COURT OF APPEALS DECISION DATED AND FILED March 10, 2009 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 I |
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State of Plaintiff-Respondent, v. Tyrone Davis Smith, Defendant-Appellant. |
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APPEAL
from a judgment and orders of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Tyrone Davis Smith, pro se, appeals from a judgment of conviction and from orders denying his postconviction motion and motion to reconsider. He raises numerous issues, none of which provides a basis for relief. We affirm.
BACKGROUND
¶2 The State charged Smith with first-degree sexual assault of a child. The amended criminal complaint alleged that on or about November 23, 2006, Smith had sexual contact with Sasha T., a person who had not attained the age of thirteen years, contrary to Wis. Stat. § 948.02(1).[1] Smith denied the allegations, and the matter was tried to a jury.
¶3 At trial, the State presented three witnesses. Sasha T. testified that her date of birth is May 3, 1995. She told the jury that she awakened during the night of November 23, 2006, and realized that Smith was lying on top of her rubbing his penis against her clothed buttocks. Sasha T. stated that Smith was “going up and down,” and she described his penis as feeling like “a hard banana.” Sasha T. told the jury that she immediately woke her father, Hal S., and reported that Smith had tried to rape her. Hal S. testified that Sasha T. woke him during the night of November 23, 2006, “screaming and crying,” and that she accused Smith of attempted rape. Hal S. called the police after observing that Smith’s pants were unzipped. Smith cross-examined both Sasha T. and Hal S. about their prior inconsistent statements regarding the incident. Additionally, Smith demonstrated some discrepancies between Sasha T.’s recollection of events and Hal S.’s recollection.
¶4
¶5 Smith elected not to testify, and the defense rested without presenting any witnesses. In its closing argument, the State asserted that Sasha T.’s accusation was credible, and the State pointed to testimony that it believed corroborated the accusation. Smith’s closing argument highlighted the discrepancies and inconsistencies in the witnesses’ testimony.
¶6 The jury submitted two questions during its deliberations, one asking whether the charge could be “altered to a lesser degree” and a second asking if “misconduct” and “assault” are different. The parties and the court agreed to respond that “the only charge before you is the charge contained in the information. You must make your decision based upon the evidence and the law the court has given to you.”
¶7 The jury returned with a signed guilty verdict. In response to the circuit court’s request for the “not guilty” verdict form, the foreperson explained that she had thrown it away. The court then polled the jury, and each juror confirmed that he or she had voted to find Smith guilty. The circuit court denied Smith’s motion for judgment notwithstanding the verdict, and entered a judgment on the verdict. At sentencing, the circuit court imposed a fifteen-year term of imprisonment, bifurcated as ten years of initial confinement and five years of extended supervision.
¶8 Smith moved for postconviction relief. The circuit court denied the motion without a hearing and then denied Smith’s motion for reconsideration. This appeal followed.
DISCUSSION
¶9 We
first consider Smith’s contention that the criminal complaint and information are
defective because they do not allege a date certain for the crime. The charging documents allege that Smith
sexually assaulted Sasha T. “on or about” November 23, 2006. According to the State, it could not allege a
date certain because Sasha T. was asleep when the assault began and she does
not know if Smith assaulted her before or after midnight.
¶10 Smith
asserts that “it is not proper or sufficient” to allege that an offense
occurred “on or about” a stated date, and in support he cites
Mau-zau-mau-ne-kah v.
¶11 Smith
asserts that uncertainty in the date alleged was prejudicial because “the dilemmas
with the dates played to the credibility determination of the witnesses.” In fact, when the victim is a child,
application of flexible notice requirements is particularly appropriate.
¶12 We next address Smith’s challenge to the conviction on the grounds
that the evidence is “inconsistent and uncorroborated or unsubstantiated.” We review the sufficiency of evidence using a
strict standard. We may not reverse a
conviction on the basis of insufficient evidence “unless the evidence, viewed
most favorably to the [S]tate 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. Poellinger, 153
¶13 Smith asserts that the victim’s description of events changed
over time. He emphasizes the different
terminology the victim used to describe the assault before and after she was
interviewed by Detective Simmert, and he suggests that the accusation is
particularly suspect because Detective Simmert did not record his investigative
interview with the victim. The jury,
however, had an opportunity to consider variations in the victim’s
narrative. Moreover, on
cross-examination, Smith developed the theory that Detective Simmert should
have recorded the investigative interview, and the jury was free to consider whether lack of a recorded interview raised concerns
about the victim’s accusations. The
jury, and not this court, resolves conflicts in the testimony, weighs the
evidence, and draws reasonable inferences from basic facts to ultimate
facts.
¶14 Smith further complains that the State failed to offer DNA
evidence. Such evidence is not required
to sustain a sexual assault conviction.
¶15 The circuit court instructed the jury that it could not find
Smith guilty unless the State proved beyond a reasonable doubt that: (1) Smith had sexual contact with Sasha T; and
(2) Sasha T. had not attained the age of thirteen years. See
¶16 We turn to Smith’s contention that the jury should have been
instructed on the lesser included offense of second-degree sexual assault as
defined in Wis. Stat. § 948.02(2)
(2003-04). That statute provides: “[w]hoever 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.”
¶17 “If a reasonable view of the evidence can support a guilty
verdict beyond a reasonable doubt for both the greater and the lesser included
offense, then no lesser included instruction may be given.”
¶18 The victim of first-degree sexual assault must be under
thirteen years old for the State to secure a conviction under Wis. Stat. § 948.02(1)(e) (2003-04)
(as affected by 2005 Wis. Act 430). The
victim of a second-degree sexual assault must be under sixteen years old for
the State to secure a conviction under Wis. Stat. § 948.02(2) (2003-04). Both offenses include a second element, which
can be satisfied by proof of sexual contact.
See §§ 948.02(1)(e) (2003-04)
(as affected by 2005 Wis. Act 430) & 948.02(2) (2003-04). Therefore, if the State proves both that the
defendant had sexual contact with a child and that the child was under
thirteen, then the State has proved all the elements for both crimes. See
Moua,
215
¶19 In this case, the parties did not dispute that the victim was eleven years old at the time of the incident. This undisputed fact supports a guilty verdict on either the greater or the lesser offense. See id. at 520. The State presented evidence of sexual contact, which could have sustained a guilty verdict as to either the greater or the lesser offense. Smith argued that the evidence was insufficient to prove sexual contact. Had the jury accepted Smith’s argument, the jury could not have found guilt as to either the greater or the lesser offense. Accordingly, there is no reasonable view of the evidence that casts doubt on an element of the greater offense while also supporting a guilty verdict on the lesser offense. Pursuant to Moua, Smith was not entitled to an instruction on a lesser-included offense.[2]
¶20 Next, Smith alleges prosecutorial misconduct. He contends that the State made improper
comments during closing argument by asserting that the evidence against Smith
was credible and by highlighting testimony that corroborated the victim’s
accusations. Smith’s contentions are
wholly without merit. The prosecutor may
tell the jury how he or she views the evidence.
State v. Adams, 221
¶21 Smith next contends that the jury “exhibit[ed] reasonable doubt” when it returned its guilty verdict. He primarily relies on a statement allegedly made by a juror during a postverdict interview describing the jurors’ deliberative process. Pursuant to Wis. Stat. § 906.06(2), jurors may not testify regarding their mental processes in deliberations. Accordingly, the statement is not admissible and cannot be offered to impeach the verdict.
¶22 Smith also points to the jury’s inquiry during deliberations asking whether a lesser charge was available and to the foreperson’s actions in discarding the “not guilty” verdict form. Smith asserts that these factors demonstrate that the jury had a reasonable doubt as to his guilt. We disagree.
¶23 First, the jury was instructed that it could return a guilty
verdict only if it was satisfied beyond a reasonable doubt of the defendant’s
guilt. See
¶24 We turn to Smith’s contention that his trial attorney was
ineffective and his related claim that the circuit court erred by failing to
hold a hearing on this issue. To
establish ineffective assistance of counsel, a defendant must show both
deficient performance by counsel and prejudice as a result of the deficiency. Strickland
v.
¶25 A defendant is not automatically entitled to a hearing on claims of ineffective assistance of counsel.
Whether a defendant’s postconviction motion alleges sufficient facts to entitle the defendant to a hearing for the relief requested is a mixed standard of review. First, we determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief. This is a question of law that we review de novo. If the motion raises such facts, the circuit court must hold an evidentiary hearing. However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.
Allen, 274
¶26 Smith’s claim that trial counsel was ineffective by failing to request an instruction on second-degree sexual assault lacks merit. We have already concluded that Smith was not entitled to a jury instruction on second-degree sexual assault. Accordingly, trial counsel did not err by failing to request such an instruction.
¶27 Smith next asserts that the State’s witnesses testified
inconsistently and therefore trial counsel should have asked the circuit court to
instruct the jury as to Wis JI—Criminal
305, Falsus In Uno. This instruction provides: “[i]f you become satisfied from the evidence
that any witness has willfully testified falsely as to any material fact, you
may disregard all of the testimony of the witness which is not supported by
other credible evidence in the case.”
¶28 The falsus in uno
instruction is not appropriate when discrepancies in the testimony are “‘most
likely attributed to defects of memory or mistake.’” State v. Robinson, 145
¶29 In its order denying Smith postconviction relief, the circuit
court determined that it would not have entertained a request by trial counsel
for the falsus in uno instruction
because nothing persuaded the court that any witness willfully gave false
testimony. We defer to the circuit
court’s credibility determinations unless those determinations are “‘based upon
caprice, an [erroneous exercise] of discretion, or an error of law.’” Jacobson v. American Tool Cos., 222
¶30 Smith last asserts that his counsel performed deficiently by
failing to retain an expert to testify regarding the suggestive questioning of
children. His claim is conclusory and
therefore insufficient to warrant relief.
See Allen, 274
¶31 In light of the foregoing, we conclude that the circuit court committed no error in denying Smith’s claims of ineffective assistance of counsel without conducting a hearing. For the reasons stated, we affirm.
By the Court.—Judgment and orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The
complaint and information reference Wis.
Stat. § 948.02(1), found in the 2003-04 version of the
statutes. That statute provided: “[w]hoever has sexual contact or sexual
intercourse with a person who has not attained the age of 13 years is guilty of
a Class B felony.” Effective June 6,
2006, however, § 948.02 was amended.
See 2005
The version of Wis.
Stat. § 948.02(1)(e) affected by 2005 Wis. Act 430, like the
version affected by 2007 Wis. Act 80 that is currently in effect,
provides: “[w]hoever has sexual contact
with a person who has not attained the age of 13 years is guilty of a Class B
felony.” Under both the prior and the
amended versions of the statute, sexual contact with a person under thirteen
years of age is a Class B felony carrying a maximum sentence of sixty years. Further, the prior and amended versions
require proof of the same two elements to secure a conviction: (1) the accused had sexual contact with the
victim; and (2) the victim was under the age of thirteen. See
[2] Smith also asserts that the circuit court “failed to instruct the jury that ‘intentional’ touching … was required.” In fact, the court did give such an instruction.