SANTA CLARA -- San Francisco 49ers linebacker Aldon Smith was drinking with suspect Ray McDonald and the alleged victim of a sexual assault, according to a search warrant affidavit released by the courts on Monday.
Smith was suspended for nine games to begin this season for violations of the NFL’s substance abuse and personal conduct policy. In July, a Santa Clara County Superior Court judge sentenced Smith to three years probation after pleading “no contest” to weapons and DUI charges.
Judge Daniel Nishigaya announced at his sentencing that if Smith violated any conditions of probation, including drinking alcohol or going to a liquor store, he will immediately order him to jail for an undetermined amount of time.
General manager Trent Baalke, speaking on 95.7 The Game, said he had not read the affidavit.
"I don't know at what point he was involved at the house, not at the house," Baalke said, when asked about Smith's alleged drinking. "We are certainly going to look into it."
The woman, who claims McDonald sexually assaulted her, told police the alleged attack occurred after she fell by the pool and hit her head on the ground, according to the affidavit. She said she had been out drinking with friends and ended up at McDonald’s house. The affidavit reports the incident occurred the night of Dec. 14, following the 49ers' loss in Seattle.
[NEWS: Search warrant affidavit for Ray McDonald's San Jose home]
The next day, the alleged victim said she was alone with McDonald until Smith showed up. She stated that the three of them went to the store and bought vodka and cranberry juice and started drinking again at his house and remained there until later in the night, according to the summary of the current investigation. Smith has not been accused of any crime.
The San Jose Mercury News quoted a source familiar with the case that the alleged victim’s decision to hang out with McDonald could make it difficult to prove she was sexually assaulted. Also, one of the woman’s friends contacted her the next day and said she saw her “making out on the couch” with McDonald.
McDonald expressly sought the woman's consent, recording it on his phone or home-security system, because he was worried he'd be wrongly accused, another source told the Mercury News.
The 49ers cut ties with McDonald on Wednesday due to “a pattern of poor decision-making,” according to general manager Trent Baalke. Smith remains under contract for next season with a scheduled salary of $9.754 million.
Smith said during training camp that he has maintained sobriety after seeking treatment last year for substance abuse. Upon his return from his suspension on Nov. 11, Smith said he knows he must prove himself off the field.
“I’d say, honestly, time will show,” Smith said. “I’m not going to sit here and give you some, whatever, crazy answer. Time will show, you know.”
After McDonald was named as a suspect last week, the 49ers immediately released McDonald, an eight-year NFL veteran. McDonald was investigated earlier this season for an alleged act of domestic violence. The Santa Clara County District Attorney's Office declined to file criminal charges.
On Dec. 16, a search warrant was issued in which officials seized bedding, a cell phone and surveillance footage from McDonald’s house.
The alleged victim stated that she woke up the next morning in bed naked with McDonald. She asked what happened and he told her that she was just tired so he let her sleep in his bed.
McDonald told the woman about the domestic violence case the next day, according to the affidavit, and she again asked what happened the night before. He told her they had sex. She asked why he lied to her and he said that he “didn’t want to get accused of something crazy like rape,” according to the report.
The affidavit includes text messages the alleged victim had with McDonald. She then allowed a San Jose Police sergeant to take over her cell phone and continue the text conversation as if it was her.
“S--- just happened,” McDonald wrote, according to the affidavit. He later wrote, “I don’t understand why you’re bothered. U chose to stay with me for another day.”
When the officer texted McDonald, as the alleged victim, “u shud not have had sex,” McDonald responded, according to the report, “I didn’t do anything wrong.” McDonald wrote the woman “started coming on to me.”
Sgt. Heather Randol of the San Jose Police Department on Monday told CSNBayArea.com, “It is still an active investigation and we do not have any additional details to release at this time.”
