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Effective assistance of counsel; Sexual assault of child ; Sentencing – discretion

State v. Thaying Lor, 2011AP2019-CR, District 1, 5/1/12

court of appeals decision (not recommended for publication); for Lor: Benjamin F. Gallagher; case activity

Effective Assistance of Counsel 

Counsel did not provide ineffective representation in the following respects:

  • Failure to timely file motion seeking admission of complainant’s prior untruthful allegation of sexual assault. However, Lor did not provide, including in his postconviction motion, any evidence substantiating this claim. “The alleged statement at issue is unsubstantiated and conclusory, and the trial court correctly denied Lor’s pretrial offer of proof and postconviction motion.  Therefore, because Lor cannot show prejudice regarding the alleged statement, he cannot show that trial counsel was ineffective,”¶9.
  • Failure to review before trial Lor’s recorded, in-custody statement. This omission wasn’t deficient, because counsel did review the statement during trial, and used it during cross-examination. Nor was it prejudicial, given the absence of any challenges to admissibility, ¶¶12-14.
  • Failure to object to evidence Lor had been charged with other misconduct against the complainant. However, counsel did object to this evidence, moreover, the jury never heard the evidence – hence, no prejudice could have accrued anyway, ¶15.

Routine stuff, really. The opinion, of course, contains general statements re: test for ineffective-assistance.

Sexual Assault of Child – Sufficiency of Evidence – Child’s Age 

Though some ambiguity attended proof of the child’s age at the time of the assault (attributable to a Hmong cultural convention that focuses on the year rather than month and day of birth), the jury was given enough evidence to support the guilty verdict:

¶21      Therefore, even though there are contrary inferences the jury could have drawn from the evidence, this does not mean that the jury could not have concluded that Yang was born on June 15, 1978, and, because the assault occurred in May 1991, that she was under the age of thirteen when Lor first assaulted her.  Yang testified that the assault occurred in May 1991.  Yang also testified that her family came to the United States from Laos in May 1989, and that she was eleven years old at the time.  She further testified to the authenticity of two exhibits—a United States Department of State document from 1988 and a bio data sheet—both of which identified her birthday as June 15, 1978.  Because a reasonable jury could logically conclude that Yang was under the age of thirteen when the assault described in count one occurred, we will not disturb the verdict.  Seee.g.Poellinger, 153 Wis. 2d at 506-07.

Sentencing – Discretion 

Convicted of 6 sexual assault-related counts involving his wife, Lor argues that the sentence was an erroneous exercise of discretion because it was excessive and overly harsh. The court rejects the argument.

¶26      …  These sentences were well within the statutory maximums in effect at the times the crimes were committed. …

¶27      Moreover, the trial court spoke at length during sentencing about its evaluation of the case and the cultural differences it considered prior to arriving at its sentence … .

¶28      In other words, as the trial court noted, this case was not simply an example of a consensual but culturally dissimilar Hmong marriage.  This case involved attempted forced sexual contact that took place in front of Yang and Lor’s children.  Therefore, we conclude that the trial court properly exercised its sentencing discretion utilizing proper factors, seee.g.Gallion, 270 Wis. 2d 535, ¶¶39-46, and sentenced Lor within the applicable maximums, see Ocanas, 70 Wis. 2d at 185; Daniels, 117 Wis. 2d at 22.  Consequently, the sentence was not unduly harsh or excessive.

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