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".