Rochester man found not guilty in felonious sex assault trial involving 14-year-old

Michael Burke looks back at courtroom observers during last week's trial at Strafford County Superior Court. (Lebanon Voice photo)

COPYRIGHT2017© DOVER - A Strafford County jury has found a 20-year-old Rochester man not guilty of two sex assault charges against a 14-year-old girl that could have landed him in prison up to 27 years.

Michael Dennis Burke, 20, of 79 Maple St., Apt. #3, whose first trial in March ended when charges were dropped due to a technicality, was back in court a week ago to face two of the three original charges, including aggravated felony sexual assault and felony sexual assault.

During the two-day trial the prosecution called the same five witnesses they had in the March trial. The defense called no witnesses and Burke did not testify.

Last Thursday the defense and prosecution argued over jury instructions regarding jury nullification, which is when jurors choose not to convict a defendant they believe to be guilty of the offense charged, usually because they conclude that the law in question is unjust or the punishment is excessive.

Prior to deliberations Judge Steven Houran advised the jury it had wide latitude in determining their verdict based on the principles of jury nullification, not just the facts of the case.

Assistant County Attorney Lauren Di Giovanni said on Wednesday that she was not happy with the judge's jury nullification instructions.

"I did object to that," she said. "I'm disappointed (at the verdict). It wasn't the outcome I had hoped for."

The aggravated felonious sexual assault charge against Burke had alleged a pattern of sexual assault "which he did more than one time over a period of two months or more and within a period of five years."

The felonious sexual assault charge alleged he "did knowing engage in sexual penetration with (the victim) who was not Burke's legal spouse."

The one felony sexual assault indictment from the original case that prosecutors did decide to drop was felony possession of child sex images, which became a moot point after the evidence was suppressed.

Both trials alleged Burke had sex with a 14-year-old girl he had dated numerous times, and physically assaulted her in February 2016.

According to a Somersworth police affidavit, Burke assaulted the victim while at a relative's house in Somersworth when the victim confronted him about cheating on her. During the argument outside the relative's apartment, the victim said Burke, refusing to continue the conversation, at some point ordered her to move so he could return inside, which she refused. According to the affidavit, he then threw her aside causing her to hit the ground. When she got back up, she slapped him, followed by Burke throwing a violent punch at her, the document reads, a punch that the victim dodged.

"He then grabbed (the victim's) head and pushed it back up against the apartment complex. He then proceeded to strangle (her) with his hands, lifting her ... off the ground," the affidavit reads.

The second degree assault charge stemming from the Somersworth case, however, was dropped in March, ending Burke's criminal liability in the incident.

However, he's not out of the woods yet.

He faces a violation of probation hearing on July 14 at Strafford County Superior Court. The violation stems from his connection to a Sept. 5, 2014, incident involving charges of simple assault, riot and criminal trespass. The violation of probation was added May 2, 2016.

Meanwhile February charges of domestic violence simple assault from a separate victim in Rochester were dropped in April, Rochester District Court staff said today.