A Kenai Superior Court judge on Wednesday dismissed without prejudice a sexual assault case against two young Homer men. Brothers Anthony and Joseph Resetarits stood accused of assaulting a 17-year-old boy who was unconscious during a party in September 2012.
The "without prejudice" designation allows the state to re-charge the men, and Kenai District Attorney Scot Leaders said during Wednesday's status hearing his office plans to do so once it reviews the court's decision.
"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 Carl Bauman said he sided with the district attorney on a number of arguments made in responses to the one of the defendants' motions to dismiss the criminal case.
However, Bauman said he found the dismissal appropriate based on the defense's objections about the state failing to present evidence to a grand jury that favored the alleged assailants, as well as hearsay evidence being argued without proper foundation.
Three people -- Anthony Resetarits, 22, Joseph Resetarits, 19, and an unnamed juvenile boy -- have been charged with sexually assaulting a drunk teen with an object after the boy passed out on a couch during a large party in Homer.
Leaders did not immediately return calls for clarification about what the dismissal means for the juvenile who'd been charged.
According to charging documents, after the boy passed out, Anthony Resetarits shaved an "M" in the boy's hair, and other people at the party wrote on his body with markers. Afterwards, people at the party shouted out suggestions as to what to do next. An unidentified person suggested an obscene act.
Anthony Resetarits then sexually assaulted the boy with an object, with Joseph Resetarits also participating, charging documents state.
Many people at the party -- the estimated attendance was between 60 and 80 people -- witnessed the alleged assault, and some were photographing parts of it. Troopers recovered multiple photographs taken at the party, including one of two men sexually assaulting the boy.
The reliability of that photo was called into question in Bauman's ruling. An Alaska state trooper testified before a grand jury that a partygoer present around the time of the assault gave him the cellphone picture and identified the people in the photo as himself, the victim and the Resetaritses.
"The photograph provided by Anthony's counsel ... is of poor quality and none of the individuals' faces are visible," Bauman wrote in his decision on motion to dismiss. A footnote on the decision indicates the state did not attach photos to their opposition motion and did not argue that any of seized photos clearly show faces.
The judge decided the trooper's testimony was hearsay because the state tried to establish the identities of the pictured individuals based on the witness's relayed statements. The prosecutor tried to call the witness, but he did not answer.
"After this attempt, the prosecutor answered a few questions from the grand jurors, and then submitted the case," the decision says.
Additionally, Anthony Resetarits, through his attorney, argued the state failed to call another witness who would have testified that a younger boy assaulted the victim. Other students who may have seen the incident lied to protect the culprit due to his age, according to the decision.
Troopers' reports "tend to support Anthony's assertions," Bauman wrote. An unidentified witness who was questioned by troopers initially said she did not see who assaulted the 17-year-old but thought Anthony did it. When pressed, "she broke down crying" and changed her story. She said she'd seen the younger boy assault the victim and agreed to protect him, according to the decision.
The girl's statement about peer pressure to protect the true assailant "does not establish that there was actually such a conspiracy," Bauman wrote. "But 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."