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A judge has dismissed the most serious charge against a South Dakota man who police and prosecutors allege was part of a riot at a Dakota Access Pipeline construction site in North Dakota based in part on DNA evidence found on a cigarette butt at the scene.

South Central District Judge Bruce Romanick on Monday signed an order dismissing a charge of felony conspiracy to commit criminal mischief against Lawrence Malcolm Jr. of Sisseton, S.D. Malcolm was charged in September after investigators alleged DNA evidence found on a cigarette butt showed he was at the scene of the 2016 riot, where they said hundreds of thousands of dollars in damage was done. His DNA was on file from a previous arrest.

Defense attorney Bruce Nestor argued in a September motion for dismissal that it’s impossible to determine where the cigarette butt originated or how long it might have been there.

Romanick in mid-December heard arguments from Nestor and Assistant Morton County State’s Attorney Chase Lingle. He asked for written arguments at that time, saying he was “not overly certain” the state had shown probable cause to move the case forward.

Lingle produced photos that law enforcement witnesses said showed Malcolm at the scene and, in one photo, on top of a truck. They also testified that Malcolm was part of a line of five or six men that would not let them pass to gather video evidence as a group of about 200 people vandalized and damaged construction equipment.

Romanick said the state failed to provide evidence that Malcolm entered into an agreement to commit a criminal offense, which is necessary to support a conspiracy charge. The state has shown “that the Defendant was there and nothing more,” Romanick said.

“He may be there and he may be wearing a bandana,” the judge wrote. “There is no evidence of a conspiracy.”

Romanick said the state also failed to establish that more than $10,000 in damage was done to the equipment -- an amount specified in the charge.

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“Having an officer simply claim the damage would have been over $10,000 without any valuation or other evidence of damage is not evidence sufficient to establish the damage amount by probable cause,” the judge said.

Neither Nestor nor Lingle immediately responded to calls seeking comment.

The remaining charge against Malcolm is misdemeanor engaging in a riot. If convicted, he could be sentenced to a year behind bars and fined $3,000. Trial is set for Jan. 29.

Two other DAPL-related cases against Malcolm were settled in November. He pleaded guilty to a misdemeanor charge of physical obstruction of a government function in a 2017 case. Nine misdemeanor charges and a felony simple assault charge were dismissed. Two felony charges and one misdemeanor were dismissed in a 2016 case in which Malcolm pleaded guilty to misdemeanor trespassing. The plea agreement covering both cases stipulated 30 days of jail time with enough credit for time served to cover the sentence.

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Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com

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