People v. McCann
Annotate this CaseMcCann was charged with forcible sexual penetration by a foreign object (Pen. Code 289(a)(1)(A) and other offenses arising from his attack of Kevin in McCann’s hotel room. Preliminary hearing testimony showed that McCann and Kevin had been drinking before the incident. Kevin had no memory of what happened to him. After the attack, Kevin appeared “beat up pretty bad”; his injuries included a broken nose, ruptured bladder, and torn rectum. He was required to use a colostomy bag for months afterward. The trial court dismissed count 1, finding no evidence that Kevin’s will was overcome by physical force. The court of appeal reversed, noting Kevin’s testimony that he did not consent and would not consent to having anything inserted in his anus; McCann’s admissions to witnesses that he put either a jagged steel bar or a wooden broomstick or handle in Kevin’s rectum, that he whacked Kevin over the head, and that he caused Kevin’s injuries and kicked him so hard McCann broke his own foot; and the nature of Kevin’s injuries. The court rejected McCann's argument that the “sexual penetration of Kevin here was not accomplished by force, but rather, by taking advantage of Kevin’s intoxication or unconsciousness.”
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