Child abuse case defendant entitled to preliminary hearing

Superior Court Associate Judge Teresa K. Kim-Tenorio has denied the government’s motion to vacate the preliminary hearing in a child abuse case in which a defendant was already released on bail.

Preliminary hearing is like a mini-trial. Under such hearing, the prosecutor must show that enough evidence exists to charge a defendant.

In an order issued Monday, Kim-Tenorio said as the conditions of defendant Theodore O. Pehnos Jr.’s pretrial release is a substantial deprivation of his liberty, she finds that he is entitled to a preliminary examination under the NMI Rules of Criminal Procedure.

Kim-Tenorio said under NMI Rules of Criminal Procedure, a defendant has a right to a preliminary examination unless he or she waives this right.

In this case, the judge said, where Pehnos has not waived his right to a preliminary examination, the onus rests with the government to explicitly content why he should be deprived of this right.

“Simply stating that the conditions of defendant’s pretrial release do not impose a substantial deprivation of liberty does not meet that burden,” Kim-Tenorio pointed out.

Last Dec. 4, police arrested Pehnos at his workplace for an alleged child abuse incident that took place on June 4, 2019 in Kagman.

The Office of the Attorney General charged Pehnos with two counts of child abuse. On Dec. 12, he was released to a third-party custodian on an unsecured $5,000 appearance bond and subject to pretrial release conditions.

The pretrial release conditions require Pehnos to return to court, obey all laws, keep appointments with his attorney, not apply for a passport, stay away from seaports and airports, and may not consume or possess alcoholic beverages.

The court also ordered a home study, as well as home checks conducted by the Division of Youth Services, to ensure defendant’s compliance.

A preliminary hearing was then scheduled for Dec. 17, 2019.

Assistant attorney general J. Robert Glass Jr., counsel for the government, moved to vacate preliminary hearing.

The motion hearing was held last Dec. 17.

Glass argued that Pehnos is not subject to a substantial deprivation of liberty as required to trigger the right to a preliminary hearing.

In his opposition, Pehnos, through his counsel assistant public defender Karie Comstock, argued that he is subject to a substantial deprivation of his liberty as a direct result of the constraints placed on him by the conditions of his pretrial release.

In her order issued Monday, Judge Kim-Tenorio disagreed with the government’s argument that none of the conditions of defendant’s pretrial release impose a substantial deprivation of liberty.

Kim-Tenorio said while not all conditions of Pehnos’ pretrial release individually contribute to the substantial deprivation of his liberty, when combined, most of the conditions in this case do.