WASHINGTON (AP) -- A military judge overseeing the case of a former U.S. Naval Academy football player accused of sexual assault told prosecutors Tuesday he wants them to explain how they plan to prove their case, an indication it may not hold up.
Prosecutors have planned to show during a trial that the woman at the center of the case was too drunk to consent to sexual activity. But during a pre-trial hearing Tuesday, the judge heard testimony that the woman was "fully functional" around the time of the alleged assault.
The judge, Col. Daniel Daugherty, asked prosecutors to tell to him how they plan to prove their theory of the case against Joshua Tate of Nashville, Tenn., who has been charged with aggravated sexual assault and lying to investigators. Prosecutors will respond in writing by the end of the week. Daugherty suggested he would then rule at some point next week on a motion by Tate's lawyers that he dismiss the case for lack of evidence.
The judge has been holding a series of hearings in Tate's case ahead of a planned March court-martial, the military's equivalent of a trial.
Prosecutors initially accused Tate, 21, and two other Naval Academy midshipmen of sexually assaulting a female student during a 2012 party at an off-campus house in Annapolis, Md., where the school is located. The woman said she didn't remember being sexually assaulted after a night of heavy drinking but heard from others she had had sex with multiple partners at the party. The men were all football players at the academy at the time.
Tate is the only one currently facing charges in the case. The head of the Naval Academy decided not to go forward with a court-martial for one student, Tra'ves Bush of Johnston, S.C. And in January, after a recommendation from prosecutors, the school's superintendent dismissed charges against the other student, Eric Graham of Eight Mile, Ala.
Graham, 23, answered questions from a prosecutor and one of Tate's lawyers during Tuesday's hearing, speaking publicly for the first time about the case. Graham, who was granted immunity for his testimony and was on the stand for about an hour and a half, described seeing Tate get out of a car parked outside the party.
Graham said his teammate told him that a fellow midshipman in the car wanted to speak with him, and Graham then got in the car with the woman. The alleged sexual encounter between Tate and the woman is said to have happened before Graham entered the car. The Associated Press generally doesn't name alleged victims of sexual assault.
Graham said he could tell when he got in the car that the woman had been drinking, but she was able to communicate clearly and make her own decisions.
"She was clothed, fully functional. I didn't really see anything wrong with her," he said.
Asked by the judge to describe how intoxicated the woman was on a scale from 1 to 10, one being "drunk out of her mind" and 10 being completely sober, Graham said she was a 7 or a 6. Asked if he was "ever concerned about her level of sobriety," he answered "no, sir."
After Graham's testimony, the judge told prosecutors that what he'd heard was clear testimony that the woman was a "fairly well-functioning individual" around the time Tate is accused of having a sexual encounter with her. He asked them to explain how they plan to show she was too drunk to consent to sexual activity.
Graham appeared Tuesday dressed in a Navy uniform, but the Naval Academy confirmed Monday that he is in the process of resigning from the school.
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