Superior Court Judge Carl Bauman on Wednesday dismissed second-degree sexual assault charges against two brothers alleged to have assaulted a teenage boy with an object at a September 2012 party in Homer.
Bauman had set a date of Aug. 4 in Homer for the jury trial of Anthony Resetarits, 22, and Joseph Resetarits, 19, but canceled that trial in a pretrial hearing on July 30 when he announced he would be issuing a decision on defense motions to dismiss Kenai grand jury indictments and would most likely dismiss.
Wednesday, he did that.
“I have concluded that it is appropriate for the court to dismiss the indictment without prejudice,” Bauman said in a status hearing held Aug. 6 at the Kenai Courthouse.
“Without prejudice” means the prosecution can seek another indictment. A Kenai grand jury in October 2013 indicted the brothers for second-degree sexual assault. Defense attorneys had waived speedy trial rules in the year between charges and indictment.
Kenai District Attorney Scot Leaders at the hearing said he intends to take the case back to a grand jury.
“I can tell you that it would be the state’s plan and intent at this point … we do intend to go back and re-present charges to the grand jury,” Leaders said.
In charging documents, Alaska State Troopers allege the brothers sexually assaulted a teenage boy with an object at a September 2012 East End Road drinking party. The victim had passed out drunk and also had his head and eyebrows shaved. People also wrote on him with markers. Troopers learned of the assault when the boy’s mother took him to South Peninsula Hospital and nurses reported the assault.
The Resetarits brothers pleaded not guilty at an October 2012 arraignment and have since been out on bail. A boy then age 16 also was charged with second-degree sexual assault and referred to the Division of Juvenile Justice.
A Kenai grand jury indicted the brothers on the same initial charge, second-degree sexual assault, in September 2013.
From 60 to 80 teenagers and adults were at the 2012 party, including members of Homer High School sports teams. Joseph Resetarits was then a member of the Mariners football team, but was taken off the team after the charges were filed.
In April Joseph Resetarits’ attorney, Michael Moberly, filed a motion to dismiss the indictment. In his motion and supporting documents, Moberly argued that the state provided insufficient evidence to support an indictment and that hearsay evidence presented prejudiced the grand jury hearing.
That was the motion Bauman ruled on. He did not rule on a motion by Phillip Weidner, Anthony Resetarits’ attorney, to dismiss charges on constitutional grounds.
Specifically, Moberly said testimony by Alaska State Trooper Samuel Webber, one of the investigating officers, regarding what another witness told him was hearsay — that is, Webber reporting second hand what a boy who had been at the party told him. That boy had taken a photo of the victim passed out, with two people standing next to him after the assault. The photo had been framed so that the faces couldn’t be seen. Although the witness had been called, he was not at the grand jury hearing. Moberly argued the district attorney’s office had plenty of time to line up witnesses.
At press time, Bauman had not released to the press his 15-page written decision. He said he wanted to wait on that while he reviewed private information regarding the witnesses and the victim.
“I say victim because I believe there’s a victim,” Bauman said. “It’s not an alleged victim, it’s a victim — which is not to say who is responsible for that victim, but there’s clearly a victim in the court’s view.”
Previously, defense lawyers and the district attorney had said they might be close to reaching a plea agreement. With the charges dismissed, Leaders said he would see where the parties wanted to go from there.
Weidner said that if there is another indictment, he would accept it on behalf of Anthony Resetarits, and said it should be in the form of a summons and not a warrant for his arrest.
Moberly asked that with the dismissal the bail bond be exonerated and conditions of bail be vacated.
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