COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 30, 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. 95-2831-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES C. SMITH,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Brown County:
N. PATRICK CROOKS, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Counsel for James C. Smith has filed a no merit report
pursuant to Rule 809.32, Stats.
Smith has responded to the report.
On our independent review of the record as mandated by Anders v.
California, 386 U.S. 738 (1967), we conclude that there is no arguable
merit to any issue that could be raised on appeal.
The State charged Smith
with attempted second-degree sexual assault of a child, as a repeater. At trial, the fourteen-year-old victim
testified that Smith used force in an attempt to obtain oral sex from him. Other witnesses testified that the victim
was in a severely disturbed emotional state after the attempt. Smith admitted that he was with the juvenile
at the time of the assault, but testified that nothing happened. The jury returned a guilty verdict, and the
trial court sentenced Smith to an eight-year prison term.
Counsel's no merit
report addresses whether counsel reasonably chose not to request a psychological
examination of the victim, whether a biased jury was selected, whether Smith
was prejudiced by the jurors observing him in the custody of prison guards, and
whether Smith could challenge the victim's credibility on appeal. We conclude that counsel's analysis of these
issues is correct, as is his conclusion that there is no merit to the appeal.
On our own review of the
record, we have also examined whether the jury heard sufficient evidence to
convict Smith, and whether the court properly sentenced him. We conclude that the victim's testimony as
well as the evidence that substantiated it, if deemed credible, was plainly
sufficient to convict. We also conclude
that the trial court properly exercised its sentencing discretion.
In his response to the
no merit report, Smith argues that counsel acted ineffectively when he failed
to raise the issue whether Smith was involuntarily intoxicated when he
committed the assault. However, Smith
testified that no assault occurred.
Counsel cannot be deemed ineffective for choosing not to raise a defense
that was inconsistent with that testimony.
In the supplement to his
response, Smith characterized trial counsel's and appellate counsel's
performance as "bizarre."
However, he provides no specifics.
Our review of the record and counsel's no merit brief indicates that
both counsel provided effective representation. Additionally, Smith contends that the State's use of
"mathematical probability statistics" was unfairly prejudicial. From our review of the record we are unable
to determine what evidence Smith is referring to. The State's case was based on testimony from the victim, and from
other witnesses who observed the victim and Smith after the assault occurred. There was no statistical evidence introduced.
Our review of the record
discloses no other potential issues for appeal. Therefore, we affirm the judgment and relieve Smith's counsel of
any further representation of him in this matter.
By the Court.—Judgment
affirmed.