Decision delayed on whether 4 men charged with rape of intoxicated woman will face trial

Editor’s note: This article contains graphic information from the court hearing.

Four men accused of raping an intoxicated woman in Lawrence, then posting videos of the incident to social media, will not know until at least August whether their cases will go to trial.

The accused are Lawrence residents Malachi S. Thomas, 23, and Murphy Theodore, 25; and Topeka residents Dionte L. Brown, 21, and Tiger J. Smiley, 21. All are charged with raping a woman who was unconscious or physically powerless to give consent. The incidents occurred in March 2023 after the group spent several days drinking and taking drugs at house parties and bars in Lawrence.

At a preliminary hearing Tuesday, Douglas County District Court Judge Sally Pokorny heard testimony from the woman, investigators, a trauma nurse, and a friend of the woman who said she discovered video evidence of the incident on Thomas’ cellphone. Cross-examination of witnesses could not be completed in the single day allocated for the hearing, so the judge could not rule on whether any of the four accused would be bound over for trial.

The men face a variety of charges based on their apparent level of participation in the alleged crimes. All arrestees and defendants in criminal cases should be presumed not guilty unless and until they are convicted.

In court on Tuesday, five brief, graphic videos appeared to show a semiconscious woman being vaginally penetrated by various bottles as a group of men stand watching and making lewd comments.

At one point, the mostly nude woman is lifted off the floor by a man and dropped limp onto a couch. During the recordings, the woman is also groped and slapped on the buttocks, and rubber bands are snapped against her bare skin.

The alleged crimes were discovered when a friend of the woman looked at Thomas’ phone and saw posts made to social media platform Snapchat. Although the videos were removed by the service for guideline violations, they were still available on Thomas’ account, where he also shared them in a private group of Snapchat users. The friend said she read several comments before watching any of the videos. She said that after watching only a few seconds of the first recording, she had to stop.

“I got pretty heated after I saw that it was my friend,” the friend testified. “It was horrific, and I had to take a second when I seen the first one.”

The witness said she eventually watched all five videos and recorded them to her own phone to ensure they would be preserved. The friend then attempted to call the woman in the video, but eventually drove to the woman’s home when she couldn’t reach her.

“She was just staring at a wall with no phone,” she said. “Just staring at a wall.”

Thursday & Friday

The woman in the videos said she first met Thomas on Thursday, March 23, at a bar while out with her friend, the witness. She reported taking cocaine to the bar, and then bringing it back to Thomas’ home where the three continued to party for several hours. Both women testified that the friend was romantically interested in Thomas.

The next day, Thomas invited the woman, but not her friend, to a party.

“Malachi reached out to me on FB or Instagram,” she said. “He let me know he was having a kickback and I should come through.”

The woman, 29, said that she had seven or eight shots of vodka during the day that Friday, March 24, and also used more cocaine. She brought what was left with her when she was dropped off alone at the party between 10 p.m. and midnight.

Defense attorney Angela Keck, who represents Thomas, asked the woman about the effect cocaine had while the woman was drinking.

“It’s an upper,” the woman said. “As long as I have that, I usually don’t black out.”

Once at the party, the woman said someone called out to her from across the room and then walked over to her. Although they had never met, the woman said she and Brown made an immediate connection. Not long after arriving, the woman left to go to a bar in downtown Lawrence with Brown and several others in Smiley’s car.

The woman said that while at the bar, she fell down several times because the floor was wet. Also while there, the woman gave her cellphone to Brown for him to hold for her, she said. After drinking and using cocaine at the bar, the woman, Brown, Theodore and Theodore’s girlfriend left to continue partying at another location through the night.

At one point, the woman was kicked out of the party briefly after fighting with two others inside the home. She was allowed to re-enter after only a few minutes.

“It was like a girls fight,” she said. “There could have been some punching involved. The door got broken. I’m not sure if we fell into it.”

Saturday & Sunday

The woman testified that she did not sleep, but continued drinking and using cocaine until the drugs were gone early Saturday morning. At noon, someone left the house to retrieve more alcohol. She said that after taking several shots of liquor, she blacked out until sometime between 2 and 5 a.m. Sunday, March 26.

Lawrence Police Detective Meghan Bardwell testified that timestamps on the Snapchat posts indicate that all five of the videos of the woman were taken at approximately 9 or 10 p.m. that Saturday. After viewing one of the videos during the preliminary hearing, Bardwell said it appeared to her that the woman was intoxicated.

“She looks catatonic,” Bardwell said. “She looks like she’s not all there.”

Video exhibits showed the woman with her dress pulled up to her neck, revealing her bra. Others showed the woman nude from the waist down. During the videos, onlookers can be heard making derogatory remarks and laughing as the woman lies on a table and a man inserts items into her vagina.

Thomas indicated in a later police interview that the Saturday night incident and video recordings ended because an Uber had arrived to take the group to the same downtown bar where they had gone Thursday, Bardwell said.

The woman testified Tuesday that she had no recollection of the events in the videos, but she did remember waking up between 2 and 5 a.m. that Sunday morning and finding Thomas having sex with her. Although she struggled to remember how she got there, the woman said not long after, she was in Theodore’s room having sex, though at the time she was confused about whether the second encounter was with Thomas or Theodore.

Eventually the woman fell asleep on the living room couch, but she woke up in anger when she realized she was being shot by some sort of gun. Officers later found an Orbeez gun, a paintball- or pellet-style gun that shoots gel beads, at the residence.

Still without a phone, and after failing to find anyone in the house willing to help her get home, the woman said she exited and was locked out by someone inside.

“I felt disrespected,” she said. “I wasn’t too sure where I was.”

The woman, who said at that point she was wearing only her dress and was wrapped in a blanket, began knocking on doors until she found a neighbor willing to give her a ride home.

The aftermath

After finding the woman at home on Sunday, her friend contacted the Lawrence Police Department and sent the videos she had found on Thomas’ cellphone to investigators. The woman was taken to Lawrence Memorial Hospital for a sexual assault nurse examiner — or SANE — screening.

In testimony Tuesday, Joy Colwell, a registered nurse in the LMH emergency room who is trained to provide SANE screenings, detailed what she documented during the woman’s examination on March 26. Her injuries included abrasions and large bruises of varying sizes on her arms, legs and buttocks, as well as tears and bruising in and around her vagina.

In reference to the vaginal evidence, defense attorney Hatem Chahine, who represents Brown, asked Colwell whether such wounds indicated an assault or whether sexual activity or sex toys could cause similar injury.

“Most often with force,” Colwell said. “But anything can happen with sex, I suppose.”

Interviews revealed the identities of Thomas and Theodore. Recorded calls that Thomas made from the jail to a friend provided Brown and Smiley’s names, as well as two additional individuals who are also being sought in connection with the incident.

During a search of of Theodore’s apartment, the location of the recorded incidents, investigators found objects that appeared to be those used in the video, women’s underwear, and the pellet gun.

The woman’s friend testified on Tuesday that although the two were no longer as close as they were in March, she promised to continue providing her support.

“Even if we’re not friends anymore, wrong is wrong at the end of the day,” the friend said. “I told her I would be there for her.”

Thomas is charged with three counts of rape, one count of aggravated sodomy, one count of breach of privacy, and one count of interference with law enforcement. He remains in custody of the Douglas County jail on a $200,000 bond.

Theodore is charged with two counts of rape and one count of aggravated battery for allegedly shooting the woman repeatedly with a pellet gun. Theodore is being held on a $175,000 bond.

Brown and Smiley are currently each charged with two counts of rape. Both have been released on $50,000 bonds.

Douglas County Chief Assistant District Attorney Jennifer Tatum is prosecuting the case. The court appointed defense counsel for each defendant: Thomas is represented by Keck; Theodore is represented by Branden Smith; Brown is represented by Chahine; and Smiley is represented by John Kerns.

The number of defendants and attorneys complicated efforts to find a date to complete the preliminary hearing. Pokorny scheduled three hours tentatively for Friday, Aug. 4, but the court’s availability will depend on the schedule of a jury trial that will be taking place that week.

Pokorny will decide once the preliminary hearing concludes whether any or all of the men will be bound over for trial, and on which of their charges.

If any or all of the cases do proceed to trial, it is unclear whether the defendants would be tried together or separately.

Andrea Albright (she/her), reporter, can be reached at aalbright (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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