Man found guilty of sex assault

'She was at a disadvantage, something he took advantage of'

CAM FORTEMS / Kamloops Daily News
November 24, 2012 01:00 AM

A jury found a 46-year-old man who entered an apartment and had sex with a young woman guilty of sexual assault and break and enter with intent.

The jury of seven women and five men deliberated for three hours Friday evening, resuming again Saturday morning at 9 a.m. Shortly before 1 p.m. the foreman stood and declared Tomma guilty on both counts.

Tomma, who is not in custody, will return to B.C. Supreme Court on Dec. 17 to fix a date for his sentencing. He walked out of court silently, accompanied by his mother and defence lawyer Sheldon Tate, who walked with his arm around his shoulders.

Following a five-day trial, the jury had to determine whether the 18-year-old woman, living by herself at a Shuswap apartment complex, consented to sex with Tomma in the early morning hours of Oct. 23, 2010.

There was no evidence he used force on the young woman.

Instead, the jury had to decide whether, once inside the woman's tiny apartment, she gave Tomma any signals that she wanted sex.

Both Tomma and the woman testified to being drunk following a party with restaurant workers at a Shuswap resort.

Prosecutor Joel Gold said Tomma walked into the woman's room uninvited, while she was asleep.

"She was at a disadvantage, something he took advantage of," he told the jury in his final submission.

Tomma and the woman were casual acquaintances. More than twice her age, Gold said Tomma did not take steps to ensure she consented to sex with him.

The jury also had to discount that Tomma had an honest, but mistaken belief she wanted sex with him.

"It's not a defence if a mistaken belief is the result of getting drunk . . . He failed to take reasonable steps to determine whether she consented," Gold told the jury Friday.

Tate said his client was trapped in a case of mistaken identity. Tomma admitted to one of the woman's teenage friends a few days before that he was attracted to her.

He opened her unlocked door in the early morning hours, some time after the party ended.

He said she had her eyes open. He began caressing her, which eventually led to sex.

But the woman said, through the fog of alcohol and sleep, she was only dimly aware she was having sex. She went in an out of consciousness several times.

In her statement to police, she acknowledged "going with it" because she believed she was with another man, to whom she was attracted.

Eventually, after several minutes she found her self on top of Tomma, which is when she finally realized she was having sex with him. Shocked and confused, she ran to the bathroom and shut the door. Soon after she went to a friends' house next door, who called RCMP.

© Kamloops Daily News

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