Judge denies bail for man accused of assault
Victim, 90, died from her injuries; prosecutor says suspect remains a flight risk, a danger
WAILUKU — A man continues to be held without bail after being indicted on charges alleging he assaulted a 90-year-old woman, who died after she suffered “significant injuries” during a burglary of her Harbor Lights condominium unit in Kahului last month.
Lewellyn Foster Jr., 35, of Kahului has pleaded not guilty to charges of first-degree robbery, first-degree burglary and first-degree assault of Jacqueline Oberheim on June 20.
Police said the case was reclassified as a second-degree murder investigation after Oberheim later died as a result of her injuries. Police said she was assaulted while sleeping.
During a bail hearing Tuesday in 2nd Circuit Court, Deputy Prosecutor Andrew Martin said the woman’s room was being burglarized when she woke up and started screaming. Foster “jumped on top of her and assaulted her, causing significant injuries,” including a subdural hematoma and broken orbital eye socket, Martin said.
“She was assaulted only after she realized the defendant and his co-defendant were in the room,” Martin said.
In asking that Foster continue to be held without bail, Martin said: “He’s already silenced a witness in this case. There’s a serious risk he will do so in the future.”
When the crimes were committed, Foster was on probation for second-degree escape, Martin said. He said Foster is facing a second revocation of his probation in that case.
His criminal history also includes convictions for second-degree burglary, four counts of second-degree theft and abuse, Martin said. After being initially placed on probation in July 2012, Foster’s probation was revoked and he was resentenced to prison before being released in August 2015, Martin said.
He said a defendant could be held without bail if he is facing a serious offense, which applies in Foster’s case. The court also had to find that one of four additional factors applied to hold Foster without bail.
“Arguably, each of those four factors applies,” Martin said.
He said there was a serious risk of flight, which was demonstrated by Foster’s escape conviction.
In addition, if convicted of the latest charges, Foster could face extended sentencing of life in prison with the possibility of parole, based in part on the fact that the victim was over age 60, Martin said.
He said the serious risk that the defendant will obstruct justice or injure witnesses was supported by the allegations that Foster had assaulted the victim at Harbor Lights.
Martin also argued that Foster posed a serious risk of danger to a person or the community and that there was a serious risk that he would engage in illegal activity, based on his prior record.
“We do believe that bail being denied in this case is appropriate,” Martin said.
Defense attorney John Parker said some bail should be set for Foster, even though he wouldn’t be able to post bail.
“It is so extraordinary and so much against the spirit of our Constitution to have no bail, period,” Parker said. “If there are concerns of flight, if there are concerns of dangerousness, concerns of him appearing, this can be addressed with very high bail.”
In denying bail for Foster, 2nd Circuit Judge Joseph Cardoza said “at least three of the factors are clearly present and arguably even the fourth.”
“Given the defendant’s extensive record, the serious allegations in this case, the court is satisfied the defendant does pose a serious risk of danger to the community.
“We have one of those extremely rare circumstances where bail may be denied,” Cardoza said. “The court is of the view that it is appropriate that bail be denied in this case.”
Cardoza kept bail at $50,000 for Chery Moniz, 29, of Kahului. She was indicted on a charge of first-degree burglary in the case.
Her probation officer reported Moniz was doing “extremely poor” on probation, Martin said. He said it also was reported that Moniz was abusing methamphetamine daily.
Cardoza said he considered factors including the seriousness of the offense, her multiple convictions for contempt of court and failure to appear, as well as the report that Moniz was falling short on probation, in keeping her bail at $50,000.
Court records show Moniz was placed on four years’ probation in February for third-degree promoting of a dangerous drug.
She was ordered not to consume alcohol or illegal drugs and to report for random testing if she posts bail to be released.
Defense attorney Jon Apo said Moniz’s defense would be that she wasn’t in the Harbor Lights unit when it was burglarized.
“Based on what she’s telling me, the only link that the state has is a piece of property was found there that belongs to her,” Apo said.
He said her boyfriend, Foster, is one of the co-defendants in the case.
Apo said Moniz’s position “is that the state got it completely wrong here.”
“She wasn’t even anywhere near it,” he said.
A bail hearing for a third defendant, Aaron Wilsey, 26, of Waikapu, was delayed until Tuesday. He is being held in lieu of $250,000 bail after being indicted on charges of first-degree burglary, second-degree robbery, second-degree theft and first-degree unauthorized entry into a motor vehicle.
The robbery, theft and unauthorized entry charges involve another female victims whose backpack was stolen June 20, according to the indictment.
* Lila Fujimoto can be reached at firstname.lastname@example.org.