COURT OF APPEALS DECISION DATED AND RELEASED December 17, 1996 |
NOTICE |
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. 96-2094-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Larry S. Johnson,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
PATRICIA D. McMAHON, Judge. Affirmed.
Before Fine, Schudson
and Curley, JJ.
PER CURIAM. A jury found Larry S. Johnson guilty of four
counts of second-degree sexual assault of a child under the age of sixteen, in
violation of § 948.02(2), Stats. The trial court sentenced Johnson to two
concurrent prison terms of eighty-four months.
The court also imposed and stayed two ten-year prison terms that were
concurrent with each other and consecutive to the other sentences. Johnson was placed on probation for six
years for the latter two counts.
Johnson was also ordered to obtain sexual offender treatment, to have no
contact with the victim, and to pay an undetermined amount of costs, surcharges,
and restitution. He received credit for
one day of presentence incarceration.
The state public
defender appointed Michael D. Orzel to represent Johnson on appeal. Orzel has filed a no merit report pursuant
to Rule 809.32, Stats. and Anders v. California,
386 U.S. 738 (1967). Johnson received a
copy of the no merit report and was advised of his right to file a
response. He has filed a response.
The no merit report
addresses whether Johnson received ineffective assistance of counsel and
whether the sentence was unduly harsh.
Orzel concludes that these possible issues have no arguable merit. Based upon our independent review of the
record, we conclude that his analysis of these issues is correct.
Both the no merit report
and Johnson's response raise the issue of whether there was sufficient evidence
to support the jury verdict. An
appellate court will affirm a conviction if it can conclude that a jury, acting
reasonably, could be convinced, beyond a reasonable doubt, by evidence the
jurors had a right to believe and accept as true. State v. Teynor, 141 Wis.2d 187, 204, 414 N.W.2d
76, 82 (Ct. App. 1987). The reviewing
court considers the evidence in the light most favorable to the jury's
verdict. State v. Barksdale,
160 Wis.2d 284, 289-90, 466 N.W.2d 198, 200 (Ct. App. 1991).
There was sufficient
evidence to support the verdict. The
thirteen-year-old victim testified that she was sleeping across the foot of the
bed normally shared by Johnson and her aunt.
She woke when Johnson began rubbing her chest with his hand. She rolled onto her stomach to stop
him. Her testimony then described two
acts of finger-to-vagina intercourse, one act of penis-to-vagina sexual contact,
and one act of penis-to-vagina intercourse committed by Johnson. The victim testified that she believed
Johnson was awake although he pretended to be asleep. The jury also heard evidence that after his arrest Johnson gave a
statement in which he admitted brief penis-to-vagina contact. The jury was entitled to believe the victim's
testimony, which was corroborated, in part, by Johnson's statement to
police. The jury was also entitled to
disbelieve Johnson's defense that he was more asleep than awake at the time and
that he mistook the victim for her aunt.
In his response, Johnson
also states that he was misrepresented by his first lawyer and that the
appointed public defender did not do what he told Johnson he would do about the
case. There is, however, no discussion
of either of these claims. Lacking
Johnson's clarification, the court cannot address either issue.
Our independent review
of the record did not disclose any additional potential issues for appeal. Therefore, any further proceedings on
Johnson's behalf would be frivolous and without arguable merit within the meaning
of Anders and Rule 809.32(1),
Stats. Accordingly, the judgment of conviction is affirmed, and Orzel is
relieved of any further representation of Johnson on this appeal.
By the Court.—Judgment
affirmed.