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CEDAR RAPIDS - A judge on Friday denied a motion to dismiss the charge against a Marion teacher accused of failing to report sex abuse of children in her classroom last year.
Sixth Judicial Associate District Judge Russell Keast said there is no legal basis to dismiss the charge against Diane Graham, 59, at this time. Graham is charged with failure to report child abuse as a mandatory reporter, a simple misdemeanor.
The criminal complaint shows that two Starry Elementary school children in Graham's class, on two occasions, told Graham about incidents involving Logan McMurrin, then 15, a classroom volunteer who was convicted in Juvenile Court of sexually assaulting three children in 2016.
Graham, who is on administrative leave, failed to report the children's disclosures to law enforcement or to the Department of Human Services personnel, according to the complaint.
As a teacher, Graham is a mandatory reporter of child abuse due to an Iowa law that requires any licensed school employee to report abuse against a child younger than 12 within 24 hours.
Mark Brown, Graham's lawyer, argued on Friday that one of the children testified under oath at McMurrin's trial and denied telling Graham about the abuse. Brown said this makes the complaint 'defective” because there is no probable cause to substantiate the charge.
Assistant Linn County Attorney Andrew Powers said the child did make comments during a St. Luke's Child Protection Center interview about telling Graham of the abuse about five months before McMurrin's trial. There also are two other child witnesses who will testify about Graham. The defense will have the opportunity to question those witnesses at trial, he pointed out.
Keast said the court can't make a ruling until trial in a simple misdemeanor. There is no preliminary hearing and no trial information - a summary of the evidence - filed in a simple misdemeanor case. He told Brown he would be considering evidence taken out of context and not complete. There's no action to take on this motion, he added.
Associate District Judge Casey Jones granted the defense's motion last week to move the trial from Linn County to Tama County based on pretrial publicity involving the case, McMurrin's case and lawsuits filed against Graham and the Marion Independent School District.
Keast said Jones will be the judge to set the trial date and he hadn't entered one at this time.
McMurrin, now 16, was convicted of three counts of second-degree sexual abuse against a 5-year-old and two 6-year-old girls. He was sentenced to the Iowa State Training School for Boys in Eldora. He will remain there at least until he is 18.
Graham and the Marion Independent School District face four separate lawsuits filed in February by eight parents, claiming their children were subjected to sexual abuse and psychological and emotional injuries and pain.
In June, the Marion Police Department said it was investigating new claims of abuse that occurred in a classroom at Starry Elementary.
Police said the abuse took place in the 2015-2016 school year, which could indicate the allegations are separate from those involving the three girls sexually assaulted by McMurrin.
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