Tinder hookup defense rejected in sex crime case after K-State fraternity toga party
The Kansas Court of Appeals has upheld aggravated sodomy and burglary convictions against a former Kansas State University student stemming from a football-weekend “toga party” at a K-State fraternity.
The court upheld the convictions of Devonta Demarqcus Bagley, on charges that he sneaked into a frat house and performed a sexual act without consent on a male student who was in what prosecutors described as a “drunken stupor” after the party.
Toga parties, enduringly popularized by the 1978 college comedy film “Animal House,” involve frat members and guests drinking and dancing while draped in bedsheets vaguely reminiscent of the garb worn by ancient Romans.
The toga party at K-State’s Sigma Chi house started on the night of Sept. 8, 2017. It continued into the early morning hours of Sept. 9, the day of a home football game between K-State and the University of North Carolina at Charlotte.
The victim reported that he went to bed after the party and woke up about 6 a.m. to find a man, later identified as Bagley, performing a sexual act on him. The Eagle does not name the victims of sex crimes; in this case, the victim was identified only by initials in the appeals court ruling.
The victim testified that following the incident, he went back to sleep, unsure what had happened or whether he’d dreamed it.
When the victim woke up later, he told his roommates and they checked the frat house security video. A man, later identified as Bagley, was caught on camera exiting the victim’s room about 6:15 a.m.
Bagley, a K-State alumnus who was a University of Missouri graduate student at the time, testified that the sexual liaison was consensual and pre-arranged online.
He testified that he had previously hooked up with the victim through the online dating service Tinder and they’d had sex, and he contacted the victim to hook up again when he’d be in Manhattan to attend the football game.
Bagley testified that he entered the frat house through the window of the sleeping room that the victim ordinarily occupied with two other male students.
He testified that a woman, later identified as the girlfriend of one of the victim’s roommates, was in bed with the victim and that they both performed a sexual sex on him.
The woman denied being a participant and said she slept in her boyfriend’s bunk, not the victim’s.
Bagley testified that afterward, he “snooped around” the frat house for a while before leaving through the same bedroom window.
Bagley’s appeal alleged prosecutorial errors in closing arguments and the improper introduction of evidence that had been gathered in an investigation where Bagley was convicted of sex crimes in Missouri. He is serving two life sentences with possibility of parole there.
In the Kansas trial, Bagley testified that he couldn’t produce his Tinder interactions with the K-State student because he’d deleted the app from his phone to avoid outing both their sexual preferences.
Prosecutors questioned that, noting that Bagley had “sexually graphic photos of naked men” in his phone.
The appeals court ruled that wasn’t a violation of a judge’s order to keep Missouri evidence out of the Kansas trial.
By testifying about deleting the Tinder app, “the defendant opened the door in his testimony and that allowed a basis for limited inquiry” into the pictures of naked men, the appeals court ruled.
Bagley also contended that prosecutors had violated a prohibition on so-called “Golden Rule” arguments that invite jurors to put themselves in the place of the victim.
The alleged Golden Rule violation came during closing arguments as the prosecutor answered a part of the defense case questioning why the victim didn’t take immediate action if he had been sexually assaulted in his sleep.
“(The victim) woke up from a drunken stupor, where he was asleep, he had drank the night before, and he woke up to a man (performing a sexual act sex on him),” the prosecutor argued. “And he’s in shock, he’s in awe, he curls up against the wall. And then the defense wants to come up here and say is that natural? Well ask yourselves, what would you do? What would you do? I mean, yeah, maybe you would punch. You would like to say that right now. You would like to say you would fight. But when you’re in that situation, what would you do?”
The appeals court ruled that it was an appropriate response to the defense argument.
“There is little distinction between defense counsel’s argument and that of the State,” the appellate ruling said. “Although it would have been better practice for the prosecutor not to have phrased his response to defense counsel’s argument in the form of questions, both attorneys were attempting to get the jurors to exercise common sense based on their experiences.”
Bagley was sentenced to 24 years in prison, to be served following whatever time he serves in Missouri.
