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Ineffective Assistance Claim – Necessity of Motion; Entrapment – Child Sex Crime with Computer

State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11

court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.

Ineffective Assistance Claim – Necessity of Motion

Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.

Entrapment – Child Sex Crime with Computer

Challenge to sufficiency of evidence to negate entrapment defense rejected, on conviction for using a computer to facilitate a child sex crime, § 948.075(1r). Explicit chat room transcripts and phone call recordings show “that Achha had only one thing on his mind:  sex with a thirteen-year-old girl,” ¶25.

¶26      The evidence establishes that Stuhlman-Roberts did nothing more than provide an opportunity for Achha to achieve his goal.  The fact that the State’s agent cultivates a friendship, as a thirteen-year-old girl, with an adult male does not constitute entrapment.  State v. Bjerkaas, 163 Wis. 2d 949, 956, 472 N.W.2d 615 (Ct. App. 1991).  The evidence here showed Stuhlman-Roberts did nothing more than permit Achha to believe he had the opportunity to have sex with a thirteen-year-old girl.  The evidence does not allow the inference that Achha was an otherwise innocent person unfairly induced to commit that crime.

Elements of the offense, § 948.075(1r), set forth and discussed, ¶¶21-23, citing Wis JI—Criminal 2135. Contours of entrapment defense also discussed, ¶24, citing State v. Hilleshiem, 172 Wis. 2d 1, 8, 492 N.W.2d 381 (Ct. App. 1992).

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