An Olmsted County judge is deliberating testimony given in a hearing Tuesday in the case of an Austin police captain and school board member charged with taking prescription drugs from the evidence room the day of the school board election last November.

Curt Rude, who is on unpaid administrative leave from the Austin Police Department, is contesting the felony theft charge on the basis he had the right to remove the evidence Nov. 6, 2007. He also faces charges of felony drug possession and gross misdemeanor interfering with property in official custody.

Rude still serves on the school board, where he was elected clerk. Three board members — chairman Don Fox, vice president Richard Lees and treasurer Diana Wangsness — were in attendance to give their support.

During his testimony Tuesday, Rude explained how he took two bottles of the prescription drug OxyContin from the evidence room last November.

They were labeled “Mark C. Johnson,” and he brought them to his office to research why they killed his good friend, a former KAAL-TV reporter who had been convicted of selling the drug in a school zone in 2006. The two became acquainted when Johnson was covering the police beat at the APD. Rude and his wife became close with Johnson, who went into drug treatment after he was convicted.

He was found dead of an overdose in March 2007.

“Over the last six years, he was a great friend of mine,” Rude said in his testimony during the contested omnibus hearing. The case has been moved to Rochester because of conflicts with judges.

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.

“That bothers you, doesn’t it?” Maus asked him.

“I little bit, I guess,” Rude replied, evidently choked up.

“I felt like I had fought those drugs for six years,” he said later in his testimony of their relationship. “And I stepped over the line, I guess. He was a good guy, and he made some poor decisions.”

Rude said he believes he may have crossed his professional line when befriending Johnson and expressed guilt that his friend had eluded to suicide shortly before his death.

State attorney Ross Leuning countered Rude’s claim, arguing the captain could have investigated the drug online without the actual drug in front of him.

“He’s not new to the criminal system,” he said. “Evidence is not momentos. He can’t take that evidence for personal momento.

“Intent is always a difficult thing for prosecution to prove in any case,” Leuning explained at the conclusion of the hearing.

Lund pushed Maus to speed up his questioning because the hearing was not a trial. He said the purpose was to determine whether Rude had the intention to “deprive the City of Austin of these drugs,” not if he was going to use or sell them. The Bureau of Criminal Apprehension had conducted a urine analysis, which came back negative.

“He’s grabbing drugs out of a barrel and putting them in his pocket,” Lund said. “I don’t need to be educated about how evidence rooms work.”

Austin Police Chief Paul Philipp, who has worked with the defendant since his second-in-command joined in 1984, gave testimony not favorable to Rude’s case, claiming that although the captain had some authority to the evidence room, he was not allowed to take items out.

When Maus asked if he believes Rude’s actions were related to emotions resulting from Johnson’s death, Philipp replied, “No.”

The chief said he has known Rude for 24 years, and does not believe he was “profoundly affected by his death.”

Philipp’s secretary, Judy Boorman, also testified regarding a meeting with the chief and Rude shortly after the alleged incident.

After nearly five hours of testimony, the judge concluded the hearing, and has 30 days to deliberate throwing out the charge before making a written statement.  Lund said he has “no problems” with counts 2 and 3, meaning they will likely go to trial if Rude enters a formal not guilty plea.