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Error in jury instruction on substantive crime was waived and not prejudicial, but Machner hearing required on handling of self defense issue

State v. Theophilous Ruffin, 2019AP1046-CR, District 1, 3/9/21 (not recommended for publication), state’s petition for review granted 9/17/21; reversed, 2022 WI 34; case activity (including briefs)

Ruffin raises three challenges to how the jury was instructed at his trial. Two are rejected in all respects, but one—regarding trial counsel’s decision to withdraw a self defense instruction—gets him a Machner hearing.

Ruffin was charged with mayhem and sexual assault causing injury, § 940.225(2)(b). The state (mistakenly, one assumes) asked for the jury to be instructed on sexual assault by use or threat of force or violence, § 940.225(2)(a). The judge didn’t spot the mistake. Neither did defense counsel, until after the trial. (¶¶4-6, 11, 13). The error is waived. § 805.13(3)State v. Trammell, 2019 WI 59, ¶¶17-25, 387 Wis. 2d 156, 928 N.W.2d 564. (¶¶17-19).

So on to the claim that trial counsel’s failure to object was ineffective. The court rejects this on the ground there was no prejudice because the jury would have still convicted Ruffin of sexual assault if it had been given the proper jury instruction:

¶26     …. Had the jury been properly instructed, the third element would have been described as Ruffin caused injury to V.P. See Wis. J.I.—Criminal 1209. Ruffin did not deny causing the injury to V.P. Rather, in responding to a question from the prosecutor asking if he caused the injury to V.P., Ruffin testified, “Yeah, trying to get her legs off me, yes.” Instead, Ruffin denied any intent to injure V.P., and he argued that V.P.’s injuries were the result of an accident, a mistake, or even self-defense. Moreover, while arguing for dismissal at the close of the State’s evidence, trial counsel told the trial court that Ruffin “never denied being the cause of the injury, but there was nothing indicating that that’s what he intended.” Ruffin testified that he caused the injury to V.P. and the theory of defense was that it was an accident.

But wait! What about the fact the jury acquitted Ruffin on the mayhem charge, which was based on the same injury? Isn’t that reason to believe that the jury may have found him not guilty of the sexual assault causing injury had it been properly instructed because the jury could have concluded V.P. was injured accidently? No, says the court, because mayhem requires intent to disable or disfigure, and thus accident is a proper defense to that charge. State v. Watkins, 2002 WI 101, ¶35, 255 Wis. 2d 265, 647 N.W.2d 244 (accident is a defense that negatives intent). Not so on the sexual assault causing injury: “the State only needed to show that Ruffin caused injury to V.P. to be found guilty of the sexual assault charge. Thus, the fact that Ruffin was found not guilty of the mayhem charge does not show that the instruction on the sexual assault charge was not harmless.” (¶29).

Which brings us to the next ineffective claim: that trial counsel should have done a better job of arguing he was entitled to an accident instruction on the sexual assault charge. While conceding intent is not an element of the sexual assault charge, State v. Neumann, 179 Wis. 2d 687, 508 N.W.2d 54 (Ct. App. 1993), Ruffin argues it still requires an affirmative act by the defendant, which he did not take in this case. He cites two child sexual assault cases in which the defendant asserted that she did not sexually assault the child victim—rather the child sexually assaulted her. State v. Lackershire, 2007 WI 74, 301 Wis. 2d 418, 734 N.W.2d 23; State v. Olson, 2000 WI App 158, 238 Wis. 2d 74, 616 N.W.2d 144. (¶¶33-37). Creative as this argument is, it does not win over the court of appeals: “Ruffin was the actor in this case—unlike the defendants in Olson and Lackershire. Ruffin does not contend that V.P. sexually assaulted him. There is no analogous adaptation of the defendant’s defense in Olson and Lackershire to Ruffin’s situation here.” (¶38).

But all is not lost! Ruffin alleged trial counsel was ineffective for withdrawing the self-defense instruction he had previously requested. (¶9). Ruffin testified that V.P. was attacking him and his decision to push on what he thought were V.P.’s legs (but was in fact her labia) was a reasonable action, given that he did not want to put his weight on V.P. and possibly harm her and their unborn child. (¶7). Ruffin argues that, given the amount of evidence supporting his claim of self-defense, there could have been no strategic reason for his trial counsel to withdraw the request for a self-defense instruction and that it prejudiced his defense, which was centered on his actions being taken in self-defense and accidentally causing V.P.’s injury. Without the self-defense instruction, the jury never had the chance to consider his only defense to the sexual assault. (¶¶43, 46).

The trial court denied Ruffin a Machner hearing on this claim, but the court of appeals holds he’s entitled to one (without, of course, deciding either that trial counsel was deficient or that the deficiency was prejudicial). (¶47). One judge dissents on the grant of the Machner hearing on the ground a rational jury would never have acquitted Ruffin based on self-defense. (¶¶48-53).


{ 1 comment… add one }
  • Bernardo Cueto March 20, 2021, 9:33 am

    However, even if no objection is made to a jury instruction, the appellate court may review errors in instructions that are so plain or fundamental as to affect substantial rights of the defendant. In re C.E.W., 124 Wis.2d 47, 368 N.W.2d 47 (1985).

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