ENCINITAS — Vomiting and in pain, a middle-aged woman desperate to escape death at the hands of her ex-husband attempted to take a swig of Fantastik to spit it in his face, but the bottle was empty, the victim testified July 31.

Sometime after midnight July 20, 2007, looking to collect on a promise, Jane Doe — whose name has been withheld at the request of the prosecution to protect her identity — said Kerry Head, her ex-husband, broke into her Encinitas home and raped her under the threat that if she didn’t comply he’d kill her and then himself.

“He said, ‘Remember that promise, you would never fulfill it so I’m here to collect,’” Doe testified.

She said the “promise,” to have sex one more time after their divorce, was an agreement Head had asked her for in lieu of dragging out their divorce. Doe said under the circumstances, being in a car with Head trying to finalize their divorce papers, she half-heartedly agreed.

“I said yes thinking he wasn’t for real,” she said.

Doe, who wasn’t pregnant at the time, testified she was able to escape after she convinced Head she was having a miscarriage and needed medical assistance. She said she escaped in her car after Head went back into the house to retrieve his cell phone.

Head, 40, is charged with a single count each of rape and oral copulation by force, inflicting injury to a spouse, threatening to cause injury or death, burglary and two counts of violating a restraining order.

During Doe’s emotional testimony, she described the downward spiral their nine-year relationship took after their divorce in 2007. She said she tried to have an amicable relationship with Head for their son, but that he could never let go of the fact that their marriage was over.

In the spring of 2007, she said had to get a temporary restraining order against Head, partly because he consistently barged into her, and his former, Encinitas home unannounced.

Attorney Kerry Armstrong told jurors in his opening statement that his client made a “stupid mistake” but that the sex between Head and his ex-wife was consensual.

He said Head had entered his ex-wife’s house with a key and was simply there to talk to her about his recent eviction and financial hardships.

According to authorities, other than the garage door and the door leading into the house from the garage being open when they arrived, the rest of the house was locked up and they couldn’t find any evidence of a break-in.

Doe was adamant that Head didn’t have a set of keys to her home because she had changed the locks.

Head, who is currently in jail on $750,000 bail, is expected to testify at the hearing.