A rape case in court for the second time because of a previous mistrial was dismissed Monday after the defense argued that the location of the alleged incident and the identity of the defendant were never established.
Charges against David Schneider of Bismarck were brought for the second time in September in connection with an alleged incident in 2017. His first trial, in June, was declared a mistrial due to an unallowable comment made by a prosecution witness.
South Central District Judge Douglas Bahr on Monday found there was no probable cause to proceed to a second trial, saying “no evidence was presented to me” that the incident occurred in Burleigh County. He noted, however, that the move was "delaying the inevitable.”
Assistant Burleigh County State’s Attorney Dennis Ingold said the state will refile charges.
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Deputy Sheriff Brian Thompson testified under questioning by Ingold that Schneider inappropriately touched a woman in her home. The woman told authorities Schneider tore at her clothing and threatened her with a knife before she was able to escape and lock herself in her car, Thompson said.
Defense attorney Lloyd Suhr said the prosecution’s failure during the hearing to establish that the woman's home is in Burleigh County presented jurisdictional issues and added that Schneider, who was in the courtroom, was never identified by Thompson as the person who might have committed a crime.
The case against Schneider, if it were to proceed to trial, should only include one charge because there was only one continuous incident, Suhr said. The state’s charges included gross sexual imposition and attempted gross sexual imposition, both through the use of force. No sexual contact occurred after Schneider is alleged to have produced a knife, Suhr said.
“If the court is going forward with probable cause, it should be on Count One only,” Suhr said.
The show of force was still there, Ingold said, and due to Schneider's alleged actions up to that point "it's hard to believe he had any other intention," the prosecutor said.
Schneider was not in custody prior to the Monday hearing. He had been free on a $5,000 unsecured bond.
Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com