The Trumbull County Prosecutor is responding to arguments the murder case against 19-year-old Austin Burke should be dismissed. 

Earlier this week attorney for Austin Burke, who is accused of murdering 22-year-old Kenneth Brandon Sample, last year, asked a judge to dismiss the aggravated murder charge against him because prosecutors had not yet proved that an alleged crime actually happened in Trumbull County. 

Sample's body was found near a secluded area of the Grand River Game Lands in Bristolville. 

Burke currently faces one charge of aggravated murder and tampering with evidence, two charges of aggravated robbery, and weapons charges. 

However, Burke's attorney argues that investigators have failed to prove where the alleged murder actually happened. 

A motion filed in Trumbull County Court asks the judge to dismiss the aggravated murder charge because prosecutors have not proven that Sample was murdered in the county. 

According to the documents, law enforcement was unable to find any evidence at the spot where Sample's body was found. 

Attorneys argue that since the place of Sample's death is not known, there is no reasonable justification for charging Burke in Trumbull County. 

Now Trumbull County Prosecutor Chris Becker has filed a response, saying that Burke is "putting the cart before the horse".

In his response, Becker argues that the burden of proving where the alleged murder happened falls under the jurisdiction of the trial. In effect, Becker argues that the proof must be proved to the jury.  

The prosecutor's response says that asking for a judgment before the trial is outside the normal process of courts. 

"Were we to recognize the validity of such a procedure, trial courts would soon be flooded with pretrial motions to dismiss alleging factual predicates in criminal cases. Burglary suspects would challenge the charges against them on the grounds the "structures" entered were not "occupied", while those accused of driving while intoxicated would argue that they were not "operating a motor vehicle" at the time of the offense." {citations omitted}

In addition, Burke's attorney argues that valuable evidence was destroyed before the defense could have experts examine it. 

In a motion, the defense argues that Sample's body was cremated before additional testing could be done. They argue that initial toxicology reports indicate that Sample had illicit drugs in his system, but not the amount which was found. 

Burke's attorneys also argue that because Sample's clothing was permitted to be destroyed, there was no way for them to prove that there was no gunshot residue on the clothes. 

The motion asserts that because the evidence was destroyed, Burke's defense cannot prove that Sample did not die from a gunshot, but rather, potentially from a fatal overdose. 

Officials have said that Burke and Sample knew each other in some form, but have not commented on the nature of their relationship. 

Burke was arrested days later after reportedly robbing the Pizza Joe's restaurant in Cortland. 

In addition, to two motions requesting that the aggravated murder charges be dismissed, Burke also file motions asking firearm and cellphone evidence to be excluded. 

A judge has not yet ruled on the motions filed by Burke's attorney on Tuesday. 

The trial is scheduled to begin on Monday, January 8th.