The Supreme Court (TS) has decided not to admit the appeal filed by a man, against a sentence of the Superior Court of Justice of Andalusia (TSJA) that confirms an initial sentence of the Court of Seville, which sentences him to three years of prison for sexual abuse committed on three girls in group meetings of young people in homes while he spent the night with them, pretending to be “asleep” when committing the abuses.
In the aforementioned sentence of the TSJA, collected by Europa Press, the Andalusian High Court addresses an appeal by this man against a previous sentence of the Seventh Section of the Seville Court, which sentences him to three years in prison and three years of probation after serving said prison sentence, for three crimes of sexual abuse with the mitigating circumstance of repairing the damage.
According to the initial conviction of the Court, on a weekend in May 2017, Álvaro D.T., of legal age, “was together with a group of boys at the home” of a young woman then about 27 years old, in Mairena del Aljarafe, “where they had arranged to meet, taking advantage of the fact that her parents were absent, to have a barbecue and even spend the night” in the house.
“When bedtime came, in which they were divided between the sofa and mattresses, Álvaro ended up lying on a sofa” with the aforementioned young woman “and taking advantage of the fact that she fell asleep, he put his hand under her shirt and grabbed her a breast, which caused the girl to wake up and slap him away”, since “minutes later, pretending to sleep, as in the previous episode, he tried to put his hand through the pants she was wearing to reach the genital area without succeeding, because she pushed his hand away again, got up and left to end up sleeping in a separate place”.
In addition, the sentence declares proven that “on a date not exactly specified in the summer of 2017, on the occasion of a meeting of friends that took place at the home” of another young woman from Palomares del Río, “where a group of friends had also met to spend the afternoon and sleep, taking advantage of the fact that he was lying on a mattress that had been spread out in the living room of the house together” with said young woman, “when she fell asleep, she put one of her hands under her shirt and began to groping his chest”, to which she “woke up and only managed to protect herself by curling up into a ball and getting as far away from her companion as possible, although without getting up from the mattress”.
It was also declared proven in the contested sentence that “in an early hour, not exactly specified, on October 13, 2017, the defendant was in the house of a young man who was his “then friend” in a house in Mairena del Aljarafe together with other boys among whom was” a 27-year-old girl who “had arrived at that address late at night after having drinks with her friends from the university and in a certain state of intoxication.”
“Álvaro ended up sharing a trundle bed” with said young woman and “at a certain moment, taking advantage of the girl’s sleep, favored by alcohol intake, he inserted his fingers into her vagina, causing her to wake up, slapping her and turning around. the bed to leave her”, declares proven the initial sentence of the Seventh Section of the Court.
In his appeal against said conviction of the Court, the defendant used “an error in the assessment of the evidence” about the fact that he committed the acts “in a waking state”, proposing “as documentary and expert evidence in the second instance about the pathology of sexual somnambulism”; although the TSJA alleges that “the three victims coincide in declaring that the accused was not asleep, but that he was pretending to be asleep, he pretended to be asleep, as a ploy to hide his lewd intentions.”
In the same way, the TSJA indicated that the Court itself had already pointed out “the absence of any medical evidence that could support the alleged sleep disorder, also pointing out, very sharply, the excessive coincidence that supposes that, in situations in which, due to the limitation of beds, young people of both sexes shared a bed indistinctly, the accused ended up in all cases lying next to a girl and had an episode of the alleged sexsomnia on each occasion”.
Faced with this, in his appeal, the defendant insisted that “if a neurological study had been admitted and carried out in the second instance” that he intended to contribute, he would have been “exempt from criminal responsibility, since he himself proves that he suffers from sexual sleepwalking” .
But the Supreme Court endorses the decision of the TSJA, in the sense that “the evidence has been correctly inadmissible in the second instance, since, on the one hand, it could have been proposed in the defense brief; and on the other, the study did not objective pathology, so the test lacks relevant probative potential with respect to factual extremes object of the procedure”.
“Consequently, the denied evidence was neither necessary nor indispensable, nor procedurally admissible,” the court indicates. For this reason, the Supreme decides that “there is no place for the admission” of the appeal.
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