Three people charged in Burleigh County with delivery of OxyContin, a Class A felony, will be tried together despite attempts Wednesday to sever the cases.

Michael James Fetzer, Tamara Lea Fetzer and Randy Joe Rader are charged with selling OxyContin in pill form to a confidential informant with the Metro Area Task Force.

Steven Balaban, Rader's attorney, asked that the court separate the cases.

"If we sever them, relevant evidence for one defendant will come in and apply only to that one defendant," he said.

The defense argued the jury would be confused if Rader and the Fetzers were tried together. It also was argued that if Michael and Tamara Fetzer were tried together, the jury would not be able to make an accurate decision because they are married.

"The jury would be forced to do mental gymnastics," Paul Myerchin, Michael Fetzer's attorney, said. "The jury can't just ignore that they are husband and wife."

Despite the arguments, Burleigh County District Judge Bruce Romanick ruled the three will be tried together.

"I think the jury can wade through the evidence if the three are tried together," Romanick said.

The defense is concerned testimony given by Rader and the Fetzers could incriminate them. Such testimony would be considered hearsay if the state does not first prove that the three were involved in a conspiracy to deliver OxyContin.

Prosecutor Brian Grosinger has not charged Rader and the Fetzers with conspiracy to deliver OxyContin. Prosecutors don't have to charge them with conspiracy, but if they can prove conspiracy took place, any testimony given by Rader and the Fetzers against each other can be used.

"If the state is suggesting there's a conspiracy, they should charge a conspiracy," Myerchin said. "The state is going about this in an indirect manner."

Another hearing will be held to decide whether to proceed with the case against Michael Fetzer. The confidential informant and a surveillance officer will testify at the hearing.

"Right now it looks like the state doesn't have much of a case against Michael Fetzer," Romanick said.

The trial is set for Aug. 11-12.

(Reach reporter Katie Brown at 250-8225 or cops@bismarcktribune.net.)