As of its meeting last Friday, a Kenai grand jury has not yet re-indicted the two Homer brothers accused of sexually assaulting a teenage boy at a September 2012 East End Road drinking party.
On Aug. 6, Kenai Superior Court Judge Carl Bauman dismissed without prejudice second-degree sexual assault charges against Anthony Resetarits, 22, and Joseph Resetarits, 19. The brothers were arrested Oct. 4, 2012, and indicted a year later on Sept. 20, 2013.
“I’m disappointed, obviously,” said the victim’s mother in a phone interview on Tuesday. “I hope next time with the next go-round that everyone has their ducks in a row.”
The victim, then a 17-year-old boy, now lives in the Lower 48 with family. His mother said that because of the sexual assault her son is unlikely ever to set foot again in Homer.
In his decision released last week, Bauman cited a failure of the Kenai District Attorney’s office to present evidence or testimony that might have exonerated the brothers to the grand jury, saying the prosecutor has a responsibility to present such evidence when it’s substantially favorable to the defendant.
Bauman also said the prosecution used testimony from an Alaska State Trooper that was hearsay because a witness called to the grand jury did not answer his phone at the time his testimony was scheduled. Witnesses sometimes attend grand jury proceedings by phone.
“I don’t blame the judge. He has to follow the law. He did what he had to do,” the victim’s mother said.
“Without prejudice” means charges can be refiled. At the Aug. 6 hearing, Kenai District Attorney Scot Leaders said the state intended to go back and re-present charges to the grand jury.
Leaders said his office is reviewing evidence and Bauman’s decision and does not have a specific date for when he would seek a new indictment.
Often before a grand jury delivers an indictment and when police make an arrest, authorities file charges, submitting a criminal complaint outlining the case. As of Tuesday, no new criminal complaints for the Resetarits brothers had been filed. Proceedings of the grand jury remain confidential until an indictment is made.
In initial charging documents, Alaska State Troopers alleged the brothers sexually assaulted the teenage boy with an object at the 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. 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 his arrest.
Troopers learned of the assault when the boy’s mother took him to South Peninsula Hospital and nurses reported the assault. Bauman’s written decision said that a friend of the victim came upon the assault and carried the victim out of the party and to his truck. That boy contacted the victim’s mother.
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. The juvenile defendant’s case was referred to the Division of Juvenile Justice.
Joseph Skrha, the juvenile defendant’s Kenai lawyer, said he could not comment on the case.
Speaking in general about the process and not this case, Sean Owens, chief probation officer for the southcentral region, Division of Juvenile Justice, said if a juvenile defendant is convicted, he or she can be placed under probation supervision in the custody of a parent or parents or the custody of the Division of Juvenile Justice.
Convicted defendants also can be sent to long-term placement in a secure Division of Juvenile Justice facility. Juvenile defendants have the right to an attorney, the right to confront witnesses and the right to a trial.
“The juvenile system is based upon the principles of restorative justice whereby the accountability of the delinquent and the restoration of the victim are the focus rather than punishment,” Owens said in an email.
In his decision, Bauman provided some new details about the case. Anthony Resetarits’ Anchorage lawyer, Phillip Weidner, filed the motion to dismiss that Bauman ruled on, but the judge also applied it to Joseph Resetarits because both defendants were named in the same indictment.
Bauman discussed an argument made by Weidner, that a witness, a girl, would have testified she saw the juvenile defendant commit the sexual assault if she had been called to the grand jury. The girl initially told troopers she didn’t see who started the assault. Later, the girl said she retracted the story to protect the juvenile defendant. The prosecution should have presented that girl as a witness, Bauman said.
The girl also said she took a photo with a boy’s cell phone; that was the boy who did not attend the grand jury proceedings.
Bauman said Trooper Samuel Webber’s testimony concerning a photo taken on that cell phone was inadmissible hearsay. The decision says the photo shows two figures standing over the victim after he had been sexually assaulted, but does not show their faces. Webber testified that the boy said the figures in the photo were the Resetarits brothers; that was hearsay, Bauman wrote.
At the Aug. 6 hearing, Bauman made it clear a crime happened.
“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,” Bauman said.
The victim’s mother said she appreciated that statement.
“I cried,” she said. “My son deserves some justice. With a lot of stuff I see being said about him, it breaks my heart.”
Jessica Lawmaster, director of South Peninsula Haven House, said victims often can be frustrated by the criminal justice system.
“We try to prepare them how long a process it can be and how out of their control it can be,” she said. “But it can be just so hard, especially when it takes years when people do want to move on and pursue new parts of their lives.”
Michael Armstrong can be reached at firstname.lastname@example.org.