State dismisses sex assault case after girl refuses to testify

3-9-2012 Nebraska:

The state dismissed a statutory rape charge against a 23-year-old college student Wednesday after the key witness, the 15-year-old alleged victim, refused to testify.

Just after 2 p.m., Ben Kwan, a University of Nebraska-Lincoln junior, sat at the counsel table in Lancaster County District Court, accused of first-degree sexual assault, as the prosecutor laid out the case in opening statements.

Kwan was 22 last April when he and the then-15-year-old met at a hotel swimming pool.

Deputy County Attorney Eric Miller said it would be readily apparent the girl wanted nothing to do with the case but anticipated she would tell what happened.

Kwan and the girl exchanged messages on Facebook, then met twice, Miller said, the girl sneaking out at midnight to meet Kwan, who drove her out into the country in his truck.

Miller said there was alcohol and sexual penetration.

"This is about a relationship that was doomed from the very beginning," he said.

Before long, it became clear the case was doomed, too.

But first, defense attorney Chad Wythers set out Kwan's side.

He said Kwan bought things for the girl, ran errands for her and talked to her.

"But he did not do the things the state is alleging he did," Wythers said emphatically.

He painted Kwan as a trustworthy guy who, until this, had nothing but a speeding ticket to his name and worked at Lincoln Public Schools as a secretary. He has a 3.3 grade-point average.

The girl was expelled for drinking at school, failed alcohol treatment and, Wythers said, evidence would show she lies to avoid the consequences of her actions.

Then Miller called the 15-year-old to the witness stand, leading her into the courtroom with her dad.

She held up her right hand and quietly said, "Yes, sir" when District Judge Paul Merritt swore her in. But she paused when he asked her to say her name.

"I really can't do this," the girl said.

The judge turned it over to Miller.

"She's your witness," he said.

When Miller asked her the same, she said two words: "I can't."

Merritt sent the jury out, and then he and the attorneys went to his chambers.

For 10 minutes, the girl, her hair in a ponytail, sat on the witness stand, sniffling, her head down. Her dad sat in the front row.

The judge and attorneys returned, then the jury. Merritt asked Miller how he wished to proceed.

Miller asked for a sidebar, and the sound of white noise filled the courtroom. Kwan heaved a heavy sigh.

Then Merritt sent the jury out a second time. After the door closed, he said Miller had made a motion to dismiss. The case was closed.

He told the girl she could leave. ..Source.. by Lori Pilger