A Hays man was bound over Friday morning in Ellis County District Court on five of six charges of sodomy and rape of two girls, and a 14-year-old witness left the courtroom in tears after the judge ordered she be charged with perjury for her testimony in the preliminary hearing.
Andrew Bayle Claude, 20, was bound over on three counts of aggravated criminal sodomy of a child under the age of 14 and two counts of rape of a child under the age of 14. One count of criminal sodomy was thrown out, with Magistrate Judge Richard Flax agreeing with the defense the testimony offered by one of the alleged victims did not support the charge.
Both of the alleged victims testified in Friday’s hearing but offered different accounts of what happened Nov. 17 and 18. Both girls, now 14, were 13 at the time.
Each said they were hanging out at the home of the first witness that afternoon, then in the evening walked to Big Creek Crossing, where they met Claude, who was acquainted with the second witness.
All three walked to the skate park, just east of the mall, and hung out there for awhile before deciding to see a movie.
What happened inside the theater and later at Claude’s nearby home is where the girls’ testimony differed.
Speaking softly and at times pausing to compose herself, the first witness testified that during the film, Claude asked her to touch his genitals. She said she replied “I don’t know.”
Claude, who each girl referred to as Drew, then grabbed her hand and put it on his pants. She eventually pulled her hand away. She said the other girl performed a sexual act with Claude.
The first witness testified that after the movie, the second witness suggested they go to Claude’s house. Arriving at the house around midnight, they went to Claude’s basement bedroom. She said she sat on the edge of the bed watching TV while Claude and the other girl kissed with some of their clothes removed.
Claude then kissed the first witness on the neck.
“I wasn’t pushing him away but I did say ‘I don’t know,’ ” she said.
She testified that Claude had sex with both girls. At one point, she wrapped herself in a blanket and asked for his wi-fi password.
“I was going to text my mom, but I was scared,” she said, adding her mother was working overnight.
Later, while the three were watching TV, she said she suggested the girls return to her home, but the other girl did not want to leave. They finally returned to her home around 4 a.m., she said, and she and her mother took the other girl home later in the morning.
The first witness testified she did not tell anyone what had happened until a couple of weeks later, when she told a friend. That friend told her mother’s ex-boyfriend.
The police eventually were notified of the incident. Hays Police Department Investigator Joshua Burkholder took the lead on the case and also testified Friday morning.
Burkholder said he had sufficient evidence to place Claude under arrest and took him to the Law Enforcement Center for questioning on April 23. He testified Claude admitted to much the same as the first witness would offer in her testimony, and that Claude thought each girl was 14 or 15.
The second witness had refused to talk to police during the investigation, he said.
After a short recess, the second witness took the stand. Questioned by Ellis County Attorney Tom Drees, she repeatedly denied any sexual activity had taken place.
She said the first witness “wanted to hang out with somebody,” so she texted Claude, who lived nearby.
After the movie, she wanted to go back to the first witness’ house, she said, but the first witness still wanted to hang out. They went to Claude’s house.
“We hung out as friends,” the second witness said, and talked about their relationship problems.
“We just had a nice time as friends,” she said.
They stayed at Claude’s house for a couple hours, she said, then went back to the first witness’ house and went to sleep.
Drees asked if she understood the oath she had given before testifying. The girl said she did.
Drees repeatedly asked if specific sexual acts had taken place at the theater and at Claude’s house. Each time, she defiantly said no.
Drees also repeatedly asked her if the first witness and Claude would be lying if they said there was any sexual activity. Each time, she said yes.
In closing arguments, defense attorney Kip Johnson recommended the second count of aggravated sodomy be dropped, as the first witness did not offer testimony that supported the charge.
Flax agreed, ordering Claude be bound over on the five other charges and ordered Drees to file a charge of perjury for the second witness.