Sentence given in abuse of 5-year-old

WAILUKU – After spending more than two years in jail, a man was placed on five years’ probation Friday for the sexual abuse of a 5-year-old girl who contracted genital warts.

“You need to face responsibility,” 2nd Circuit Judge Rhonda Loo told Brian A. Smith, 53. “You need to understand that you are a convicted sexual molester. You are a child abuser, and you will be branded as such.”

Originally charged with five counts of first-degree sexual assault, Smith had pleaded no contest to two reduced charges of third-degree sexual assault, with the other charges dismissed.

In court Friday, Smith declined to speak.

His attorney, Andrew Martin, said Smith “made a tactical decision” to accept a plea deal rather than go to trial. “He’s willing to accept the consequences the court will impose today,” Martin said.

Based on medical research, Martin said it wasn’t conclusive that sexual abuse would be how a 5-year-old child would contract genital warts.

“We here today will never truly know what exactly happened in this case,” Martin said.

But First Deputy Prosecuting Attorney Robert Rivera said that whether Smith admitted it or not, the most likely way a child would contract the sexually transmitted infection is through sexual contact with someone who had the infection.

“The child knows. This family knows,” Rivera said. “There’s no question in their mind that this man is a child molester.”

Rivera said the prosecution entered into the plea agreement so the girl, who now lives on the Mainland, wouldn’t have to return to Maui to face Smith at a trial and “relive the nightmare she had to go through when she was 5.”

“There’s no question he deserves a lot more,” Rivera said, referring to the sentence recommended as part of the plea agreement.

An investigation in the case began in March 2010, according to court records.

At the time, the girl’s mother was a drug addict and Smith was supposed to be taking care of her, Rivera said. “She didn’t have a chance to grow up and have that normal childhood,” he said.

He said the girl, who had been adopted into a family living on the Mainland, was in therapy that seemed to be helping her.

Smith, who gave a Kapalua address, was arrested in January 2012 after being indicted in the case. He remained in jail for 817 days before being released on supervision in March, after he changed his pleas in the case.

Loo had agreed to follow the plea agreement in sentencing Smith.

“You may have some issues about what really happened, but we’re all adults here,” she told Smith. “I can connect the dots. I think everyone else can connect the dots.”

As part of his probation, Smith was ordered to perform 300 hours of community service, participate in sex offender treatment and be evaluated for mental health treatment.

Unless he has permission from his probation officer, Smith was ordered not to have contact with any children or to live in the same residence as a child.

* Lila Fujimoto can be reached at