The defendant's appeal is dismissed.

1. The Defendant, as stated in the facts constituting the crime of the lower judgment, issued a phiphonephone to D and was not administered by himself. The lower court convicted the Defendant by misunderstanding the facts on the basis of only the statement of D without credibility.

2. Determination

A. In light of the spirit of the principle of substantial direct examination adopted by the Korean Criminal Procedure Act, unless there are special circumstances to deem that the first instance judgment on the credibility of the statement made by a witness of the first instance was clearly erroneous, or the first instance judgment on the credibility of the statement made by a witness of the first instance is clearly unreasonable in light of the results of the first instance examination and the results of the additional examination of evidence conducted by the time the argument in the appellate trial is concluded, the appellate court should respect the judgment on the credibility of the statement made by the witness of the first instance.

(see, e.g., Supreme Court Decision 2011Do5313, Jun. 14, 2012).

Based on the above legal principles, the court below directly conducted the examination of evidence for the examination of D, etc., and tried to find the facts charged of this case by recognizing the credibility of the statement made by the witness D in the court, while explaining the detailed reasons in the item "judgment on the defendant's and defense counsel's assertion". The court below's judgment on the credibility of the statement made by the witness D was clearly erroneous.

The defendant's assertion of mistake of facts is without merit, since it seems that maintaining the judgment of the court below on the credibility of the judgment is not significantly unfair.

3. As such, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act on the ground that it is without merit.