A 23-year-old Penticton man has been found not guilty of sexual interference of a person under the age of 16 in an incident which dates back to the summer of 2016.
Cole Wyatt Borba was 21 at the time when he drove a young girl to a deserted area on Carmi Road in Penticton where they engaged in brief sexual contact which ended in oral sex. The girl was one month shy of her 13th birthday at the time.
In a trial which concluded in March, Borba claimed he fully believed the girl was of legal age of consent.
The judge in the case acknowledged Borba "probably" could have taken more measures to learn the girl's accurate age. However, she found Borba not guilty, noting the crown was unable to prove beyond a reasonable doubt that he failed to take reasonable steps to ascertain the girl's age.
Borba's verdict was read Wednesday in a silent Penticton courtroom.
The judge noted that prior to the incident, the girl was in the company of friends who Borba knew were at least 16.
The complainant had sent unsolicited photos to Borba of she and three others, first face shots, then in bras and eventually topless. He knew one of the girls in the photos was 16 and said the complainant was similar in appearance.
The conversation between Borba and the girl was limited, but she had made reference to "sucking at driving," meaning she would be at least 16 to obtain a learner's permit.
The 16-year-old girl, a mutual friend of both Borba and the girl, also suggested a "hook-up" between the two. Borba said he trusted his friend would never suggest something that could get him in trouble.
The judge also said it's not unusual for youngsters to misrepresent their age. The complainant had originally contacted Borba asking him to purchase alcohol for her, but didn't think he would oblige if she disclosed she was only 12.
Borba looked relieved when the verdict was read. His mother and other supporters quietly wept.