Rape conviction
overturned

The man found guilty of burning
and raping his girlfriend might
see just a five-year sentence

Prosecutors said Wayne Ancheta repeatedly beat his girlfriend, ignited nail polish remover on her body, and ended a night of violence by sexually assaulting her with a hairbrush.

But Ancheta's sexual assault convictions were overturned yesterday because the trial court judge failed to instruct the jury that it was the prosecutor's duty to prove the woman had not consented to the sex, the Hawaii Intermediate Court of Appeals ruled yesterday.

Ancheta, who was found guilty last year and was serving a 30-year prison term for abusing a household member, terroristic threatening and first- and second-degree sexual assault, now only has to serve a five-year prison term for terroristic threatening. He has already completed a one-year sentence for abusing a household member. The Honolulu City Prosecutor's Office has not yet determined whether it will pursue a re-trial.

The court's decision was upsetting to organizations that seek to stop domestic abuse.

"If anything can be gained from this setback is that all of our professionals handling domestic violence cases at all levels really need to be carefully trained and supervised. Otherwise the community is at risk," said Nanci Kreidman, Domestic Violence Clearinghouse executive director.

But Ancheta's attorney, Emmanuel Guerrero, said the Court of Appeals made the right decision.

"We have always argued that the sex was consensual. But the judge did not give instruction on consent," Guerrero said.

During trial, Guerrero argued the sex between Ancheta and his girlfriend in August 2003 was "make-up sex." Ancheta conceded the abuse and did not dispute the threatening charges.

The appeals court ordered a new trial for two counts of second-degree sexual assault and one count of first-degree sexual assault.

The Prosecutor's Office has not decided whether it will re-try Ancheta because it had not yet seen the ruling, spokesman Jim Fulton said.

The court vacated a second conviction for first-degree sexual assault because of double jeopardy. At the conclusion of the prosecution's presentation, Circuit Judge Marie Milks acquitted Ancheta of the charge because the state failed to present sufficient evidence to support a conviction. The judge later overturned the ruling and allowed the prosecutor to amend the criminal complaint.

According to court records, Ancheta punched his girlfriend in the stomach, dragged her by the hair, threatened her with a knife, poured nail polish remover on her foot and lighted it, poured more on her back but allowed her to shower it off, and raped her.

The couple later went to the beach, where he drank a six-pack of beer. At home that night, he hit her on the head 25 times with a hairbrush, then sexually assaulted her with it, the prosecutor said.