



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)  In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)  An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)   Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)  For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.H., 2017 ONCA 965

DATE: 20171208

DOCKET: C58684

Watt, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G. H.

Appellant

Anthony Moustacalis, for the Appellant, G. H.

Mabel Lai, for the Respondent

Heard: September 8, 2017

On appeal from the conviction entered on August 22, 2013
    by Justice Mary Jo Nolan of the Superior Court of Justice.

BROWN J.A.:



I.

OVERVIEW

[1]

The appellant, G. H., appeals from his conviction on one count of sexual
    assault contrary to s. 271 of the
Criminal Code
.

[2]

The appellant had been charged on
    a sixteen-count indictment alleging a variety of sexual offences against three teenage
    girls under the age of 16: M.F.,  M.Z., and S.B. The appellant pleaded not
    guilty to all counts. He testified, denying the allegations.

[3]

At the conclusion of the evidence,
    the Crown invited the trial judge to dismiss the 13 counts concerning M.F. and
    M.Z. on the basis the evidence did not allow the Crown to meet the requisite
    standard of proof. The trial judge did so.

[4]

The appellant also requested a
    directed verdict dismissing a charge of sexual exploitation in respect of S.B.
    In her reasons delivered August 22, 2013, the trial judge found the appellant
    not guilty on that count because she could not find he was in a position of
    authority or trust in relation to S.B. The remaining two counts involved
    allegations of sexual assault and sexual interference against S.B. occurring on
    the same day at the appellants house. The trial judge acquitted the appellant
    of sexual assault, but found him guilty of sexual interference.

[5]

On March 24, 2014, some seven
    months after convicting the appellant of sexual interference and following submissions
    from the Crown and the defence, the trial judge set aside the finding of guilt
    on the count of sexual interference and substituted a finding of guilt on the
    count of sexual assault. She imposed a suspended sentence and two years
    probation. The appellant appeals his conviction.


II.

THE EVIDENCE

[6]

S.B. was 15 years old in the summer of 2010, when the alleged events
    occurred.  At the time, S.B.s best friend was M.Z. S.B. also knew the other
    complainant, M.F., but at the time of the trial, they had not been friends for
    a few years.

[7]

The events giving rise to the sexual assault and sexual interference
    counts were alleged to have taken place one day in August, 2010 at the
    appellants home. On that day, S.B., M.Z., and the appellants young son were
    swimming and boating with the appellant. The events underpinning the sexual
    interference count preceded those on which the sexual assault charge was based.

The sexual interference count: the kiss

[8]

S.B. testified that as they were getting ready to eat outside, she went
    into the kitchen to get some salt and pepper. The appellant was there.
    According to S.B., the appellant hugged her tightly for a bit and, as she
    backed away, kissed her on the lips. S.B. said nothing and walked back outside.

[9]

S.B. acknowledged the appellant had hugged her before, which she had
    treated as innocent signs of affection. However, this hug was tighter, and she
    said it felt like he had invaded her space. S.B. testified the appellant had
    not kissed her before.

[10]

The
    appellant stated he may have been alone with S.B. in the kitchen in passing,
    but he denied kissing her on the lips.

The sexual assault count: the whipped cream

[11]

S.B.
    also testified that following the dinner, she was in the kitchen with M.Z., the
    appellants son, and the appellant, who was making sundaes. The appellant
    sprayed some whipped cream from a can into his sons mouth. According to S.B.,
    the appellant then sprayed some on her chest, covering an area about six inches
    long above her breasts.

[12]

S.B.
    stated she went into the bathroom to wipe off the whipped cream. The appellant
    gave her a face cloth and then allegedly said, Why dont you let me lick it
    off instead? S.B. testified the appellant moved towards her. S.B. told him no.
    She wiped off the cream with the face cloth and left the bathroom.

[13]

S.B.
    testified the appellant deliberately sprayed her with the whipped cream.
    Although everyone laughed at the time, when the appellant made the comment in
    the bathroom about licking the whipped cream off her chest she thought it was a
    sexual thing.

[14]

The
    appellant acknowledged that following dinner, they went into the kitchen to
    make sundaes for dessert. His son asked him to squirt some whipped cream into
    his mouth, which he did. Everyone laughed. The appellant then asked S.B. if she
    wanted some. She said she did. The appellant reached over to spray the cream in
    her mouth, but missed. He testified about a tablespoon of whipped cream landed
    six to eight inches above her breasts. He apologized and everybody laughed.

[15]

The
    appellant told S.B. to use the washroom and gave her a face cloth from the
    linen closet. He was at the entrance to the bathroom. The appellant denied
    offering to lick off the whipped cream. He said the squirting of the whipped cream
    on S.B.s chest was accidental.


III.

THE TRIAL JUDGES REASONS

[16]

The
    trial judge commenced her analysis by reviewing the general principles
    concerning the burden of proof, reasonable doubt, and the assessment of
    credibility and reliability. As well, the trial judge charged herself on the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742.

[17]

The
    trial judge first dealt with the sexual exploitation charge. On the facts of
    the case, she could not find the appellant was in a position of authority or
    trust in relation to S.B. Accordingly, she found the appellant not guilty of
    sexual exploitation.

[18]

The
    trial judge then turned to events of August 2010. She first considered the
    sexual assault count involving the whipped cream. While not necessarily
    believing the appellants version of events regarding the whipped cream, the
    trial judge concluded his explanation left her with a reasonable doubt as to
    whether the act was intentional and had taken place in circumstances of a
    sexual nature. She therefore found the appellant not guilty.

[19]

As
    to the sexual interference count - the kiss on the lips - the trial judge did
    not believe the appellants evidence. She concluded it did not raise a
    reasonable doubt. Looking at the totality of the Crowns evidence regarding the
    count, the trial judge found S.B. to be a credible and believable witness and
    her evidence compelling. Consequently, the trial judge was satisfied beyond a
    reasonable doubt that the appellant kissed S.B. on her lips with his lips, and
    she convicted him of sexual interference.


IV.

ISSUES ON APPEAL

[20]

The
    appellant advances three grounds of appeal:

(i)

The trial judge improperly relied on the evidence of Ms. L.A., a witness
    called to testify about events involving M.F., to convict the appellant on a
    count involving S.B.;

(ii)

The trial judge misapplied the burden of
    proof; and

(iii)

The trial judge gave inadequate reasons
    for rejecting the evidence of the appellant on one count, while accepting it raised
    a reasonable doubt on another.



V.

FIRST
    ISSUE: DID THE TRIAL JUDGE IMPROPERLY USE L.AS EVIDENCE?


The issue stated

[21]

At
    trial, the Crown called L.A. as a witness. Her evidence dealt with the events
    surrounding a July 2010 barbecue hosted by the appellant at his house.

[22]

M.F.
    testified that she attended the barbecue with her parents. L.A. was also
    present. According to M.F., the appellant had asked her parents whether she
    could babysit as he planned to go out with friends.  M.F.s mother also
    testified the appellant had asked if M.F. could babysit because he was going
    out with his then-girlfriend, L.A.  M.F. alleged that after her parents left
    the appellants house, the appellant sexually assaulted her

[23]

L.A.
    testified she left the appellants house around 11 p.m. and went home.  L.A.
    did not recall receiving a call from the appellant that evening inviting her to
    go to the casino.  She did recall receiving such an invitation from the
    appellant at a later date.

[24]

The
    appellant agreed in his examination-in-chief that he had asked M.F. to babysit
    on the evening of the July barbecue. He planned to go to the casino with
    friends. On the way to the casino, he called L.A. to ask whether she wanted to
    join him. She declined, and the appellant returned home. He denied assaulting
    M.F. that evening.

[25]

During
    the course of the trial judges review of the evidence, she briefly summarized
    the appellants evidence about the events leading up to his arrest.  She
    referred to the appellants attendance at M.F.s home, his discussion with
    M.F.s mother and father, and a subsequent email from M.F.s father:

[W]ho asked [the appellant] where he was the night [M.F] said
    the rape occurred and [the appellant] told [M.F.s father] that he was at [L.A.s]
    house just off Banwell Road. When she testified, [L.A.] denied being with [the
    appellant] that night.

[26]

The
    appellant submits two errors resulted from the trial judges reference to L.A.s
    evidence. First, L.A. was called by the Crown to give evidence in respect of a
    count concerning the appellants conduct toward M.F. By the time the trial
    judge came to consider the counts involving S.B., she had dismissed, at the
    Crowns invitation, the counts involving M.F. Therefore, the appellant submits,
    the trial judge relied on inadmissible evidence of a collateral fact in
    convicting the appellant.

[27]

Second,
    the Crown had pointed to the evidence of L.A. in support of its submission the
    trial judge should find the appellant had fabricated an alibi with respect to
    M.F.s allegation. Since the trial judge did not find that the appellant had
    fabricated or concocted an alibi to escape criminal liability, the appellant
    argues she was not permitted to consider L.A.s evidence.

[28]

In
    response, the Crown contends the trial judges single sentence reference to L.A.s
    evidence constituted no more than a description of the events leading to the
    appellants arrest. Moreover, although a credibility finding on one count could
    properly inform the trial judges credibility assessment on another, in the
    result the trial judge made no finding in respect of L.A.s evidence and did
    not rely on it to convict the appellant.

Analysis

[29]

When
    the trial judges reasons are read in their entirety, it is apparent her
    reference to L.A.s evidence merely formed part of her recitation of the background
    narrative. Her subsequent analysis of the evidence leading to her credibility
    findings on the two counts concerning S.B. does not contain any reference to L.A.s
    evidence. The reasons do not disclose any reliance by the trial judge on that
    evidence.

[30]

Further,
    the record does not support the appellants submission to the effect the trial
    judge should not have made any reference to L.A.s evidence because the charges
    involving M.F. had been dismissed at the invitation of the Crown. That
    submission ignores how the trial unfolded and how his trial counsel used that
    evidence in closing submissions.

[31]

After
    the conclusion of the evidence, the Crown invited the trial judge to dismiss
    the charges involving M.F. Final submissions then ensued. Crown counsel limited
    his submissions to the remaining counts concerning S.B. Nevertheless, in his
    closings in chief and in reply, appellants trial counsel referred to L.A.s
    evidence, submitting the appellant had adequately explained inconsistencies
    between his statement to the police and his evidence at trial concerning his
    contact with L.A. following the barbecue.

[32]

In
    those circumstances, I would not give effect to this ground of appeal.

VI.     SECOND ISSUE: DID THE TRIAL
    JUDGE MISAPPLY THE BURDEN OF PROOF?

[33]

In
    his factum, the appellant submitted the trial judge misapplied the burden of
    proof and effectively shifted the burden onto the defence to disprove guilt. He
    argued the sequence in which the trial judge examined the evidence disclosed a
    misapplication of the
W.(D.)
principles. The appellant did not address
    this issue in oral argument.

[34]

I
    am not persuaded by this submission. The trial judge correctly instructed
    herself on the
W.(D.)
principles. Several times during her analysis
    she repeated that the Crown bore the onus to prove each count beyond a
    reasonable doubt.

[35]

On
    the sexual assault count involving the whipped cream, the appellant does not
    dispute that the trial judges reasons disclose a proper application of the
W.(D.)
principles. However, the appellant takes issue with how the trial judge
    conducted her credibility analysis on the sexual interference charge  the
    alleged kiss on the lips. He argues the trial judge committed a classic
W.(D.)
error by focusing on whether or not the appellant could provide an explanation
    that disproved the charge, instead of on whether the totality of the evidence
    supported guilt beyond a reasonable doubt.

[36]

I
    would not give effect to this argument. The trial judge first found she did not
    believe the appellants evidence; nor did it raise a reasonable doubt. She then
    considered the totality of the evidence presented by the Crown with respect to
    that count, keeping in mind that the onus is always on the Crown to prove each
    element of the offence beyond a reasonable doubt. She examined the
    complainants evidence from that perspective and found it compelling. That
    led her to conclude the Crown had established beyond a reasonable doubt that
    the appellant kissed S.B. on her lips for a sexual purpose.

[37]

Having
    reached that conclusion, the trial judge went on to state that her chain of
    reasoning should not be taken to have reversed the onus of proof. After
    reiterating that the burden of proof remained on the Crown throughout, the
    trial judge stated:

I have not rejected [the appellants] evidence because of
    [S.B.s] evidence. I have rejected [the appellants] evidence because it is not
    credible. However, my belief in [S.B.s] evidence is an additional factor which
    strengthens my conclusion that [the appellants] denial does not raise a reasonable
    doubt.

[38]

When
    the trial judges reasons are read in their entirety, they disclose she did not
    lose sight of the key issue: whether the evidence as a whole established the
    accuseds guilt beyond a reasonable doubt:
R. v. Dinardo
, 2008 SCC 24,
    [2008] 1 S.C.R. 788, at para. 23. She did not misapply the principles in
W.(D.)
.
    I would not give effect to this ground of appeal.

VII.    THIRD ISSUE: WERE THE TRIAL JUDGES REASONS INSUFFICIENT?

The issue stated

[39]

Although
    the appellant acknowledges that the credibility findings of a trial judge are
    entitled to a high degree of deference, he submits the trial judge failed to
    explain sufficiently why she rejected his denial of kissing S.B, while finding
    that his explanation about the whipped cream incident raised a reasonable
    doubt. He submits the trial judge offered no reasons for her abrupt finding
    not to believe the appellants denial of kissing S.B.
[1]


[40]

Those
    circumstances, he argues, resemble the situation in
R. v. Wright
, 2013
    MBCA 109, (2013) 305 C.C.C. (3d) 556 where, at para. 45, the Manitoba Court of
    Appeal stated: Fundamentally, the trial judges reasons are inadequate because
    they do not explain how he could disbelieve the complainant with respect to
    whether the sexual activity was consensual, but believe her with respect to the
    issue of revocation of consent. The appellant submits this court should find
    the trial judge failed to provide sufficient reasons for her credibility
    findings.

[41]

The
    Crown argues the trial judge provided considered reasons for accepting S.B.s
    evidence in its entirety. Doing so provided a reasonable basis for rejecting
    the appellants denial.

Analysis

[42]

An
    appellate court assesses the sufficiency of a trial judges reasons in a
    criminal case by employing the functional approach set out in
R. v. R.E.M.
,
    2008 SCC 51, [2008] 3 S.C.R. 3. In that case, the Supreme Court summarized, at
    paras. 55 and 56, an appellate courts basic task when assessing the
    sufficiency of a trial judges reasons:

The appellate court, proceeding with deference, must ask itself
    whether the reasons, considered with the evidentiary record, the submissions of
    counsel and the live issues at the trial, reveals the basis for the verdict
    reached.  It must look at the reasons in their entire context.  It must
    ask itself whether, viewed thus, the trial judge appears to have seized the
    substance of the critical issues on the trial.  If the evidence is
    contradictory or confusing, the appellate court should ask whether the trial
    judge appears to have recognized and dealt with the contradictions.  If
    there is a difficult or novel question of law, it should ask itself if the
    trial judge has recognized and dealt with that issue.

If the answers to these questions are affirmative, the reasons
    are not deficient, notwithstanding lack of detail and notwithstanding the fact
    that they are less than ideal.

[43]

Applying
    those questions to the review of the trial judges reasons in the present case,
    I conclude the reasons are not deficient, notwithstanding the fact they are
    less than ideal.

[44]

Dealing
    first with their sufficiency. In her reasons, the trial judge acquitted the
    appellant of sexual assault in respect of the whipped cream incident because
    the appellants explanation leaves me with a reasonable doubt as to whether
    the act was intentional and whether it took place in circumstances of a sexual
    nature. She explained that even if the appellant made the licking-off comment,
    this could not constitute as [sic] sexual assault in the absence of a finding
    that the squirting of the whipped cream was intentional and constituted a
    sexual act.

[45]

It
    is apparent from her reasons that the trial judge reached her decision to
    acquit on the sexual assault count without rejecting or disbelieving the
    evidence of the complainant. Indeed, the complainants evidence appeared to
    buttress the reasonable doubt the trial judge had about whether the squirting
    of the whipped cream was an act of a sexual nature. Although S.B. insisted the
    appellant did not miss when he squirted whipped cream at her, the trial judge noted
    that S.B. agreed that everyone laughed and she agreed that it was funny. She
    did not think at that point it was a sexual thing. In those circumstances, the
    trial judge was satisfied the appellants explanation raised a reasonable
    doubt.

[46]

The
    trial judge then turned to consider the sexual interference charge  the alleged
    kiss on the lips prior to the whipped cream incident. She first considered the
    appellants denial, stating simply:

[The appellant] denied kissing [S.B.] on the lips after hugging
    her when they were alone in the kitchen. I do not believe [the appellants]
    evidence and it does not raise a reasonable doubt.

[47]

The
    trial judge then looked at the totality of the evidence presented by the Crown
    with respect to that count. She reasoned:

[S.B.] gave her evidence in a straightforward manner. She did
    not attempt to embellish or exaggerate what happened with respect to the kiss
    and the hug that preceded it. It was done out of the view of others, which I
    find adds to my finding that it was for a sexual purpose. [S.B.] acknowledged
    as did [the appellant] that she never returned to [the appellants] home after
    that day.

[S.B.] gave her evidence in a straightforward manner, not
    embellishing the facts as she went along, nor was her evidence undermined in
    any material way on cross-examination. I found [S.B.] to be a credible and
    believable witness and her evidence compelling. I find that [the appellants]
    denial is not to be believed. I am satisfied beyond a reasonable doubt that
    [the appellant] kissed [S.B.] on her lips with his lips. It was a deliberate
    act and could be for no other than a sexual purpose. A kiss on the forehead or
    the cheek might be able to be construed as not sexual. This was not such a
    kiss. [The appellants] denial did not displace my firm belief that [S.B.] told
    the truth when she was providing her evidence.

[48]

Although
    the trial judges treatment of the appellants evidence was brief,  the
    articulation of her reasoning meets the minimum threshold for avoiding
    appellate interference established in
R.E.M.
where the Supreme Court stated,
    at para. 66:

[
T]he
trial judges failure to explain why he
    rejected the accuseds plausible denial of the charges provides no ground for
    finding the reasons deficient.  The trial judges reasons made it clear
    that in general, where the complainants evidence and the accuseds evidence
    conflicted, he accepted the evidence of the complainant.  This explains
    why he rejected the accuseds denial.  He gave reasons for accepting the
    complainants evidence, finding her generally truthful and a very credible
    witness, and concluding that her testimony on specific events was not
    seriously challenged   It followed of necessity that he rejected the
    accuseds evidence where it conflicted with evidence of the complainant that he
    accepted.  No further explanation for rejecting the accuseds evidence was
    required.  In this context, the convictions themselves raise a reasonable
    inference that the accuseds denial of the charges failed to raise a reasonable
    doubt. [Citation omitted.]

[49]

This
    is not a case where the trial judge accepted the complainants evidence on one
    count, but rejected it on another, such as in
R. v. Wright
, or where
    the trial judge expressed concerns about the complainants evidence on all counts,
    such as in
R. v. Schiefer
, 2015 ONSC 2373. Here, the reasons disclose
    the trial judge accepted the complainants evidence about the kiss and used
    some of the complainants evidence about the whipped cream events to conclude
    the appellants evidence raised a reasonable doubt on the sexual assault count.

[50]

Further,
    when read as a whole the trial judges reasons do explain why the trial judge
    concluded the appellants evidence raised a reasonable doubt on the whipped
    cream count, but not on the kiss. To repeat: the reasons disclose the
    complainants evidence appeared to buttress the reasonable doubt the trial
    judge had about whether the squirting of the whipped cream was an act of a
    sexual nature. The evidence, considered in its totality, did not raise a similar
    reasonable doubt on the sexual interference count.

[51]

Accordingly,
    I would not give effect to this ground of appeal.

[52]

That
    said, although the trial judges reasons met the minimum threshold set down in
R.E.M.
to avoid appellate interference, she could have developed them more fully. One
    could read her reasons as expressing the view that the decisions of the Supreme
    Court of Canada in
R.E.M.
and
R. v. Vuradin
, 2013 SCC 38,
    [2013] 2 S.C.R. 639, stand for the proposition that a trial judge need not
    explain why she rejects an accuseds plausible denial of the charges as long as
    she explains why she accepts the conflicting evidence of the complainant.

[53]

A
    minimum threshold for avoiding appellate interference, such as that set out in
R.E.M.
,
    should not be confused with the higher goal of full reasons trial judges should
    strive to achieve in each case. Binnie J. put the matter succinctly in
R.
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, where he stated, at para.
    21:

The task is not so much to extol
the virtues of giving full
    reasons, which no one doubts
, but to isolate those situations where
    deficiencies in the trial reasons will justify appellate intervention and
    either an acquittal or a new trial. [emphasis added]

[54]

Full
    reasons justifying and explaining the result in a criminal trial remains the quality
    standard trial judges should strive to achieve in every case. I do not read
    either
R.E.M.
or
Vuradin
as diminishing the virtues of
    giving full reasons.

VIII.   DISPOSITION

[55]

For
    the reasons set out above, I would dismiss the appeal.

Released: DW Dec 8 2017

David Brown J.A.
I agree. David Watt J.A.
I agree. Gloria Epstein J.A.





[1]
The reasons given on August 22, 2013 resulted in a conviction on the count of
    sexual interference (the kiss) and an acquittal on the count of sexual assault
    (the whipped cream). On March 24, 2014, after submissions by both parties, the
    trial judge set aside the finding of guilt on sexual interference and replaced
    it with a finding of guilt on the count of sexual assault.
Notwithstanding
    this substitution, the argument on this ground of appeal proceeded on the basis
    of reasons delivered by the trial judge on August 22, 2013.


