COURT OF APPEALS
DATED AND FILED
February 1, 2011
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
from an order of the circuit court for
HABEAS CORPUS original proceeding. Writ denied.
¶1 FINE, J.
¶2 In April of 2005,
● Otis “grabbed my hand and placed it in his pants” and “made me masturbate him.”
● He “pressed up against me and … touched … [m]y breasts and my private,” which meant her vagina.
● He “play[ed] with my breasts and plac[ed]” his private up against … [m]y breast.”
● He told her “to get on my knees[,] … unzipped his pants and … made me perform oral sex on him” by “grabb[ing] my hair and my head” and [p]ush[ing] it up against his private, my face on his private.”
● While in his car,
● One time at Laquanda’s home, Otis followed her into her bedroom and Laquanda testified Otis: “made me get on my knees” and “made me perform oral sex on him.”
● He “groped” her “breasts, my private, and my butt.”
● One time he was “grinding” her, which she described as laying on top of her with “his private out” and pushing it on her “private” while she was clothed.
¶3 Although Laquanda had told police that she thought two of
¶4 The jury was instructed to find Otis guilty on the repeated-sexual
assault charge if: “[a]t least three
sexual assaults took place” between “June 1, 2001 and June 18, 2003.” As noted, the jury convicted Otis. The trial court denied
¶5 The Frank J. Remington Center filed
A. Insufficiency of the Evidence.
¶7 State v. Poellinger, 153
[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
¶8 In order to prove Otis guilty of repeated sexual assault of
Laquanda, the State had to prove beyond a reasonable doubt that: (1) Otis committed three or more sexual
assaults as defined in Wis. Stat. §
948.02(1) or (2); (2) within a specified period of time; (3) against
Laquanda. See Wis. Stat. § 948.025(1)(b).
¶9 The Record shows sufficient evidence under our standard of
review to support beyond a reasonable doubt that
B. Knight Petition.
¶10 Otis’s petition for writ of habeas corpus asserts that his appellate lawyer gave him constitutionally deficient representation because the lawyer did not make the specific sufficiency-of-the-evidence claim that Otis makes in this appeal.
¶11 To establish constitutionally deficient representation, a
defendant must show: (1) deficient
representation; and (2) resulting prejudice.
¶12 As we have seen,
C. Ineffective Assistance of Trial Counsel.
¶14 The trial court denied this claim, reasoning:
The court observed the witness in this case, and the court perceived her as entirely credible and attempting to give an accurate account of events. Even though the presentation of the time sheets might have demonstrated that the defendant could not have been where Laquanda believed he was during this time, it doesn’t mean that Laquanda was purposefully telling a falsehood. The victims in this case were asked to pinpoint dates and times going back several years. The month of August 2004 at around 3 pm is not cut in stone. She could not even remember it was August. The victim was interviewed almost a year after the occurrence, and there is not a reasonable probability that a jury would have held her to that specific date and time had this evidence been presented during the trial, given the amount of time that had elapsed since the assaults occurred, the number of assaults she was exposed to, and the way the jury perceived her on the witness stand. Therefore, it is not reasonably probable, even if trial counsel knew about the defendant’s work schedule and presented it to the jury, that the jury would have been persuaded that the victim was somehow not telling the truth, particularly given the multiple instances of sexual assault to which she said she was subjected.
¶15 On our de novo review
of the trial court’s legal analysis, and giving its implicit findings of fact
the requisite deference, see Wis. Stat. Rule 805.17(2) (trial court’s findings of fact accepted on appeal
unless they are “clearly erroneous”) (made applicable to criminal proceedings
by Wis. Stat. § 972.11(1)), we
agree with the trial court’s assessment.
As we have seen, although Laquanda initially told the police that she
thought two of these assaults took place after school at 3:00 and 4:00 p.m. in
August of 2004, she never gave a specific time during her trial testimony. When asked “Do you recall telling this
officer seated next to me that it was in August of 2004?” she answered: “Probably.
I don’t remember. … I don’t remember when it was.” Thus, the work records could only have
impeached Laquanda’s initial statement to police, which in itself, was not
certain as to time or date. Otis was not
deprived of a fair trial and a reliable outcome, see Strickland, 466
By the Court.—Order affirmed; petition for a writ of habeas corpus denied.
Publication in the official reports is not recommended.
(1) First degree sexual assault. (am) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm to the person is guilty of a Class A felony.
(b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.
(c) Whoever has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony.
(d) Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is at least 18 years of age when the sexual contact occurs.
(e) Whoever has sexual contact with a person who has not attained the age of 13 years is guilty of a Class B felony.
(2) Second degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony.
Wisconsin Stat § 948.025(1)(b) provides:
(b) A Class B felony if at least 3 of the violations were violations of s. 948.02(1)(am), (b), or (c).
have concluded the evidence is sufficient to support the repeated sexual
assault conviction; thus, we need not address