State v. Eric A. Newman

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 19, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2020AP1517-CR Cir. Ct. No. 2017CF99

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ERIC A. NEWMAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Clark
County: LYNDSEY BRUNETTE, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, 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).
No. 2020AP1517-CR

¶1 PER CURIAM. Eric Newman appeals a judgment of conviction for
aggravated battery1 and an order denying his postconviction motion. Newman
contends that the circuit court erred by denying his request for a jury instruction on
the privilege of self-defense. In the alternative, he contends that his trial counsel
was ineffective by failing to elicit sufficient testimony to meet the minimal
threshold for the self-defense instruction. For the reasons set forth below, we
reject both arguments. We affirm.

¶2 Newman was charged with aggravated battery, battery to a law
enforcement officer, resisting arrest, criminal damage to property, and disorderly
conduct, based on a disturbance at a bar. At trial, the State presented testimony by
the victim of the aggravated battery, R.D.G., as well as witnesses at the bar and
responding officers. Newman testified in his own defense that he struck R.D.G.,
who was in a wheelchair, because R.D.G. allegedly did the following: made
multiple sexual advances towards Newman throughout the evening, and then
approached Newman, sexually propositioned him again, and placed his hand on
Newman’s thigh.

¶3 On cross-examination, Newman testified that, thirty minutes before
he struck R.D.G., R.D.G. had “grabbed” Newman’s “junk.” Newman testified
that, when R.D.G. approached him again and placed his hand on his thigh,
Newman hit him because he believed R.D.G. was trying to grab his “junk” again.
Newman admitted that, after the first strike, R.D.G. rolled away from him and that
Newman then approached R.D.G. and struck him two more times.

1
Newman was also convicted of resisting arrest and disorderly conduct. Those charges
are not subjects of this appeal.

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No. 2020AP1517-CR

¶4 Newman’s trial counsel requested an instruction on the self-defense
privilege. Counsel argued that Newman’s testimony was sufficient for the jury to
find that Newman struck R.D.G. to defend himself from a sexual assault. The
circuit court determined that the evidence at trial was insufficient to support the
self-defense instruction, and denied the request.

¶5 Newman filed a postconviction motion arguing that the circuit court
erred by denying his request for the self-defense instruction or, alternatively, that
his trial counsel was ineffective by failing to elicit sufficient testimony from him
to support the instruction. At a postconviction motion hearing, Newman’s trial
counsel testified that his trial strategy was to pursue a self-defense claim against
the aggravated battery charge. Counsel testified that he met with Newman
approximately five times before trial, and that Newman frequently referred to
R.D.G.’s conduct towards him as a “sexual assault.” Counsel also testified that he
did not specifically recall Newman disclosing to him prior to trial that R.D.G. had
actually touched Newman’s genitals, but agreed that it was possible that Newman
had made this disclosure to him. Counsel testified that he believed that the
evidence at trial was sufficient to support the self-defense instruction.

¶6 Newman testified at the postconviction motion hearing that he told
his trial counsel before trial that he struck R.D.G. because R.D.G. had grabbed
Newman’s genitals “a couple times,” and Newman was concerned that R.D.G.
would do so again. Newman testified that he believed R.D.G. was going to touch
his genitals when R.D.G. placed his hand on Newman’s thigh.

¶7 The circuit court rejected Newman’s argument that the court erred
by failing to give the jury the self-defense instruction. It reiterated its
determination that the evidence presented at trial was insufficient to warrant the

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No. 2020AP1517-CR

instruction. The court also rejected Newman’s ineffective assistance of counsel
argument. The court found that, in the meetings between trial counsel and
Newman before trial, trial counsel did not obtain sufficient facts to support
Newman’s sexual assault allegation. The court found that trial counsel gave
Newman a sufficient opportunity during his direct examination to give a full
explanation of the events leading up to Newman striking R.D.G., and that
Newman had described only R.D.G. propositioning Newman for sexual activity,
and had not described a sexual assault. The court found that trial counsel’s
testimony was credible, while the court had “serious doubts” as to Newman’s
credibility. The court therefore denied Newman’s postconviction motion.
Newman appeals.

¶8 Whether the evidence at trial was sufficient to support a jury
instruction on self-defense is a question of law that we review de novo. State v.
Peters, 2002 WI App 243, ¶12, 258 Wis. 2d 148, 653 N.W.2d 300. We review a
claim of ineffective assistance of counsel as a mixed question of fact and law.
State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665 N.W.2d 305. We will
uphold the circuit court’s factual findings unless those are clearly erroneous. Id.
Whether those facts establish that counsel was constitutionally ineffective is a
question of law that we review independently. Id.

¶9 Newman argues first that the circuit court erred by denying his
request for a self-defense instruction. Newman contends that he met the minimal
threshold for a self-defense instruction by testifying that he struck R.D.G. to
prevent an unwanted sexual contact. See WIS. STAT. § 939.48(1) (2019-20)2
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1517-CR

(privilege of self-defense allows a person to use such force as the person
reasonably believes is necessary to prevent what the person reasonably believes to
be an unlawful interference with his or her person); State v. Stietz, 2017 WI 58,
¶¶15-17, 375 Wis. 2d 572, 895 N.W.2d 796 (defendant need produce only “some
evidence” to support claim of self-defense, which is satisfied even if the evidence
is “weak, insufficient, inconsistent, or of doubtful credibility” (quoted source
omitted)).

¶10 Newman points to his trial testimony that R.D.G. had sexually
propositioned him multiple times throughout the evening and had also placed his
hand on Newman’s genitals without Newman’s consent. Newman argues that,
when R.D.G. approached him again and placed his hand on Newman’s thigh,
Newman hit him three times with a cupped hand to “get his attention.” Newman
contends that, viewing this testimony in the light most favorable to the defense,
the evidence was sufficient to meet the low bar of “some evidence” to support
Newman’s claim that he struck R.D.G. in an attempt to defend himself from a
sexual assault. See Stietz, 375 Wis. 2d 572, ¶¶5, 22. He argues that the circuit
court erred by denying his request for a self-defense instruction because it was the
jury’s role to determine whether Newman’s actions were reasonable under the
circumstances. See id., ¶18 (court may not weigh conflicting evidence when
deciding whether to give a self-defense instruction because “the question of
reasonableness of a person’s actions and beliefs, when a claim of self-defense is
asserted, is a question peculiarly within the province of the jury”).

¶11 We conclude that the circuit court properly denied the request for a
self-defense instruction because no reasonable jury could have found that Newman
reasonably believed he used only the amount of force necessary to prevent an
unlawful interference with his person. In reaching this conclusion, “[w]e view the

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No. 2020AP1517-CR

record favorably to [Newman], as the case law requires, to assess whether a
reasonable jury could find that a person in [his] position … under the
circumstances existing at the time of the incident could reasonably believe that he
was exercising the privilege of self-defense.” Stietz, 375 Wis. 2d 572, ¶22.

¶12 To be entitled to a self-defense instruction, a defendant is required
“to make an objective threshold showing that (1) he reasonably believed he was
preventing or terminating an unlawful interference with his person, and (2) he
intentionally used only the force he reasonably believed was necessary to
terminate that interference.” State v. Johnson, 2021 WI 61, ¶20, __Wis. 2d__,
961 N.W.2d 18 (emphasis added). Here, the evidence at trial, viewed from
Newman’s perspective and most favorably to the defense, established the
following sequence of events. Newman was sitting on a barstool when R.D.G.,
who was in a wheelchair, approached Newman. Earlier in the evening, R.D.G.
had made numerous unwanted sexual advances towards Newman, including
grabbing Newman’s genitals, despite Newman’s repeated statements to R.D.G. to
stay away from him. During this last approach, R.D.G. again sexually
propositioned Newman and also placed his hand on Newman’s thigh. Newman
then hit R.D.G. once with a cupped hand to “get his attention.” When Newman
struck R.D.G., R.D.G. rolled backwards away from Newman. Newman then stood
up and approached R.D.G. and struck him two more times.

¶13 Viewing this evidence in the light most favorable to the defense, as
we must, it is at least arguable that the evidence was sufficient for a jury to find
that Newman reasonably believed that he struck R.D.G. to prevent an unlawful
interference with his person. It is also at least arguable that the evidence was
sufficient that a jury could possibly have found that Newman’s first strike to
R.D.G. was the reasonable amount of force necessary to prevent that unlawful

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No. 2020AP1517-CR

interference. We conclude, however, that no reasonable jury could have found
that Newman reasonably believed that, after he struck R.D.G. and R.D.G. rolled
away from him, he needed to follow R.D.G. and strike him a second and third time
to prevent R.D.G. from unlawfully interfering with his person. Newman does not
point to any evidence that would have supported his reasonable belief that, after
delivering the first strike and seeing R.D.G. rolling away, he needed to use any
additional force to prevent unwanted sexual contact.3 Accordingly, the circuit
court properly denied the request for a self-defense instruction.4

¶14 Alternatively, Newman contends that his trial counsel was
ineffective by failing to elicit sufficient testimony from him to support the self-
defense instruction.5 Newman contends that his trial counsel failed to elicit
sufficient testimony from him about R.D.G.’s alleged sexual advances throughout
the evening, including R.D.G. grabbing Newman’s genitals, to establish
Newman’s reasonable belief that he needed to use force to prevent R.D.G. from
sexually assaulting him.

3
The parties make no distinction between the amount of force used when Newman
struck R.D.G. the first time and when he struck R.D.G. the second and third times. Newman
described the three strikes in his trial testimony as follows: that he first “slapped” R.D.G. with
his left hand; and then, after he stood and approached R.D.G., he “smacked” him with his left
hand and then “openhanded” him with his right hand. Newman further testified that he “cupped”
his hand, without specifying between the three strikes.
4
Our conclusion that Newman was not entitled to a self-defense instruction because the
evidence was insufficient to support a finding that Newman reasonably believed the amount of
force he used was necessary is dispositive. Accordingly, we do not reach other arguments
Newman advances as to why he submits the circuit court erred by failing to give the self-defense
instruction.
5
As part of this argument, Newman also asserts that his counsel was ineffective by
failing to explain the weakness of the self-defense claim to Newman so that Newman could make
an informed decision as to whether to proceed to trial. However, Newman has made no assertion,
in the circuit court or on appeal, that he would have entered a plea rather than proceed to trial had
his counsel provided additional information to him. We reject this argument on that basis.

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No. 2020AP1517-CR

¶15 We conclude that trial counsel was not ineffective by failing to elicit
additional evidence to establish that Newman reasonably believed he needed to
use force to prevent R.D.G. from sexually assaulting him because that evidence
would not have shown that Newman reasonably believed he used only the force
necessary to prevent a sexual assault. A claim of ineffective assistance of counsel
must establish that counsel’s performance was both deficient and prejudicial to the
defense. See Thiel, 264 Wis. 2d 571, ¶18. “Counsel’s conduct is constitutionally
deficient if it falls below an objective standard of reasonableness.” Id., ¶19. To
show prejudice, the defendant must establish that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., ¶20.

¶16 Here, none of Newman’s allegations of ineffective assistance of
counsel would diminish the significance of the evidence that, after Newman struck
R.D.G. and R.D.G. rolled away from Newman, Newman left his bar stool,
approached R.D.G., and struck him two additional times. While Newman argues
that his counsel should have elicited more detailed evidence to establish
Newman’s reasonable belief that he needed to use force to prevent a sexual assault
by R.D.G., Newman does not develop an argument that any additional evidence
would have shown that he needed to approach R.D.G. and strike him two
additional times to prevent any unwanted contact. Accordingly, Newman has not
shown that any deficient performance by his trial counsel could have reasonably
contributed to the result of Newman’s request for a self-defense instruction.

¶17 We affirm.

By the Court.—Judgment and order affirmed.

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No. 2020AP1517-CR

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

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