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
Kessler, Brash and Dugan, JJ.
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).
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
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. 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
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. 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.
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.
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.
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
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.
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 ...