The defense for former dance instructor Daniel Jones will ask for a dismissal of the sex assault charges against him, pointing out that the jury was leaning toward acquittal before declaring it was deadlocked.

But legal observers believe the defense faces an uphill struggle to dismiss the charges because the general rule is that a retrial is permitted when a jury cannot reach unanimous verdicts.

Jones, 21, a former instructor at the Rosalie Woodson Dance Academy in 'Aiea, went on trial on 18 sex assault counts of molesting five of his dance students in 2004 and 2005.

But in a stunning verdict Tuesday, a Circuit Court jury acquitted him of 12 of the charges and could not reach a verdict on the six other charges.

Roy Camara, 50, a Kailua resident and one of the jurors who sat through three weeks of trial and nearly nine days of deliberations, confirmed yesterday that the panel was deadlocked in favor of acquitting Jones on the six counts, with the vote 11-1 for not guilty on two of the counts.

The prosecution's evidence, he said, simply wasn't enough for him for a conviction on any of the charges.

"You can't come out with a big gun and no bullets," Camara said.

Jones was acquitted of molesting three girls and found not guilty on some of the charges involving the other two.

Circuit Judge Virginia Crandall declared a mistrial on the six counts and scheduled the retrial on those felony charges involving the two girls for the week of Aug. 28.

City Deputy Prosecutor Thalia Murphy declined to comment on the case, citing the retrial.

Myron Takemoto, Jones' lawyer who once worked under Murphy as a city deputy prosecutor handling sex assault cases, said he will ask for a dismissal of the charges based on the jury's deadlocked vote favoring acquittals.

He said yesterday that the vote can be considered under a Hawai'i Supreme Court decision.

"It's grounds to support the court not allowing the state to pursue it," he said. "It's a factor to consider."

Brook Hart, noted Honolulu criminal defense attorney who was the state's first public defender in 1970, said courts generally permit a retrial when a jury cannot reach a verdict after one trial, unless there are special circumstances.

He said the judge will have to evaluate the circumstances, including the "likelihood of getting a different result."

But one issue for the defense is that Crandall doesn't have anything official documenting the deadlocked vote, Hart said.

"It's unusual for the court to poll the jury or have any inquiry into the voting," he said.

Jurors are free to express themselves, but it's not clear that judges can rely on their public statements about the votes to decide whether to permit a retrial or dismiss the charges, Hart said.

"But there are circumstances which permit the court to assess whether there is any reasonable likelihood that the outcome would be different and then decide, 'enough is enough,' " Hart said. "I don't think in this case that's likely, although there's a remote possibility."

Most of the jury declined to comment, but one juror who asked that her name not be used said on Tuesday that the panel favored acquittal on the six deadlocked charges, including votes of 11-1 on two counts and 10-2 on another.

Camara, who has an adult son and daughter, yesterday said he as well as five other jurors from the start of the deliberations believed Jones should be acquitted on all charges. The number of counts on which they had unanimous agreement for acquittal increased during the deliberations until they hit 12 before the panel reported more deliberations would not help, according to Camara.

The prosecution's case rested on the testimony of the five girls, but Camara said the testimony was inconsistent, vague, laced with exaggerations and lacked the certainty of pinpointing dates, locations and times.

"What they were saying were serious enough," he said. "They got to remember the terrible things, if it did happen."

He said their ages don't excuse the lack of solid testimony, especially when dealing with the serious allegations, Camara said. The girls are now 14 and 15. One was 12 when she allegedly was sexually assaulted.

"The testimony they provided did not support the allegations they made," he said. "That's the saddest part."

He said the panel knew it could convict on a charge based on the testimony of a single person.

"But when a single girl gave me five testimonies, which one is it?" he said. "That was the difficulty there."

Asked what he thought happened between Jones and the girls, if anything, Camara said if there was any contact, it was by mistake.

He said one telling impression for him was that when the girls testified about the impact the alleged sex assaults had on them, they talked about not seeing their friends and not being able to continue dancing at the studio. If the sex assaults had taken place, "I would think their thoughts would be different," Camara said.

Takemoto said he realizes the verdict probably shocked many in the public who might have believed Jones was guilty given the number of charges and girls.

"But the people in the public weren't sitting in for week after week and witness after witness," Takemoto said.

He said it's a tribute to the jury that they conscientiously looked at the evidence.

"They didn't come to a rush to judgment," he said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.