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Two men were scheduled to plead guilty Tuesday in a Box Elder rape case, but in the end, one of them decided to instead face a jury.

Under a deal with prosecutors, 49-year-old Marvin Payne pleaded guilty to being an accessory to a crime. The Colorado man admitted taking cellphone photos as his buddy, Toby Rolfe, allegedly molested a 28-year-old female acquaintance.

The men had been drinking in the garage of Rolfe’s Box Elder home in the late hours of Sept. 27, 2016, when they picked up the woman, Payne told 7th Circuit Judge Robert Mandel. The group bought more alcohol, drove back to Rolfe’s place and partied, Payne said.

“Why did you take the pictures?” Mandel asked. 

“Goofing around,” Payne, who appeared in a pin-striped black suit, said before pausing. “I don’t know how to answer that, I’m sorry. I don’t know exactly why."

Around 4 a.m., law enforcement arrived at Rolfe’s home. Pennington County sheriff’s deputies went to the scene after receiving a call from witnesses, who apparently saw the sexual assault taking place, according to court documents.

When he was handcuffed, Payne said, deputies discovered in his pocket his cellphone that contained the woman’s photos.

Rolfe, 44, had also been set to plead guilty Tuesday morning, according to court records. When he went before Judge Mandel, however, Rolfe instead asked to be set for trial on his third-degree rape charge.

The trial has been scheduled for Jan. 2 to 4. If convicted, he faces up to 25 years in prison.

Payne, meanwhile, can be sentenced up to five years for being an accessory. But before he can be sentenced, he has to testify against Rolfe at trial, in accordance with his plea deal with the Pennington County State’s Attorney’s Office.

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Deputy State’s Attorney Wayne Venhuizen earlier said the prosecution held “overwhelming” evidence against the defendants. Four people allegedly witnessed Rolfe assaulting the woman while Payne was taking photos.

The victim had been “completely out” during the incident and was barely breathing when first responders reached her, Venhuizen said. The woman remembers having one drink before passing out, he said.

The woman, who spoke during a hearing in November, said: "I trusted, and I was let down."

Payne was originally charged with aiding and abetting third-degree rape, which carries a 25-year prison sentence.

Each man has been released from the Pennington County Jail on a $25,000 cash-only bond. Their bonds had initially been set at $500,000 cash or surety.

Contact Tiffany Tan at

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Cops and Courts Reporter

Cops and courts reporter for the Rapid City Journal