Due to a prosecutorial mistake, a state judge dismissed for the second time a criminal case yesterday against two men charged with assault in Waianae.

Lopaka Ceno, 27, and his brother-in-law Eugene Kostron, 30, were charged with second- and third-degree assault for a March 3, 2007, incident in the middle of Kaneilia Street. The street separates the Ceno residence and the Naeole residence.

Two Naeole family members and a relative were the victims of the assaults, according to police. A blow from a beer bottle broke two of 60-year-old William Naeole's teeth and knocked him unconscious.

A stomp on Ronald Lewis' foot broke his ankle when he said he was on the ground trying to protect his fallen uncle. And Naeole's daughter Vanna said she was punched in the belly while she was six months pregnant.

Trial for Ceno and Kostron never got under way because when jury selection was supposed to begin on Aug. 25, 2008, Deputy Prosecutor Russell Uehara told Circuit Judge Richard Perkins he was not ready.

Perkins asked the prosecutor why. Uehara said he could not tell him why.

Without an explanation from the state, Perkins said he had no choice but to dismiss the case with prejudice. Had he dismissed the case without prejudice, the state could have refiled the charges.

Two months later, Uehara gave each of the alleged victims a check for $1,500 in his downtown office.

Prosecutor Peter Carlisle said in court documents the checks were from the deputy prosecutor's personal funds and were the deputy's apology to the victims because he did not have “;the courage to ask for help with his cases when he needed it.”;

Carlisle said he suspended the deputy and ordered a review of all of his cases. Carlisle also told Perkins the reason the deputy did not say why he was not ready for trial is because the reason involves privacy interests protected by state law.

Perkins changed the dismissal to without prejudice. The state refiled the charges against Ceno and Kostron in February. Trial was supposed to begin Monday.

But the state discovered last week that the wording it included in the second-degree assault charge was for first-degree assault. The new deputy prosecutor on the case told Judge Glenn Kim the state cannot prove first-degree assault, and asked him for the opportunity to amend the charge.

Kim denied the state's request and affirmed his decision yesterday.

He also dismissed all the charges against Ceno and Kostron.

The prosecution is appealing.