State v. Guzman, 082719 WICA, 2018AP615-CR

Docket Nº:2018AP615-CR
Opinion Judge:PER CURIAM.
Party Name:State of Wisconsin, Plaintiff-Respondent, v. Jose Anthony Guzman, Defendant-Appellant.
Judge Panel:Before Brash, P.J., Kessler and Brennan, JJ.
Case Date:August 27, 2019
Court:Court of Appeals of Wisconsin
 
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State of Wisconsin, Plaintiff-Respondent,

v.

Jose Anthony Guzman, Defendant-Appellant.

No. 2018AP615-CR

Court of Appeals of Wisconsin, District I

August 27, 2019

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2017-18).

APPEAL from a judgment and an order of the circuit court for Milwaukee County: No. 2014CF3157 CAROLINA STARK, Judge.

Before Brash, P.J., Kessler and Brennan, JJ.

Per curiam opinions 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).

PER CURIAM.

¶1 Jose Anthony Guzman appeals from a judgment, entered upon a jury's verdict, convicting him on one count of first-degree sexual assault of a child less than sixteen years old. Guzman also appeals from an order denying his postconviction motion without a hearing. Guzman contends that trial counsel was ineffective for failing to call two witnesses, for failing to elicit additional testimony from the crime lab analyst, and for failing to object to a portion of the State's closing argument. We disagree with Guzman's arguments, and we affirm the judgment and order.

BACKGROUND

¶2 Around 6:00 p.m. on July 18, 2014, then-thirteen-year-old I.M. was on the front stairs of the duplex where she lived with her family in the upper unit. She had intended to go to the store with her grandfather, who lived a few houses away, but he had already left. I.M.'s mother was upstairs, sleeping after returning from work, and I.M. had locked herself out, so she was waiting on the stairs for a friend.

¶3 As I.M. was waiting, she saw a man-later identified as Guzman- park his car and make a phone call. After he ended the call, he came over to I.M. and started to ask her about a "for rent" sign in the yard. She explained that it was not for the duplex but for another house on the same lot. Guzman told I.M. that she was pretty and asked if she had a boyfriend. Guzman then went to his car to grab a piece of cardboard on which he wrote his phone number. He gave the number to I.M. so her mother could call him about the rental property.

¶4 I.M. stated that after Guzman gave her his phone number, he gave her two dollars, then grabbed her hand and put it on his penis. She said he pulled down his shorts and held both of her hands on his penis, moving her hands up and down three or four times while telling her that he loved her. I.M. also said that he kissed her and rubbed his penis against her. Guzman then left.

¶5 I.M. told her mother and grandfather what happened. They called Guzman's phone number and he returned. As Guzman walked back to the house, he was confronted by Israel Nunez-Otero, a neighbor and friend of I.M.'s mother. Guzman initially tried to flee but was grabbed by Nunez-Otero, who held Guzman down until police arrived. Guzman was arrested and charged with one count of first-degree sexual assault of a child less than sixteen years old.

¶6 I.M.'s grandfather, M.M., testified at trial. M.M. said he returned home about 6:00 p.m. the day of the incident, and I.M. ran up to him, crying. She told him what had happened. He punched his truck, which caught the attention of Nunez-Otero. M.M. testified that he helped hold Guzman down until police arrived. M.M. also testified that, as they held Guzman, Guzman kept saying "tell her I'm sorry" and that he did not want to go to jail.

¶7 State Crime Lab Analyst Michelle Burns testified regarding DNA evidence. I.M.'s pants had been swabbed in the crotch and fly areas, as well as inside and outside the waistband. Only the inside of the waistband yielded enough material for testing. The DNA was consistent with having come from two individuals, but there was insufficient material to make either inclusionary or exclusionary identifications. The analyst testified that there was at least one male contributor, but she could not say conclusively whether the entire sample was a mix of male and female DNA or a mix of DNA from multiple males. I.M.'s hands were also swabbed for DNA. No DNA was recovered from her right hand. There was a trace amount of male DNA on her left hand but, like the waistband sample, it was too...

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