KAILUA-KONA — A Circuit Court judge on Tuesday dismissed a felony sex assault and abuse case after the victim informed the state she wouldn’t testify.
Jerry Michael Pettengill was subsequently released following Judge Melvin H. Fujino’s ruling Tuesday morning to grant the state’s motion to dismiss the case without prejudice. A dismissal without prejudice allows for re-filing of the case in the future.
The victim, referred to as complainant in court filings, had been slated to take the stand Tuesday for a hearing on a defense motion for a mental examination of the complainant or disqualification of the witness. The judge was also going to take up a motion to reconsider a motion for permission to offer testimony and evidence regarding her past sexual behavior during the hearing.
Tuesday’s hearing to examine the complainant was set Nov. 5. Deputy Prosecuting Attorney Kate Perazich stated in court filings that the complainant said on Nov. 6 that she would appear in court this week.
“Later, on November 6, 2019, the complainant informed the Office of the Prosecuting Attorney that she will not appear in Court on November 12, 2019, and that she will not testify for the prosecution on January 7, 2020,” according to the Nov. 8 motion to dismiss the case without prejudice filed by Deputy Prosecuting Attorney Kate Perazich.
On Tuesday, Fujino granted the prosecution’s motion to dismiss without prejudice. Public Defender Frederick Macapinlac argued the case should be dismissed with prejudice if there was an issue with prosecution.
“This is a serious case and our office carefully considered our options before deciding to move the Court for dismissal without prejudice,” Perazich responded after press time Tuesday. “The Court did not grant the defense’s request to dismiss the case with prejudice; therefore, we must decline to make any comments.”
Pettengill had been charged with two counts first-degree sexual assault, one count each felony and misdemeanor abuse of a family or household member, and first-degree terroristic threatening in connection with alleged incident on Aug. 16.
He pleaded not guilty to the charges on Aug. 27. Jury trial had been set for January.
First-degree sexual assault is a Class A felony punishable by up to 20 years behind bars while first-degree terroristic threatening and the felony abuse charges are Class C felonies punishable by up to five years jail.
Pettengill was held at Hawaii Community Correctional Center in lieu of $25,000 bail since his arrest in August after prosecutors argued he was a flight risk. Bail conditions were canceled with the granting of the motion to dismiss on Tuesday.
