State v. Jayshonn Mikell Duffie

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 13, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1787-CR Cir. Ct. No. 2020CF1807

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAYSHONN MIKELL DUFFIE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: BEAU G. LIEGEOIS, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Jayshonn Mikell Duffie appeals from a judgment,
entered upon jury verdicts, convicting him of three crimes, each as a repeater,
No. 2022AP1787-CR

including first-degree sexual assault (sexual intercourse with a person under the
age of sixteen), by the use or threat of force or violence. Duffie also appeals from
an order denying his motion for postconviction relief. On appeal, Duffie argues
that he was denied his constitutional right to the effective assistance of counsel at
trial when the circuit court permitted him to represent himself. Duffie further
contends that this court should grant him a new trial in the interest of justice. For
the reasons that follow, we affirm the judgment of conviction and the order
denying Duffie’s postconviction motion.

BACKGROUND

¶2 The State charged Duffie with three crimes, each as a
repeater: first-degree sexual assault (sexual intercourse with a person under the
age of sixteen), by the use or threat of force or violence; child enticement (sexual
contact or sexual intercourse), as a party to the crime; and misdemeanor bail
jumping. The charges stemmed from allegations that Duffie and another adult
male took Amelia,1 then fourteen years old, to a house and forcefully sexually
assaulted her multiple times. Ultimately, the State was able to match Duffie’s
DNA profile with DNA samples taken from Amelia’s body after the sexual
assaults.

¶3 Beginning with his first bail hearing, and thereafter through trial,
Duffie repeatedly requested that he be permitted to represent himself. After

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use a
pseudonym instead of the victim’s name.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

2
No. 2022AP1787-CR

discussions on the record, the circuit court found that Duffie did not competently
understand the DNA evidence to the point where he could represent himself at
trial. Therefore, the court appointed standby counsel to discuss the DNA evidence
with Duffie. After the meeting with standby counsel, Duffie informed the court
that he still wanted to proceed pro se, and the court granted that request.

¶4 Duffie was found guilty by a jury of all three crimes charged. The
circuit court sentenced Duffie on the sexual assault charge to the mandatory
minimum of twenty-five years’ initial confinement. See WIS. STAT.
§ 939.616(1r). The court also sentenced Duffie to fifteen years’ extended
supervision on that charge. Represented by counsel, Duffie filed a postconviction
motion, arguing that the court erred by permitting him to represent himself and
that it should order a new trial in the interest of justice. In a written decision and
order, the court denied Duffie’s postconviction motion.

¶5 Duffie now appeals. Additional facts will be provided below as
necessary.

DISCUSSION

I. Effective assistance of counsel

¶6 Duffie first argues that the circuit court erred by permitting him to
represent himself because doing so violated his constitutional right to the effective
assistance of counsel. Relatedly, he also contends that the court never made a
finding on the record regarding his competency to represent himself.

¶7 Both the United States Constitution and the Wisconsin Constitution
grant an accused the right to self-representation. State v. Klessig, 211 Wis. 2d
194, 203, 564 N.W.2d 716 (1997); Faretta v. California, 422 U.S. 806, 835

3
No. 2022AP1787-CR

(1975). When a defendant seeks to proceed pro se, the circuit court must ensure
that “the defendant (1) has knowingly, intelligently and voluntarily waived the
right to counsel, and (2) is competent to proceed pro se.” Klessig, 211 Wis. 2d at
203. If these conditions are met, the court must allow the defendant to represent
himself or herself. Id. at 204. If the conditions are not met, the court deprives the
defendant of his or her constitutional right to the assistance of counsel by
permitting him or her to proceed pro se. Id. at 203-04.

¶8 Duffie does not argue that he failed to knowingly, intelligently, and
voluntarily waive his right to counsel. Rather, he asserts that he was not
competent to represent himself. Competency in the self-representation context
refers to whether a defendant has “[a]n identifiable problem or disability that may
prevent [him or her] from making a meaningful defense.” State v. Marquardt,
2005 WI 157, ¶61, 286 Wis. 2d 204, 705 N.W.2d 878. “In determining whether a
defendant is competent to proceed pro se, the circuit court may consider,” but is
not limited to considering, “the defendant’s education, literacy, language fluency,
and any physical or psychological disability which may significantly affect his
[or her] ability to present a defense.” See State v. Imani, 2010 WI 66, ¶37, 326
Wis. 2d 179, 786 N.W.2d 40 (citation omitted); Marquardt, 286 Wis. 2d 204, ¶61.
“[T]echnical legal knowledge is not relevant.” Marquardt, 286 Wis. 2d 204, ¶60
(citation omitted).

¶9 In Wisconsin,

[d]etermining whether a defendant is competent to proceed
pro se is a higher standard than determining whether a
defendant is competent to stand trial. “Surely a defendant
who, while mentally competent to be tried, is simply
incapable of effective communication or, because of less
than average intellectual powers, is unable to attain the
minimal understanding necessary to present a defense, is
not to be allowed ‘to go to jail under his own banner.’”

4
No. 2022AP1787-CR

Imani, 326 Wis. 2d 179, ¶36 (citation omitted). Critically, “the competency
determination should not prevent persons of average ability and intelligence from
representing themselves unless ‘a specific problem or disability can be identified
which may prevent a meaningful defense from being offered, should one exist.’”
Klessig, 211 Wis. 2d at 212 (citation omitted).

¶10 Our review of a circuit court’s competency determination in the
self-representation context is “limited to whether the … court’s determination is
‘totally unsupported by the facts apparent in the record.’” Imani, 326 Wis. 2d
179, ¶36 (citation omitted); Marquardt, 286 Wis. 2d 204, ¶21 (“We review a
circuit court determination of whether a defendant is competent to proceed pro se
under what is ‘essentially a clearly erroneous standard of review.’” (citation
omitted)).

¶11 Duffie first expressed his desire to represent himself before the court
commissioners presiding over his bond hearing and initial appearance. At
Duffie’s arraignment, before the circuit court, Duffie again stated that he wanted
to represent himself. Specifically, Duffie stated, “I’m trying to tell you there is no
point of me having a public defender … when it’s proven in my discovery that my
DNA was not a match.” The court affirmed Duffie’s understanding that criminal
defense lawyers have specialized knowledge in criminal procedures that he may
not possess. The court also conducted a colloquy with Duffie in which it asked
Duffie his age, education level, and his proficiency with the English language.
The court found that Duffie was “knowingly and voluntarily waiving his right to
an attorney.” The court also found:

Mr. Duffie is 20 years old. He’s very young. He does not
have a high school degree or an equivalency degree. He
says that he does understand English, he reads and writes
English. He does articulate himself very well. He speaks

5
No. 2022AP1787-CR

very fluently to the [c]ourt, and he was very responsive to
my questions and answering them promptly as well. So I
don’t have any reason to question his competency and that
he is freely and voluntarily waiving his right to an attorney
at this point.

Duffie reaffirmed his desire to represent himself at various hearings leading up to
the jury trial.

¶12 At several of the pretrial proceedings, however, Duffie evidenced a
misunderstanding of the DNA evidence. At a final pretrial hearing, the State
informed the circuit court that it was “a little bit uncomfortable with Mr. Duffie’s”
pro se status because it appeared that Duffie did not understand the DNA
evidence. The State argued that it did not know whether Duffie could competently
defend himself due to “his fundamental misunderstanding of the [DNA]
evidence.” Again, Duffie stated that he did not want to be represented by an
attorney “because of the simple fact that the evidence that I do have is no
evidence.”

¶13 The circuit court found that Duffie was making statements about
DNA evidence “that aren’t accurate,” that Duffie had a “pretty fundamental
misunderstanding” of the DNA evidence, and that Duffie did “not have anywhere
near the required education that would be necessary to be able to evaluate the
evidence competently.” The court determined that Duffie was not competent to
adequately represent himself based on his misunderstanding of the DNA evidence.
Over Duffie’s objection, the court stated:

So I’m going to have a lawyer appointed to Mr. Duffie.
That lawyer can meet with Mr. Duffie, go over the
evidence with him, and then Mr. Duffie can make a
knowing and informed decision about whether he wants to
proceed on the case pro se or continue with the lawyer that
will be provided to him.

6
No. 2022AP1787-CR

Duffie later filed a speedy trial motion, challenging the court’s decision to not let
him immediately proceed to trial pro se and arguing that he was competent to
represent himself at trial.

¶14 The circuit court appointed Duffie standby counsel shortly
thereafter. The court stated that the purpose of standby counsel was to review the
DNA evidence with Duffie. The court articulated, “So right now you have chosen
to proceed pro se, Mr. Duffie, so at the trial right now you’d be proceeding by
yourself with [standby counsel] sitting behind you. But if you changed your mind
and wanted [counsel] to actually represent you, just let [the attorney] know that.”

¶15 At a hearing the day before the scheduled jury trial, standby counsel
informed the circuit court that he met with Duffie the week prior and discussed
with him the DNA evidence. Duffie explained that he still wanted to represent
himself and stated that “[t]he allegation was that my DNA was found. The
evidence shows otherwise.”

¶16 Based on Duffie’s response that he wanted to represent himself, and
that Duffie had an opportunity to review the DNA evidence with an attorney, the
circuit court relieved standby counsel of his duties. The court also stated that
“[n]obody has brought up competency” since the State previously raised the issue.
Duffie then submitted a signed standard waiver of the right to an attorney form, as
directed by the court.

¶17 On the morning of the jury trial, the circuit court again found that
Duffie was “freely, voluntarily, intelligently, and knowingly waiving his right to
an attorney. He knows what attorneys can do for him, and he’s willingly choosing
to represent himself.” The court also noted that it provided Duffie with an

7
No. 2022AP1787-CR

attorney to discuss the DNA evidence and that Duffie “continues to want to
proceed pro se which is certainly his right.”

¶18 In Duffie’s opening statement, he told the jury, “I just want to say
that I don’t believe that DNA was found.… And a defendant—a defense
hypothesis would support [a] conclusion … that I was not a contributor” because
the “ratio” provided in the DNA report is “less than one quadrillion.” During the
trial, a forensic scientist with the Wisconsin State Crime Laboratory testified that
she analyzed several of the buccal swabs from Amelia’s sexual assault
examination, including the vaginal, cervical, and anal swabs. In each swab, the
scientist discovered that the DNA present on those items was greater than “one
quadrillion times more likely” to be Duffie’s DNA than someone else’s DNA.

¶19 On cross-examination, Duffie stated that the “likelihood ratio[ is]
less than one quadrillion—that’s what the likelihood ratio said on the evidence,
that it was less than the one quadrillion times”—which demonstrated that Duffie
was not a contributor to any of the DNA samples found in or on Amelia.
(Emphasis added.) The scientist stated, “So it is greater than one quadrillion
times, not less than.” Duffie responded, “[H]ow is it that the value was greater
than one quadrillion? So that’s basically saying I had sexual contact with the
victim?” Duffie stated that his confusion with the DNA report was that he thought
the “greater-than sign” was a “lesser-than sign.” He also repeatedly stated that
“[t]his is impossible” and “[t]his cannot be true.”

¶20 In the circuit court’s postconviction decision and order, it found that
“[t]his was not a case of [Duffie] being incompetent to understand the evidence.”
Rather, Duffie “simply disagreed with what the evidence showed …. Like
[Duffie], lawyers also are not DNA experts.” The court also found that Duffie was

8
No. 2022AP1787-CR

engaging “in some level of attempted manipulation of the court process …. So
[Duffie]’s purported surprise after hearing the DNA analyst’s testimony at
trial … seem[s] remarkably disingenuous at this point.”

¶21 When considered in context, the reasonable inference is that the
circuit court found, on the record, that Duffie was competent to represent himself.
Specifically, following several proceedings addressing Duffie’s
self-representation, the court stated the day before the trial that “[n]obody has
brought up competency.” On the morning of the trial, the court also noted that it
provided Duffie with an attorney to discuss the DNA evidence and that Duffie
“continues to want to proceed pro se which is certainly his right.” These findings
were made after the State previously raised competency and after Duffie met with
standby counsel to discuss the DNA evidence.2 Accordingly, we conclude that the
court impliedly incorporated the previous competency discussions into its finding
that Duffie was capable of representing himself at trial. We therefore reject
Duffie’s assertion that the court failed to make a competency determination on the
record.3

¶22 Furthermore, the circuit court reasonably determined that Duffie was
competent to represent himself at the jury trial. Duffie informed the court that he
was twenty years old; had attained the eleventh grade level and was working on
his GED; could read and write in English; was not receiving treatment for mental

2
We also note that the circuit court reiterated its pretrial competency findings in its
decision and order denying Duffie’s motion for postconviction relief.
3
Many of Duffie’s arguments to the contrary focus on the circuit court’s statements
made prior to appointing standby counsel and prior to standby counsel meeting with Duffie. As
we have discussed, however, the imperative question is whether Duffie was competent to
represent himself after meeting with standby counsel to discuss the DNA evidence.

9
No. 2022AP1787-CR

health or substance abuse issues; was not under the influence of any alcohol,
drugs, or medications; and did not have any physical or psychological disabilities
which would affect his ability to think clearly and “make good decisions.” Duffie
also demonstrated his mental capacity by repeatedly confirming throughout the
court proceedings his understanding that he was going to “be at a big disadvantage
in these proceedings because” the State was represented by “attorneys who handle
criminal cases every day” and that he would “still be required to present evidence
and proceed in the same manner as an attorney would be.”

¶23 Based on the circuit court’s findings of fact leading up to the jury
trial, the only question related to Duffie representing himself was his
misunderstanding of the DNA evidence.4 That is, based on Duffie’s education,

4
The State contends that the circuit court would have violated Duffie’s right to
self-representation had it appointed him an attorney against his will solely on the basis that he did
not understand the DNA evidence. In support of this proposition, the State cites Washington v.
Boughton, 884 F.3d 692 (7th Cir. 2018). In Boughton, the United States Court of Appeals for
the Seventh Circuit noted that it previously held that two Wisconsin opinions, including State v.
Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, “violated the clearly established rule of
[Faretta v. California, 422 U.S. 806 (1975)], that a court may not force a lawyer upon a
defendant based on his [or her] perceived lack of education, experience or legal knowhow.”
Boughton, 884 F.3d at 702. The Seventh Circuit reasoned “that the focus of the inquiry,” as
dictated by the United States Supreme Court, “is on the defendant’s mental capacity”—i.e., his or
her “mental functioning.” Id. (citation omitted). As that focus applied in Boughton, the court
held that a Wisconsin circuit court unconstitutionally denied a defendant his right to
self-representation on the basis that the defendant could not “understand and decipher” the State’s
DNA evidence. Id. at 701.

We are bound by our state supreme court’s precedent. See Cook v. Cook, 208 Wis. 2d
166, 189, 560 N.W.2d 246 (1997); but see State v. Jennings, 2002 WI 44, ¶19, 252 Wis. 2d 228,
647 N.W.2d 142 (“The court of appeals must not follow a decision of this court on a matter of
federal law if it conflicts with a subsequent controlling decision of the United States Supreme
Court.”). In any event, to the extent Boughton does not conflict with our state’s binding
precedent, we need not address that distinction as we conclude on narrower grounds that the
circuit court reasonably determined that Duffie had the minimal understanding of the DNA
evidence necessary to present a defense. See Patrick Fur Farm, Inc. v. United Vaccines, Inc.,
2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707 (stating that “we decide cases on
the narrowest possible grounds”).

10
No. 2022AP1787-CR

literacy, and lack of physical or psychological disabilities, the court found that
Duffie would be competent to proceed pro se if he garnered an understanding of
the DNA evidence. Therefore, the court appointed standby counsel in order for
Duffie to gain that requisite knowledge. Standby counsel later informed the court
that he had reviewed the DNA evidence with Duffie and that he explained the
basics of DNA science to Duffie. At the hearing held the day before the jury trial,
the court found that no party, including standby counsel, had raised a competency
issue after Duffie had been explained the DNA evidence. During the same
hearing, Duffie maintained that he wanted to represent himself at trial.

¶24 At that point in the proceedings, the circuit court reasonably
determined that Duffie had, at the very least, the “minimal understanding
necessary to present a defense.” See Imani, 326 Wis. 2d 179, ¶36 (citation
omitted). All that needed to be conveyed to Duffie in order for him to have that
minimal understanding was that the DNA evidence showed with great certainty
that he was one of the two contributors to the DNA found on the samples taken
during Amelia’s sexual assault examination. Any higher competency burden
would be contrary to Klessig and to Duffie’s right to self-representation.

¶25 Moreover, the fact that Duffie seemed surprised about the DNA
evidence at trial does not render the circuit court’s competency finding clearly
erroneous. The court explained in its postconviction decision and order that
Duffie’s purported lack of knowledge and “surprise” about the DNA evidence at
trial was disingenuous and that he was intentionally attempting to get a potential
conviction overturned on appeal. As the court alluded to in its decision, Duffie
certainly did not want to believe the evidence against him. However, after
meeting with standby counsel, Duffie could no longer credibly claim that he

11
No. 2022AP1787-CR

somehow remained unaware of how convincingly the DNA evidence tied him to
the sexual assault.

¶26 Duffie cites Marquardt to argue that the circuit court here should
have considered the complexity of the DNA evidence and Duffie’s alleged
misunderstanding of that evidence. In Marquardt, the circuit court found the
defendant incompetent to proceed pro se based upon the defendant’s lack of legal
skill, the seriousness of the charges, the complexity of the case, and the
defendant’s “mental illness.” Marquardt, 286 Wis. 2d 204, ¶¶62-63, 65. Related
to this latter finding, the court stated that it was “particularly concerned over
[the defendant’s] kind of microscopic review of all of these things, whether he’s
detached enough to make any sense out of the charges and to put the [S]tate to its
burden of proof.” Id., ¶63. One psychiatrist had opined that the defendant was
“delusional” and that he could not “appreciate the evidence” against him. Id., ¶65.
Another psychiatrist stated that the defendant suffered from “a delusional disorder
of paranoid schizophrenia.” Id., ¶66. On appeal, our supreme court affirmed the
circuit court’s competency determination, stating that “the medical and
psychological opinions in this case identified a number of specific problems that
could have prevented [the defendant] from meaningfully presenting his own
defense and that the circuit court took these problems into account.” Id., ¶69.

12
No. 2022AP1787-CR

¶27 Here, there is no evidence that Duffie suffered from a mental illness
that prevented him from understanding the evidence against him.5 Moreover, the
standard of review regarding a circuit court’s competency determination is
whether the court’s finding is “totally unsupported by the facts apparent in the
record.” Imani, 326 Wis. 2d 179, ¶37 (citation omitted); Marquardt, 286 Wis. 2d
204, ¶21. Therefore, the question before us is not whether another court could
have reasonably found Duffie incompetent. The question, properly framed, is
whether the circuit court, here, reasonably found Duffie competent. Based on the
foregoing, including the court’s finding that Duffie was feigning his
misunderstanding of the DNA evidence, we conclude that the court’s findings
surrounding Duffie’s competence to represent himself were reasonable.

II. Interest of justice

¶28 Lastly, Duffie argues that we should order a new trial in the interest
of justice because the circuit court permitted the State to introduce inadmissible
hearsay evidence to prove the element of force.

¶29 During the trial, the State asked Green Bay Police Department
Detective Craig Brey whether, during the course of his investigation into the
sexual assaults, he was “able to get any additional elaboration as it related to the
use of force in the case.” Brey responded that Amelia “explained to [him] that

5
Duffie also cites Indiana v. Edwards, 554 U.S. 164 (2008), to argue that “allowing a
defendant who lacks the mental capacity to conduct his own defense to proceed to trial without
counsel” is unconstitutional. Edwards, however, is not relevant authority here. There, a state
trial court denied the defendant’s request to represent himself at trial because the defendant
undoubtedly had a “mental illness” (schizophrenia). Id. at 168-69. The United States Supreme
Court affirmed that decision, concluding that courts may decline requests for self-representation
by defendants who “suffer from severe mental illness to the point where they are not competent to
conduct trial proceedings by themselves.” Id. at 178. Again, there is no evidence in the record
that Duffie suffered from a mental illness.

13
No. 2022AP1787-CR

[Duffie] had pinned her face down on the bed and engaged in sex with her from
behind.” According to Duffie, the introduction of this inadmissible evidence
rendered the controversy not fully tried.

¶30 This court has the authority to grant a new trial under our
discretionary power of reversal under WIS. STAT. § 752.35 “if it appears from the
record that the real controversy has not been fully tried.”6 Id. “[S]ituations in
which the controversy may not have been fully tried have arisen … when the jury
had before it evidence not properly admitted which so clouded a crucial issue that
it may be fairly said that the real controversy was not fully tried.” State v.
Cameron, 2016 WI App 54, ¶30, 370 Wis. 2d 661, 885 N.W.2d 611 (alteration in
original; citation omitted). “The power to grant a new trial in the interest of justice
is to be exercised ‘infrequently and judiciously’” and “only in ‘exceptional
cases.’” State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d 407, 826 N.W.2d 60
(citations omitted).

¶31 Pertinent here, to convict Duffie of the first-degree sexual assault
charge, the State was required to prove beyond a reasonable doubt that Duffie had
sexual intercourse with the victim by use or threat of force or violence. See WIS.
STAT. § 948.02(1)(c); WIS JI—CRIMINAL 2102C (2008). “[T]he use or threat of
force or violence element … includes forcible contact or force used as a means of
making the sexual contact,” and, therefore, “the element is satisfied whether the
force is used or threatened as part of the sexual contact itself or whether it is used
or threatened before the sexual contact.” See State v. Hayes, 2003 WI App 99,

6
Duffie does not argue that “it is probable that justice has for any reason miscarried.”
See WIS. STAT. § 752.35.

14
No. 2022AP1787-CR

¶15, 264 Wis. 2d 377, 663 N.W.2d 351. Importantly, “[u]nder Wisconsin law,
force has been used when the victim is compelled to submit.” State v. Long, 2009
WI 36, ¶24, 317 Wis. 2d 92, 765 N.W.2d 557.

¶32 This case does not present the exceptional facts necessary for us to
exercise our discretionary power to order a new trial. Even if Detective Brey’s
testimony was inadmissible hearsay, there was a plethora of other evidence
supporting the use of force element.

¶33 Amelia testified that on the night in question, she was by herself on
the boardwalk in Green Bay to see fireworks for a Fourth of July celebration. At
some point, a man approached her and asked her how old she was. After Amelia
told him her age, the man “laughed.” A second man—whom the State alleged was
Duffie—approached shortly thereafter and one or both of the men invited Amelia
back to a house. Amelia testified that she went with the men because she was by
herself and wanted to “hang out.” On the way to the house, Amelia conversed
with the first man and described the conversation as “chit chat” and “normal.”

¶34 Upon arriving at the house, Amelia immediately went into a
bedroom with the first man. Amelia testified that the first male immediately
“forcibly” told her to take her clothes off. She stated that she “was scared and
uncomfortable but at the same time like I couldn’t really do anything because I
didn’t know what would happen.” Amelia stated that she did not know where she
was in terms of how to get home, did not have any friends with her, did not know
either of the two men, and that they were the only three people at the house.

¶35 Amelia further testified that the first man began “touching” her
“from the breast[s] down” using his hands and his mouth. The man then vaginally
penetrated her using his hand and then his penis. Amelia stated that the man used

15
No. 2022AP1787-CR

his hand to hold her down while he had sex with her and that she “felt stuck.” The
man “finished” and left the room.

¶36 The second man, Duffie, then entered the room while Amelia was
still lying on the bed. Without saying anything, Duffie undressed and got into bed
with Amelia. Amelia testified that she was face down on the bed when Duffie
“[j]ust kind of got right into it” by vaginally penetrating her with his penis and
having sex with her. She could not remember whether Duffie was pushing her
head into the mattress, but she stated that she experienced the “same emotions” as
during the first sexual assault. Duffie then “finishe[d]” and left the room. Amelia
stated that after Duffie left the room, she felt “shocked.”

¶37 According to Amelia, the first male entered the room again and
sexually assaulted her a second time. Afterward, Amelia was able to get her
phone and message a friend for help. Her aunt called Amelia while Amelia was
still at the house, but she could not answer because the first man was still in the
room.

¶38 Green Bay Police Department Officer Michael Stuedemann testified
that he interviewed Amelia shortly after the sexual assaults. According to
Stuedemann, Amelia informed him that she “was forced into” having sex with
Duffie. Further, a sexual assault nurse examiner (SANE) testified that she
examined Amelia following the sexual assaults. The SANE report completed for
the examination, which was admitted into evidence, noted that Amelia informed
the SANE that she feared for her life during the sexual assaults. While Duffie
challenges the admissibility of Detective Brey’s testimony noted above, Duffie
does not challenge the admissibility of Stuedemann’s testimony or the SANE
report.

16
No. 2022AP1787-CR

¶39 A reasonable jury could conclude, from the evidence as a whole, that
Amelia was “compelled to submit” prior to the actual sexual assault committed by
Duffie. See Long, 317 Wis. 2d 92, ¶24. The jury heard that Amelia was a
fourteen-year-old girl who was led to an unknown house with two adult men she
had just met. Upon her arrival, she was instructed to get undressed despite her not
wanting to do so, and then Duffie and the other male took turns sexually assaulting
her.

¶40 Further, the jury could reasonably infer from the fact that Amelia
was on her stomach during Duffie’s sexual assault that Duffie was on top of her
during that time. Accordingly, the jury could determine that Duffie’s sexual
penetration while on top of Amelia constituted the use of force because Amelia
“ha[d] no choice at the moment of simultaneous use of force and making of
contact.” See State v. Bonds, 165 Wis. 2d 27, 32, 477 N.W.2d 265 (1991) (“Force
used at the time of contact can compel submission as effectively as force or threat
occurring before contact. Regardless of when the force is applied, the victim is
forced to submit.”).

¶41 The jury also heard from Amelia that she “was scared and
uncomfortable” during the first sexual assault but that she “couldn’t really do
anything because” she “didn’t know what would happen” if she asked the man to
stop. See Long, 317 Wis. 2d 92, ¶25 (concluding that the use of force element was
met when, among other things, the victim testified that “she was too afraid to cry
out”). Amelia also testified that she had these same emotions during the sexual
assault committed by Duffie. The SANE report also evidenced that Amelia feared
for her life during the sexual assaults, and Officer Stuedemann’s testimony
demonstrated that Amelia felt she was forced to allow Duffie to sexually assault
her.

17
No. 2022AP1787-CR

¶42 Under the facts of this case, the matter was fully tried, and we
decline to exercise our discretionary authority to order a new trial in the interest of
justice.7

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

7
Duffie also contends, citing Garcia v. State, 73 Wis. 2d 651, 245 N.W.2d 654 (1976),
that we should order a new trial in his case because of his “failure as a pro se litigant to mount
any meaningful defense to [the use of force element] due to his erroneous belief that the DNA
evidence exonerated him.” Id. at 655 (concluding that a new trial in the interest of justice was
warranted because the defendant’s alibi was paramount to the trial and, most notably, the
defendant, with “cavalier and misguided” intentions, did not disclose the identity of the true
perpetrators). Given the evidence before the jury, the controversy was fully tried. Additionally,
Duffie presented a defense to the use of force element. During his cross-examination of the
SANE, Duffie confirmed that the SANE report’s “[d]escription of the assault” section stated that
no “[w]eapons/threats/physical or ligature restraints/foreign objects [were] used.” Duffie argued
this point in his closing argument.

To the extent Duffie argues that we should grant him a new trial in the interest of justice
based upon his misunderstanding of the DNA evidence, we disagree. The DNA evidence against
Duffie, as well as the other evidence admitted at trial, was particularly strong and does not
warrant reversal. See State v. Cameron, 2016 WI App 54, ¶30, 370 Wis. 2d 661, 885 N.W.2d
611.

18