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Evidence sufficient, evidentiary calls upheld

State v. Davis Kevin Lewis, 2014AP2773-CR, District 1, 12/01/2015 (not recommended for publication); case activity (including briefs)

Lewis (whose first name is itself a matter of dispute, (¶1 n.2)) brings three challenges to his conviction after trial; all are rejected.

The state charged Lewis with sexual assault of K.W., a cognitively disabled man for whom he was a personal care worker. (¶¶3-4). At trial, K.W. testified somewhat inconsistently about whether the assault had occurred (¶14 n.7); a video of a forensic interview of him was also played for the jury. (¶4). During deliberations, the jury asked to view the video again, and the court obliged over defense objection. (¶11).

Lewis first argues that the evidence was insufficient to convict him. Given that K.W. testified that Lewis assaulted him (albeit with some ambiguity), this argument consists of an attack on K.W.’s credibility and the court has no trouble brushing it aside. (¶¶12-14).

Lewis also renews his objection to the second playing of the videotaped interview. Whether to permit a jury to re-view video evidence is a discretionary call for the trial court, which the court of appeals holds reasonably applied the correct law and considered the proper factors. (¶¶21-27).

No one seems to dispute that the video was admissible in the first place. Wis. Stat. § 908.08, of course, provides that certain recordings of interviews of children are not hearsay, but makes no such allowance for cognitively disabled adults. Perhaps K.W.’s failures of memory on the stand (¶14) render the video a prior inconsistent statement.

Also during the trial, Lewis sought to call his supervisor to testify about his good job performance. (¶15). The state told the court it would seek to impeach her by asking why her company would hire Lewis, a registered sex offender, to work with a vulnerable adult. (Id.). The trial court refused to let Lewis call the supervisor on the ground that the state’s cross would elicit this unfairly prejudicial fact about Lewis, in a twist on the usual application of Wis. Stat. § 904.03. (¶16). The court of appeals affirms this decision as well, concluding that permitting the supervisor’s testimony while disallowing the state’s cross, as Lewis suggested, would unfairly bolster her credibility. (¶19).

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