‘Moans should not be confused with screams’

Moaning sounds coming from an alleged rape victim should not be confused with screams for help, screams for a defendant to stop, or resistance, according to defense counsel Oliver M. Manglona.

Manglona, counsel for Christopher Aquino Saimon, said the term “without consent” in sex requires one of two things to take place: force or threat under the coercion theory; or incapacitation as a result of a defendant’s act.

Manglona said the government failed to present evidence to show that the alleged victim was coerced into having sex with Christopher Saimon.

The lawyer offered the argument in Saimon’s opening brief and joinder in co-defendant Richmond Ray Keybond’s opening brief about the “without consent” issue.

Saimon and Keybond, along with Joseph Aquino Saimon and Romeo Aquino Saimon, allegedly raped a woman last June 24 and 25.

At the end of a three-day preliminary hearing last month, Superior Court Associate Judge Joseph N. Camacho put off ruling on a probable cause finding as to Christopher Saimon and Keybond on the argument by Keybond’s lawyer that an Alaska appellate court case offers persuasive authority on the interpretation of the Commonwealth’s sexual assault in the first degree offense, specifically pertaining to one of the elements of the offense—“with or without consent.”

Camacho instructed Manglona and counsel for Keybond to submit an opening brief to appraise the court of the Alaska appellate court case and to brief the issue relating to the “without consent” element of the sexual assault in the first degree offense.

In Christopher Saimon’s opening brief, Manglona said the complainant was passed-out drunk and woke up to find, as she alleges, the defendant having sex with her.

Manglona noted that police detective Wally Emul Jr. testified at the preliminary hearing that the complainant woke up to defendant having sex with her and that she had not resisted the advances.

Manglona pointed out that Emul stated that the complainant did not scream, did not nudge the defendant aside, nor did she tell him to stop when she woke up.

He asserted that there was no evidence that Christopher Saimon compelled the alleged victim to submit to the sexual penetration, nor was there evidence that the complainant believed she was in fear of bodily harm.

Instead, the lawyer pointed out, Emul testified that Christopher Saimon informed the reporting detective that the complainant asked him to “f___k” her and that she moaned during the alleged sex.

Manglona said Emul testified that complainant made moaning noises instead of other ambiguous “noises,” as reported in his probable cause statement.

As to the incapacitation theory, Manglona said, the government failed to present evidence at the preliminary hearing that Christopher Saimon, at the very least, gave the woman alcohol, thereby incapacitating her.

He said Emul testified that the complainant, without any force or compulsion, voluntarily drank half a bottle of strawberry vodka.

Manglona said the government confuses first and second sexual assault offenses, which is now more readily apparent in its filing of the amended information.

The lawyer asked the court to take notice of the government’s filing of its amended information after the end of the preliminary hearing and after all evidence had been presented in court.

Last Aug. 6, assistant attorney general Teri C. Tenorio, counsel for the government, filed amended charges against Christopher Saimon. Two charges of sexual assault in the first degree were dropped while two new charges of sexual assault in the second degree were filed against Christopher Saimon.

Manglona said the government knew it incorrectly charged Christopher Saimon with two counts of first degree sexual assault.

The presumption, he said, strongly implies that the government has not proven probable cause as to these two counts of sexual assault in the first degree of the original information.

Manglona said as to whether the amended information is properly made before the court, Christopher Saimon requests that he be allotted additional time to oppose or brief the issue, or would suggest that the court hold a status conference on whether a preliminary hearing is necessary for the new charges against the defendant.

With respect to Alaska’s first degree sexual assault statute, Manglona said the Commonwealth’s first degree sexual assault statute closely tracks and mirror’s Alaska’s.

Manglona said although the Commonwealth is devoid of any case law interpreting the “without consent” element for first degree sexual assault offense, fortunately Alaska case law provides some guidance on this issue.

Based on research, he added, Alaska is the only U.S. jurisdiction that has the same statutory scheme for sexual assault crimes as the Commonwealth.