Failure to expressly discuss mitigated sexual assault sentencing framework not fatal where aggravating circumstances exclude lesser offense

The German Federal Court of Justice (BGH) dismissed the defendant’s appeal against a criminal judgment by the Bochum Regional Court, upholding the conviction and ordering the defendant to bear the costs of the appellate proceedings and the necessary expenses of the private prosecution; the original conviction and sentencing therefore remain in force. The dispute concerned a challenge to the trial court’s failure to explicitly discuss the applicability of § 177 Abs. 9 StGB (a mitigated sentencing framework for sexual assault as a lesser offense) during the sentencing phase for a specific count within a multi-count judgment. The Court determined that this procedural omission did not constitute a fatal legal error because the aggravating circumstances identified by the trial court, particularly the commission of the offense while on probation, logically excluded the classification of the crime as a lesser offense, thereby rendering the explicit discussion unnecessary under § 349 Abs. 2 StPO.