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Defendant’s rights to discovery, confrontation not violated

State v. Kevin Lee Wilke, 2020AP1068-CR, District 3, 8/2/22 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects Wilke’s arguments for a new trial and his challenge to the sufficiency of the evidence.

Wilke, who was pro se at trial and on appeal, first argues the state violated his right to discovery under § 971.23. Wilke has arguably forfeited this claim, but the court ignores that and concludes the record shows the state gave Wilke at least two copies of discovery. (¶¶6-9).

Wilke next argues that the lack of memory of “Nora,” the complaining witness, during her testimony surprised him and left him unprepared to cross-examine her. The court concludes that despite Nora’s claimed lack of memory, Wilke had a full opportunity to cross examine her and did so effectively. Nor is there any authority for the state to have put Wilke on notice Nora’s memory was limited or, indeed, that the state knew that before trial. (¶¶10-15).

Finally, Wilke’s sufficiency arguments fail under the highly deferential standard of review for jury verdicts:

¶18     In essence, Wilke asks us to second-guess the jury’s verdicts and reweigh the evidence in his favor. Under our standard of review, we cannot do so. Nora’s testimony, viewed in the light most favorable to the State, was sufficient to support the verdicts in this case. Further, nothing in the record would support a determination that Nora’s testimony was incredible as a matter of law. …. [I]f more than one reasonable inference can be drawn from the evidence, we must accept the inference drawn by the jury. Therefore, Wilke’s belief that Nora’s testimony was incredible and his belief that he sufficiently impeached Nora are not factors properly considered on our review. ….

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