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Repeated Sexual Assault – Sufficiency of Evidence; Effective Assistance of Counsel

State v. Darrell Lemont Otis, 2010AP589, District 1, 2/1/11

court of appeals decision (3-judge, not recommended for publication); for Otis: Bryan C. Lichstein; case activity; Otis BiC; State Resp.; Reply

Repeated Sexual Assault – Sufficiency of Evidence

Repeated sexual assault, § 948.025(1)(b), requires proof of 3 elements: 3 or more sexual assaults; within a specified period of time; against a particular victim, ¶8. The court rejects Otis’s claim of insufficient proof of the specified-period element, Otis arguing that the victim’s testimony didn’t match the time period alleged.

¶9        … The jury did not need to agree on which three assaults occurred, only that Otis was guilty of at least three during that time period.  See State v. Johnson, 2001 WI 52, ¶15, 243 Wis. 2d 365, 375, 627 N.W.2d 455, 459 (“[T]o convict under [WIS. STAT. § 948.025], the jury need only unanimously agree that the defendant committed at least three acts of sexual assault of the same child within the specified time period.  Where evidence of more than three acts is admitted, the jury need not unanimously agree about the underlying acts as long as it unanimously agrees that the defendant committed at least three.”). Moreover, the jury was specifically instructed to find that at least three of these assaults occurred between June 1, 2001 and June 18, 2003.  The specified time period includes more than one year within which Laquanda said Otis assaulted her.  That Laquanda was twelve years old for some of the time outside this specified time period does not make the evidence insufficient. The overlap between Laquanda’s testimony and the specified time period was sufficient to allow a “possibility” that “the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find that” at least three of these assaults were within the specified time period.  Accordingly, Otis’s claim that the evidence was insufficient to support his conviction is without merit.[2]

Because Otis litigated a prior, unsuccessful appeal, he was constrained to argue evidence-sufficiency in the context of a “Knight” petition, alleging that the prior appellate attorney was ineffective for not raising this argument. The court’s rejection of the argument on the merits necessarily dooms the ineffective-assistance claim.

¶12      As we have seen, Otis has not shown that the evidence was insufficient to support his conviction on the repeated-sexual-assault-of-a-child count.  Thus, Otis was not prejudiced as that concept is used in Strickland because his appellate lawyer did not make that argument.  See State v. Golden, 185 Wis. 2d 763, 771, 519 N.W.2d 659, 662 (Ct. App. 1994) (A defendant is not prejudiced under the Strickland standard when the lawyer does not make an argument that would not have prevailed.).

Effective Assistance of Counsel
Trial counsel’s failure to use Otis’s work records, to show that he was working on two of the afternoons the victim claimed he assaulted her, didn’t amount to ineffective assistance of counsel: “the work records could only have impeached Laquanda’s initial statement to police, which in itself, was not certain as to time or date,” ¶915.

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