An Orange County Superior Court judge on Tuesday rejected a Texas man’s motion to drop charges that he raped a sleeping woman in Newport Beach, which sets the stage for a possible trial.
David Jeffrey McKee, 26, and his alleged victim, a 29-year-old woman, were at the Central Justice Center in Santa Ana for McKee’s preliminary hearing, where prosecutors presented their evidence to show that they have enough to take him to trial.
Through more than four hours of testimony, the woman, who was renting a beach house on Balboa Boulevard with three other women in the summer of 2006, recapped the night of July 12, 2006, and the next morning, when she claims McKee had sex with her while she slept.
The woman had worked nearly 14 hours at her job and at her internship at Western Medical Center in Santa Ana before going out with her roommates that night.
The group was meeting up with McKee and his minor league hockey teammates who were in town for an Anaheim Ducks hockey camp.
After drinks at a nearby bar on the Balboa Peninsula, the two groups went back to the rental home, where some of the women and men had sex. The victim in this case however, went straight to bed.
“I was feeling very tired. I wasn’t stumbling drunk, I was tired. I’d been drinking and was ready to go home and go to bed,” she testified Tuesday.
McKee had originally been indicted by the grand jury, but a judge threw that out, blaming prosecutors for not revealing the several contradictory statements the woman made to police the morning after the incident versus her testimony to the grand jury.
Among those contradictory statements was how much she had to drink that night and how the alcohol had affected her.
Prosecutors refiled charges last month and dropped the accusation that McKee raped a woman too drunk to consent.
Instead, Deputy Dist. Atty. Nicole Nicholson stuck with a single charge of raping an unconscious woman.
In this case, prosecutors claimed she was sleeping.
The woman testified that she went to bed with a shirt and underwear on, but woke up in the middle of the night to someone on top of her putting pressure on her crotch.
She normally sleeps on her back or side, but woke up on her stomach, she testified.
Paralyzed by fear and the man telling her to “shush,” she didn’t move as he had sex with her and ejaculated on a pillow then put on his pants and left, she testified.
Police found McKee’s DNA on the pillow and inside the woman, prosecutors said. McKee’s defense attorney, Allan Stokke, questioned the woman’s recollection of the encounter. He tried to punch holes in her assertion that she was not conscious that someone was about to have sex with her, and even questioned if she moved her hips and body during the incident.
The woman testified that as soon as the man told her to be quiet, she stopped moving.
She called police the next morning after speaking with her parents and roommates. Testimony is expected to continue today with Judge Richard J. Beacom expected to rule whether McKee should go to trial.