A judge on Friday moved to trial the case of a Hettinger man accused of molesting a child in a Mandan restaurant bathroom but told attorneys he believes serious evidence issues and challenges lied ahead.
“I am troubled by this case,” South Central District Judge James Hill said.
Gregg Jacobson, 58, was charged in March with a felony that could send him to prison for 20 years if convicted.
The mother of a 4-year-old boy told police that Jacobson was the only person in the restroom with her son, Mandan Police Officer Joshua Scherr testified during the Friday hearing. She heard the boy crying shortly after Jacobson left. At their table, the boy said "the guy” had touched him inappropriately. The boy vomited when his mother took him to the ladies room, Scherr testified.
Jacobson when interviewed by police sometimes changed his answers about using the restroom and seeing the boy in the restroom, Scherr said. The boy during later interviews pointed out in photographs of the restroom where Jacobson stood, described the actions of the alleged touch, and drew pictures that showed where and how the touch occurred, the officer testified.
Defense attorney Lloyd Suhr said the state lacks any evidence that would move the case forward. The boy during interviews didn’t form complete sentences and shrugged when asked if he knew the difference between the truth and a lie, Suhr said.
“Their whole case rests upon the statement of a child who is so cognitively not yet developed that he doesn’t even know the difference between the truth and not telling the truth,” Suhr said, adding that the state has no eyewitnesses and no evidence of injury to the boy.
“We need these prosecutors to come to court with something better than this before we ruin a man’s life," Suhr said.
The idea that the state has no evidence is “bogus,” Assistant Morton County State’s Attorney Austin Gunderson said. Video surveillance shows Jacobson and the boy in the bathroom at the same time. Even without other evidence, the allegations of someone who claims to be a sexual assault victim has been sufficient in other cases to prove a person guilty, according to the prosecutor.
“The only person whose story hasn’t changed is the boy’s,” Gunderson said.
Hill said that with the evidence he had at this point, “probable cause exists, and nothing more.”
The case presents “serious evidentiary issues that a trial judge will have to grapple with,” Hill said, adding that he had no doubt there would be challenges made by the defense before the case got to a jury.
"It will be a different type of case," the judge said.
Hill set aside four days for a trial starting Aug. 17.
Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com