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COURT OF APPEALS DECISION DATED AND FILED October 9, 2008 David R. Schanker Clerk of Court of Appeals |
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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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Sergey Vladimir Andreyev,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Sergey Vladimir Andreyev appeals from a judgment convicting him of three counts of second-degree sexual assault of a child and one count of obstructing an officer. He argues that there was insufficient evidence to prove the sexual assault charges and that the circuit court should have suppressed incriminating statements he made. We affirm.
¶2 Andreyev first argues that there was insufficient evidence to
prove the sexual assault charges beyond a reasonable doubt because the State
failed to prove that he had sexual intercourse with the victim. “‘Sexual intercourse’ means vulvar
penetration as well as cunnilingus, fellatio or anal intercourse between
persons or any other intrusion, however slight, of any part of a person’s body
or of any object into the genital or anal opening….” See
Wis. Stat. § 948.01(6)
(2005-06).[1] We will not substitute our “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.” State v. Hayes, 2004 WI
80, ¶56, 273
¶3 Andreyev contends that the State failed to prove that sexual intercourse occurred because there was insufficient evidence to show that he had penetrated the victim. He contends that the State failed to prove that there had been an “intrusion, however slight, by [his] penis into [the victim’s] genital [opening].” He bases his argument on the fact that the victim had said that he had trouble maintaining an erection. We reject this argument. The victim testified that she had sex with Andreyev, which she defined as “[h]is penis in my vagina.” She also testified that “[h]e could have an erection long enough to have sex,” but that he would “stop because he’d lose it.” Regardless of whether Andreyev had trouble continuing the sexual act once it had commenced, he is guilty of the crime. The victim’s testimony is sufficient to support the conviction.
¶4 Andreyev next argues that there was insufficient evidence to show that he committed three different counts of sexual assault. He contends the victim did not testify to the exact number of times she had sexual intercourse with Andreyev. We disagree. The victim unequivocally testified that she had sexual intercourse with Andreyev “[t]hree or four times” during the relevant time period. This testimony constitutes sufficient evidence to support the conviction.
¶5 Finally, Andreyev argues that statements he made to Detective
Mark Hahn should have been suppressed because they were obtained in violation
of his right to counsel. After a
defendant asserts the right to counsel, the government is prohibited “from initiating
any contact or interrogation concerning the charged crime, and any subsequent
waivers by a defendant during police-initiated contact or interrogation are
deemed invalid.” State v. Hornung, 229
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.