A Bismarck man accused of inappropriately touching a girl in 2017 could not possibly have committed the acts she described, his attorney told jurors on Wednesday, while the prosecutor in the case argued that no testimony in the case disputed what the girl said.
Jurors late Wednesday afternoon received the case of Russell Walbert, 64, who was accused this summer of molesting the girl in 2017 when she was younger than 10 years old. He was charged with four counts of gross sexual imposition, each of which carries the possibility of 20 years in prison if he’s convicted.
Testimony from the girl may have left out details, but during her time on the witness stand she clearly pointed out Walbert as the man who touched her, Burleigh County State’s Attorney Julie Lawyer said. It would be great if a young girl could recount step by step what happened, but that she can’t recall some details doesn’t mean the acts didn’t happen, Lawyer said. She pointed out that Walbert when testifying on his own behalf couldn’t recall the exact details of board games he and the girl had played but could recall certain highlights from those games.
“Why hold a (young) girl to a different burden?” Lawyer asked the jurors.
The charges against Walbert stem from allegations that he touched the girl during incidents in a shed at his residence and in a camper parked on his property. His attorney, Kent Morrow, said a third person who walked in on Walbert and the girl in the camper after one of the alleged incidents found them fully clothed and giggling.
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“Can you imagine someone who was sexually assaulted a few minutes before, giggling?” he said. The incidents in the shed were “not even remotely possible” because of the location of equipment, the cramped quarters, and the position of Walbert and the girl as described during her testimony.
“He would have had to physically contort himself” to commit the acts, Morrow said.
The girl when referring to a diagram of the human body circled the left hand of the figure to point out which hand Walbert is alleged to have used when touching her. Morrow called that significant because Walbert is right-handed, but Lawyer said the girl circled the hand that was on the right side of the diagram. That she circled a hand at all “signifies that he touched her,” Lawyer said.
None of the testimony the jurors heard disputes the girl's testimony, Lawyer said.
"Who has the motive to lie? Who's getting away with something?" she said.
Two charges of gross sexual imposition were filed against Walbert in Morton County last week, court records show. He is accused of inappropriately touching a girl in several incidents from 2001 to 2004, according to a police affidavit. He is being held in the Burleigh Morton Detention Center in lieu of $25,000 bail on those charges.
The jury of 10 men and two women did not return a verdict Wednesday. They were scheduled to reconvene Thursday.
Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com