FARGO - Robert Hersrud admitted in 2005 to sexually assaulting a 15-year-old girl at the Moorhead Sports Center, a guilty plea that brought up to 15 years of supervised probation but no prison.
Five years after that case was settled, the 26-year-old Dilworth man faces accusations he had sexual contact with an underage boy multiple times while on probation following his initial conviction.
Hersrud is charged in Cass County District Court with eight counts of first-degree criminal sexual conduct. He made an initial court appearance on the charges Monday, where bail was set at $150,000.
In court records, police allege Hersrud molested the boy at least eight times. According to the charges filed Thursday, he directed the child to keep the abuse a secret and told him he would be grounded if he told anyone about it.
Clay County Attorney Brian Melton said he plans to seek an upward departure from state sentencing guidelines if Hersrud is convicted because of his prior record.
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Based on his likely criminal history score, Hersrud would be subject to a guideline sentence of 13 years in prison without the upward departure. Melton said that potential sentence would double to 26 years if a judge approves the departure.
"We consider it to be a very serious case," he said.
Brian Toay, an attorney representing Hersrud, said he hadn't reviewed the file yet and couldn't comment.
In the earlier case, the defense argued Hersrud wasn't mentally competent enough to stand trial due to brain damage stemming from a childhood injury.
One doctor agreed with the argument and another filed a report in May 2005, but the results of the second report weren't referenced in court documents. The month after the second report was filed, Hersrud agreed to plead guilty, court records show.
Melton and Toay both said they had no comment on whether Hersrud would again argue he is mentally incompetent.
In 2005, Hersrud was sentenced to a prison term of 1½ years, but the sentence was stayed. He was also placed on supervised probation for up to 15 years.
Melton said the stayed 18-month sentence and stint of supervised probation is the guideline sentence for a conviction for third-degree criminal sexual contact if the perpetrator has a clean criminal history.
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Judge John Pearson, the retired Clay County judge who presided over the first case, said Tuesday that he does not recall the matter, but a pre-sentence investigation would have ensured the terms of the plea agreement were appropriate.
The first case did include a pre-sentence report. Lisa Borgen, who's now a Clay County judge but was then the county attorney, said at the hearing that Hersrud was assessed a moderate risk to reoffend in the sentencing report, according to a transcript of the sentencing on Aug. 17, 2005.
That determination was "a bit of a red flag," Borgen said at the time. She added that Hersrud's inability to grasp that he can't be as impulsive as he wants was a problem and said, "I don't know if he has any control over that except to be living in a setting where someone is watching him."
Borgen didn't return a message seeking comment on the initial sentencing.
The most recent progress report filed by probation agents overseeing Hersrud, dated April 1, 2010, stated: "Subject appears to have gotten the core message that he cannot be sexual with individuals who are underage or developmentally disabled."
The report states agents contacted Hersrud 14 times in person and two times by telephone in the prior year.
In a progress report from July 20, 2007, probation agents said they were concerned by how much free time Hersrud had because he doesn't work. He played video games to occupy his time, the report stated.
Hersrud had no violation reports while on probation, said Shari Burt, spokeswoman for the Minnesota Department of Corrections.
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Burt said he was being supervised at the medium level, which requires at least a monthly appointment with probation and at least four in-home visits a year.
Hersrud could have been considered for a discharge from probation as early as Aug. 17, 2011, according to the April 1 progress report. DOC standards require an offender to serve at least two years on probation for every five years in which they could be supervised.
One of the conditions of Hersrud's probation barred him from having any contact with children that was unsupervised, according to court records. But probation doesn't track offenders' every move, Burt said.
"He doesn't have to provide a daily accounting of his whereabouts," she said.
The Forum of Fargo-Moorhead and the Herald are Forum Communications Co. newspapers.
