A Boulder boy facing five sex offense charges and being tried as an adult in Montana Fifth Judicial District Court in Boulder might face two trials after a judge ruled in favor of the defense’s motion to sever, or separate, one charge from the other four.

Michael C. Mitchell, 17, was charged Sept. 3, 2019 with two felony counts of sexual intercourse without consent and one felony count and two misdemeanor counts of sexual assault.

One of the sexual intercourse without consent counts and all three sexual assault counts — referred to as Counts 1, 3, 4 and 5 in court documents — stem from activity Mitchell is alleged to have engaged in with a younger girl referred to in court documents as Victim 1.

The alleged activity behind the second sexual intercourse without consent count — referred to as Count 2 in court documents — allegedly occurred with a girl referred to in court documents as Victim 2 and whom investigators were told of by Victim 1.

Mitchell’s defense filed a motion with the court on Feb. 18, seeking to sever Count 2 from Counts 1, 3, 4 and 5 and asking that two separate trials be held, one for each subset of charges.

In the motion, Samuel Martin, Mitchell’s public defender, noted two situations where severance can be sought: when charges were improperly joined, or when “severance is necessary to prevent unfair prejudice,” he wrote, and proceeded to argue for the latter situation.

On March 3, Chief Deputy County Attorney Andrew Paul filed the prosecution’s objection to the motion. In addition to arguing that Mitchell “has failed to meet his burden proving that the prejudice would prevent a fair trial,” Paul argued that the charges were properly joined — something Martin did not argue against in his motion.

In a response to the prosecution’s objection filed March 10, Martin argued that the state law Paul cited did not apply.

Judge Luke Berger, in an order filed April 6, sided with the defense but not for the argument presented in its motion to sever. Noting that the defense’s motion “mentions concepts” related to joinder and that its reply to the prosecution’s objections both addresses joinder and cites cases related to it, Berger proceeded to rule that the charges had in fact been improperly joined.

As a result of that ruling, “an analysis of severance to prevent unfair prejudice is unnecessary,” Berger wrote.

Berger ordered for Count 2 to be severed from Counts 1, 3, 4 and 5, and to be addressed in a separate case.

Though Mitchell is 17, Berger previously ordered that he be tried as an adult.

In his order, filed Feb. 5, Berger wrote that the defense was “unable to satisfy all three criteria” for transferring the case to youth court: that doing so would best serve the interest of public protection; that the case did not warrant prosecution in district court; and that trying the case in youth court was in Mitchell’s best interest.

The alleged activities behind Counts 1, 3, 4 and 5 reportedly occurred from 2011 to 2017; Mitchell was 9 to 16 years old during this time. The allegations were reported to the Jefferson County Sheriff’s Office in August of 2019, according to court documents.

Mitchell was charged with sexual intercourse without consent for allegedly forcing the victim to engage in oral sex; the three sexual assault charges arose from instances of alleged sexual contact with the victim without her consent.

Count 2 stemmed from Victim 2’s allegation that, “on or about the first week of high school” in 2018, when she was 15 years old, she was at Mitchell’s house with friends “and they were drinking and hanging out” in a camper in Mitchell’s yard.

Victim 2 told investigators she drank too much alcohol, passed out and, upon waking, realized Mitchell was having sex with her without her consent.

The Jefferson County Attorney’s Office filed the charges in district court because Mitchell was 12 years of age or older at the time alleged offenses occurred, a court document states.

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