CLINTON — A Clinton County judge is considering a motion to dismiss felony murder charges against a Clinton man in connection with the 2008 death of a Sabula woman.

Andy Cole, 47, of Clinton, was charged in July with murder in the first degree in the death of Alysia Marburger, 27, of Sabula.

The state alleges Cole murdered Marburger while committing sexual abuse, which constitutes a felony murder. However, the defendant argues the bill of particulars and witness testimony in the case do not support the theory that a sexual abuse was committed. Even if the state could prove a sex abuse was committed, Cole’s attorney Bruce Ingham said, the state cannot prove the defendant committed the murder during the abuse.

Ingham also noted that the State Medical Examiner’s designee could not determine a cause of death, only that the circumstances of Marburger’s death were highly suspicious of foul play. That testimony, even if allowed at trial, is sheer speculation, Ingham wrote in his motion to dismiss.  

According to the court affidavit, Marburger was last seen leaving a friend’s apartment with Cole around 2:15 a.m. Oct. 7, 2008. The next day, her parents filed a missing persons report with the Jackson County Sherriff’s Office.  

A sexual assault kit performed during the autopsy revealed DNA matching Cole’s profile. DNA found on a black knee-high sock Marburger was wearing when her body was discovered was also consistent with Cole’s profile.

When Cole was questioned in the original investigation he admitted to having sex with Alysia in the back of her car that night and stated the sex was consensual.

“There isn’t one fact of which anyone can determine the sex act, which certainly occurred between Mr. Cole and the alleged victim, was an act of sex abuse.  No evidence of any violent nature of the assault, nothing of the sort,” Ingham said in Clinton County District Court on Thursday.  

To refute Ingham’s argument that a sex abuse did not occur, prosecutor Assis-tant Iowa Attor-ney Gen-eral Doug Ham-mer-and cited the two sets of numbers that were pressed on Marburger’s phone during the time the alleged sex abuse occurred the night of her death.    

At 2:55 a.m. the numbers “9112” were dialed, but the call was never sent. At 2:56 a.m. the numbers “8550” were pushed into the phone and send was hit.   

“At that time is when the State’s theory is Alysia is being murdered,” Hammerand said. “That was the last time, at 2:56, Alysia Marburger ever attempted to make a call or a send out a text. Her phone was lit up all night and that’s when it stopped.”

In addition to admitting he had sex with the victim, during the initial investigation Cole also said he left Marburger’s car around 4 a.m. after she received a phone call. The state argued that the ME’s report showed Marburger was already dead at that time.  

The second problem with the state’s charge of felony murder, Ingham said, is that the medical examiner could not determine a cause of death, only that the circumstances of the death were highly suspicious of foul play.  

Hammerand stated, citing the ME’s ability to testify to this fact, the reason the cause of death could not be determined is because Marburger’s partially nude body was found in a ditch near Rock Creek more than two weeks after she was murdered and had already started to decompose.    

Also, toxicology tests performed showed Marburger had alcohol and cocaine in her system, a combination that in this case means the ME cannot exclude a drug overdose as the cause of death.  

However, Hammerand said, the circumstances surrounding Marburger’s death are highly suspicious.

“The state believes that just because medically (the medical examiner) can’t exclude that one possibility doesn’t mean she can’t consider the facts and circumstances surrounding how the body was found and what was found by her body,” Hammerand said.  

On Oct. 13, a week after she was last seen, Marburger’s white Hyundai Sonata was found near the 400 block of 10th Avenue South without the keys inside. Half of Marburger’s flip cell phone was found on the backseat, according to the affidavit. Marburger’s underwear and pants were found on the floor under the driver’s seat of the car.

He also noted the items found near her body including the key pad portion of her cell phone and an empty bottle of Captain Morgan which were found across the road. Also, her purse was found several feet from her body in the woods.

The state believes the circumstances of the death show a struggle occurred, Hammerand said.   

After hearing the arguments from both sides, Judge Marlita Greve said she will take the arguments under advisement and will issue a ruling, although she did not say when the ruling would be issued.