The Maui News

WAILUKU — A Wailuku man was acquitted of a charge alleging he sexually assaulted a woman while she was sleeping at his residence five years ago.

A 2nd Circuit Court jury returned the verdict Tuesday, finding Toby Alconcel, 30, not guilty of second-degree sexual assault.

“We want to thank the jury in this case for taking their obligation seriously, scrutinizing the evidence and faithfully following the law,” said Deputy Public Defender Ben Lowenthal, who represented Alconcel along with Deputy Public Defender Joan Tuers. “This case has been hovering over Mr. Alconcel and his family for nearly five years. He is relieved and grateful to be acquitted.”

During the trial, the woman, who was 18 at the time, testified that she was sleeping in a bed in the living room of the residence when she awoke at 2 or 3 in the morning June 12, 2017, and found Alconcel on top of her and taking off her shorts. She said Alconcel heard a noise and went to another room to check before returning and pushing her down on the bed.

“I quietly said, ‘stop,’ ” she said before Alconcel took off her shorts and underwear.

She said she didn’t shout because there were children in the house. “I felt so helpless,” she said.

Because her parents were moving to Oahu, the woman said Alconcel’s girlfriend, who was a co-worker, had allowed her to stay for a couple of weeks at the house where Alconcel, his girlfriend and children lived.

The woman testified that she later told Alconcel’s girlfriend and her sister that he had raped her.

The girlfriend and her sister testified that the woman told them she had consensual sex with Alconcel.

In closing arguments Tuesday, Deputy Prosecutor Mike Kagami said the woman had no reason to falsely accuse Alconcel and disrupt her rent-free living arrangement at the house.

Lowenthal argued that the prosecution couldn’t prove beyond a reasonable doubt that Alconcel acted by compulsion or without consent.

“Yes, he cheated on his girlfriend and he’s not proud of this,” Lowenthal said. “That is not a crime.”

Judge Kirstin Hamman presided over the trial.