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Hung jury in rape case; new trial required

Jul 12, 2015 By Eric Blom, Staff Writer

After eight hours of deliberation, the jury failed to reach a unanimous verdict in the week-long trial of an Arapahoe man charged with first-degree sexual assault.

The hung jury means a new trial now must be set for the 46-year-old man accused of the crime.

Parties related

The defendant and alleged victim are biological cousins, but they grew up in the same household for a time and lived as siblings.

Although the defendant was named in court records, and the alleged victim named at trial, it is Ranger policy not to publish information that could tend to identify victims of sexual assault incest.

The alleged victim said the defendant drove her in his Jeep to a secluded area on East Monroe Avenue in Riverton and assaulted her. The defendant agrees they had a sexual encounter, but claims she consented to it.

The alleged assault had no witnesses other than the defendant and alleged victim. Though some physical evidence was entered, both sides argued that it supported their case.

Closing statements

Lawyers for both sides finished their closing arguments in the case Friday morning, following days of argument in Lander District Court. In their arguments, lawyers for both parties tried to persuade the jury to find their witnesses more credible.

Fremont County deputy attorney Ember Oakley told jurors to tune out the "noise" in the case and focus on the alleged victim's account of events and evidence that corroborates it.

The woman is the most credible witness, Oakley said.

"She told you (the defendant) came over to her side of the Jeep, he pulled down her pants" and forced her to have sexual contact with him, Oakley said.

Because the defendant said they engaged in slightly different sexual acts, the specifics of physical evidence could corroborate or discount the witnesses' respective version of events.

"There's evidence of his DNA" on her body and clothing, Oakley said. "Both corroborate her account of the assault."

Other physical evidence indicated she had been assaulted, the prosecutor said.

Evidence about events outside of those few moments in the Jeep were irrelevant to whether a sexual assault occurred, Oakley said.

Meanwhile, defense attorney Devon Petersen reminded the jurors that they must start with a presumption of innocence, doubting allegations.

"If you had a truthful story that made sense that had physical evidence that corroborated it, and that didn't have other stories that conflicted with it, then doubt would be removed," he said.

Petersen attacked the prosecution's case on every point.

He pointed to instances where the alleged victim seemed to have changed her story, arguing that her account also did not make sense.

"(The defendant) never changed his story," Petersen said.

In particular, Petersen pointed to the alleged victim's account of Monroe Avenue. The alleged victim said the defendant slipped during the assault, and she was able to pull up her pants, pick up a tablet computer and hide behind a tree until the man drove away.

"Would it make sense she could run 200 yards down an open road to this tree without him seeing her to the extent he couldn't find her later?" Petersen asked, holding up a photograph of the location.

The DNA evidence also supported the defendant's version of events, the defense attorney said.

In a rebuttal, Oakley asked the jury to doubt the defendant's testimony.

"Did it seem like he was truthful to you ... or did it seem more like a canned recitation of his version of events?" she said.

First-degree sexual assault carries a penalty of five to 50 years in prison.

Expert testimony

On Thursday afternoon, a DNA expert testified for the defense, asserting that the DNA evidence was inconclusive.

Greg Hampikian, the expert witness called by the defense, is a professor at Boise State University in Idaho, has a Ph.D. in biology, and leads a lab conducting research in DNA testing.

Hampikian agreed that a state crime lab analysis was done properly. The test found DNA that matched the defendant's in the alleged victim's mouth.

But he said that DNA found on the woman's underwear was less definitive.

"There was a mixture of DNA from which he could not be excluded. There were at least two male contributors," Hampikian said.

Other testing for male DNA found none, the expert said.

Deputy Fremont County attorney Tim Hancock asked if the DNA on the underwear came from a bodily fluid.

A test showed it was likely seminal fluid, Hampikian said.

Hung jury

District Court Judge Marvin L. Tyler submitted the case to the jury around 10:30 a.m. for deliberation. Jurors announced at 6:30 p.m. that they could not reach a unanimous verdict.

Jurors inquired about the rules for a hung jury about 45 minutes before announcing their situation. Tyler advised them to reach a verdict if they could.

A new trial would be costly for all parties involved, he said.

"If there is a probability of you reaching a unanimous verdict to which you call agree, you have a duty to continue deliberating," Tyler said.

They did so for 45 more minutes, before deciding they could not all agree.

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