R. v. Bennett, 2020 NLSC 147

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Bennett , 2020 NLSC 147 Date : November 27, 2020 Docket : 201908G0158 Her Majesty The Queen v. John GEorge Bennett Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the Complainant shall not be published in any documents, broadcasted, or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 486.5(1) of the Criminal Code , information that may identify the person described in this judgment as the victim or witness shall not be published, broadcasted, or transmitted in any manner. [This version of the judgment complies with the order.] Before: Justice Frances J. Knickle Edited Transcript of Oral Reasons for Judgment Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Dates of Hearing: November 15-16, 2020

Summary: The Accused was charged with having committed sexual assault against the Complainant by having anal intercourse with her without her consent. He was also charged with assaulting her on an earlier occasion by grabbing her by the throat. Upon review of all the evidence, the Accused was acquitted of the common assault but found guilty of the sexual assault.

The Accused was not a credible witness. With respect to the alleged sexual assault, he testified to details of the evening in question whileat the same time denying he had any recall of what happened on that occasion. In contrast, the Complainant was credible and apart fromminor inconsistencies on peripheral details, her account of the incident of the alleged sexual assault was consistent. Her account of theevents following was also supported by the attending police officers, with minor discrepancies. The Court was satisfied the offence hadbeen established beyond a reasonable doubt.

With respect to the common assault, while the Complainant described that which could constitute assault, she was uncertain as to centraldetails, including the time frame. She could say only that there was an incident, sometime prior to the sexual assault in which theAccused grabbed her by the throat. The Accused denied any assault had ever occurred. While satisfied the assault could have happened,the Court was not satisfied beyond a reasonable doubt that the evidence supported a finding of guilt. The Accused was acquitted ofcommon assault. Appearances: Brandon G. W.

Gillespie Appearing on behalf of the Crown Robert S. Roach Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. c. Gagnon, 2006 SCC 17; R. v. K.P., 2019 NLCA 37; R. v. Best, 2016 NLCA 10; R. v. S.O.,2019 NLCA 42; R. v. M. (R.E.), 2008 SCC 51. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Mr. Bennett is charged with having committed a sexual assault and common assault against the Complainant.

The trialproceeded by judge alone and was brief, lasting little more than a day in evidence. Both the Complainant and the Accused testified; aswell as the two police officers who responded when the Complainant telephoned the police to report the sexual assault. For the reasonsthat follow, I find the Accused guilty of the sexual assault and not guilty of the common assault.

Overview of the evidence regarding the sexual assault allegation [2] With respect to the alleged sexual assault, the Complainant testified that the Accused, with whom she had been having a casualsexual relationship for a period of time, on one occasion forced anal intercourse with her, without her consent. The incident occurred onthe evening of November 26, 2017. The Complainant is aboriginal and from the community of N. The two had been to a bar, returnedhome and commenced consensual vaginal intercourse.

According to the Complainant, the vaginal intercourse occurred in her room, andwhile she was laying on her back facing the Accused. The Accused then turned her around and began to penetrate her anus. TheComplainant immediately pulled away and stated “No, I don’t do it that way”. The Accused obliged and the Complainant returned tolaying on the mattress, and the two resumed having vaginal intercourse. [3] The Accused then asked the Complainant to turn around again and this time, when she did, he held her by the hips and fullypenetrated her anus. He lay over top of her with his arms. She could not get away from him.

She stated “No” but the Accused did notstop. She eventually was able to turn to her side which resulted in the Accused stopping the intercourse. The Complainant went to thebathroom “to compose herself”. When she exited the bathroom she told the Accused to leave which he did. The Complainant was upset,crying and did not know what to do. She was concerned she may be bleeding. She telephoned a friend who encouraged her to call thepolice. She did call the police a couple of hours after the incident. Two officers arrived. They spoke with her and took her to a medicalclinic where she was examined by a nurse.

The officers observed that the Complainant was slurring her words and unsteady on her feet.She was reluctant to speak, being “cryptic” about what happened. She would not identify who sexually assaulted her, and referred to theincident as “it”. Because she had been drinking, the Complainant did not give a formal statement to the police until a day or two later.

[4] This was the last time the Complainant had intercourse with the Accused. The Accused was arrested shortly afterwards. [5] According to the Accused, owing to his level of intoxication, he had no memory of the night in question. However, he deniedthat he forced anal intercourse with the Complainant and that he had never had anal intercourse with her. Despite having no memory ofthe incident he also agreed the incident would have been the last time the two engaged in intercourse.

Overview of the evidence regarding the alleged common assault [6] According to the Complainant, sometime prior to the alleged sexual assault, she could not say when, the Accused came to herhome, grabbed her by the throat with one hand asking her who had been at her apartment. The Complainant stated the Accused wasjealous and thought she may have been seeing someone else because there had been a car in her driveway. [7] When asked about the second incident, the Accused denied that the assault had occurred. THE POSITION OF THE PARTIES [8] The Crown submitted that the Accused should be found guilty of both offences.

The Complainant was a credible witness, andher account was consistent. Any inconsistencies in her evidence are minor, and have been satisfactorily explained. The Accused was notcredible and his account does not raise a reasonable doubt. [9] Counsel for the Accused asserts that the Complainant was not a credible witness and her testimony is not reliable. TheComplainant was inconsistent on several points. Counsel also submitted that the sexual contact, if it occurred without the consent of theComplainant, was an accident, given the Accused testified that the two never had anal sex.

The Accused’s testimony supports that evenif he did penetrate the Complainant in her anus with his penis, he may have thought it was her vagina, in which case he would havebelieved that the contact was consensual and would have no mens rea for the offence. The Court should be left not only with a reasonabledoubt by the evidence of the Accused, but by the evidence of the Complainant ISSUES [10] There is no dispute that there was consensual sexual vaginal intercourse between the Complainant and the Accused.

However,the Complainant alleges that there was sexual contact, the forced anal intercourse was without her consent, and the Accused knew at thetime.

The Accused denies that any anal intercourse occurred. [11] The issues then in this case are twofold: Does the evidence establish beyond a reasonable doubt that the Accused forced analintercourse with the Complainant, and did he do so knowingly without her consent? [12] The assessment of the credibility of the witnesses is central to the determination of what evidence, if any, is accepted by theCourt, and if accepted whether it establishes that the offences were committed by the Accused.

THE STANDARD OF PROOF IN A CRIMINAL TRIAL [13] In a criminal trial, the onus is on the prosecution to prove all the elements of the offence charged beyond a reasonable doubt. That onus never shifts (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). The standard of proof beyond a reasonable doubt iscloser to absolute certainty than it is to the balance of probabilities (R. v. Starr, 2000 SCC 40). It is not enough to be satisfied that theAccused “probably” or “more likely than not” committed the offences.

On the criminal standard, a court must be satisfied well beyondthis level of certainty. [14] In this case, because the Accused testified, in deciding whether the offences have been proven, the Court must also becognizant of the instruction in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. This approach is to ensure that in a casewhere there may be competing versions as to what occurred, the court does not fall into the trap of simply choosing between the twocontested versions of events, but renders its verdict on an assessment of all the evidence.

It is always helpful to review the framework ofW.(D.). [15] Firstly, if the evidence of the Accused is believed and would support a finding of not guilty, the Court must find the Accusednot guilty. [16] Secondly, even if the Accused’s evidence is not believed, if the Court is left with a reasonable doubt by the evidence, then theAccused must be acquitted. [17] Finally, even if the evidence of the Accused does not raise a reasonable doubt, the Court must still assess all the evidence that itdoes accept, to determine whether the evidence supports beyond a reasonable doubt that the offences occurred. [18] In this case, there is conflicting evidence between the Complainant and the Accused as to what happened.

Because of thisconflict, the credibility and reliability of the witnesses is important in assessing the evidence. It is helpful to review what the law saysabout the assessment of the credibility of witnesses and their evidence before discussing the evidence that I accept. The assessment of credibility [19] The assessment of the credibility of a witness, as well as the veracity of a witness’ testimony, is not a formulaic process; but theculmination of a number of considerations such as, but not limited to, how the witness responded to questions. Were they argumentative,evasive or forthright? How was their recall?

What was their opportunity to observe the event, and were there inconsistencies in theirevidence standing alone, or in relation to the other evidence? In assessing the witnesses, the Supreme Court of Canada in R. c. Gagnon,2006 SCC 17, at paragraph 20, stated:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. … [20] Our Court of Appeal in R. v. K.P., 2019 NLCA 37, at paragraphs 42 and 47, in referring to their previous decision of R. v. Best,2016 NLCA 10, reaffirmed that the trier of fact may accept all, some or none of the evidence of a witness. [21] In R. v.

S.O., 2019 NLCA 42, at paragraph 16, Hoegg, J.A., speaking for a unanimous court, stated that the assessment ofcredibility of the witness is the “province” of trial judges, and “many factors inform the result”. At paragraph 17, Hoegg, J.A. statedfurther: This Court addressed the issue in Stassis v.

Amicus Bank, 2014 NLCA 38 , 356 Nfld. & P.E.I.R. 80, wherein White J.A.endorsed the time-tested approach to assessing credibility set out by the British Columbia Court of Appeal at page 357 of Faryna v.Chorny (1951), (BC CA), [1952] 2 D.L.R. 354, (B.C.C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions … …The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothethe trial judge with a divining insight into the hearts and minds of the witnesses… [22] As stated by McLachlin, C.J., as she then was, in R. v.

M. (R.E.), 2008 SCC 51, at paragraph 49, “assessing credibility is adifficult and delicate matter that does not always lend itself to precise and complete verbalization”. I also keep in mind that witnessesmay have differing perceptions of the same event. ANALYSIS [23] The Complainant was a compelling and credible witness. She listened carefully to the questions and responded in a forthrightmanner. She was candid and did not embellish her testimony. Her account of the sexual assault is uncontradicted. Her account of herinteraction with the officers is supported by their testimony with minor differences.

While there were several alleged inconsistenciesraised by counsel, these were on peripheral matters that might arise naturally in testimony. I have reviewed and considered these allegedinconsistencies and I am satisfied that in some instances, it has not been established that the Complainant has been inconsistent.

Where itmight be said that she has been inconsistent, they relate to peripheral details or, the Complainant has satisfactorily explained theinconsistency. [24] Significantly, in my view, the Complainant was not shown to have been inconsistent on details critical to whether or not theacts alleged to have constituted the sexual assault. [25] As the alleged inconsistencies formed a substantial part of the cross-examination by counsel for the Accused, it is important toexplain why I am satisfied that there has been nothing established in the evidence that would cause me to be concerned with thecredibility of the Complainant, or the reliability of her testimony as it relates to the sexual assault. [26] For example, much was made of the Complainant’s testimony that she was not so intoxicated that she could not recall whathappened.

The Complainant testified that she was intoxicated and had been drinking, but was not so intoxicated that she did not knowwhat happened, or who had assaulted her. The Complainant stated that “you don’t forget something like that” and she knew what hadhappened to her. [27] In describing her level of intoxication, the Complainant denied that she was unsteady on her feet or slurring her words. However, both officers testified that they observed the Complainant to be intoxicated, to be unsteady on her feet, and to be slurring herwords. She was also described as slow to respond to questions.

One of the officers noted that when invited into her home, theComplainant stated “Take off your clothes” of which the officer found odd. The Complainant did not remember saying this, but didremember telling them to take off their boots. [28] There is no dispute that the Complainant was intoxicated. All three witnesses agree on this. The differences in theComplainant’s perspective of her own intoxication and that of the officers is not troubling.

While the Complainant did not think she wasslurring her words or was unsteady on her feet, she did not dispute that she was under the influence of alcohol or that she wasintoxicated. The fact that the Complainant did not think she was slurring her speech, or unsteady on her feet, does not mean that she wastrying to deny the fact at trial. [29] Whether or not the Complainant was unsteady on her feet or slurring her words, is a matter of subjective perspective. What“intoxication” may mean to the Complainant may not be what “intoxication” means to the officers.

I note that while the officersrecounted their observations, the officers did not testify that the Complainant was so intoxicated they could not communicate with her.To the contrary, the officers engaged her in conversation while on route to the clinic. The officers did state that they found her reluctantto give details, which is consistent with the Complainant’s evidence that she did not want to say what happened because she was afraidand did not want “children welfare authorities” to become involved, because she had been drinking and there was alleged violence in herhome.

She was concerned about losing her children. [30] Given the above, I do not find the fact that the officers stated that she was slurring and unsteady on her feet, whereas she deniedthis, to be an example of her testimony being contradicted by other evidence. Nor do I not accept that the Complainant’s apparent

difference from the officer’s as to her level of intoxication was evidence of her minimizing events and undermines her credibility. In my view, the difference of her view of her level of intoxication from the observations of the officers is the kind of difference in perspective that can naturally arise between witnesses. [ 31 ] In both her testimony and her statement to the police the Complainant testified that she was afraid of the Accused. She explained this was why she was reluctant to identify to the police initially who was the perpetrator of the offence.

Even during her formal statement to the police, she did not name the Accused, but wrote his name on a piece of paper. However it was suggested to her on cross-examination that the reason she delayed in identifying the Accused was not because she was afraid of him, but because she could not identify her perpetrator because of her intoxication. The Complainant denied this suggestion. That the Complainant was reluctant to give details, including who committed the offence, is also corroborated by both officers who testified.

They described the Complainant as being “cryptic” and giving few details. [ 32 ] There is no basis to be concerned that the Complainant could not identify the perpetrator. She knows the Accused well, and was not confused in her testimony as to with whom she engaged in sexual intercourse. [ 33 ] Another alleged inconsistency raised by counsel for the Accused was that the Complainant stated that prior to the alleged forced anal intercourse, she and the Accused stopped having consensual vaginal intercourse to go outside to have a cigarette.

The cigarette break occurred after vaginal intercourse, but before the alleged attempt at and then actual anal intercourse. However according to Constable Broomfield, while on route to the medical clinic the Complainant stated that the Accused had asked, or attempted anal intercourse, but when the Complainant refused, it was then that they went for a cigarette. When they returned the second act of anal intercourse occurred.

The apparent inconsistency is whether the cigarette break occurred prior to the anal intercourse altogether, or in between the two acts. [ 34 ] In my view, while I take no issue that this part of the Complainant’s testimony is more closely connected to her narrative of the alleged assault, it is a detail that is peripheral to whether or not the alleged sexual assault occurred; that is whether or not there was anal intercourse without her consent. The Complainant did not agree that the cigarette break occurred in between the two alleged incidents of anal intercourse.

Given that what is at issue is not when the cigarette break occurred, or even whether it occurred, but whether or not there was forced anal intercourse, at what precise point a cigarette break occurred is not germane to the issues to be decided. When I look at this detail in the totality of her testimony and with all the evidence, I do not find this discrepancy troubling. [ 35 ] Further, it is not clear that what the Complainant stated to the officers is inconsistent with her trial testimony that the cigarette break occurred before any actual act of anal intercourse.

What the officer recorded was that the Accused had “asked, or attempted” to have anal sex. It is not clear if the officer’s notes meant there was only discussion between the Complainant and the Accused, or there was an actual attempt at anal intercourse prior to the cigarette break.

If the Accused had asked to engage in, but not attempted anal intercourse before the cigarette break, the statement by the Complainant in the back of the car is easily reconcilable with her trial testimony that the actual attempt, and full act of penetration happened after the cigarette break and arguably is not an inconsistency. [ 36 ] The circumstances of the alleged inconsistent statement leave room for error on the part of either the Complainant or the officer.

I take no issue that the officer was a credible witness (both officers were straightforward credible witnesses), and his professional training is to accurately record observations, but this encounter was not a formal interview. The recollection of the officer of what the Complainant told him is based on his notes of a brief oral conversation with the Complainant while she was in the back of a police vehicle on route to the medical clinic. The notes were not entered into evidence.

The officers were clear it was conversation; not a formal written statement. [ 37 ] For this reason, it is not clear to me what was meant by the statement, and I am not satisfied that the statement that was made was inconsistent with her testimony as to when the cigarette break occurred. [ 38 ] Overall, the evidence between the Complainant and the officers is consistent with each other.

In particular, all three witness agree on the following: that she spoke to the police on the phone after the assault; that she had been drinking; that two officers came to her house; that she then drove to the medical clinic with them; that during that drive she told them generally what happened, but did not go into details; that there were two incidents involving anal intercourse; that she did not identify who committed the assault at that time; that she was seen by a nurse; and, then gave her statement to the police a day or two later. [ 39 ] Even if I were to accept that there is an inconsistency about the detail as to when the cigarette break occurred, given the overall cogency of her testimony and its concordance with the officers, the discrepancy over when the cigarette break occurred is minor, and does not detract from the Complainant’s otherwise consistent evidence that the Accused forced anal intercourse with her, after the first attempt, despite that she did not consent. [ 40 ] A further alleged inconsistency arising from the notes of the officers recording their conversations with the Complainant on route to the clinic was that when asked by one of the officers if the Accused had assaulted her on a previous occasion, the Complainant told them that he had “never done anything like this before”.

Counsel asserts this response is contradictory to her allegation that the Accused not only sexually assaulted her, but also grabbed her by the throat, to which she testified at trial, and also stated in her formal recorded statement given to the police. [ 41 ] I am satisfied that there is no inconsistency here, and that the Complainant has fully explained what she meant by her response that the Accused had not previously assaulted her.

She did not dispute that she stated this, but explained that what she thought the question was referring to was whether the Accused had committed any prior sexual assaults upon her; not assaults or other violence generally. Her response to the police, seen in that light, is consistent with her testimony. This is a plausible and reasonable explanation given the open ended nature of the question by the officer. [ 42 ] It was further alleged that the Complainant was inconsistent within her trial testimony in describing the nature of the sex engaged in by she and the Accused.

On direct examination, in describing the second act of anal intercourse, the Complainant testified that the Accused turned her around and forced his penis into her anus despite her saying “No” and trying to pull away from him. She did not describe any vaginal intercourse while on her hands and knees.

[ 43 ] During cross-examination, after having been questioned for some time on the positioning of she and the Accused, the Complainant stated that prior to the Accused inserting his penis in her anus there was brief vaginal intercourse while she was on her hands and knees. The Complainant stated that when he had asked her to turn around the second time, she thought he was going to continue to have vaginal intercourse and that was why she turned around. It was pointed out to the Complainant that she did not mention this in her written statement to the police.

The Complainant stated she could not recall if she stated this or not in her statement to the police. She testified she may have been nervous at the time she gave her statement. She reviewed her statement and agreed with her statement.

The Complainant stated that after reading her statement, there was no vaginal intercourse on that occasion while she was on her hands and knees. [ 44 ] That the Complainant stated both, that the Accused had vaginal intercourse with her while she was on her hands and knees but that in her statement to the police there was no vaginal intercourse while on her hands and knees, is an inconsistency, and on a detail that is central to the narrative immediately preceding the conduct that forms the offence: the act of forced anal penetration without her consent. [ 45 ] However, in observing the Complainant I am satisfied that the Complainant accepted that she was mistaken in describing this having occurred.

At the point in which the Complainant testified to this detail, there had been a lengthy line of questioning generally about she and the Accused’s practices in engaging in sex, and she had stated that the two did engage in vaginal intercourse while she was on her hands and knees. She was also explaining that the two had been having consensual intercourse while she was on her back.

She had also been pressed at length as to whether or not the Accused might have accidentally inserted his penis in her anus. (The Complainant consistently resisted this assertion, despite the question being asked repeatedly). [ 46 ] In testifying that she agreed with what her statement said, I accept that the Complainant acknowledged she was mistaken, and was not simply changing her testimony to accord with her statement. Upon reviewing her statement, she readily acknowledged she was wrong to state that there was vaginal intercourse while she was on her hands and knees on that occasion.

This was not an attempt to mislead the Court. Having observed the Complainant testify, and how she responded to questions, I am satisfied that this was not an unexplained inconsistency that undermines her credibility but an honest mistake during the course of testifying about embarrassing personal details.

I am also satisfied that this inconsistency does not detract from her assertion that the Accused penetrated her anus with his penis without her consent. [ 47 ] The Complainant has been consistent that her complaint is not that the two had vaginal intercourse, but that the Accused, despite her protestations, forced anal sex with her. She has never departed from this accusation.

Considering the above alleged inconsistencies individually, and in their totality, I am satisfied the Complainant was a credible and reliable witness with respect to her account of the sexual assault. [ 48 ] On the other hand, the Accused was not a credible witness. His account, as much as he can remember, was illogical, internally inconsistent, and difficult to follow.

The Accused testified that he does not dispute that he may have spent time with the Complainant and had sexual intercourse with her on the night as she described to the Court, but also explicitly and repeatedly stated that he had no memory or recall of that night. Further, while adamant that he did not remember this occasion, he also adamantly denied that he had anal intercourse with her on this occasion; with or without her consent. [ 49 ] The two statements are irreconcilable and constitute a major inconsistency.

If the Accused does not remember the occasion, then he cannot say what he did or, more importantly, what he did not do on this occasion. If he can say that they did not have anal intercourse, then he remembers the incident and this contradicts his simultaneous assertion that he has no recall of the incident. The Accused explained that the night they had sex was “like any other night”. The contradictory assertions of denying that anal intercourse occurred while having no memory of what happened cannot co-exist and go to the heart of the credibility of his denial.

For this reason, I do not find the Accused a credible witness. [ 50 ] I take no issue that the Accused may not remember details because of the passage of time. The Complainant testified to the same explanation. But the lack of recall asserted by the Accused goes much deeper than being confused about minor details. His lack of recall is of the entire night in question.

This goes to the heart of his assertion that he did not force anal sex with the Complainant and it begs the question: how does he know these details if he does not recall what happened? [ 51 ] I am circumspect that the Accused has no recall of the incident. The Accused testified that he had been drinking and so could not recall whether or not “anything different” in relation to the sexual relations with the Complainant was tried. Yet at the same time, he was not so intoxicated that he could be sure that he did not engage in anal sex.

He could not explain why he knew this, except to say that he and the Complainant regularly had sex, but that they never had anal sex. The Accused also repeatedly stated that the event was “so long ago”, but also stated that he “remembered quite clearly” his arrest by the police, which occurred only a couple of days after the alleged incident. [ 52 ] The Accused also conceded that he may have been behind the Complainant with his arms over hers holding her down, and that she might have taken this to be that he was trying to restrain her.

But again, the Accused was clear that he did not actually remember or know what happened. It is difficult to understand how he could agree that he might have engaged physically with her in this way on this occasion if he has no recall of the event. [ 53 ] The effect of his testimony was that his recollection was selective and he remembered details that were favourable to him. [ 54 ] For this reason, I do not find him to be a credible witness, and I do not accept his denial that he knowingly engaged in anal intercourse with the Complainant without her consent. I do not believe the Accused’s testimony.

Nor am I left with a reasonable doubt by his evidence. Although it was submitted that the Accused may have accidentally penetrated the Complainant’s anus, there is no evidence to support this assertion in relation to the second act. [ 55 ] When I consider all the evidence, I accept the evidence of the Complainant with regards to the alleged sexual assault and I am satisfied beyond a reasonable doubt that the Accused had anal sex without the consent of the Complainant and he knew that she did not consent the second time he penetrated her anus fully and had intercourse.

This conduct constitutes a sexual assault and I am satisfied the

Accused intended to commit this act, and knew the Complainant did not consent. [ 56 ] However, I am not satisfied beyond a reasonable doubt that the alleged common assault occurred. The Complainant was credible, and I suspect an assault probably happened, but “probably” happened, is inadequate on the criminal standard. The Complainant lacked considerable detail about the circumstances, particularly when the assault occurred. She could not say when the assault occurred except that it happened prior to the sexual assault.

On cross-examination she narrowed the time frame to the assault happening sometime after the summer but before the sexual assault, but she could be not be any more specific. I am left with a reasonable doubt about what happened when I consider all of the evidence on this allegation. The evidence was sparse. While grabbing someone’s throat could constitute an assault, the evidence is too lacking to be satisfied beyond a reasonable doubt.

DISPOSITION [ 57 ] The Accused is found guilty of sexual assault, Count #1 on the Indictment, and acquitted of the common Assault, which is Count #2 on the indictment. [ 58 ] Judgment accordingly. _____________________________ Frances J. Knickle Justice