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Federal Courthouse

The Federal Courthouse in Rapid City.

A federal judge won't throw out a rape case, saying that a FBI agent's "conspicuous failure" to collect a video that would be helpful to the defense doesn't violate the accused's due process since he has similar evidence he can use at trial. 

Judge Jeffrey Viken rejected Monday the motion to dismiss the indictment against Tolin Gregg, who's charged with two counts of aggravated sexual abuse by force for allegedly raping a 17-year-old girl in a car in December 2016 near Kyle. He was 18 at the time. 

Gregg's lawyer Dana Hanna had previously asked for the indictment to be dismissed after another judge ruled FBI Special Agent Mark Lucas intimidated witness Brylee Red Owl (who is a cousin of the victim), and Viken and the other judge agreed that Lucas gave false testimony multiple times during the grand jury. 

Hana's new motion argued that those issues, plus the fact that Lucas knew Red Owl took a video of the girl after the alleged rape but never watched or obtained it, constitutes "a pattern of governmental misconduct" that threatens Gregg's right to a fair trial. 

Viken called the issue of the video a "closer call" but again declined to dismiss the indictment. 

Gregg, Red Owl and the victim were hanging out in a car near Kyle early in the morning hours of Dec. 23, 2016, according to Viken's order. Gregg and Red Owl said everyone was drinking, but the victim denies ever drinking. The victim said Gregg raped her in the back of the car while Red Owl sat in front seat while Gregg claims it was consensual sex. 

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About 15-20 minutes after the alleged assault, the order says, Red Owl began recording a cell phone video that didn't physically capture the victim but recorded audio that he said showed her acting obviously drunk and angry at Gregg about being a bad father. He said the girl never mentions being assaulted. 

Red Owl testified that on Dec. 24 he told Lucas about the video but Lucas never gave him his business card or told him to send him the video. But Lucas testified that he did give him his card and asked him to send him the video, and called him on Dec. 27 to again ask about the video. Red Owl said he eventually deleted the video and sold his phone. 

Lucas said he didn't watch the video or have Red Owl email it to him on Dec. 24 because he had to deal with another case and because he trusted that Red Owl would send it to him.  He testified that he wasn't trying to hide anything and "didn’t realize what kind of gravity that video would have" since it didn't show the actual crime.

Hanna argued that the video would show that the victim could not be trusted because she lied about not drinking, that her anger about Gregg's parenting motivated her to make a false accusation, and that she didn't respond like "a teen-aged girl who had just been raped." The prosecution said that argument is "offensive and lacks foundation of any kind" since there is no one way victims react to rape, especially when still in the presence of the perpetrator.

Viken agreed with Hana that the video would have had "exculpatory value," or been helpful to Gregg, and that that value was "obvious" to Lucas. 

But Viken said the U.S. Supreme Court has ruled that failing to preserve such evidence only violates due process when the defendant can't obtain comparable evidence. In this case, Viken said, the jury can still listen to Red Owl testify about the video and the victim being drunk. Viken also rejected Hana's argument that the video would have convinced the jury to acquit his client, noting that even with the video, the jury could convict Gregg as long as they believe the victim's testimony proves she was raped. 

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— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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