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Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)

State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.

The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.

Evidence of mental deficiency under Wis. Stat. §940.225(2)(c)

To convict under this statute the jury had to find that the 22 year-old victim suffered from a mental deficiency at the time of the sexual contact or intercourse and that the mental deficiency rendered her temporarily or permanently incapable of appraising her own conduct. Two types of evidence presented on this issue: (1) A nurse practitioner testified to hearsay evidence of the victim’s mild retardation and (2) the victim herself testified and used words like “wiener,” “boob, and “mommy.” Slip op. ¶¶12-13. The court of appeals assumed that the nurse’s testimony should have been excluded. Slip op. ¶43. It found that the victim’s own testimony established her mental deficiency:

[A]lthough the jury reasonably could have viewed some of the details of T.L.’s testimony as undercutting T.L.’s credibility, the jury reasonably could have viewed that same testimony as supporting a finding that T.L. suffered from a mental deficiency. Slip op. ¶14.

The decision suggests that the only Wisconsin case on point is  State v. Perkins, 2004 WI App 213, 277 Wis. 2d 243, 689 N.W.2d 684 which did not require a medical diagnosis to establish the mental deficiency. There, the evidence showed the victim had severe Alzheimer’s, couldn’t converse coherently and required 24-hour supervision. Here, allegedly, the victim’s own testimony provided “compelling” proof of “mild mental retardation” even without an accompanying diagnosis. (That’s quite a leap for the court of appeals when it didn’t see or hear the victim testify.) See also State v. Reed, 118 P.3d 791 (Or. 2005) (where the court found the victim’s testimony insufficient to establish mental deficiency under a similar statute.)

Ineffective Assistance of Counsel–Multiplicity

To repeat, the State charged the defendant with 5 counts of sexual assault and 5 counts of sexual assault with a mentally deficient victim (based on the same 5 acts). The issue is whether each set of 5 counts should have been charged as 1 because they were all part of the same transaction or episode. State v. Hirsch, 140 Wis. 2d 468, 410 N.W.2d 638 (Ct. App. 1987) holds that different types of sexual contact don’t always support separate charges. In this case, while sitting with the victim on the couch, the defendant touched her breast and then asked her to go by a bean bag chair where he removed her pants and had sex with her. The court of appeals held that these 2 distinct acts were separated by just enough time for the defendant to reflect and recommit himself to additional criminal conduct. Slip op. ¶41. Thus, trial counsel was not deficient in failing to raise multiplicity.

Ineffective assistance of counsel–admission of nurse practitioner’s testimony

The court of appeals assumed that the nurse practitioner’s hearsay testimony re the victim’s diagnosis should not have been admitted and that counsel was deficient in not objecting to it. It nonetheless found the defendant was not prejudiced because other parts of her testimony were properly admitted:

. . . the nurse practitioner testified that T.L.’s conditions caused her to function differently from a normal 22-year-old, both emotionally and intellectually; that T.L. had difficulty making decisions and accomplishing tasks such as going to a store and making a purchase; and that T.L. struggled with “choosing what would be appropriate … as far as friendships and appropriate things to say sometimes.” Slip op. ¶47.

 Ineffective assistance of counsel–DA’s reference to nurse practitioner as a “doctor”

Repeatedly during closing arguments the DA referred to the nurse practitioner as a “doctor,” but trial counsel never objected. Again, the court of appeals found no prejudice: “There is no reason to suppose the jury mistook the nurse practitioner for a doctor. When the nurse practitioner testified, she plainly identified herself as a nurse practitioner and she summarized her education and training.” Slip op. ¶47.

Seriously? The DA repeatedly mistook the nurse practitioner for a doctor but “there is no reason to suppose” the jury did?

Ex post facto clause

Wisconsin’s risk reduction program was in effect when the defendant committed his alleged crimes but then the legislature repealed it, and the trial court deprived him of its benefit. The defendant argued that under State ex rel Singh v. Kemper, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820 this violated the federal constitution’s ex post facto clause.  The court of appeals, however, was unpersuaded that “repeal of the risk reduction program created a sufficient risk of increasing the measure of punishment”, and thus held the repeal constitutional. Slip op. ¶66.

The State’s petition for review in Singh is now pending in SCOW.

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