The defendant's appeal is dismissed.

1. 항소 이유의 요지 피고인은 이 사건 범행 당시 피해자 C이 이불을 덮지 않고 잠을 자고 있어 이불을 덮어 준 적이 있을 뿐 누워 있는 피해자의 옆으로 다가가 입으로 피해자의 젖꼭지를 수회 빨고 손으로 피해자의 성기 부분을 수회 만지는 추행행위를 한 바 없음에도, 이와 달리 이 사건 공소사실을 유죄로 인정한 원심판결에는 사실을 오인하여 판결결과에 영향을 미친 잘못이 있다.

2. Determination

A. In light of the content of the judgment of the first instance court and the evidence duly examined by the first instance court, the first instance judgment on the credibility of the statement made by the witness of the first instance court was clearly erroneous.

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 further examination of evidence conducted until the closing of the appellate trial, 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, e.g., Supreme Court Decisions 2006Do494, Nov. 24, 2006; 2007Do2020, May 11, 2007; 2009Do14409, Feb. 25, 2010). (b) The lower court found the Defendant guilty of the facts charged on the ground of the victim’s statement.

Examining the evidence duly adopted and examined by the court below in light of the legal principles as seen earlier, the above judgment of the court below is just, and there was no circumstance to acknowledge that maintaining the first instance judgment on the credibility of the victim’s statement at the court below was significantly unfair. Therefore, the court below erred by misapprehending the facts alleged by the defendant.