By LeAnn R. Ralph
COLFAX — A Dunn County judge has found probable cause in a case involving a 22-year-old Colfax man accused of two felony counts of sexually assaulting an unconscious victim.
Judge Rod Smeltzer bound over for trial Max D. Whinnery following a preliminary hearing in Dunn County Circuit Court April 11 on two Class C felonies related to the second degree sexual assault of an unconscious victim.
Dunn County Deputy Dennis Rhead testified that he had received a report of the sexual assault from the Colfax Police Department in April of last year.
Rhead met with the alleged victim, who said Whinnery had sexually assaulted her on two different occasions.
The alleged victim said she had been asleep on both occasions and that she woke up to find Whinnery having sexual intercourse with her.
Dunn County Assistant District Attorney Holly Wood-Webster, the prosecutor in the case, asked why the alleged victim had reported the two incidents.
Rhead testified that after the second incident, the alleged victim had been talking to a friend about it, and the friend had said similar incidents with Whinnery had happened to her and to other women.
Rhead testified that he had contacted Whinnery but that Whinnery would not speak to him and had said Rhead should contact Whinnery’s attorney.
Whinnery’s attorney, Peter Morin, attempted to discredit the alleged victim by saying that when Rhead asked about the alleged victim’s experience, she had used the words “possibly” and “maybe” to describe in more detail what was happening to her when she woke up.
Wood-Webster objected to Morin’s line of question, and Judge Smeltzer sustained Wood-Webster’s objections.
The line of questioning tended to go toward the credibility of the alleged victim rather than the plausibility that the defendant had committed a crime, Judge Smeltzer said.
Preliminary hearings are intended to determine whether it is probable that a crime has occurred, he said.
Morin told the court the alleged victim had attempted to obtain $5,000 from Whinnery and said that if he did not pay her, she would go to the police about the alleged assaults.
“This woman” admitted to the police and the district attorney that she had asked for money, Morin said.
The alleged victim is currently 20 years old and will not turn 21 until later this summer.
Judge Smeltzer reiterated that preliminary hearings are devoted to determining the plausibility of a crime rather than the credibility of alleged victims.
After witnesses have been interviewed and more evidence is obtained, the court can determine if the case “merits going farther,” Judge Smeltzer said.
Judge Smeltzer ruled that sufficient evidence had been provided for a preliminary hearing to establish probable cause and noted that during a preliminary hearing, it is permissible to consider statements that are hearsay.
Whinnery is scheduled to appear in court again for an arraignment hearing on May 5.
Bail for Whinnery was set with a $1,000 signature bond on November 19, 2013.