The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Sexual assault against the defendant for 80 hours.

1. Summary of grounds for appeal;

A. The Defendant, as stated in paragraph 1 of the facts charged, did not have a sexual intercourse with the victim as the date and time set forth in the facts charged, did not have a sexual intercourse with the victim. On the date set forth in paragraph 2 of the facts charged, only the sexual intercourse with the victim was made under the victim’s consent or implied consent.

Nevertheless, the judgment of the court below which found the defendant guilty of committing rape on the grounds of the statement of the victim with no credibility, was erroneous in the misapprehension of facts.

B. The sentence of the lower court (three years of imprisonment, 80 hours of order to complete the course) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts, the first instance judgment on the credibility of the statement made by the witness of the first instance trial was clearly erroneous in light of the content of the first instance judgment and the evidence duly examined in the first instance trial.

Unless there exist special circumstances to view that maintaining the first instance judgment on the credibility of a statement made by a witness of the first instance court is significantly unfair, or in full view of the results of the first instance examination and the results of the further examination of evidence conducted until the closing of argument in the appellate court, the appellate court may not reverse without permission the first instance judgment on the sole ground that the first instance judgment on the credibility of a statement made by a witness of the first instance court is different from the appellate court’s judgment (see, e.g., Supreme Court Decisions 2006Do494, Nov. 24, 2006; 2007Do2020, May 11, 2007; 2009Do1409, Feb. 25, 2010). The lower court, based on the circumstances stated in its reasoning, has credibility of the victim’s statement and the appellate court’s statement that conform to the facts charged in the instant case.

The decision was determined.

Examining the evidence duly adopted and examined by the court below and the court below in light of the above legal principles, the judgment of the court below is just and further made in the trial.