A judge on Tuesday bound a 25-year-old Texas man over for trial on a charge of raping a woman while she was too intoxicated to give consent, but the man’s defense attorney questions whether investigators collected evidence effectively to support the case.
Douglas County District Court Judge Kay Huff dropped an alternative charge of rape by force or fear after hearing testimony from the accuser in the case as well as a Lawrence police officer who worked on the investigation after the incident.
The woman, then a 19-year-old University of Kansas sophomore, testified that she went out with friends to celebrate finals on a Saturday night in December 2019, but before long, things got “hazy.”
Assistant District Attorney Paula Bustamante, along with Deputy DA Joshua Seiden, asked the woman to describe the events of the evening.
Before going out, the group met at a friend’s off-campus apartment between 8:30 and 9 p.m., where the woman drank 3 ounces of Four Loko, an alcoholic beverage that is several times stronger than beer. She said she knew how much Four Loko she had consumed because she poured the leftover liquid into a container with liquid measurements on the side.
“I wasn’t looking to drink too much,” the woman said during the preliminary hearing Tuesday. “We had plans to go get food.”
After eating dinner and drinking part of a margarita at Cielito Lindo, 815 New Hampshire St., the woman and the group next drove to Bullwinkles Bar, 1344 Tennessee St., at approximately 10:40 p.m. The woman reported ordering a tequila sunrise and socializing with friends, including taking several photos in both the bar and the women’s bathroom.
It was at “the Bull” where the woman reported beginning to feel that “things began to get a little bit hazy.” A photo taken at 11:20 p.m. in the bathroom of Bullwinkles was the last solid thing the woman said she remembered before her recollections became “camera flashes” of moments for the rest of the evening and into the early hours of Sunday morning.
Her testimony then detailed brief memories of walking into Brothers Bar and Grill, 1105 Massachusetts St., and sitting in a booth with several people she didn’t recognize. The next day she found a photo on her phone showing her socializing at Brothers with several people she didn’t know, the defendant, who was 22 years old at the time, and a mutual friend the two shared.
She then described stumbling out of the bar and being “pulled” down Massachusetts Street before getting into a car with the man, the mutual friend and two other unidentified people. The car was parked in a lot south of Brothers and adjacent to South Park.
The woman said the next thing she recalled was being in her own bed “being assaulted by the defendant” sometime around 1:40 a.m. She described several brief memories of sexual acts that took place.
“I remember feeling kind of resigned,” she said. “Like whatever was going to happen was going to happen. Then I fell back, and I remember no feeling in my body and passing in and out of consciousness.”
Defense attorney Angela Keck parsed details of the evening including establishing a more definitive timeline and defining the woman’s physical state at different points in the evening. At one point, Keck sought information about statements the woman had made to police about where wristbands were placed after the two arrived back at the apartment and whether the woman had removed her own earrings.
“This happened over two years ago,” the woman said. “What I remember now versus what I remembered immediately after is not the same. I’ve spoken to a lot of police officers about a lot of things.”
Prosecutors rested their case after calling only the woman to testify. After a brief break, the defense called Lawrence police Officer Anthony Cervantez to testify.
Cervantez, who joined the department in 2017, said he was called to meet the woman two days after the incident to make an informational report, which is made to law enforcement but does not open a criminal investigation.
Cervantez said that the woman came to make the report with then-KU police officer Heather Johnson, who has since joined the Jefferson County Sheriff’s Office. Keck asked Cervantez if he had received any reports about the incident from KUPD, but he said Johnson had given him “just a rundown of what had been discussed.”
Cervantez said there was no video recording of the woman’s initial interview with LPD because at that time she was simply interested in making a report that she had “blacked out and had intercourse with a subject.”
Cervantez testified to much of the same information shared by the woman with a few disparities and additional details, including speculation that she might have ingested something more than alcohol at one of the bars.
“We were trying to determine what she had had to drink,” Cervantez said. “She did indicate that she thought she might have been drugged. She felt like she had a higher tolerance to alcohol than she had consumed.”
Neither Bustamante nor Keck asked questions about how the woman gained entry to the bars or was served alcohol at the establishments.
Several times during her questioning, Keck asked Cervantez if information that could not be recalled and wasn’t in the report would be reflected in video recordings of interviews, but no specific recorded interview was referenced during testimony on Tuesday.
Cervantez said that during his interview with the woman, she had used photos from her phone to help fill in the timeline. He said she also had told police that she was texting and posting to social media throughout the evening before the incident.
The woman submitted several images to police, but Cervantez said her phone was never surrendered to look for evidence, nor was information about what was sent and shared collected during the investigation.
Keck asked if law enforcement had collected surveillance video from any of the businesses the woman visited that evening or from adjacent ones. Cervantez said that evidence had not been collected because the report being given was informational rather than criminal.
Cervantez gave some answers that contradicted earlier testimony by the woman. For example, he said the woman reported to him that she had been “led by the hand” from Brothers to the car that would take her home, and that she had not described the experience as being dragged or aggressive.
Keck had also asked the woman if she recalled telling police that she had asked the man to “slow down” at any point during the sex acts. The woman said she did not recall saying that either to the man or later to the police. Several times during her testimony, the woman said that she did not give permission or consent to anything that happened in her apartment.
Cervantez said that he didn’t explicitly remember whether the woman had reported saying “no” or “stop” to the man, but he confirmed that she had told him that she asked the man to slow down during intercourse. Keck asked if the informational report reflected if the woman had characterized the incident as malicious.
“She did not know if it was or not,” Cervantez said.
After she was interviewed, police visited the woman’s apartment to collect evidence including clothing, condom wrappers, pillowcases, a comforter, and a cup. Although the sheets had already been laundered, police noted blood on the comforter and collected it as a piece of evidence. They then accompanied the woman to Lawrence Memorial Hospital for a sexual assault nurse examiner – or SANE – screening.
Keck asked if Cervantez could report what became of the SANE exam. Cervantez said he was not certain, but he believed it had been collected by LPD detectives. Cervantez said LPD did not fully process the crime scene during their initial contact with the woman or anytime after.
Keck asked the woman if she specifically used the word “rape” to police.
“It’s a very scary word,” she said. “I know I used it later when I was having a rape kit done.”
Cervantez said that in January or February 2020, he was contacted again by the woman who asked about the process if she moved forward with pressing charges. Then in March 2020, the woman called to say she wanted to file a criminal report. There was no recording of that call. Cervantez said it came to his cellphone while he was on patrol and the recording device in his car was not activated at the time. That was before LPD had rolled out body-worn cameras departmentwide.
The woman said she decided to make a report after running into the man at KU’s student recreation center.
“I did see him there,” she said during testimony. “He approached me. I felt terrified. I immediately left and threw up in the parking lot.”
Keck asked the woman about her discussions with the DA’s office to decide whether to move forward with a civil or criminal case. The woman said she met with the DA’s office approximately five times, but she wasn’t pleased with the process. When Keck asked the woman if she had filed any complaints against the DA’s office the woman said no, that doing that would have been “disadvantageous.”
However, the woman testified that she did file a complaint against LPD Detective Kimberlee Nicholson, citing “her bias in investigating cases and her bias against college-aged women.”
Major Trent McKinley said the LPD doesn’t share information about specific complaints made against police, and could not disclose names of personnel involved or how those cases were resolved. He said any complaint of bias made against a Lawrence police officer would be investigated by the department’s Office of Professional Accountability, and the outcome of the review would be shared with the person who filed the complaint.
From December 2019 through June 2021, the department recorded three complaints in bias-based policing reports: one employee was exonerated by the OPA, one complaint was sustained by the OPA, and one from April 2021 was “waiting on court proceedings prior to start of administrative investigation.”
A few other witnesses who received subpoenas to attend the hearing did not testify Tuesday.
Bustamante told the judge she believed the state had met its burden of showing probable cause. Keck said she questioned whether the woman was unconscious during the incident, and she saw no evidence of injury or words used by the man that would indicate “force or fear,” as one of the charges required.
Both charges are level-1 felonies. After dropping the charge of rape using force or fear, Huff bound the man over for the charge of rape of a person who cannot give consent because they are unconscious or physically powerless. The trial is scheduled to begin in October.
Neither the prosecution nor the defense offered comment after the hearing.