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Published April 04, 2013, 10:30 AM

Defense in sex abuse trial challenges DNA collected from girl's clothing

On the second day of his trial, Justin Yarbro’s attorneys challenged DNA evidence that prosecutors say shows he sexually abused his stepdaughter in 2010 and 2011 when she was 6 and 7.

By: Stephen J. Lee, Grand Forks Herald

On the second day of his trial, Justin Yarbro’s attorneys challenged DNA evidence that prosecutors say shows he sexually abused his stepdaughter in 2010 and 2011 when she was 6 and 7.

Yarbro, 32, is charged with continuous sexual abuse of the girl, a Class AA felony charge with a maximum penalty of life in prison without parole if he’s convicted.

Now 8, the girl testified Tuesday during the first day of the trial.

During his opening statement, Jason McCarthy, assistant state’s attorney for Grand Forks County, told the jury that expert witnesses would prove Yarbro’s DNA was found on the girl’s underwear.

On Wednesday, McCarthy called Amy Gebhardt, DNA researcher with the state crime lab in Bismarck, to the stand. She explained how she tested five pairs of the girl’s underwear, finding a mixture of significant levels of the girl’s DNA and Yarbro’s on two of them.

Her testing also determined that semen was not found on the underwear, Gebhardt told McCarthy. Yarbro’s DNA could have come from other bodily fluids, skin cells or hair, she said.

Evidence questioned

Kerry Rosenquist, Yarbro’s attorney, pressed Gebhardt on a point the defense raised in pre-trial motions: four of the five pairs of unwashed underwear were collected from the girl’s home by her mother, Nickole, who then gave them to police the day she first reported the alleged abuse in October 2011.

“It’s possible that if all these pairs of underwear were put together in one spot with clothes from Mr. Yarbro, there could be a transfer of DNA?” Rosenquist asked.

“Yes, that’s possible,” Gebhardt said.

Nickole could have rubbed the girl’s underwear against Yarbro’s clothing, or even “rubbed the back of the toilet,” Rosenquist asked.

“That’s possible,” Gebhardt said.

“So it’s possible if someone, interested in the outcome of the case, collected (the underwear) for police, it could have been tainted by the time it got to police, correct?” Rosenquist asked.

“Yes,” Gebhardt said.

McCarthy countered, eliciting Gebhardt’s testimony that she thought it “unlikely” that such a clothing-to-clothing transfer would result in the DNA matches she found.

Earlier, Rosenquist cross-examined Grand Forks Police Detective Sgt. Jeremy Moe about whether it was “proper protocol,” to let Nickole, in effect, gather evidence.

“Not typically,” Moe said. “Typically an officer would collect those items.”

“But it wasn’t collected by anybody from your department,” Rosenquist said. “So the DNA could have come from anywhere, is that correct?”

“I suppose it could have,” Moe said.

Awkward photos

In an awkward phase of the trial, the jury was presented with close-up photos of Yarbro’s penis, three sets of them taken by Detective Moe on three occasions.

Such evidence was in play because prosecutors say the girl described scars on Yarbro’s penis.

The defense counters that she changed her story on the scars, raising questions about her credibility.

A former wife of Yarbro’s testified about an incident in which he burned his penis with a hair dryer a decade ago.

Jurors passed photos of the exhibits fairly quickly around the jury box, after brief glances at them.

State District Judge Debbie Kleven told the jury she expects they will get the case Friday. Prosecutors said they have one more witness to testify Thursday and Rosenquist told Kleven he expected to complete calling defense witnesses Thursday, too.

Asked by a reporter if Yarbro would testify in his own defense, Rosenquist said, “That’s up to him.”