SAN JOSE (CBS SF) — A state appellate court Wednesday denied an appeal from the attorney of a former Stanford University swimmer convicted of sexual assault, upholding the jury’s verdict from 2016.

On July 24, Brock Turner’s attorney Eric Multhaup argued there wasn’t enough factual evidence to convict Turner of three charges: assault with intent to commit rape, sexual penetration of an intoxicated person with a foreign object and sexual penetration of an unconscious person with a foreign object.

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He said Turner was only engaged in “sexual outercourse,” or “safe sex,” and that he did not intend to rape the victim, Jane Doe, outside of a fraternity party near Stanford in January 2015.

A panel of the state’s Sixth District Court of Appeal said in its decision today that Multhaup’s argument “lacks merit.”

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“The fact that defendant was engaging in a different sexual act at the time the encounter was interrupted (namely, “dry humping”) does not foreclose the inference that he intended, ultimately, to rape ‘the victim,'” the court wrote.

Justices Frank Elia, Adrienne Grover and Wendy Clark Duffy handed down the decision. Multhaup could not be reached for comment.

Last June, Santa Clara County Judge Aaron Persky became the first California judge recalled from office since 1932 after a heated campaign was mounted by a group of activists who found his sentencing of Turner too lenient.

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