State v. Ruffin

• Decision Date: 09 March 2021
• Docket Number: Appeal No. 2019AP1046-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Theophilous RUFFIN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

397 Wis.2d 242

959 N.W.2d 77 (Table)

2021 WI App 27

STATE of Wisconsin, Plaintiff-Respondent, v. Theophilous RUFFIN, ^† Defendant-Appellant.

Appeal No. 2019AP1046-CR

Court of Appeals of Wisconsin.

March 9, 2021

DUGAN, J.

¶1 Theophilous Ruffin appeals a judgment of conviction and an order from the trial court denying his motion for postconviction relief. ¹ Ruffin argues that he is entitled to a new trial on the grounds of trial court error, ineffective assistance of trial counsel, and in the interest of justice. He argues that the trial court erred in erroneously instructing the jury on the sexual assault charge and in refusing to give an accident instruction for the sexual assault charge. He also argues that trial counsel was ineffective for failing to object to the erroneous sexual assault instruction and failing to provide the trial court with authority for giving an accident instruction for the sexual assault charge. In the alternative, Ruffin argues he is entitled to a new trial in the interest of justice "due to the error in the substantive jury instruction regarding the sexual assault charge and the detrimental affect [sic] it had on his defense." We affirm the trial court's denial of Ruffin's postconviction motion on these grounds.

¶2 However, we reverse the trial court's denial of Ruffin's motion on the basis that Ruffin's trial counsel was ineffective for withdrawing a request for a jury instruction on self defense, and we remand for the trial court to hold a Machner² hearing on that issue.

BACKGROUND

¶3 Ruffin's case arises out of a physical altercation from November 2015 in which he fought with V.P., his pregnant girlfriend and mother of his six-month-old child. According to the criminal complaint, Ruffin "ramm[ed] his bladed hand" repeatedly into V.P.’s clothed vulvar area ³ in the course of the altercation. The complaint alleged that V.P. experienced searing pain and noticed a great deal of blood between her legs and that she feared that she was miscarrying and called her mother for help. It further alleges that when V.P.’s mother arrived, she helped V.P. put on clean clothes and took V.P. to the hospital," where "VP required 28 stitches to reattach her labia, which had been torn almost completely off by [Ruffin's] pulling action."

¶4 Ruffin was arrested and charged with two counts: second-degree sexual assault and mayhem, both as acts of domestic abuse. The complaint and information, on which the State proceeded to trial, charged Ruffin with one count of second-degree sexual assault and alleged that he had "sexual intercourse with [V.P.], without the consent of that person and caused injury," contrary to WIS. STAT. § 940.225(2)(b) (2017-18). ⁴ For the mayhem count, the complaint and information alleged that Ruffin, "with the intent to disfigure [V.P.], did mutilate the labia of that person," contrary to WIS. STAT. § 940.21.

¶5 In its pretrial submissions almost nine months before the trial, the State requested WIS JI—CRIMINAL 1208 in relation to the second-degree sexual assault charge. This instruction sets forth the elements of second-degree sexual assault, sexual intercourse without consent by "use or threat of force or violence" and mirrors the language in WIS. STAT. § 940.225(2)(a). The State did not request WIS JI—CRIMINAL 1209, which describes the elements of second-degree sexual assault, sexual intercourse without consent causing injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care and mirrors the language in § 940.225(2)(b). The trial court noted that the State's proposed jury instructions were received at the initial final pretrial a month later, but the instructions were not discussed on the record. At the second final pretrial conference, the jury instructions were again not discussed on the record.

¶6 The matter proceeded to a jury trial in October 2016. During the jury selection process, the trial court read the preliminary jury instructions to the panel. As is relevant here, the trial court stated that for count one, Ruffin was alleged to have had sexual intercourse with V.P., without consent and causing injury, contrary to WIS. STAT. § 940.225(2)(b). However, when the trial court explained the elements of count one, it stated that Ruffin was alleged to have had sexual intercourse with V.P., without consent by use or threat of force or violence, contrary to § 940.225(2)(a). ⁵ Although the first two elements of second-degree sexual assault by use or threat of force are the same—namely, sexual intercourse and lack of consent—the third element differs.

¶7 During the trial, Ruffin and V.P. testified that, when the baby awoke that morning, Ruffin used his foot to wake up V.P. so she could feed the baby, and V.P. went to prepare a bottle. V.P. testified that Ruffin was calling her names and yelling at her, and she threatened to leave. Ruffin testified that V.P. was "cussing" at him, and he decided to take a walk to avoid fighting with V.P. The dispute turned physical, with Ruffin and V.P. eventually falling on the bed. V.P. testified that Ruffin picked her up and threw her on the bed. She further testified that Ruffin had her pinned on the bed and, through her clothing, shoved his hand "right into [her] vagina, rip[ped] and pull[ed] out." Ruffin testified that V.P. tripped over the bed and pulled him down on top of her as she fell. Ruffin further testified that V.P. had him by the collar, had her legs wrapped tight around him, and to avoid hurting V.P. or the baby, he tried to push on her legs to move her off of him. He testified that V.P.’s labia tore while he was trying to push V.P.’s legs off him. However, he testified that he "didn't never think [he] was pushing her labia," and he was trying to push on her thigh "to push her legs off from around" him. When the prosecutor asked Ruffin, "You said you did cause the injury?" Ruffin responded, "Yeah, trying to get her legs off me, yes." Nevertheless, he characterized V.P.’s resulting injury as an accident.

¶8 At the close of the State's evidence, Ruffin moved to dismiss the case because he argued that the evidence was insufficient to prove all elements of the charges beyond a reasonable doubt. Trial counsel stated Ruffin "never denie[d] being the cause of injury, but there [was] nothing indicating that that's what he intended." The trial court denied the motion.

¶9 At the jury instruction conference, trial counsel initially requested the self-defense instruction, arguing that Ruffin's actions "were designed to protect himself, the unborn child," and V.P. However, trial counsel later withdrew the request for self-defense stating he was "not sure it really fit[ ] the situation."

¶10 Trial counsel additionally requested the mistake or accident instruction and argued adamantly that either instruction was available because second-degree sexual assault was not a strict liability crime and, therefore, the State needed to prove Ruffin's intent. Trial counsel requested an accident instruction for both the sexual assault and mayhem counts, arguing that "the defendant [did] not deny, number one, causing the injury, but that it was an accident, it was not intentional." The State argued that a charge of second-degree sexual assault by sexual intercourse considers only a lack of the victim's consent, not the defendant's intent. The trial court granted Ruffin's request for an accident instruction for the mayhem charge, but it denied his request for the second-degree sexual assault charge. It found that the sexual assault charge did not have an intent element to which the accident instruction would apply.

¶11 At the end of the conference, the court reviewed the instructions and WIS JI—CRIMINAL 1208 was included. Neither party made an objection to the jury instructions. When the jury received its final instructions, the trial court correctly stated that Ruffin was charged with second-degree sexual assault, non-consensual sexual intercourse that "caused injury." However, when it described the elements of count one, it again incorrectly stated the third element was that the defendant had sexual intercourse with V.P., without consent "by the use of threat of force or violence."

¶12 The jury found Ruffin guilty of second-degree sexual assault, sexual intercourse without consent that caused injury, but not guilty of mayhem, with an intent to disfigure V.P. through mutilation of the labia. The trial court entered a judgment of guilty on the sexual assault charge.

¶13 Prior to sentencing, trial counsel informed the court that the jury had been instructed with the wrong jury instruction. The trial court had the parties submit briefs on how to handle the error. The State argued this was harmless error and Ruffin disagreed. At the hearing, trial counsel argued that Ruffin's defense was built around V.P.’s injuries being accidentally caused and not on a use of force charge. Trial counsel requested the court conform the information to the evidence at trial and amend the charge to third-degree sexual assault. The State moved for sentencing on the verdict. The trial court found that the cause of injury was proven at trial and the jury would have reached the same verdict if the correct jury instruction was given. The trial court found that giving the erroneous jury instruction was a harmless error, and the case proceeded to sentencing.

¶14 At the sentencing hearing, the trial court sentenced Ruffin to twelve years of imprisonment, bifurcated as eight years of initial confinement followed by four years of extended supervision. Ruffin, by postconviction counsel, moved for postconviction relief pursuant to WIS. STAT. § 809.30(2)(h) to "vacate and dismiss" Ruffin's conviction for the second-degree sexual assault charge, ⁶ or alternatively, a new trial or a Machner hearing on his claim of ineffective assistance of counsel. The trial court denied Ruffin's postconviction motion without a hearing. This appeal...