COURT OF APPEALS DECISION DATED AND FILED August 4, 2009 David
R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
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. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT III |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. Michael Garcia-Soto,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Michael Garcia-Soto appeals a judgment convicting him of repeated sexual assault of a child and an order partially denying his postconviction motion. A jury convicted Garcia-Soto of that offense (Count 1) and a separate count of sexually assaulting the same victim (Count 3). The jury acquitted Garcia-Soto of three other charges. In response to Garcia-Soto’s postconviction motion, the State conceded the conviction on both Counts 1 and 3 violated Wis. Stat. § 948.025(3),[1] and elected to dismiss Count 3. The court vacated the conviction on Count 3 and denied Garcia-Soto’s challenges to Count 1. Garcia-Soto contends the error in submitting Count 3 to the jury taints the verdict regarding Count 1 and his trial counsel was ineffective for failing to challenge the duplicitous charging, failing to object to the “generic verdict forms,” and failing to demand a jury instruction on unanimity. We reject these arguments and affirm the judgment and order.
¶2 Count 1 of the Information charged Garcia-Soto with repeated sexual assault of K.J.C. consisting of at least three assaults between August 2000 and May 2001. Count 3 alleged a specific sexual assault in October or November 2000. Because the specific act alleged in Count 3 occurred during the time frame for Count 1, conviction of both offenses is not allowed under Wis. Stat. § 948.025(3).
¶3 The trial court correctly allowed the State to elect which of
the charges to dismiss.
¶4 Garcia-Soto argues Count 1 should also have been dismissed
because presentation of evidence regarding Count 3 somehow deprived him of a
unanimous jury. To convict Garcia-Soto of
repeated sexual assault of a child, the jury was required to unanimously
determine that he committed at least three sexual assaults. The jury did not have to agree on which three
assaults composed the crime.
¶5 Garcia-Soto argues that the “generic verdict forms” do not
describe the acts the jury was to consider and do not set forth any time
frame. That issue is forfeited because
Garcia-Soto did not object to the verdict form.
¶6 Garcia-Soto also argues the court should have read the jury
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.