Boys testify in abuse trial

Two little boys in dress shirts and ties looking like they just stepped out of a children's fashion catalog took the witness stand in St. Louis County District Court on Wednesday and told a jury what they said their "mean dad" did to them.

Damen Dean Smith, 32, is charged with first- and third-degree assault, three counts of felony domestic assault by strangulation, malicious punishment of a child resulting in great bodily harm and two counts of malicious punishment of a child.

Sixth Judicial District Judge David Johnson welcomed the first boy to the witness stand and asked him his name.

"Mikey," the boy said.

Johnson then told him they were going to talk a little bit and asked if he knew what the truth is and what a lie is. The boy, now 7 years old but 6 at the time of the alleged abuse, said he did.

"If I said this [black] robe is red, would that be the truth or a lie?" Johnson asked. "A lie," Mikey said.

St. Louis County prosecutor Leslie Beiers asked the boy if he could identify the defendant. The boy looked down at his hands, and after a long pause and a sigh said, yes, he could identify his stepfather.

"Did Damen hurt your arm?" Beiers asked. "Yes," Mikey said.

"What did he do?"

"He twisted it," Mikey said.

"What happened when he twisted it?"

"He broke it."

Dr. Sheri Bergeron testified that the boy suffered a broken bone in his arm just above the elbow.

Mikey testified that his stepfather also punched him in the stomach twice. The boy said he couldn't remember the other places on the body that he might have been punched. Beiers offered to give him a drawing of a body so he could draw Xs on it to show where he was hit. The boy didn't want to and Beiers didn't press him.

Mikey said Smith dunked his head in the bathtub so that he couldn't breathe. He said the defendant choked him until he was dizzy and also choked his younger brother. One of the choking episodes came on his birthday, Mikey testified.

The younger brother, who was 4 at the time of the alleged abuse and is 6 now, then took the stand. He said he had lived with his mother and his "mean dad" before moving into a foster home.

The younger boy said he saw his brother crying after the defendant hurt his arm. He said Smith choked them both. In describing his mother, the younger boy said: "She is my mom but she wasn't watching when my mean dad was hurting us."

Both boys were excused from the witness stand after being questioned by Beiers and co-counsel Nathaniel Stumme. Public defender Cindy Evenson elected to not ask either boy any questions.

The boys' foster mother testified that both are doing "very well" in her home. She said there is a strong bond between the brothers.

Evenson suggested in her questioning that the boys' older sister was aggressive and abusive with them when they lived together. The foster mother acknowledged the girl once hit Mikey, but said the siblings weren't generally physically abusive to each other. Smith also is accused of abusing the girl.

Earlier Wednesday, Johnson denied Evenson's motion for a mistrial. Johnson made his decision after the prosecution and defense were able to reach an agreement on the issue that led to Evenson's motion.

Evenson had asked the court on Tuesday to declare a mistrial after Bergeron testified Monday that a pediatric orthopedist had told Mikey's foster parent the boy "would likely be left with a permanent contracture of his elbow."

Evenson said the information had not been provided to the defense.

A stipulation was agreed to by Beiers, Evenson and the defendant, reading: "The parties stipulate there is no serious permanent disfigurement or permanent loss of function to [Mikey's] arm. Dr. Bergeron's testimony on permanent injury or loss of function to [Mikey's] arm was wrong and should be disregarded."