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APPEALS - Grounds - Unreasonable verdict

Wednesday, July 05, 2017 @ 11:17 AM  

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Appeal by the accused, KDM, from a conviction and sentence for invitation to sexual touching and sexual interference. The accused was the biological father of the complainant. The accused was not involved in the complainant's life until the complainant reached age 13 or 14. The complainant testified that the accused required her to stimulate his penis on a daily basis by setting a quota. She testified that she was kicked out of the house at age 16 after she refused to continue. The complainant also testified that the accused regularly rubbed her pubic area and buttocks. A jury convicted the accused of invitation to sexual touching and sexual interference, and acquitted the accused of sexual assault. The accused was sentenced to four years' imprisonment. He appealed the conviction on the basis the jury verdict was inconsistent and therefore unreasonable. He submitted that a four-year sentence for invitation to sexual touching was inconsistent with the acquittal on the count of sexual assault.

HELD: Appeal dismissed. The jury verdicts were not inconsistent. The jury instructions with respect to sexual assault, juxtaposed with the instructions on sexual interference and invitation to sexual touching would have led the jury to conclude that, to convict the accused of sexual assault, it was the accused who applied force of a sexual nature against the complainant. With respect to sexual interference and sexual touching, exertion of force by the accused was not required. The jury's conclusion that the sexual rubbing and touching occurred did not inevitably lead to a conviction for sexual assault. For the same reasons, with respect to sentencing, the acquittal on the count of sexual assault did not necessarily support an inference that the invitation to the sexual touching of the accused's penis did not occur. It was open to the trial judge to rely on that touching in sentencing the accused. Sentence: Four years' imprisonment for invitation to sexual touching; one-year concurrent for sexual interference.

R. v. K.D.M., [2017] O.J. No. 3185, Ontario Court of Appeal, K.N. Feldman, J.C. MacPherson and M.L. Benotto JJ.A., June 19, 2017. Digest No. TLD-July32017006