EDMONTON — An Edmonton rapist tagged a dangerous offender after being found guilty of sexually terrorizing a single mom and her young son has lost an appeal of his conviction.
In a decision released Tuesday, the Court of Appeal of Alberta dismissed the appeal of Russell Ominayak, 31.
Defence lawyer Graham Johnson argued the judge at the 2007 trial had erred in her legal instructions to the jury on two different fronts.
He said the judge failed to caution jurors about drawing inferences from Ominayak’s post-arrest statements.
Second, he suggested the judge was wrong in telling the jury it could consider Ominayak’s failure to supply an innocent explanation as to how his palm print could have been left on the inside of the victim’s window sill.
The three-judge appeal panel unanimously ruled the trial judge had not made any errors in her jury instructions and added that, even if she had made some minor errors, the evidence overwhelmingly pointed to Ominayak’s guilt.
“These pieces of evidence, tied together with the remaining circumstantial evidence, proved beyond a reasonable doubt that (Ominayak) committed the offences he was charged with and the jury could have come to no other conclusion,” said the panel in its written decision.
Ominayak was convicted of aggravated sexual assault, sexual assault, invitation to sexual touching, two counts of forcible confinement, sexual interference and robbery.
The jury heard he broke into the south-side home of a sleeping single mom through a window on the morning of Aug. 22, 2002, and raped her at knifepoint. He also forced her seven-year-old son to watch the brutal sex attack and made the traumatized boy sexually touch his mother.
Following the sex attacks, Ominayak made the woman drive to a bank and forced her son to withdraw money from an ATM. While the boy was in the bank, the woman ran out of the van and Ominayak fled.
After his arrest, Ominayak’s sister visited him at the Edmonton Remand Centre and asked him if “he had raped that girl.” She testified he replied that he could not remember. Ominayak was also asked by police to explain how his palm print could have been left on the inside window frame of the townhouse and he said he did not know.
Other evidence heard at the trial included DNA from three hairs seized at the crime scene which effectively eliminated anyone outside Ominayak’s maternal bloodline as the source. Testimony showed he was the only living adult male in his maternal bloodline.
Jurors also heard Ominayak was living in his sister’s townhouse, which was in the same townhouse complex as the victim, and he was seen briefly by his sister in her townhouse at or near the time of the home invasion.
He was also identified by the victim in a police photo-line up and later in court during the trial.
In June 2007, Ominayak was declared a dangerous offender and handed an indefinite prison sentence.
The judge accepted psychiatric evidence diagnosing Ominayak with an antisocial personality disorder and calling him a “callous, unempathic and remorseless individual who is highly impulsive, blames others for his problems and acts irresponsibly.”
Ominayak has also appealed his dangerous offender designation.