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State v. Roberts

Court of Appeals of Wisconsin, District I

May 7, 2018

State
v.
Michael A. Roberts

          L.C. #2015CF004432

          Hon. Ellen R. Brostrom Circuit Court Judge, Hon. Jeffrey A. Wagner Circuit Court Judge Milwaukee County Courthouse, John Barrett Clerk of Circuit Court

          Jeffrey J. Guerard Ahmad & Guerard, LLP, Karen A. Loebel Asst. District Attorney, Michael C. Sanders Assistant Attorney General

          Before Kessler, Brash and Dugan, JJ.

         Summary disposition orders may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).

         Michael A. Roberts appeals from a judgment of conviction for one count of third-degree sexual assault, contrary to W . S . § 940.225(3) (2013-14). Roberts also appeals from an IS TAT [1] order denying his postconviction motion, which alleged that Roberts was entitled to a new trial because his trial counsel provided ineffective assistance concerning his cross-examination of a detective and the victim.[2] We conclude at conference that this matter is appropriate for summary disposition. See Wis. Stat. Rule 809.21(1). We summarily affirm the judgment and the order.

         BACKGROUND

         Roberts was charged with one count of third-degree sexual assault for having non-consensual penis-to-vagina sexual intercourse with a seventeen-year-old female relative, "Jane, " as she slept in Roberts's home.[3] Roberts was also charged with one count of second-degree sexual assault for having sexual intercourse with a person who was under the influence of an intoxicant and therefore unable to give consent. The jury found Roberts guilty of the third-degree sexual assault but not guilty of the second-degree sexual assault.

         At trial it was undisputed that on the night of the incident, Jane, Roberts, and Roberts's wife were all intoxicated. Jane vomited and was put to bed by Jane's brother and Roberts. Because Jane's pants were soiled, her brother helped her remove them and put on a pair of Roberts's boxer shorts, which Jane wore over her underwear.

         According to Jane, she awoke to find Roberts on top of her and the boxer shorts removed. Jane testified that Roberts had penis-to-vagina sexual intercourse with her even though she told him "to stop." Shortly thereafter, she telephoned her mother, who came to the home. The police were contacted. Jane was taken to the hospital for a sexual assault examination that included the collection of swabs of her vaginal area and thighs. Roberts's penis was also swabbed to collect DNA.

         At trial, a DNA analyst testified that although none of the swabs collected from Jane and Roberts contained semen, the analyst was able to determine that the mixture of DNA recovered from the head and shaft of Roberts's penis was 26 trillion times more likely to have come from Roberts and Jane than from Roberts and anyone else. The analyst also testified that the male DNA recovered from swabs of Jane's inner thigh and vaginal area was consistent with Robert's DNA.

         Roberts took the stand in his own defense and denied any sexual contact or intercourse with Jane. He testified that he passed out and was later awoken by police officers who arrested him and took him to the hospital so his DNA could be collected.

         After Roberts was found guilty of third-degree sexual assault, he was sentenced to three years of initial confinement and five years of extended supervision. Roberts filed a postconviction motion seeking a new trial on grounds that trial counsel provided ineffective assistance. The motion noted that at trial, the trial court ruled that trial counsel could not cross-examine Detective Geri Lin Dunn about statements Jane made to her shortly after the incident because when Jane was on the witness stand, trial counsel failed to ask her about her statements to Dunn. The postconviction motion alleged that the trial court's ruling-which Roberts does not challenge-prevented trial counsel from eliciting important testimony from Dunn concerning six inconsistencies between Jane's statement to Dunn and Jane's trial testimony. The postconviction motion stated:

Jane's credibility is the central issue in this case. There are numerous differences in her testimony and her statement to Detective Dunn. First, she testified that Roberts had his hand over her mouth during the incident. She never told Detective Dunn that Roberts had his hand over her mouth. Second, she told Detective Dunn that the first time she remembered seeing Roberts after going to sleep was when he was standing in the doorway. She testified that the first time she remembered seeing him after she was going to sleep was when he was on top of her. Third, she told Detective Dunn that Roberts fondled her vagina before having intercourse with her. She did not testify to any fondling. Fourth, she told Detective Dunn that Roberts pulled her underwear off before hav[ing] intercourse with her. She testified that Roberts slid her underwear to the side while having intercourse with her. Fifth, she told Detective Dunn that Roberts pulled ...

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