An Olmsted County Judge has denied a motion by suspended Austin Police Department Capt. Curt Rude to dismiss a felony theft charge on the basis he had the right to remove the evidence from the evidence room.

Rude, who is on unpaid leave from the APD, testified during a hearing Sept. 9 that he was under authority to remove two bottles of the prescription drug Oxycontin located in a disposal bin in the evidence room. He is also charged with felony drug possession and gross misdemeanor interfering with property in official custody.

Rude was elected to the Austin School Board the same day as the alleged incident in a hotly contested election.

During his testimony, Rude, who is being representing by attorney Terence Maus, told Judge Kevin Lund he was in the evidence room the day of the election to search for a wallet as requested. He did not find the wallet, but a decorative ax caught his eye in a barrel used to contain evidence intended for incineration. After examining the weapon, he noticed the discarded Oxycontin bottles — the very drug that killed his close friend, former KAAL-TV reporter Mark Johnson.

Another officer discovered Rude holding the pills, and reported the incident to Police Chief Paul Philipp, who also testified Sept. 9. When confronted by the chief, Rude pulled the bottles out of his desk.

According to the judgment released by Olmsted County, “it would be ‘fair and reasonable’ to require Mr. Rude to stand trial based on the facts disclosed in the record.

“Because the Oxycontin was held in evidence and prescribed to Mark Johnson and not Mr. Rude, Mr. Rude did not have any claim of right to the pills,” the statement said.

Although Rude was charged in Mower County, his case is being held in Olmsted County because of a conflict with judges.

Future court dates have not been scheduled.