MOORHEAD — The defense attorney for a Moorhead woman is expected to argue she was afraid of what a man accused of killing and dismembering their roommate would do to her if she told authorities the truth.

Andrea Catherine Payne, 27, pleaded not guilty on Wednesday, Sept. 9, in Clay County District Court to two felonies of aiding an offender after the fact in connection with the April death of 19-year-old Dystynee Avery. Court documents allege Payne and others helped 27-year-old Ethan Martin Broad cover up Avery’s death.

Prosecutors have charged Broad with two counts of second-degree murder, alleging he hit Avery over the head with a pipe and threw her dismembered remains in a dumpster on April 3. Avery’s remains were found almost three weeks later at the Clay County landfill. Avery, Payne and Broad were all roommates.

Dystynee Avery
Dystynee Avery

Payne's attorney, Brian Toay, said he plans to argue that Payne was under duress when she told investigators Avery went missing. Court documents allege she told investigators she didn’t know where Avery was, but that she believed Avery hitchhiked to Colorado or Texas, according to court documents.

WDAY logo
listen live
watch live
Newsletter signup for email alerts

Broad was in the room when Payne spoke with officers, and she “was concerned of what would happen if she had told them the truth,” Toay told The Forum in a phone interview.

A criminal complaint claims Payne, who lived with Avery and Broad, was in the apartment but not the same room when she heard her roommates arguing on April 3. She heard “several loud thumps or strikes,” and she left without checking on Avery after Broad told her he “cracked her skull open,” court documents alleged.

Payne later returned — after Broad put Avery's remains in a dumpster — with David Marvin Erno, 22, of Moorhead, according to court documents. She told Erno to grab Avery’s computer and destroy it, the complaint alleged.

Erno, who faces the same charges as Payne and Brandon Everett Leroy Erbstoesser, 33, of Fargo, allegedly wiped the computer clean of its contents, court documents said. Erbstoesser told Broad to report Avery missing and destroy or hide her property, court documents alleged.


Payne is the first defendant in the case to enter a plea. Citing a competency evaluation, Clay County District Judge Michelle Lawson ruled Wednesday that Payne is fit to stand trial.

Toay also plans to file a motion to determine what evidence can be offered if the case goes to trial. He said in court that the prosecution plans to present “disturbing” evidence surrounding the death of Avery.

The prosecution should only be allowed to offer evidence about Payne’s alleged involvement, not about what allegedly happened between Broad and Avery, Toay said.

Clay County Attorney Brian Melton, who is handling prosecution of the case, was out of the office Wednesday and was unavailable for comment.