Alexander Pittenger

The stalled trial for a 22-year-old Minot man charged with misdemeanor corruption of a minor will go forward after the North Dakota Supreme Court ruled that a judge’s decision disallowing witness testimony was premature.

Time is a precious commodity for all involved in a trial that has already been marked by frequent objections from both sides, delays and a previous mistrial.

At a status conference hearing on Monday for Alexander Justin Pittenger, Judge Stacy Louser said she wants the trial to resume next Monday if all goes well. Louser wants to hear the testimony of BCI Special Agent Pat Helfrich outside the presence of the jury to determine whether he should be allowed to testify at trial. A jury of 14 people was selected and has been waiting for the trial to resume. Louser said several of the jurors have pre-made travel plans or medical appointments after next week. One of the witnesses, retired Special Agent Dale Maixner, is planning to travel out of the country soon and told the state’s attorney’s office that he has not received a subpoena from the defense. Defense attorney Marquis Bradshaw told Louser that they have been trying to subpoena Maixner for the past month and he does not see why it has been so difficult, since Maixner lives in Minot and could have checked with his office. Bradshaw also wants the trial wrapped up before a week from Friday, which is his last day on the job at the public defender’s office. He plans to stay on the trial, however.

Pittenger went to trial on the charge on Jan. 9, but Louser halted the trial and ordered that the expected testimony of Helfrich would unfairly hurt Pittenger’s defense. The state wants to put Helfrich on the stand to testify that he had extracted cell phone records and text messages from the alleged victim’s cell phone. However, the state failed to certify Helfrich as an expert witness. Helfrich had testified at a trial for Pittenger in July 2016 that ended in mistrial. The state claims that it plans to redefine Helfrich’s testimony at Pittenger’s most recent trial so it is no longer “expert” testimony.

Assistant State’s Attorney Marie Miller appealed Louser’s order to the North Dakota Supreme Court, which ruled in her favor last Friday.

“We conclude the district court’s order was premature, direct the court to allow the trial to go forward, and to enter its rulings on the proffered testimony as it is offered in such a manner as to allow the court to determine whether the proffered testimony is lay factual opinion testimony … (or) lay opinion testimony … (or) expert opinion testmony,” the Supreme Court ruling read.

On Monday, Louser asked whether it would be possible to have Helfrich testify outside the presence of the jury via interactive television from Bismarck. Miller said Helfrich has to testify at other trials this week and has also been called for jury duty in Bismarck, so his time is limited. She said she also wants to show Helfrich an exhibit when he testifies and it would be better to have him testify in person. Louser directed the state to check on Helfrich’s schedule to set up a time for a hearing.

Pittenger has been accused of having an inappropriate sexual relationship two years ago with an area girl who was 14 and 15 at the time. Pittenger was 19 and 20 when he allegedly had sex with the girl and exchanged sexually explicit photos and text messages with her.

He was originally also charged with gross sexual imposition, a Class A felony charge carrying a maximum 20 year prison sentence. Pittenger could also have been required to register as a sex offender. The Class A misdemeanor corruption charge carries a maximum sentence of one year in the county jail.

He went to trial on that charge last July, but Louser ordered a mistrial after deciding that testimony given by a witness violated her order against the presentation of evidence concerning Pittenger’s previous criminal convictions. Pittenger had previously pleaded guilty to violation of a protection order preventing him from contacting the girl.

On Jan. 3,  Louser dismissed the gross sexual imposition charge without prejudice after lawyers for the state admitted they couldn’t prove each element of the offense beyond a reasonable doubt. Louser decided that Pittenger would go to trial on the misdemeanor corruption charge, but halted the trial on the third day after the dispute arose over Helfrich’s testimony.

Pittenger’s lawyer, Bradshaw, is also appealing Louser’s decision because he believes both the gross sexual imposition felony charge and the corruption charge should have been dismissed with prejudice. The “without prejudice” decision means that the state could refile the gross sexual imposition charge against Pittenger at a later date. Pittenger’s lawyer has said he is also appealing on the basis of  “double jeopardy,” meaning a defendant can’t be tried twice on the same charge in the same court.