• Case dismissed after witness inconsistencies, grounds that grand jury heard selective evidence
By Naomi Klouda
A judge dismissed sexual assault charges against two Homer brothers Wednesday on grounds pointing to a lack of clear evidence in photos and testimony.
Brothers Anthony and Joseph Resetarits stood accused of assaulting a 17-year-old unconscious boy during a party in Sept. 9, 2012 at a Homer home.
A third person, a minor identified as B.K., also was charged. His charges are being adjudicated through the Kenai Peninsula Juvenile Justice office, which has not yet resolved the case in a verdict, said Sean Owens, chief probation officer for the southcentral region of the Office of Juvenile Justice.
Kenai Superior Court Judge Carl Bauman dismissed the case “without prejudice,” laying the way for the state to bring the charges back to a fresh grand jury.
Kenai District Attorney Scot Leaders said during last week’s hearing that his office plans to pursue a retrial once it reviews the court’s decision. As of Tuesday, the state had not filed court paperwork for a retrial.
“It would be the state’s plan and intent at this point, if the court does in fact dismiss the indictment … to go back and re-present charges to the grand jury, taking into consideration any bases the court acts upon,” Leaders said before the judge handed down his decision. “That would effectively close the case as it currently (stands).”
Judge Bauman’s 15-page ruling on the defense’s motion to dismiss spelled out the holes found in the prosecution’s case, though he said he sided with the district attorney on a number of arguments.
The motion to dismiss was made in April by Michael Moberly, attorney for Joseph Resetarits. The judge issued his ruling Wednesday, four months later, just as the case was headed for jury selection in a trial set for this week.
A key problem arose from witnesses, one who was never called before the grand jury. This witness changed her story to investigating State Troopers, allegedly to protect the true perpetrator who was not one of the brothers.
Attorney for Resetarits, Moberly, argued this guest at the teen party had testified to troopers that she saw another person, identified as B.K., insert the bottle into the victim’s rectum. The attorney also argued that “other students who may have witnessed the incident have been lying in order to protect B.K., because of his age.”
Prosecutor Scot Leader responded that “the defendant raises concerns about several witnesses he would have liked the grand jury to have heard from. However, the case law is clear that the State need not present every witness or all of the possible evidence at grand jury.”
Trooper reports supported the defendant’s claim, the judge wrote. One teenager testified “she initially told them (Alaska State Troopers) that she did not see who inserted the bottle… but that she didn’t think Anthony was the person who did it.”
Later, she broke down crying and said she saw another person (B.K), but felt the need “to protect B.K., because he is young.” She went so far as to say Anthony “may have been the person who spoke up to stop the assault.”
This witness’ statements undermined the credibility of other witnesses, the judge stated, and should have been related to the grand jury.
Four other teens are mentioned, by initials, who gave inconsistent testimony.
The judge summarizes the string of teen testimony:
• “Witness KM did not see who inserted the bottle. She said she saw Anthony pose for a picture with his hand touching the bottle.
• “Witness TB testified B.K. had the bottle and put it in the victim…”
• “Witness TH testified “they” were putting a bottle in his butt. TH said Anthony was standing there, and that he ‘pretended’ to wind up and smack the bottle. TH testified Joseph was not there.”
• “Witness TK, a friend of the victim, encountered the scene, took the bottle out, ended the incident, and carried the victim to his truck.”
• “Witness JI saw the bottle in the victim… but did not see who put it in. He ‘maybe’ saw Joseph touch the bottle and ‘might’ have told Trooper Webber that Anthony pushed on it.”
The judge concluded “… a conspiracy among some of the party participants to lie or mislead the investigation to protect a favored youth would be troublesome and is noteworthy.” Some witness statements also pointed to a concerted effort by some at the party on Sept. 9, 2012 to “lie to protect B.K.,” the judge said.
Another problem was presenting hearsay evidence without proper foundation, the judge ruled. The prosecutor told the grand jury of testimony from a teenager stating that he had photos of himself, the victim and Anthony and Joseph Resetarits. But the photo presented at grand jury was of such poor quality “none of the individuals’ faces are visible,” the judge wrote. Added to that problem, the teen witness failed to answer his cell phone when called to testify for the grand jury. Since the witness wasn’t available and the photos did not confirm the testimony, it constituted hearsay, the judge ruled.
Another problem was that B.K’s testimony “may have been compromised because of his self interest,” the judge said.
In a case riddled with inconsistencies, the harshest one of all was that the victim’s own testimony was often considered “hearsay,” because he was passed out during events victimizing him.
Testimony did, however, present little doubt that a grave crime had occurred, the judge conceded. It presents a “sufficiently detailed account of criminal activity.”
Yet, another problem was the extensive media coverage the case received. The defense attorney argued the prosecutor should have questioned a grand juror who stated he had heard about the case before being assigned to the jury. This constituted jury bias.
But Judge Bauman didn’t agree. “The court concludes that the defendant has not shown that the grand juror was biased or that the defendant’s rights were compromised.”
The case against B.K., pursued by the Office of Juvenile Justice since the suspect was charged as a minor, is running parallel with the Superior Court case, said Owens, the chief probation officer with the agency.
“We are working with the district attorney to see where it goes. This ruling didn’t apply to the juvenile case,” he said. “We still have an active case that, although they are in different systems, are running along the same time frame.”
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