Former Brighton High and University of Southern California linebacker Osa Masina has accepted a plea deal, avoiding a trial in his felony rape case.
Masina, 20, pleaded guilty to three lesser charges of sexual battery, all class A misdemeanors, during a hearing Thursday morning in 3rd District Court. He had been scheduled to stand trial next week on a first-degree felony charge of rape and two first-degree felony charges of forcible sodomy, with each of those three counts carrying a potential maximum sentence of life in prison.
Instead, prosecutors filed amended charges Thursday — alleging Masina “touched [the victim’s] breast and buttocks in a manner that he should have known would have caused her affront or alarm.”
The change comes in the wake of rulings by Judge Keith Kelly that state prosecutors believed hurt their chances for a conviction at trial. Specifically, Kelly had ruled against allowing prosecutors to present some expert testimony, a number of pornographic photos found on Masina’s cellphone and testimony from the victim’s ex-boyfriend regarding a Snapchat video he said showed Masina and the victim having sex without her knowing she was being filmed.
Masina was alleged to have violently raped a then-19-year-old woman at a Cottonwood Heights house party in July 2016. The woman has said she had consumed rum, hard lemonade and a marijuana cookie and was so intoxicated at one point that she could not get out of a car on her own. She later fell asleep, according to testimony she gave at a preliminary hearing last year, awoke — “scared and helpless” and in pain — to Masina raping her.
Masina only says "no comment" as he leaves court. pic.twitter.com/hHjZFCblVr— Aaron Falk (@aaronfalk) October 12, 2017
“Did you consent in any way to the sexual contact you’ve been describing?” a prosecutor asked her at that hearing.
“No,” the woman said.
The Salt Lake Tribune does not typically name victims of sexual assault.
Masina told police the sex had been consensual, an assertion his attorneys have maintained throughout more than a year of hearings.
The woman agreed to the state’s proposed plea deal.
“We are in support of the state’s decision in this matter,” said Bethany Warr, an attorney for the victim. “Unfortunately, this is how the justice system does fail victims, but we understand because of the evidentiary issues in this case this plea has to go forward.”
“My client was raped and sodomized, and it was done very violently and there were injuries as a result,” Warr added afterward. “Those facts have not changed. What has changed is the landscape of this case.”
Warr said the prosecution’s case had “been gutted essentially” by some of the judge’s rulings, making it “basically impossible for the state to properly assert what really happened.”
The victim said Masina sexually assaulted her in Cottonwood Heights and previously during a trip she took to visit him in Los Angeles earlier that month. The woman said she had been in denial about the assault in California.
“I didn’t want to say that something like that could happen to me,” she testified last year, “so I tried as hard as I could to push it down.”
But after reporting the Cottonwood Heights assault, the woman has said, her ex-boyfriend told her he had received a Snapchat video from Masina while the two were in California. The ex-boyfriend testified at a hearing earlier this year that the video, which he viewed for a few seconds before it automatically deleted, showed Masina having sex with the girl and “I could tell she wasn’t aware of” being filmed.
Police in California investigated Masina and one of his former USC teammates but declined to file charges there. In Utah, Masina’s attorneys argued that the testimony of the victim’s ex-boyfriend was “uncorroborated and unclear” and could not prove whether the sex in the video had been consensual or not. Kelly ultimately ruled against allowing the ex-boyfriend’s testimony at trial.
The judge also ruled that the prosecution could not present to jurors pornographic images found on Masina’s phone. The state had hoped to present expert testimony suggesting that viewing and possessing those images made Masina more likely to engage in similar sexual behavior.
Greg Phillips, an attorney for Masina’s family, said the defense had intended to present evidence, including text messages the victim sent on the night of the July 2016 party, to help exonerate the man.
“He felt like what was happening was consensual between the two of them,” defense attorney Greg Skordas said. “She was clearly impaired and perhaps he should have taken that into account.”
The victim in the case was not in the courtroom Thursday, but intends to speak at Masina’s sentencing.
Masina said only “no comment” to reporters outside the courtroom.
After pleading guilty to the amended charges Thursday, Masina could face a maximum of three years in jail if he were ordered to serve consecutive sentences.
“It was a tough decision,” Skordas said. “I think we all wanted to go to trial so he could be acquitted.”
Masina, however, will avoid prison time and not have to register as a sex offender.
“Sometimes we make decisions to avoid those risks,” Skordas said.
Phillips blasted Salt Lake County District Attorney Sim Gill on Thursday after Masina had entered his pleas, accusing him of seeking publicity by going after football players.
“There’s a pattern of this,” said Phillips, who represented former Utah football player Dominique Hatfield in a case that was acquitted last year. Phillips’ son, Andy Phillips, was a kicker on the University of Utah football team.
“We all know one of the most dangerous places in Salt Lake City is between Sim Gill and a TV camera,” Phillips told a crowd of reporters Thursday.
Prosecutor Donna Kelly said she would wait until after Masina had undergone presentencing evaluation before determining whether to recommend jail time.
Masina’s attorneys, meanwhile, said they would like to see a sentence that allows their client to move forward, resume his schooling and possibly his football career.
“I’d like to see him be able to play ball somewhere,” Skordas said. “But under today’s climate, it’s difficult when you have a conviction for something like this on your record. There are certainly restrictions at every level of football that could make it very difficult for him to ever do that again, but he’d love to. It’s been a huge part of his life for most of his life.”
“I would be disappointed in any program that looked at him,” Warr said about Masina’s football prospects.