photo by: Chris Conde/Journal-World

From left to right, Dionte Brown, Tiger Smiley, Murphy Theodore and Malachi Thomas are pictured at their preliminary hearing on June 27, 2023.

Charges against two men accused of rape were dismissed on Wednesday in Douglas County District Court after the prosecution said it was unable to find the alleged victim to testify.

The cases against Dionte Lamont Brown, 22, of Topeka; and Malachi Samuel Thomas, 23, of Lawrence, were originally set to go to trial on Monday, July 8. They and two other co-defendants had been accused of engaging in sexual acts with a woman over several days in March of 2023 while she was on drugs and in and out of consciousness, according to an affidavit in support of their arrest. Charging documents had alleged that Thomas also battered the woman with a pellet gun and that Brown used two bottles to rape the woman.

However, on Wednesday, Deputy District Attorney David Greenwald filed a motion to dismiss all of the charges against Brown and Thomas without prejudice, meaning that they could be refiled later. In his motion, Greenwald wrote that “The State is unable to find the victim to testify.”

In a separate motion filed on Monday, Greenwald wrote that the woman had previously been in regular contact with law enforcement, despite having moved out of state, and that she had wanted to pursue the case against the men. But that contact ended in January, the motion read, even though numerous attempts had been made to reach the woman since then. The woman’s mother also informed police that she hadn’t been able to reach the woman since June 14, according to the motion.

The motion filed on Monday had asked the court whether the trial could go forward anyway using testimony that the woman gave at an earlier hearing. Court records do not show that any decision was made on that matter.

Brown, Thomas and their co-defendants, 22-year-old Tiger Joe Smiley of Topeka and 26-year-old Murphy Theodore of Lawrence, had each been charged with at least one count of rape in the case. Thomas had additionally been charged with one count of aggravated sodomy, one count of aggravated battery and one count of breach of privacy for allegedly disseminating nude images of the woman; and Theodore was charged with an additional count of rape and a count of breach of privacy.

The charges against Smiley and Theodore have not been dismissed, and they are both scheduled to stand trial in October, according to court records.

Before the charges against Brown and Thomas were dismissed, Brown had been free on a $50,000 and Thomas was free on a $100,000 bond. Smiley is currently out of custody on a $50,000 bond, and Theodore is being held at the Douglas County Jail on a $200,000 bond.