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STATE OF SOUTH DAKOTA,
Plaintiff and Appellee,
v.
TIMOTHY WAYNE MIDGETT,

Defendant and Appellant.

[2004 SD 57]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Fifth Judicial Circuit
Brown County , South Dakota

Hon. Jon S. Flemmer, Judge


LAWRENCE E. LONG
Attorney General
FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff and appellee.

REED RASMUSSEN of
Siegel, Barnett and Schutz
Aberdeen, South Dakota
Attorneys for defendant and appellant.

Considered on Briefs on March 22, 2004
Opinion Filed 4/28/2004

#22857 ZINTER, Justice

[¶ 1.] Timothy Midgett was convicted of second degree rape. He appeals[1] his conviction and the denial of a motion for new trial. We reverse and remand.

Facts and Procedural History
[¶2.] The incident in dispute occurred on March 14, 2002, when K.R.B. was at the apartment of a friend named S.A. K.R.B. planned to stay overnight watching movies, TV, and listening to music. S.A. lived with her mother and brothers on the top floor of the apartment building. Midgett lived on the bottom floor of that same apartment building. Both S.A. and K.R.B. had met Midgett before. Midgett often visited S.A.’s apartment to use their phone or borrow movies.
[¶3.] From this point, Midgett’s and K.R.B.’s versions of the events differ markedly. K.R.B. testified that she first saw Midgett around 7 p.m. that evening when he came to S.A.’s apartment to borrow movies. K.R.B. saw Midgett a second time when he returned to S.A.’s apartment for other movies. K.R.B. testified that the final encounter occurred around 11 p.m., when S.A. and K.R.B. were getting ready for bed. S.A. allegedly asked K.R.B. to go down to Midgett’s apartment to retrieve the movies.
[¶4.] K.R.B. went to Midgett’s apartment. According to K.R.B., when Midgett opened the door, she asked him for the movies, and Midgett insisted that K.R.B. come in. K.R.B. testified that she said no, but Midgett gave her “a shove on the shoulder, a light shove

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