COURT OF APPEALS DECISION DATED AND RELEASED MARCH 12, 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. 95-2336-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES J. BAETEN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Brown County: PETER J. NAZE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. James Baeten appeals a judgment convicting him of
second-degree sexual assault and an order denying his postconviction
motion. He argues that his trial
counsel was ineffective because he failed to request a jury instruction on
third-degree sexual assault. We
conclude that Baeten has not established that he was prejudiced by his
counsel's failure to request that instruction because the evidence does not
support submission of that offense to the jury.
A lesser included
offense should be submitted to the jury if, viewing the evidence in the light
most favorable to the defendant, the jury could have a reasonable doubt as to
some element of the greater offense but still convict on the lesser
offense. See State v.
Muenter, 138 Wis.2d 374, 385, 406 N.W.2d 415, 420 (1987). Second-degree sexual assault differs from
third-degree only in that second-degree requires proof that the defendant had
nonconsensual sexual intercourse "by use or threat of force or
violence." Therefore, it would
only be appropriate to instruct the jury on third-degree sexual assault if the
jury could reasonably have believed that Baeten had nonconsensual intercourse
with the victim but reasonably doubted that he did so by use or threat of force
or violence.
The victim testified
that she and Baeten went to her home after they concluded work and had
breakfast together. She testified that
Baeten made three sexual advances to her, each time backing off after she
protested. Then, after a lengthy
conversation Baeten asked her to show him around her house. As they passed the door of her bedroom,
Baeten grabbed her from behind, threw her on the bed, forcibly removed her
clothes and had intercourse with her despite her struggles, tears and demands
that he stop. Her testimony was
corroborated by excited utterances to friends and investigating officers,
statements she made to medical personnel later that day, fresh bruises at the
base of her neck and on her back as well as abrasions around her shoulder
blades, and her demeanor on the day following the attack.
Baeten testified that he
made repeated sexual advances that were not unequivocally discouraged. During a tour of the victim's home, he
followed her into her bedroom and she closed the door. He testified that she initiated sexual
intercourse through passionate kissing, removal of his clothing and an attempt
to perform oral sex with him. He denied
any threats or violence and insisted that the victim consented to the
intercourse. His testimony was
supported by character witnesses who testified that he had a reputation for
honesty and nonviolence.
No reasonable view of
this evidence would support acquittal on second-degree sexual assault but
conviction on third-degree. There is no
basis for the jury to believe that an adult, alert woman submitted to
nonconsensual intercourse without any use or threat of force or violence. The only possible basis for acquittal on the
charge of second-degree sexual assault would be if the jury believed Baeten's
testimony that the victim consented to the intercourse. On the evidence presented in this case, it
would be unreasonable for the jury to doubt the use or threat of force or
violence but still find nonconsent.
Because instruction on
third-degree sexual assault would not have been proper under the evidence
presented in this case, trial counsel's failure to request a jury instruction
on that charge did not prejudice the defense.
Therefore, this court need not review whether counsel's performance was
deficient. See Strickland
v. Washington, 466 U.S. 668, 697 (1984).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.