State v. Woods, 98-2156

Decision Date20 May 1999
Docket Number98-2156
PartiesThis opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See §808.10 and Rule 809.62, Stats. State of Wisconsin, Plaintiff-Respondent, v. Chester B. Woods, Defendant-Appellant
CourtCourt of Appeals of Wisconsin

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

APPEAL from a judgment and an order of the circuit court for Grant County: JOHN R. WAGNER, Judge. Affirmed.

Before Eich, Vergeront and Roggensack, JJ.

ROGGENSACK, J.

Chester Woods appeals his convictions of four counts of third-degree sexual assault, pursuant to §940.225(3), Stats., one count of fourth-degree sexual assault, pursuant to §940.225(3m), and the denial of his postconviction motions. Woods claims that the circuit court erred by improperly admitting hearsay testimony about statements the victim made to friends claiming that she had been raped, that the prosecutor's improper comments during closing arguments prejudiced Woods's right to a fair trial, that the circuit court erred by instructing the jury on second-degree sexual assault because there was no evidence that the incidents involved threats of force, and that the jury was misled because the verdict forms did not include the element of lack of consent. We conclude that the circuit court's admission of the victim's out-of-court statements to her friends was harmless error; that there was evidence of forceful sexual contacts, in combination with verbal threats, that could have supported a finding of "use or threat of force or violence" necessary to second-degree sexual assault; that Woods waived any objection to the prosecutor's improper comments during closing argument by making a strategic decision not to object, but counsel's decision did not constitute ineffective assistance; and that no reasonable jury could have inferred it could convict Woods if Harms consented. Accordingly, we affirm.

BACKGROUND

On February 2, 1996, Peggy Harms celebrated her birthday at a tavern near her home. She met Woods for the first time at the bar that evening. At bar time, the party, including Woods, moved to Harms's house. The party broke-up around 7:00 a.m. on the morning of February 3, 1996.

Woods stayed at Harms's house after the other guests had gone. He went into Harms's bedroom and called to her. When Harms came into the bedroom, she found Woods standing with his pants off. He told her that he was going to bed, and he grabbed her by the wrist, pulled down the covers, and pulled her onto the bed. Harms refused to take her clothes off, and she told Woods that she did not want to have sex. Woods began to undress Harms despite her verbal and physical objections. As he undressed her, he said, "I am pretty aggressive. Aren't you?" Then, he looked at Harms and said, "No, you are not." Harms tried to stop Woods from undressing her by grabbing his hand and saying, "Don't do that," but Woods rolled over and put his legs between her legs. Harms said, "Please, don't," and Woods said, "Just let me do what I want," in a threatening tone of voice. Because of Woods's size, actions and his tone of voice, Harms felt threatened. She began crying, but she did what he told her to do because she was afraid. Woods entered her vagina with his penis, attempted anal sex, bit her nipple, performed oral sex on her, and told her to perform oral sex on him. Harms testified the sexual acts were painful.

After Woods left, Harms did not leave the house all day, and she saw no one until two friends, Mike Pope and Ron Hardy, came to her house at approximately 6:00 p.m. Harms told Pope that Woods had raped her. The next day, Harms also told another friend, Pam Bock, that Woods had raped her.

On February 13, 1996, Harms reported the rape to officer James Cler, and she later provided the police with a written statement. Harms initially did not want to prosecute but later agreed that she would. She said her delay in reporting and deciding to prosecute was primarily due to fear. She also said "I am a business person. I am a public figure in a small community and I didn't care to be the local talk of the town." Cler later testified that she had told him "that she was afraid of her reputation if the story got around that she had had sex with a Negro, Black male" and "that nobody would believe her because it will be a black man's word against her word."

The State filed a complaint charging Woods with five counts of second-degree sexual assault under §940.225(2)(a), Stats. At trial, Woods objected to the testimony of Harms's friends concerning out-of-court statements she made to them following the incident, and Woods also argued that it was unfair to instruct the jury on second-degree sexual assault because of the risk of a compromised verdict. The court ruled in favor of the State on both objections. The jury convicted Woods of four counts of third-degree sexual assault, pursuant to §940.225(3), and one count of fourth-degree sexual assault, pursuant to §940.225(3m).

In postconviction motions, Woods sought a new trial on the grounds that the State had made impermissible comments in closing argument and that the verdict forms may have misled the jury to convict without finding all the elements of the offenses. Because Woods's attorney had not objected on these grounds at trial, Woods sought a new trial in the interests of justice and on the basis that counsel's failure to object constituted ineffective assistance. The court denied Woods's postconviction motions, and this appeal followed.

DISCUSSION

Standard of Review.

This case presents several questions reviewed under various standards. The admission of evidence lies within the sound discretion of the circuit court. State v. Pepin, 110 Wis.2d 431, 435, 328 N.W.2d 898, 900 (Ct. App. 1982). When we review a discretionary decision, we examine the record to determine if the circuit court logically interpreted the facts, applied the proper legal standard, and used a demonstrated rational process to reach a conclusion that a reasonable judge could reach. State v. Keith, 216 Wis.2d 61, 69, 573 N.W.2d 88, 892-93 (Ct. App. 1997). In considering whether the proper legal standard was applied, however, no deference is due. This court's function is to correct legal errors. Id. Therefore, we review de novo whether the evidence before the circuit court was legally sufficient to support its rulings. Id. Furthermore, if evidence has been erroneously admitted or excluded, we will independently determine whether that error was harmless or prejudicial. State v. Patricia A.M., 176 Wis.2d 542, 556-57, 500 N.W.2d 289, 295 (1993).

The determination of whether a jury instruction is sufficiently supported by the evidence is a question of law which we review de novo. State v. Holt, 128 Wis.2d 110, 126-27, 382 N.W.2d 679, 687-88 (Ct. App. 1985). In contrast, the form of a special verdict is within the circuit court's discretion and we will not interfere if the material issues of fact are encompassed within the question asked and the instructions given. Ford Motor Co. v. Lyons, 137 Wis.2d 397, 467-68, 405 N.W.2d 354, 382 (Ct. App. 1987).

Whether counsel's actions constitute ineffective assistance is a mixed question of law and fact. State ex rel. Flores v. State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)). The circuit court's findings of fact will not be reversed, unless they are clearly erroneous. State v. Pitsch, 124 Wis.2d 628, 634, 369 N.W.2d 711, 714-15 (1985); §805.17(2), Stats. However, ultimately whether counsel's conduct violated Woods's right to effective assistance of counsel is a legal determination, which this court decides without deference to the circuit court. State v. (Oliver) Johnson, 133 Wis.2d 207, 216, 395 N.W.2d 176, 181 (1986). In contrast, a circuit court's decision to grant or deny a new trial is discretionary. Markey v. Hauck, 73 Wis.2d 165, 171-72, 242 N.W.2d 914, 917 (1976).

Prior Consistent Statements.

Woods contends that the circuit court erroneously exercised its discretion in permitting Harms, Pope and Bock to testify to Harms's out-of-court statements that Woods had raped her. The State contends that Harms's statements to her friends in the days following the sexual assault were admissible under the §908.01(4)(a)2., Stats., exception to the hearsay rules. Section 908.01(4)(a)2., states in relevant part:

A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... [c]onsistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Under §908.01(4)(a)2., Stats., a prior consistent statement of a witness is not hearsay and may be offered for substantive purposes if: (1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant's testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. State v. Ansani, 223 Wis.2d 39, 52, 588 N.W.2d 321, 327 (Ct. App. 1998)

The declarant, Harms, testified at trial; she was subject to cross-examination concerning the statement; and her earlier statements were consistent with her trial testimony. Therefore, the only remaining issue is whether testimony regarding Harms's out-of-court statements to her friends were offered to rebut an express or implied charge against Harms of recent fabrication or improper influence or motive.

To use prior consistent statements, the proponent of the statements must show that they predated an alleged recent fabrication and that there was an express or...

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