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Incest – Sufficiency of Evidence

State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10

court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply

Incest – Sufficiency of Evidence

The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator, her identification was speculative:

¶19 The testimony is clear that Nick was home at the time of the charged assault based on Delores’s testimony that she believed that she and Nick were the only persons in the house. Thus, assuming that it believed Delores’s testimony about how she was sexually assaulted, the jury was faced with two alternatives: (1) that Nick was the offender, or (2) that some unknown person, undetected by Nick, entered the home while Nick was present and assaulted his daughter, risking that Delores would call for help and that Nick would come to her assistance. Indeed, under Nick’s intruder theory, this happened three times because it was revealed at trial that Delores alleged that Nick committed two similar sexual assaults. Thus, the evidence was easily sufficient to support the finding that Nick was the perpetrator.

State v. Turnpaugh, 2007 WI App 222 (ambiguous proposition not enough to establish solicitation of prostitute), distinguished.

Newly Discovered Evidence

Complainant’s post-trial admission that she had been hospitalized when defendant told her in a phone conversation he was “sorry” (she denied at trial having been hospitalized; defendant’s expression of regret was used at trial as an admission of guilt) didn’t warrant new trial. Her hospitalization due to suicide attempt was a double-edged sword: the jury could have attributed it to the assault by defendant; her credibility was otherwise impeached; there was no mention of the hospitalization in the phone call, so there was no reason to think the defendant was expressing sympathy for her plight rather than remorse for his act; and, the fact of hospitalization wouldn’t have assisted in the area most problematic to the defense, ascribing to the complainant motive to falsely accuse her father of incest.

Test for newly discovered evidence recited at ¶22.

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