A Superior Court judge has determined that the Office of the Attorney General has overcharged a 35-year-old man accused of sexually abusing a 15-year-old girl.
Associate Judge Joseph N. Camacho said all of the elements of sexual assault in the first degree—that defendant Jeffry M. Fernandez engaged in sexual penetration with the alleged victim without her consent—are all present in sexual abuse of a minor in the first degree, with the lack of consent in sexual assault matching up with the age requirement in sexual abuse of a minor.
“Thus charging both sexual assault in the first degree and sexual abuse of a minor in the first degree would expose the defendant to multiple punishments for the same offense,” said Camacho in an order Wednesday that granted Fernandez’s motion to dismiss the charge of sexual assault in the first degree.
The judge noted that the alleged offenses both arise out of the same alleged act or transaction.
He said allowing multiplicitous charges give the impression that Fernandez allegedly committed multiple offenses or that the defendant allegedly committed the same offense more than once.
“Without more information, the court declines to deviate from its previous approach of dismissing multiplicitous counts,” Camacho said.
Assistant public defender Heather M. Zona, counsel for Fernandez, argued that the court should dismiss the charge of sexual assault in the first degree as it is the more general offense of the two charges, while the charge of sexual abuse of a minor in the first degree is more specific.
Citing precedent, Camacho said if a defendant is charged with both a specific and general offense covering the same conduct, the more specific should remain as the general offense is subsumed by the specific offense.
In Fernandez’s motion to dismiss, Zona said the government claims Fernandez sexually penetrated the girl a single time and seeks to punish him for both sexually abusing the girl as well as sexually assaulting her as if she were of age.
“This is improper and a violation of Mr. Fernandez’ right not to be placed in jeopardy twice for the same offense,” Zona said.
Both charges arise out of a single alleged event which purportedly took place on June 8, 2016.
Double jeopardy, which means punishing an individual twice for one offense, is prohibited under both the U.S. and the CNMI constitutions.
In the government’s opposition, assistant attorney general Teri Tenorio argued that the issue of multiplicitous charging should be resolved at the sentencing phase.