We have an alleged sexual assault victim that testified to having encountered her assailant at approximately 6:45 a.m. (this time concurs with the time shown on the Medical Report as the "Time of Occurrence"). Next, there is a witness that saw both her and the assailant engaged in what appeared to be sexual activity under the staircase his apartment at about 7:30 a.m., according to the witness' testimony.
Thus, the sexual assault victim and the assailant had been together for at least 45 minutes.
The appellant in this case had witnesses to testify to his "week day early morning routine", which was to take his children to school every morning between the time of 7:00 a.m. and 7:15 a.m. This morning routine timeline went unchallenged during trial court proceedings. In fact, it appears that the D.A. submitted to the timeline and suggested that the Defense still had ample time and opportunity, to drop the kids off at school by 7:15 or 7:20 a.m., and still be able to drive to the location where the sexual assault took place and commit the crime (by 7:30 a.m., according to the witness).
The appellant's argument is that he can NOT be in two (2) places at one time! Either the appellant was with the victim at 6:45 a.m. and left her in enough time to get home by 7:00 a.m. (to take his kids to school), which would mean that the person "Who" the witness saw at 7:30 a.m., engaged in what may have been sexual activity, could NOT have been the appellant.
Or, if the appellant dropped off his kids at 7:15 a.m. (or possibly 7:20 a.m.), as suggest by the D.A., and drove to the location and sexually assaulted the victim by 7:30 a.m. (as testified by witness), then the person "Who" the victim testified as being her assailant at 6:45 a.m. (and stayed with her up until at least 7:30 a.m.) could NOT have been the appellant.
Therefore, the appellant wants to know, if this "unchallenged" evidence (taking his kids to school between the time 7:00 a.m. & 7:15 a.m.), though presented during trial court, demonstrate "actual innocence" if brought up on appeal???
Your wisdom and suggestions will be greatly appreciated, "Thank you".
2 Answers from Attorneys
No. Trials often include conflicting evidence. The judge or jury must resolve such conflicts. They are not required to accept the evidence that favors the defendant. The fact that a conflict exists certainly does not entitle the defendant to a finding of actual innocence.
Your claim that the evidence is "unchallenged" is false. There was evidence of the defendant's routine, but that does not mean he followed his routine on this particular morning. Even if there was evidence that he did follow it that day, there was also evidence he was committing a sexual assault during the same time period. That means his evidence was contradicted by other evidence.
Besides, even if he did follow his routine that morning, he might have been a bit earlier or later than usual. It's also possible that the time estimates from the other witnesses were a bit off. That happens all the time. If a witness estimates that he saw something at 7:30, it might really have been 7:00 or earlier. That alone would be enough to explain how the defendant could have both committed the crime and brought his kids to school.
If the appellant thinks he can win by arguing that contradictory evidence proves he was innocent, then he doesn't understand the appeals process at all. He needs to get a lawyer who does. The courts will appoint one for him if he can't afford to hire private counsel. He's also welcome to contact me directly. I'm certified by the State Bar's Board of Legal Specialization as an appellate specialist -- a certification held by just 284 of the roughly 200,000 lawyers in this state. I have almost 20 years of appellate experience, and will be happy to discuss the case with him.
Mr Hoffman provides a very good response and good advice...
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