After a jury trial, Jemison was convicted of second-degree sexual assault of an unconscious person (Teresa) as a repeater – serious sex crime and sentenced to life in prison without the possibility of release to extended supervision. See Wis. Stat. § 939.618(2)(b). After the circuit court denied his postconviction motion without a Machner hearing, Jemison raised three claims on appeal: (1) the evidence was insufficient to support the completed sexual intercourse charge, (2) the court erred in its admission of other acts evidence, and (3) the court erroneously denied his claims without an evidentiary hearing. The court of appeals rejects each of Jemison’s claims and affirms.
Had Jemison’s defense at trial not been that he had consensual sex with Teresa, his sufficiency of the evidence claim would have faired much better. That’s because Teresa testified that Jemison was “trying to put his stuff inside of my butt” and that he “was almost in there, but not quite.” Opinion, ¶12. In addition to Jemison’s defense strategy at trial, the court relies on a SANE nurse’s testimony that Teresa reported that her anus “was being penetrated by [Jemison’s] penis.” Op., ¶27. The court explains that the jury could have reasonably infered that Jemison had sexual intercourse with Teresa despite her trial testimony because “any intrusion however slight by any part of the person’s body…into the genital or anal opening of another” qualifies as sexual intercourse under the statute. Op., ¶26, n.4.
Next, the court rejects Jemison’s other acts based claims. Specifically, Jemison argued that the court committed plain error in admitting evidence related to two prior sexual assault convictions and in allowing the state to read portions of two criminal complaints into the record at trial. Op., ¶29. Whereas Jemison argued that the other acts evidence was too remote in time, not probative of identity, and unduly prejudicial, the court concludes that the evidence was admissible under “all of the identified other-acts categories” under § 904.04(2)(a). Op., ¶38. With regard to the reading of the criminal complaints at trial, Jemison argued that his confrontation rights were violated. However, the court concludes that the process raised no confrontation clause issues because the statements in the criminal complaints were not testimonial and they were “self-authenticating.” Further, the court holds that Jemison wiaved any potential challenge by his guilty pleas related to each complaint. Op., ¶¶47-51.
Finally, the court finds no fault in the circuit court’s denial of an evidentiary hearing because Jemison “would have been unable to show that he was prejudiced by the conduct of his attorney.” Op., ¶57.