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COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 13, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1271-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN SAIVONG,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Brown County: WILLIAM M. ATKINSON, Judge.
Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Steven Saivong appeals a judgment convicting him of
first-degree sexual assault resulting in pregnancy and sexual assault of an
eleven‑year-old child. He also
appeals an order denying his motion for postconviction relief.[1] Saivong argues: (1) the trial court improperly exercised its discretion when
it refused to allow an adjournment to give him an opportunity to find experts
to testify on HLA and DNA test results and to assist defense counsel;
(2) he was denied effective assistance of counsel when the public defender
did not allocate the funds to hire an expert witness; (3) the trial court
improperly excluded the testimony of Lamont Thao, executive director of the
Hmong Association for Brown County, who would have testified that immigrants
from Asia often understate the age of their children; (4) the State
presented insufficient evidence as a matter of law; and (5) he should be
granted a new trial in the interest of justice. We reject these arguments and affirm the judgment and order.
The victim testified
that she was eleven years old at the time of the sexual assault. She knows her birthday because she was told
by her mother. She was born in Laos and
does not have a birth certificate or other writing to document her birth
date. She testified that while her
parents were out and she was babysitting, she awoke to find Saivong on top of
her in bed. She fainted after he pulled
down her shorts. She awoke to see
Saivong, who she knew before the incident, pulling up his pants and exiting
through a bedroom window to drive off in a van that his wife usually
drives. When the victim was later
informed that she was pregnant, she identified Saivong as the only person to
have had sexual intercourse with her.
HLA and DNA blood tests establish a high likelihood that Saivong is the
father of her child.
The trial court properly
exercised its discretion when it denied Saivong's motion for a continuance to
give him an opportunity to seek expert assistance to combat the State's
scientific evidence. The court had
already granted the defense a two-month adjournment of trial to enable counsel
to seek expert help. To date, Saivong
has presented no evidence that an expert witness exists who would contradict
the conclusions of the HLA or DNA tests.
The trial court noted that Saivong's trial counsel was well informed in
the area of DNA and HLA testing and competently cross-examined the State's
experts without additional assistance.
The trial court also noted the victim's substantial interest in putting
this matter behind her. Saivong has not
established any improper exercise of the trial court's discretion or any
prejudice that arose from its decision to deny his request for a continuance. See State v. Wollman,
86 Wis.2d 459, 468-70, 273 N.W.2d 225, 230-31 (1979).
Saivong has not
established that he was ineffectively represented at trial due to the public
defender's refusal to appropriate funds to hire an expert. To establish ineffective assistance of
counsel, Saivong must show that his trial counsel's performance was deficient
and that the deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). Saivong has
neither alleged nor provided evidence that any expert witness would have presented
testimony favorable to the defense on the issue of paternity. He has not identified any deficiency in his
trial counsel's performance. Therefore,
Saivong has not established any prejudice or undermined this court's confidence
in the outcome of the trial. Id.
at 694.
The trial court properly
excluded proffered evidence that immigrants from Asia frequently understate the
ages of their children. The proffered
witness, Executive Director of the Hmong Association, had no personal knowledge
of the victim's age, did not know how many refugee families purposely
understate the ages of their children, and could not state the number of years
typically subtracted from the child's true age. His proffered testimony was too general and would invite
unwarranted speculation by the jury.
The trial court properly refused to allow this testimony on the ground
that there was insufficient foundation to establish its relevancy.
The State presented
sufficient evidence to support the convictions. The victim's testimony or the scientific evidence alone would
have been sufficient to establish that Saivong had intercourse with the child
resulting in pregnancy. The child's
testimony established her age. Saivong
argues that the jury's acquittal on the burglary charge demonstrates that it
did not believe the victim's testimony and relied entirely on the scientific
testimony. The victim testified that
she did not see Saivong enter the house.
She had no information regarding his manner of entry. The jury may have harbored doubt regarding
his manner of entry and acquitted him of the burglary charge on that
basis. Even if the verdicts are
logically inconsistent, the verdict might reflect leniency or mistake by the
jury in its analysis of the burglary charge rather than a mistake on the sexual
assault charges. See State
v. Mills, 62 Wis.2d 186, 192, 214 N.W.2d 456, 459 (1974).
Saivong notes that the
victim could not recall the exact date of the assault, provided inconsistent
testimony as to the number of people at home at the time of the assault and did
not report the assault until months later when she learned she was
pregnant. He contends that this
evidence undermines the victim's credibility.
The credibility of the witnesses and the weight to be given their
evidence is solely for the jury to determine.
See State v. Wilson, 149 Wis.2d 878, 894, 440
N.W.2d 534, 540 (1989).
Finally, we conclude
there is no basis for granting a new trial in the interest of justice. Saivong argues that justice has miscarried
and that retrial would result in a different verdict. We have rejected all of the arguments upon which he bases his argument
that justice has miscarried. There is
no basis for believing that retrial would result in a different verdict.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.