COURT OF APPEALS DECISION DATED AND RELEASED May 16, 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. 95-0912
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES KENNEDY,
Defendant-Appellant.
APPEAL from an order of
the circuit court for La Crosse County:
PETER G. PAPPAS, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER CURIAM. James Kennedy appeals from a postconviction
order denying his motion for a new trial.
The issue is whether Kennedy is entitled to a new trial based on newly
discovered evidence. We conclude that
Kennedy has not established his right to a new trial by clear and convincing
evidence. Therefore, we affirm the
trial court's order.
The trial court applied
the proper legal standards to the relevant facts and reached the correct
decision. Therefore, we incorporate the
trial court's memorandum decision and affirm its order.[1] See Wis.
Ct. App. IOP VI (5)(a) (June 13, 1994) (court of appeals may adopt
the trial court's opinion).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
AN EXHIBIT HAS BEEN ATTACHED
TO THIS OPINION. THE EXHIBIT CAN BE
OBTAINED UNDER SEPARATE COVER BY CONTACTING THE WISCONSIN COURT OF
APPEALS.
COURT OF APPEALS
OF WISCONSIN
ROOM 231, STATE CAPITOL EAST
POST OFFICE BOX 1688
MADISON, WISCONSIN
53701-1688
TELEPHONE: (608) 266-1880
FAX: (608) 267-0640
Marilyn L. Graves, Clerk
Court of Appeals
[1] The trial court incorrectly noted that the victim was fifteen when she testified. Her age was fourteen years, ten months. Kennedy asserts that she was thirteen when she reported the alleged assaults and ten when they allegedly occurred. We conclude that the trial court's factual error is immaterial on the issue of sexual knowledge. Our conclusion may have been different had the victim been age five or six.