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Two men received a combined 10 years in prison Tuesday in the sexual assault of an unconscious woman in Box Elder.

Toby Rolfe, 44, was sentenced to eight years for third-degree rape, an offense committed against a female acquaintance at his Box Elder home in September 2016.

His co-defendant, Marvin Payne, was sentenced to two years in a separate hearing at the Pennington County Courthouse Tuesday morning. The 50-year-old Colorado resident earlier admitted being an accessory to a crime by taking cellphone photos of Rolfe molesting the woman.

The 28-year-old victim was unconscious and half-undressed when law enforcement arrived at Rolfe’s home, said the prosecutor, Deputy State’s Attorney Wayne Venhuizen.

Rolfe received the maximum prison time laid out in his agreement with prosecutors, a deal that allowed a judge to find him guilty by relying on the grand jury transcript of his indictment.

Rolfe had asked 7th Circuit Judge Robert Mandel for either a probationary sentence or a term of less than eight years. Defense attorney Ellery Grey said Rolfe and the victim were engaging in consensual sex while partying at his house, though the sexual activity should have stopped the moment the woman passed out. The two apparently had a sexual history.

Payne had also molested the woman in a “more limited” degree, the prosecutor said during Payne's sentencing.

Grey said also that the victim’s falling unconscious was not Rolfe’s design. She was drinking hard liquor that night after taking meth and other drugs, yet neither Rolfe nor Payne was found with any evidence of drug use, the lawyer said.

The victim didn’t want to appear at the hearing after receiving death threats from Rolfe’s friends, Venhuizen said.

The judge, echoing the prosecutor’s earlier statement, said Rolfe hadn’t expressed remorse, taken responsibility for his offense or shown concern for the victim.

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“The victim was at your house, because — to put it simply — she was somebody you can use,” Mandel said before sentencing Rolfe to 25 years in prison with 17 years suspended.

Rolfe will be eligible for parole after serving six years. The suspended portion of his sentence could come into play if he violates parole, Venhuizen said after the hearing.

Payne had asked for either a probationary sentence or additional time in county jail, citing his remorse, lower level of culpability and cooperation with authorities.

His lawyer, Jamie Patterson, said Rolfe would have gone ahead with a trial if Payne had not agreed to cooperate, including testifying against his friend.

The judge said he would consider sealing Payne’s criminal record down the road, depending on Payne’s behavior while serving his time.

Contact Tiffany Tan at

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Cops and Courts Reporter

Cops and courts reporter for the Rapid City Journal