A Cedar County judge is considering whether to send an assault case against a Tipton man to a grand jury based on uncommon allegations that prosecutors rushed to judgment and ignored critical witness accounts in the case.

James Licher, 31, was arrested on suspicion of possession of a firearm by a felon, two counts of assault while displaying a weapon, and false imprisonment after police said he confronted two men while they were having sex with a woman he knew and displayed a gun.

Licher and his attorney have argued that he was actually rescuing a friend who was motionless when he walked in on the threesome and too drunk to give her consent. Prosecutors have said they have evidence the sex was consensual, qualifying Licher’s confrontation as assault.

During a hearing Wednesday on Licher’s motion to let a grand jury hear the case before proceeding, defense attorney William Kutmus argued that investigators disregarded the woman’s statements that she was too drunk to remember what happened in the early morning hours of Aug. 24.

“It’s clear the investigation was closed within 24 hours after the sex act,” Kutmus said, stressing that there were still lab results and analysis pending. “I don’t know why police and officers don’t believe the statements made by the female, but I know this, your honor. It was indeed a rush to judgment.”

Hours after the sex act, the woman went to the University of Iowa Hospitals and Clinics for a rape examination. She submitted a urine analysis, and officers told her they were investigating the incident as a sexual assault, Kutmus said.

But, he said, before the lab results returned, his client was arrested on suspicion of assault.

“It wasn’t an assault,” Kutmus said. “It was the rescue of a woman who was the victim of rape. He was no criminal. He was a Good Samaritan.”

Lab results eventually showed the woman’s blood alcohol content to be at .158, meaning it had been higher at the time of the threesome, Kutmus said. There also was cocaine in her system.

He said a medical expert has testified that a person under the influence of those substances in that quantity could not have consented to sex.

“That, a grand jury should have had the opportunity to hear,” Kutmus said. “But the police believed the two men and ignored the science.”

Cedar County Attorney Jeffrey Renander, who Kutmus is asking to have removed from the case, explained in court Wednesday that his office felt it had enough evidence of the assault to proceed with the case without the lab results.

“I think this was a very thorough examination,” Renander said, explaining that in addition to Licher and the three people involved in the sex act, there are three unbiased witnesses.

First, he said, there was the woman’s daughter, who reported seeing her mom outside the bar that night and noted that she was “perfectly able to walk and talk and respond.” The daughter reported watching her mom walk from the bar to her home with the two men she eventually had sex with and activate the electronic code to open the garage door, Renander said.

“This was not someone who was incapacitated,” he said. “This was not someone who was a ‘wet noodle,’” as Licher described her when he encountered the threesome.

Another person who said he went with Licher that night to his home – Licher lived with the woman who says she was sexually assaulted — told investigators that Licher was showing off guns, including pistols and a rifle. Licher is a convicted felon.

“At that time, he was already a felon in possession of firearms,” Renander said.

The man who was with Licher reported hearing a woman having sex and making “pleasure sounds,” he said, indicating she wasn’t incapacitated.

After discovering the threesome and threatening the men with a gun, according to Renander, the witness said Licher grabbed the woman by the hair and demanded, “What are you doing? You’re married.”

“That is not a normal reaction from someone who came across someone being raped,” Renander said.

The third neutral witness was a camera mounted in the woman’s home, which doubles as her business. The video shows the woman rubbing the chest of one of her accused attackers and leaning in for a kiss, according to Renander.

“I believe the video shows there is not evidence of sexual abuse,” he said. “We believed that we could not prove beyond a reasonable doubt that (the woman) was sexually assaulted that night. That was our basis for proceeding.”

Kutmus argued that the prosecution’s evidence is largely based on people’s opinions – like what is a normal reaction to witnessing rape – and he simply wants a grand jury to decide.

“I’m not asking the court to dismiss the trial information, just set it aside and take it to a grand jury,” Kutmus said.

Judge Mark Cleve did not indicate when he plans to rule on the motion.