The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Although there was no fact that the defendant attempted to rape the victim due to assault, such as mistake of fact, the court below found the defendant guilty of the facts charged of this case on the grounds of the victim's statement without credibility. The court below erred by misunderstanding of facts and misunderstanding of legal principles.

B. The sentencing of the lower court is too unreasonable.

2. Determination

A. In light of the difference between the first instance court and the appellate court’s method of evaluating the credibility of the testimony made by the witness of the first instance court in light of the contents of the first instance judgment and the evidence duly examined in the first instance court, the first instance court clearly erred in its determination on the credibility of the testimony made by the witness of the first instance court in light of the contents of the first instance judgment and the evidence duly examined in the first instance court.

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, taking account of the results of the first instance examination and the results of an additional examination of evidence conducted until the closing of oral pleadings, the appellate court shall 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 Supreme Court Decisions 2006Do494, Nov. 24, 2006; 2008Do7917, Jan. 30, 2009). Whether there was assault or intimidation by a perpetrator to establish the crime of rape should be determined by taking into account not only the content and degree of the assault and intimidation, the circumstances leading up to the use of tangible force, the relationship between the victim and the sexual intercourse, and the circumstances at the time of the victim and the victim after the occurrence of the crime, and considering the victim’s situation at the time of ex post facto departure from the scene.