several drinks, Curtis said, including several shots of Jagerbombs.

The woman, who worked at a Downtown bar at that time, met McNary at Tiki Bob's, where she and her friends went to go dancing, Curtis said. Her friends left, and the woman stayed. She talked, flirted and danced with McNary, whom she didn't know at that time, and later went with him to his apartment a few blocks away.

The woman testified in court Monday that they kept kissing on the man's couch. At some point, she began to feel uncomfortable and realized that she was in a stranger's home, the woman said. She told McNary that she needed to go home because she had to work in the morning, but he told her to stay the night. She ended up in his bedroom, where she said she went because she was too drunk and needed to lie down.

The woman resisted McNary's advances, she said, and told him several times to stop. But he didn't, she said, and she was scared.

"I said, 'I don't want to do this. Please don't do this right now,' " the woman said on the stand. "I was freaking out. I was having a full-on panic attack."

The whole time, McNary kept saying that everything would be fine, the woman said. She said she tried to push him away and scratched him on his side and shoulders. Later, he yelled at her and called her a "bitch" for scratching him, the woman said.

A few of the woman's friends, whom she called after she left McNary's apartment, testified that she sounded frantic and distraught.

"She did go with him willingly," Curtis told the jurors, "but then he raped her."

The Indianapolis Star typically does not name people who are or may have been victims of sexual assault.

McNary's defense team, however, immediately questioned the woman's credibility. In her opening arguments, Terre Haute attorney Jessie Cook, one of McNary's lawyers, called the woman "confused" and "troubled."

"This is about a confused young woman whose actions speak far louder than her words," Cook told the jurors, adding that the woman drinks too much and often mixes alcohol with medication.

Cook said her client was at Tiki Bob's celebrating the Colts' victory against the Washington Redskins at Lucas Oil Stadium earlier that night. When the bar was about to close, she said, the woman's friends were persistent that they should leave, but the woman insisted on staying. Cook added that McNary wasn't the only man the woman flirted with that night, and she continued to flirt with him in his apartment.

"The evidence will show you that her actions during the entire evening were entirely inconsistent with the claim of rape," Cook told the jurors. "He had the consent of (the woman) to engage in consensual intercourse."

After the alleged incident, the woman said, she quickly gathered some of her belongings, including her bag, and grabbed a phone that she thought was hers. Police later traced the phone to McNary, according to court records. They also found scratches on McNary's shoulders.

Curtis said evidence, such as a blood-stained bedsheet taken from McNary's apartment, results of the woman's medical exam and an audio of that night's 911 call, will be presented to jurors. Curtis said DNA from McNary and the woman was found on the bed.

Cook said a gynecologist will testify that the abrasions found in the woman's vagina were not the result of rape, but were side effects of a birth control.

The trial is expected to last four days in Marion Superior Court Judge Sheila Carlisle's courtroom.

McNary, a native of Houston, began his career with the Colts in 2013. The team received permission from the NFL to put McNary on a list making him ineligible to practice or attend games after his arrest on Jan. 14. His contract expired in March.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter:@kristine_guerra.