Marcelles Peter, 20, is on trial for participating in gang rapping a 16-year-old in 2009 and claims the wind blew his DNA on to a "used condom found at the crime scene" according to Fox News.
Gordon Brown, Pete's attorney, presented the theory to a jury that a helicopter "compromised evidence at the scene" on Tuesday. At the time of the crime Peter was a teen but charged as an adult.
The attack took place October 24, 2009 when an intoxicated teen was reportedly repeatedly raped, beaten and robbed after being lured to a Richmond High School courtyard. According to Fox News, the teen refused to engage in sexual acts with her attackers and who then raped her. Approximately 20 people witnessed the attack but did not intervene. A woman heard the commotion of the attack and called the police.
The attack left the teen "unresponsive under a picnic table." She was air lifted to the hospital in critical condition, but ultimately made a full recovery.
The wind helicopter's wind is how Peter claims his DNA was transferred from a beer can to a used condom found at the crime scene.
"These acts or assaults took place over a time period of over two and a half hours, until almost midnight," said John Cope, Contra Costa County District Attorney.
Cope insists Peter was "played an active, sexual role" and should be prosecuted for doing so.
Along with Peter, 22-year-old Jose Montano is on trial for the 2009 attack. According to the Contra Costa Times, a total of seven were arrested at the time of the attack but one suspect was freed due to lack of evidence and two suspects avoided trial by agreeing to a plea deal.
Ari Morales, 19, was amongst those arrested and is serving 27 years in prison. Manuel Ortega, 22, was also arrested and sentenced to 32 years in prison.
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