WAILUKU — Citing factors including a delay in bringing the case to trial, a judge granted a defense request to dismiss an attempted assault charge against an 85-year-old man who was arrested for allegedly holding a boy underwater in a Kihei swimming pool.

The dismissal was with prejudice, so the prosecution cannot again charge Werner Skowronnek of Kihei in the case.

“It’s really more than the speedy trial right,” 2nd Circuit Judge Peter Cahill said in ruling Monday.

He questioned why other charges were dismissed twice before Skowronnek was charged in January with attempted first-degree assault of the boy.

Skowronnek was arrested the morning of Sept. 9, 2018, after police reported he pushed and held the 6-year-old boy underwater in the swimming pool at Maui Sunset condominium at 1032 S. Kihei Road.

The boy’s father, who was in a hot tub about 12 feet away, believed Skowronnek had intentionally dunked the child, according to defense attorney Anthony Ranken.

Police said the father intervened to prevent the boy from being seriously injured.

Ranken said Skowronnek, who was swimming laps in the pool, “maintains that his coming in contact with the boy was an accident.”

Skowronnek “was swimming without goggles and has very poor eyesight, he got water in his mouth and had to come to the edge of the pool, and he at first didn’t see that the boy was in his way as he went to grab the wall of the pool,” Ranken said.

“Far from trying to submerge the boy, he states that as soon as he realized the boy was under water he attempted to lift the boy back to the surface,” according to Ranken. “At that time the boy’s father came and lifted the boy out of the pool entirely.”

At the court hearing Monday, Ranken said Skowronnek is “hard of hearing so he talks louder” and, combined with his German accent, that might have made him “come across as aggressive” when he told the kids to stay in the shallow part of the pool minutes before the boy was dunked.

“The boy, by all accounts, was completely unharmed from being underwater for a few seconds,” Ranken said.

The boy and his family are Big Island residents who were vacationing on Maui.

Police initially charged Skowronnek with kidnapping and second-degree reckless endangering, and he posted $10,200 bail to be released before the prosecutor’s office declined prosecution and his bail was returned, according to the memorandum.

Skowronnek was indicted on the same charges in December 2018 and again posted bail to be released. The felony case was dismissed in June 2019 after Skowronnek was charged instead with two counts of second-degree terroristic threatening, attempted third-degree assault and harassment in District Court.

A Jan. 31 trial had been set before the misdemeanor charges were dismissed after the prosecution filed the new felony charge.

Judge Cahill said transcripts of the District Court proceedings showed the judge had set aside the day for the trial, clearing other matters off the calendar, and witnesses were available.

“And the state two days earlier changes its mind,” Cahill said. “That’s frankly pretty outrageous.”

Ranken said the prosecution had repeatedly dismissed, then refiled charges against Skowronnek.

“This is like a game of cat and mouse,” Ranken said. “The state’s this big cat that thinks they can do whatever they want. My client’s the mouse.”

He said the state would “bat him around,” then “pounce” on Skowronnek by bringing felony charges.

The defense calculated that, after subtracting excluded time, 14 1/2 months had passed since Skowronnek’s arrest to exceed the six months allowed under the speedy trial rule.

“If they egregiously violate someone’s right to a speedy trial, there must be consequences,” Ranken said in asking for the dismissal with prejudice.

The prosecution, calculating a shorter amount of time that had elapsed exceeding the six months, asked that the dismissal be without prejudice so Skowronnek could be charged again.

In a response filed in court, the prosecution said the victims “would be revictimized by not having their day in court to face the person who committed a serious offense against them.”

Judge Cahill said the victims could pursue the case in civil court.

“They are not left without recourse to justice,” Cahill said. “They can pursue their civil remedies. Given the length of time this has gone on, that might be the better choice.”

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.