Nature of the Case
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Facts
The relationship between C.H. and D reached a critical point on March 28, 2008. Things were not good between them, and C.H. was a victim of domestic violence. She even went to buy a gun but was required to wait 10-days. D confronted C.H., and she went to the bathroom and used a tape recorder to record the ensuing events. D gave C.H. this ultimatum: 'You suck or get butt fucked.' While he was choking her, she chose to suck. She testified that she relented out of fear, and to avoid the hurt from forced anal sex. During the act, C.H. indicated 'I can't breathe. I can't breathe. I'm sorry, I'm sorry, I can't breathe. I'm sorry, I can't . . .' She pleaded, 'I don't want to be raped. Nobody deserves to be raped.' D responded, 'I'll go get a knife downstairs if I fucking have to.' He added that she was not dumb or confused, and he would 'be sure to carve that on [her] fuckin' head when [he dumped her] body.' D held the back of her head as she orally copulated him. At one point, D switched to having vaginal intercourse with her. D asked C.H. if she was going to call the police. She said, 'No, leave me alone.' He responded, 'Great idea.' She retorted, 'If I could survive the phone call I would have called.' D had threatened that if she did call, he would kill her before the police arrived. Serious incidents of violence were perpetrated on C.H. by D in 1998, 2003, 2004, 2007, and again 2007. He was actually convicted of a misdemeanor battery in the 1998 incident. At trial, D claimed the taped incident were merely rough sex role play. D claimed that in the unrecorded part of the role play that ensued, C.H. pretended to be angry that d was having an affair with another woman, and held his head as he performed oral sex on her, while he said, 'I can't breathe.' D also denied all the other prior acts of violence over the years against C.H. D was convicted and appealed.
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