Preview:

COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
AUGUST 29, 1995
A party may file with the Supreme Court                                               This opinion is subject to further editing.
a petition to review an adverse decision                                              If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                            appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                   Official Reports.
No.   95-0570-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID E. COLLINS,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Rusk County:
JAMES C. EATON, Judge.  Affirmed.
Before Cane, P.J., LaRocque and Myse, JJ..
PER CURIAM.      David Collins appeals his conviction for two
counts of first-degree sexual assault of a child, after a trial by jury.   The jury
found Collins not guilty of a third count of first-degree sexual assault, rejecting
the victim's testimony on that charge.  Collins argues that several problems with
the victim's testimony rendered her incredible as a matter of law and prevented
the  prosecution  from  proving  his guilt  beyond  a  reasonable  doubt  on  the




No.                                                                                      95-0570-CR
remaining counts:   (1) the victim contradicted herself on whether Collins made
sexual contact with his hands; (2) she never identified the precise dates and
times of the assaults; and (3) she failed to immediately report the sexual assaults
to anyone.  We reject Collins' argument and therefore affirm his conviction.
Appellate  courts  review  convictions  to  determine  whether  the
jury,  acting  reasonably,  could  have  been  convinced  of  the  accused's  guilt
beyond a reasonable doubt by the evidence it had the right to accept as true.
State v. Nixa, 121 Wis.2d 160, 167 n.2, 360 N.W.2d 52, 56 n.2 (Ct. App. 1984).
Juries,  not  appellate  courts,  determine  the  credibility  of  witnesses  and  the
weight of their testimony.   Gedicks v. State, 62 Wis.2d 74, 79, 214 N.W.2d 569,
572  (1974).    Appellate courts will upset verdicts only if the jury relied on
evidence that was inherently or patently incredible.  Beavers v. State, 63 Wis.2d
597,                                                                                     603-04,      217  N.W.2d   307,   310   (1974).   Whenever  witnesses  make
contradictory statements, fact finders may accept or rely on either version and
disregard the other, in total or in part.   State v. Dunn, 158 Wis.2d 138, 143, 462
N.W.2d 538, 540 (Ct. App. 1990).   In addition, fact finders may believe part of
the testimony of one witness and part of the testimony of another even though
the testimony, when read as a whole, may be inconsistent.   State v. Toy, 125
Wis.2d 216, 222, 371 N.W.2d 386, 389 (Ct. App. 1985).
Collins  has  correctly  pointed  out  that  the  victim's  testimony
contained flaws.    Specifically, the victim did not report the sexual assaults
immediately, never identified their precise dates, and contradicted herself on
whether Collins made sexual contact with his hands.   The jury, however, did
not consider these imperfections in a vacuum.   They were a small part of an
array of factors that contributed to her credibility, including many that may
have enhanced it, such as her demeanor, her lack of maturity, her overall
character,  her possible  fear  of  the  proceedings,  her  corroboration  by  other
evidence, her lack of motives to fabricate, and her ability to sustain a good level
of consistency on other details of the assaults.   Furthermore, fact finders have a
measure of freedom to tolerate some discrepancies in the testimony of child
sexual assault victims and to discount their cumulative impact on those victims'
overall veracity.   See, e.g., State v. Wachsmuth, 166 Wis.2d 1014, 1022-24, 480
N.W.2d 842, 846-47 (Ct. App. 1992); see also State v. Sharp, 180 Wis.2d 640, 658-
60, 511 N.W.2d 316, 324-25 (Ct. App. 1993).   Here, in light of the fact that the
victim did endure a large number of embarrassing questions and did provide a
large amount of noncontradictory information in an intimidating setting, the
-2-




No.                                                                             95-0570-CR
jury could rationally find the scattered flaws in her account insufficient to
undermine her testimony's basic accuracy and overall truthfulness.
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
-3-

Download 8697.pdf

Wisconsin Law