Jury trial begins in sexual assault case

After two days of testimony, both the prosecution and defense have rested in this week’s trial for former SJU student charged with sexual assault. Brian Muinde Kimithi was charged last January two felony counts of sexual assault against a CSB student. If convicted, Kimithi faces up to 30 years in prison and a maximum fine of $40,000.

With Stearns County District Court Judge Shan C. Wang presiding, prosecutors Brianna Long and Cassie Loeffler offered Kimithi one last chance at a plea deal, consisting of 16.75 years in prison, 10 years of probation, a $50 fine and mandatory sex offender registration. Defense Attorneys Meghan Bork and Grace Ostrom declined on Kimithi’s behalf.

The state brought nine witnesses, including the victim, to testify before the court. The only witness to take the stand for the defense was defendant Kimithi.

Kimithi is charged with first degree criminal sexual conduct – use of force, and third degree criminal sexual conduct – victim physically helpless. This additional charge is part of a Blakely Motion, which allows for extensive sentencing beyond the typical guidelines due to aggravated factors. The Blakely factor in this case is the allegation that the victim was initially asleep at time of the assault.

When asked by prosecutors if he had in fact used the words “sleeping” and “woke up” in reference to the victim in his initial police interview, Kimithi confirmed, but later denied that she was asleep at the time of the sexual encounter.

According to testimony from all parties, the victim and two witnesses were drinking alcohol with the Kimithi in the witnesses’ shared dorm room in the early hours of Jan. 27. Rather than Kimithi driving home under the influence, the witnesses offered him their futon, and the victim offered her beanbag chair. Kimithi accepted the victim’s offer to stay in her room. Both witnesses testified under oath, saying it was odd that he would accept as they were not friends.

“He didn’t get along with [the victim.] He said he hated her,” one witness said on the stand. “There was nothing romantic between them at all.”

At approximately 1 a.m., Kimithi and the victim arrived at her single room and began to kiss on her bed. The victim confirmed that the kissing was consensual but that she had wanted to go no further.

In her statement, she recounted saying goodnight, falling asleep and waking up to the defendant vaginally penetrating her with his penis. She said that she told him to stop and tried to sit up but was forced down into the mattress.

Once the assault was over, she testified to the jury that she went to the bathroom and then to witnesses’ dorm room in a state of extreme distress.

“She was distraught,” the second witness said on the stand. “Shaking, stuttering, kind of holding herself.”

At 3:08 a.m., after observing her injuries and demeanor, the first witness called to 911. Officers from the St. Joseph and Waite Park Police Departments responded. Upon request, a female deputy from the Stearns County Sherrif ’s Department was also called to talk to the victim.

During Sheriff ’s Deputy Crystal Pomplun’s testimony, the defense argued that she had not separated the victim and witnesses prior to obtaining an initial statement to prevent the contamination of memory. Bork also pressed the deputy on the fact that the students in the dorm room directly next to the victim’s had not heard any commotion.

Officer Alexander Lyon of the St. Joseph Police Department then testified that he and his fellow officers went to the victim’s room and found Kimithi in her bed. He was promptly arrested and brought in for questioning, and that video footage was admitted into evidence and shown to the jury.

In this interview with police, Kimithi initially denied hearing the victim telling him no. A few minutes later, he changed his story, saying he stopped after the second time she withdrew consent. When asked by Officer Lyon why he did not immediately cease, he had no explanation.

“I don’t have a reason I didn’t stop after the first time [she said no,]” Kimithi said.

Later, while under oath in the courtroom, he restated this same sentiment.

“It [continued] for some time after she said stop. I can’t say if it was 10 seconds for sure,” Kimithi said.

Prosecutors argued this was an admission of forceful penetration and brought photos of the victim’s injuries before the jury in an attempt to corroborate that claim.

Mandy Peterson, a forensic nurse examiner for the Central Minnesota Sexual Assault Center, testified to the process of the sexual assault kit performed on the victim at approximately 9:30 a.m. on Jan. 27. She noted extensive injuries to the victim, including scratches on her chest, arms and abdomen. The victim also had bruising patterns consistent with strangulation, which Peterson said lined up with her report that the defendant held her down by her neck during the assault.

Bao Khang, a forensic scientist with the Minnesota Bureau of Criminal Apprehension, confirmed that the swabs taken from the bruising and scratches on the victim’s neck had a one-in-one-hundred-billion probability of not containing Kimithi’s DNA.

While the defense did not contest the DNA evidence in cross-examination, they questioned Khang on the transference of DNA, ultimately arguing that any DNA could have transferred the same way in a consensual sexual encounter.

Court will resume at 9 a.m. on Thursday, Oct. 29 for closing arguments and jury instruction and deliberation, with a verdict expected to follow.

This is a developing story. Updates will be made to The Record’s website once a verdict is reached.