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Home / Courts / Criminal Practice – Criminal Sexual Conduct – Lesser Included Offense – Assault – Insufficient Circumstantial Evidence (access required)

Criminal Practice – Criminal Sexual Conduct – Lesser Included Offense – Assault – Insufficient Circumstantial Evidence (access required)

State v. Gilmore Even though defendant contends he and the victim had consensual sex after he battered her, he was not entitled to a jury instruction on the lesser-included offense of assault and battery of a high and aggravated nature because there was no direct evidence of consent and there was insufficient circumstantial evidence of consent: the events occurred in the context of the victim going to defendant’s house purportedly to check on her furniture, but staying for hours alone with him; the victim testified she knew defendant wanted to get back together with her, and they talked about it that afternoon...

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