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COURT OF APPEALS DECISION DATED AND FILED May 8, 2012 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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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.� |
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����������� APPEAL
from a judgment and an order of the circuit court for
����������� Before Curley, P.J., Fine and Brennan, JJ.
�1������� FINE, J. Dwain Staten appeals the judgment entered on jury verdicts convicting him of burglary, see Wis. Stat. � 943.10(2)(a), first-degree sexual assault, see Wis. Stat. � 940.225(1)(b), and armed robbery use of force, see Wis. Stat. � 943.32(2).� He also appeals the order denying his motion for postconviction relief seeking DNA testing.� Staten argues that: �(1) the State should pay for more DNA testing because it may show another man had sex with the victim; and (2) the trial court imposed a harsh and excessive sentence.[1]� We affirm.
I.
�2������� In January of 2003, S.P. called police to her home to report
that a masked man broke down her doors, sexually assaulted her, and stole her
jewelry, cell phone, and wallet.� Police
drove S.P. to a sexual assault treatment center at a
�3������� A few days later, S.P. told police she thought the masked man was Staten, who had knocked on her door an hour earlier the day of the assault, looking for his �Uncle Ace.��
�4������� The police sent the collected evidence to the State Crime Laboratory for DNA testing.� The crime laboratory identified semen on one of the vaginal swabs and entered the DNA profile into their databank.� In 2006, the DNA profile was identified as Staten�s.� Police took buccal swabs from Staten to confirm the match.� In May of 2008, the State charged Staten with the crimes. �He was tried in February of 2010.
�5������� At trial, S.P. testified that:
� About an hour before the break-in and assault by the masked man, Staten knocked on her door looking for Ace.� When S.P. said Ace was not there, Staten said: ��I wish I could see what was under your robe�; and S.P. testified �he smiled as he walked away.�
� The masked man broke down two doors to get into her home, �charged at me [and] started like rummaging through my � stuff � demanding money� and �forced me into my room� acting �as if he had a gun.� �[H]e pulled my pants down� �and he tried to have sex with me but� �I had a tampon inside of me; and he said, well, take it out; and I took it out; and I laid it on the bed; and he went again to have sex.�
� �[H]e took my wallet, a cell phone� and some jewelry, including rings from her hand.
� As soon as he left, she took her two children (ages 3 and 10 months), who were also in the apartment when this happened, to her neighbor�s and called 911; the police �told me to go back to the house.�� The police came to her house and she �gave a statement to the police about this happening� but did not tell the police initially that she suspected Staten because �I wanted something to be done to him; so I told my family, my brothers, my kids� father; and they went the same night that it happened � to his house, [but] no one answered.�
� The police drove her to the hospital where the nurse examined her �looking for � anything that would � identify my attacker.�
� A few days later, she told police she thought her attacker was Staten �because my peoples couldn�t get him or find him.�
�6������� The State played two audio recordings for the jury.� One was S.P.�s 911 call.� The other was a recording made apparently accidentally on S.P.�s cell phone during the crimes.� S.P. explained to the jury: ��I heard whoever attacked me asking me for my rings.� I heard me crying. �I heard running.� �S.P.�s daughter�s voice was also on the recording.
�7������� The crime lab analyst testified:
� �The laboratory has a policy of best evidence.� In cases of sexual assault it�s usually going to be a body swab � because [it�s] the most intimate.� It�s the closest to the individual.�
� �I was able to identify a small amount of semen on the vaginal and cervical swabs, so I stopped examining evidence. � since I already had semen on the cervical and vaginal swabs, and those are the most intimate swabs, I did not proceed with any of the clothing, or � bedding.�
� She found one male �semen donor.�
�8������� Staten testified:
� He and Ace went to S.P.�s house on the day of the assault to �smoke marijuana� after they met S.P. on the street.
�
After the three finished the marijuana, he went �to
the store [to] get another blunt.�� When
he got back, he saw �Ace and
� He and S.P. then went into her bedroom and had consensual sex.
� He denied breaking in or stealing anything; he claimed that his aunt and girlfriend broke down S.P.�s doors when they came looking for him.
�9������� As noted, the jury convicted Staten.� The trial court sentenced Staten to thirty-five years� imprisonment on each count (twenty-five years� initial confinement followed by ten years� extended supervision), concurrent to each but consecutive to any other sentence. �In May of 2010, the trial court modified the burglary sentence to fifteen years� initial confinement and five years� extended supervision. �In February of 2011, Staten filed a postconviction motion asking for DNA testing of the clothing and other items to show that someone else had sex with the victim.� The trial court denied the motion, ruling:�
There is not a reasonable probability, given the issues presented to the jury concerning the credibility of the parties,[] that the outcome of the trial would have been different.� As indicated by the State, the defendant is free to pursue his own DNA testing at a private lab at his own cost, but it will not be ordered by the court at public expense.
The trial court also noted that it �observed the [trial] witnesses and did not find either the defendant or the defendant�s witnesses credible.�
II.
A.
DNA testing.
�10����� Staten argues that if the other items showed semen from another man, this information could exonerate him.� We disagree.
�11����� A defendant may ask for postconviction DNA testing under Wis. Stat. � 974.07(2) if: ��(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction�; �(b) The evidence is in the actual or constructive possession of a government agency�; and �(c) The evidence has not previously been subjected to forensic [DNA] testing[.]�� The trial court must grant the motion if, as material, the following requirements under � 974.07(7)(a) have been met:�
1. The movant claims that he � is innocent of the offense at issue in the motion�.
2. It is reasonably probable that the movant would not have been prosecuted [or] convicted � for the offense at issue in the motion � if exculpatory [DNA] testing results had been available before the prosecution [or] conviction�.
3. The evidence to be tested meets the conditions under sub. (2)(a) to (c).
�12����� The State concedes that all the conditions of Wis. Stat. � 974.07(2) have been met.� It further concedes that subdivisions 1. and 3. under � 974.07(7)(a) are satisfied.� The only issue is whether the DNA testing Staten asks for here would make it �reasonably probable� that he �would not have been prosecuted [or] convicted.�� We conclude that Staten did not show that the testing he asked for would satisfy that standard.
�13����� As noted, the vaginal and cervical swabs showed the presence of one man�s semen.� The DNA from that semen matched Staten�s DNA.� Staten, in fact, admitted that he had sex with S.P. on the day of the crime. �Contrary to the theme underlying Staten�s argument, the issue here is not mistaken identity but, rather, consent.� Staten admits that he had consensual sex with S.P., and S.P. testified that she did not consent. �Whether S.P. had sex with Ace or someone else is not material to whether she consented to have sex with Staten. �See Wis. Stat. � 972.11(2)(b) (�If the defendant is accused of a crime under s. 940.225 � any evidence concerning the complaining witness�s prior sexual conduct � shall not be admitted into evidence during the course of the � trial, nor shall any reference to such conduct be made in the presence of the jury,� with exceptions not material here.).
B. Sentencing.
�14����� Staten also claims that his sentence is harsh and excessive.� It is too harsh, he contends, because: �(1) he is already serving another thirty-five year sentence for robbery and sexual assault, and (2) he says he is innocent.� We disagree.
�15����� Sentencing is within the discretion of the trial court, and our
review is limited to determining whether the trial court erroneously exercised
that discretion. �McCleary v. State, 49
Wis. 2d 263, 277�278, 182 N.W.2d 512, 519�520 (1971).� The trial court must consider the three
primary sentencing factors: �the gravity
of the offense, the character of the defendant, and the need to protect the
public.�
�16����� The trial court considered the appropriate factors.� The trial court recognized that �this is an extremely aggravated offense.�� Staten knew S.P., he �broke down her door[,]� �[w]as masked[,]� acted like �he had a gun,� sexually assaulted her, �forced [her] to remove a tampon[,]� did not �use of a condom[,]� and �there were children in this house.�
�17����� The trial court also considered Staten�s character: ��it�s also quite disturbing that Mr. Staten has a prior offense that is extremely serious and extremely similar to this offense � a robbery and sexual assault.�� The fact that Staten did this twice within a short period of time �shows [his] character[.]�� The trial court found, �It shows a willingness to perpetrate these types of crimes, to go out and seek them.��
�18����� The trial court also looked at the need to protect the public, noting that he was �a huge risk to the community.� I don�t see how the community can be safe with Mr. Staten on the street, given that he�s done this two times; one was a stranger, and one was Ms. P[.], who was an acquaintance.� �The trial court said Staten was �a danger to any woman at this point in time� and �extremely dangerous.�
�19����� The trial court considered all the appropriate factors and acted well within its discretion.
����������� By the Court.�Judgment and order affirmed.
����������� Publication in the official reports is not recommended.�����������
[1] Although Staten did not raise the sentencing issue in his postconviction motion, we elect to address the merits nevertheless.