A judge has denied a defense motion to dismiss a case against a former Bethel football player accused of sexually assaulting a fellow student in 2018, ruling this week an error by the prosecution that led to a mistrial in January “does not demonstrate any bad faith or intentional misconduct.”

Wednesday’s decision by Ramsey County District Judge Joy Bartscher means Gideon Osamwonyi Erhabor, now 26, of McKinney, Texas, will face a retrial on a third-degree criminal sexual conduct charge. A hearing to schedule the retrial is set for June 11.

Gideon Osamwonyi Erhabor (Courtesy of the Collin County Sheriff’s Office)

Erhabor’s attorney, Daniel Gonnerman, did not respond to a request for comment Thursday on the judge’s decision.

The prosecution’s mistake came on the first day of testimony and involved an audio recording played in court that referenced two other sexual assault cases involving Erhabor. A judge had denied the prosecution’s motion to introduce evidence from the two other cases, known in court as Spreigl evidence. Despite the similarities in the three cases, Judge David Brown wrote, there were what he called “significant differences.”

Ramsey County prosecutors filed the cases against Erhabor on Dec. 3, 2019, after three then-Bethel women reported to law enforcement on separate days in June 2019 that Erhabor had assaulted them in the fall and winter of 2018.

A jury in October 2022 found Erhabor not guilty of third-degree criminal sexual conduct relating to one incident. The other case, alleging an assault in October 2018, remains pending in court under the same charge.

Deputies with the Ramsey County sheriff’s office interviewed Erhabor about the incidents in his Texas hometown in September 2019. While he acknowledged having sex with the three women, he said all the interactions were consensual, according to the criminal complaints.

Erhabor was a student at the Arden Hills Christian college from the fall of 2017 to fall 2018. He was a running back on the football team in 2018.

He was arrested in his Texas hometown a day after the charges were filed and released from the Ramsey County jail after posting a $30,000 bond nearly a month later.

‘Another woman’ referenced

Prior to testimony in the second trial, both attorneys agreed to redact parts of the woman’s interview with a sheriff’s office investigator in 2019. The redactions were to comply with Brown’s ruling relating to Spriegl evidence.

The woman testified Jan. 23 that Erhabor picked her up Sept. 11, 2018, and put on “Black Panther” in his dorm room. Eventually, they began kissing while lying down on a futon. She said Erhabor removed her pants, then grabbed her hips. After he grabbed a condom, “I said no, and started scooting away,” she testified. She said her head was in a pillow during the assault, and that she cried during it.

Later, Assistant Ramsey County Attorney Andrew Johnson gave jurors a redacted transcript of the woman’s interview with the investigator. He then played an audio recording of the interview, which included the investigator saying she “was the third woman.”

The unredacted recording kept playing, with the investigator making a reference to “another woman.” Johnson stopped it.

Bartscher asked for jurors to be taken out of the courtroom.

Johnson apologized that the references to the other women were not redacted from the audio. Gonnerman moved for a mistrial and Bartscher assented, acknowledging there was not another viable option.

‘Error was unintentional’

A hearing was held Feb. 23 on the defense’s motion to dismiss the charge. Bartscher heard arguments from Johnson and Gonnerman, and received written arguments.

Gonnerman raised three arguments for why the case should be dismissed: further prosecution is barred by the double jeopardy clause, which prohibits someone from being prosecuted twice for the same crime; that Erhabor’s rights to speedy trial were violated; and in the interest of justice.

Johnson, meanwhile, maintained it was not deliberate, that he accidentally copied onto his laptop an older audio file “that lacked needed redactions.” He said the newer audio file was made last minute “to be completely fair to the defense by fixing erroneous omissions and inclusions that both parties had overlooked.”

Bartscher, in her ruling filed in court Thursday, wrote that Minnesota case law is clear: Retrial of a criminal case after a mistrial is permitted unless the court finds bad faith, intentional misconduct or when the mistrial was “purposefully designed to goad the defendant into requesting a mistrial.”

Johnson played the audio recording believing it to be an exact copy of the submitted exhibit, Bartscher concluded. “The prosecutor’s error was unintentional; the prosecutor swiftly acknowledged their mistake and concurred with the Defense that a mistrial was the appropriate remedy as no other remedy seemed curative and appropriate.”

Bartscher acknowledged how Gonnerman had highlighted the prosecution allowed the audio to go beyond the first prohibited allegation, thereby exposing the jury to another reference.

“However, the first prohibited allegation was a mere four seconds on the recording and went unnoticed and unopposed, even by the Defense,” Bartscher wrote. “This incident does not demonstrate any bad faith or intentional misconduct.”

On the defense’s argument that a second trial violates Erhabor’s rights to a speedy trial, Bartscher noted that Gonnerman did not file a formal demand for a speedy trial. The judge also pointed out the defense consented to continuances, which she said were due to scheduling conflicts involving both the court and the attorneys.

On the issue of dismissing the case in the interest of justice, Gonnerman noted how Erhabor is Black and that the seated jury was made up of multiple people who are Black and said it was “unprecedented for Ramsey County.” He said the racial makeup of the jury was a “substantial advantage to (Erhabor) that cannot be replicated.”

Although racial makeup of a jury is important in all cases, Bartscher wrote, it is “impossible to determine what, if any impact the jury make up would have had on the outcome of the trial.”

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