State v. Moeun Mao

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.
September 10, 2020
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. 2018AP2369-CR Cir. Ct. No. 2013CF2592

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MOEUN MAO,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: JAMES P. DALEY and KARL R. HANSON, Judges. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, 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. 2018AP2369-CR

¶1 PER CURIAM. Moeun Mao appeals a judgment convicting him of
two counts of sexual assault for having sexual intercourse with and impregnating a
developmentally disabled sixteen-year-old female, G.S.K., and an order denying
his postconviction motion seeking a new trial due to the ineffective assistance of
trial counsel, plain error, and in the interest of justice.1 For the reasons that
follow, we affirm.

BACKGROUND

¶2 During the summer of 2013, Mao, then fifty-two years old, resided
with G.S.K. and her father. Law enforcement began investigating reports that
Mao had sexually assaulted G.S.K., who is cognitively delayed. During the course
of the investigation, it was discovered that G.S.K. was pregnant. The results of
DNA testing revealed a very high likelihood that Mao impregnated G.S.K.2

¶3 The State charged Mao with first-degree sexual assault causing
pregnancy contrary to WIS. STAT. § 940.225(1)(a) (2017-18),3 and second-degree
sexual assault contrary to § 940.225(2)(c). In pertinent part, the first-degree
charge (count one) criminalizes having sexual intercourse with another “without
consent of that person[,]” see § 940.225(1)(a), and the statutory definition of
consent provides that “[a] person suffering from a mental illness or defect which

1
The Honorable James P. Daley presided at Mao’s jury trial and entered the judgment of
conviction. The Honorable Karl R. Hanson entered the order denying Mao’s postconviction
motion.
2
As to the fetus’ DNA profile, the lab technician testified at trial that “it is at least three
million times more likely to observe that DNA profile from the product of conception if Moeun
Mao is the [biological] father than if a random, unrelated male were the father.”
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP2369-CR

impairs capacity to appraise personal conduct” is “presumed incapable of
consent[,]” see § 940.225(4)(b).4 The second-degree charge (count two)
criminalizes sexual contact or intercourse with a person “who suffers from a
mental illness or deficiency which renders that person temporarily or permanently
incapable of appraising the person’s conduct” if the defendant knows of the
deficiency. Sec. 940.225(2)(c).

¶4 The case was tried to a jury. Several witnesses testified at trial about
G.S.K.’s mental impairments. The county social worker who interviewed G.S.K.
testified that G.S.K. had an intelligence quotient (IQ) of 50, which the social
worker characterized as “really low” and indicative of low cognitive functioning.
The social worker testified that G.S.K. suffered from cognitive deficits and delays,
was diagnosed with fetal alcohol syndrome, and was unable to function without
assistance. G.S.K. struggled with understanding cause and effect, had difficulty
with abstract thinking, and made inappropriate decisions.

4
WISCONSIN STAT. § 940.225(4) defines consent as follows:

(4) Consent. “Consent,” as used in this section, means
words or overt actions by a person who is competent to give
informed consent indicating a freely given agreement to have
sexual intercourse or sexual contact.… The following persons
are presumed incapable of consent but the presumption may be
rebutted by competent evidence, subject to the provisions of
s. 972.11(2):

(b) A person suffering from a mental illness or defect
which impairs capacity to appraise personal conduct.

(c) A person who is unconscious or for any other reason
is physically unable to communicate unwillingness to an act.

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No. 2018AP2369-CR

¶5 The detective who interviewed G.S.K. testified that G.S.K. acted
“more like a younger child” than a sixteen-year-old. G.S.K.’s recorded interview
was played for the jury, and she was briefly called by the State to testify.

¶6 G.S.K.’s older sister testified that, in the eight years since their
mother died, the sister had acted as a mother figure for G.S.K. The sister had
attended school meetings concerning G.S.K.’s educational plan. She described
G.S.K.’s mental ability as “really delayed,” recalling that at the last school
meeting, G.S.K. was reading at a third-grade level. She testified that G.S.K. was
unable to care for herself, explaining that she was “not capable of cooking for
herself [,]” and could not drive, hold a job, or care for a child. The sister testified
that when G.S.K. was told that she was pregnant she “didn’t quite understand what
was going on.”

¶7 Similarly, the nurse who physically examined G.S.K. in connection
with the sexual assault testified that G.S.K. “did not know her body parts. She
could not name them.” The nurse explained:

What concerned me about [GSK], taking away the
fetal alcohol syndrome, was her cognitive ability to
understand the basic questions that I was asking her. She
did not seem to understand basic sexual development as
any other 16-year-old child that I have taken care of, nor
did she understand her body parts compared to other 16-
year-old children that I have taken care of. And that’s what
was concerning to me. When I was told that she had fetal
alcohol syndrome, then things started to, you know, mesh a
little bit, that this could be a cause of that. But the concern
is that her cognitive ability -- she had no idea what had
happened to her other than [that] she wasn’t feeling right,
that she was pregnant, and that she didn’t really understand
the questions that I was asking her as compared to other 16-
year-old children that I have taken care of and knowing that
I have taken care of many, many children.

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No. 2018AP2369-CR

¶8 At five points during trial, the prosecutor suggested to the jury that
G.S.K.’s age satisfied the “without consent”5 element of count one, first-degree
sexual assault. During voir dire, the prosecutor asked panel members whether
they believed “that a 16 year-old can consent to sexual contact in the state of
Wisconsin legally?” During his opening statement, he told the jury that G.S.K.
was “16 years old, so there’s not a consent issue there. You can’t consent at 16.”
While examining the State’s first witness, he asked her “under Wisconsin law, can
a 16-year-old consent to sexual contact?” The witness answered “no.” He asked
the second witness the same question, and received the same answer. The
prosecutor’s closing argument also referred several times to G.S.K.’s age as
satisfying the lack-of-consent element. Trial counsel did not object to any of these
statements.

¶9 The circuit court instructed the jury on the statutory elements of both
offenses. In pertinent part, the court instructed the jury on count one as follows:

“Did not consent” means that GSK did not freely
agree to have sexual intercourse with the defendant or that
GSK was not competent to give informed consent. In
deciding whether GSK did not consent, you should
consider what GSK said and did, along with all the other
facts and circumstances. This element does not require that
GSK offered physical resistance.

A person is not competent to give informed consent
if that person does not have the mental capacity to
understand the nature and the consequence of having sexual
intercourse. The burden is on the State to satisfy you by
proof beyond a reasonable doubt, that GSK was not
competent to give informed consent.

5
WISCONSIN STAT. § 940.225(1)(a), uses the language “without consent.” At times, we
will refer to this as the lack-of-consent element.

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No. 2018AP2369-CR

¶10 Regarding the mental deficiency and incapacity element of count
two, the circuit court instructed the jury as follows:

Number one, the defendant had sexual intercourse
with GSK.

Number two, GSK suffered from a mental
deficiency at the time of the sexual intercourse.

Three, the mental deficiency rendered GSK
temporarily or permanently incapable of appraising her
conduct. In other words, GSK must have lacked the ability
to evaluate the significance of her conduct because of her
mental deficiency.

Four, the defendant knew that GSK was suffering
from a mental deficiency and knew that the mental
condition rendered GSK temporarily or permanently
incapable of appraising her conduct.

….

Consent to sexual intercourse is not a defense.
However, you may consider any words or actions of GSK
indicating consent in determining whether GSK was
suffering from a mental deficiency that rendered her
incapable of appraising her conduct or whether the
defendant knew that GSK was suffering from a mental
deficiency that rendered her incapable of appraising her
conduct.

¶11 The jury convicted Mao of both counts and he was sentenced.

¶12 Mao filed a postconviction motion for a new trial, asserting that the
prosecutor had repeatedly misled the jury by stating that the “without consent”
element on count one was satisfied by the fact that G.S.K. was sixteen-years old.
Mao argued that this repeated misstatement of the law by the prosecutor also
tainted the jury’s verdict on count two. Because trial counsel did not object to the
repeated misstatement, Mao raised the legal issue in three ways: (1) ineffective
assistance of trial counsel; (2) plain error; and (3) in the interest of justice because
the real controversy was not fully tried.

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No. 2018AP2369-CR

¶13 At an evidentiary Machner6 hearing, trial counsel testified that he
largely did not recall the prosecutor’s statements suggesting that the victim’s age
satisfied the lack-of-consent element. Counsel explained that Mao had refused to
accept a plea offer and maintained his innocence “so our defense at trial was it
wasn’t him.” Counsel also testified that he did not believe that a jury would
believe that G.S.K. was competent to consent to sex because when she testified her
“cognitive issues and delays” were “obviously clear” and “she clearly wasn’t
competent.”

¶14 After additional briefing, the circuit court examined the language
and history of Chapter 940, and concluded that G.S.K.’s age did not satisfy the
“without consent” element. As such, the prosecutor’s statements of law were
wrong, and trial counsel should have objected. The court found that counsel had
no strategic reason for not objecting, and determined that counsel performed
deficiently.

¶15 The circuit court noted that the standard jury instruction was used in
this case, and that “[t]here is no mention in the instruction provided to the jury
regarding how GSK’s age affects the elements or the State’s burden.” The court
went on to determine that counsel’s deficient performance did not prejudice Mao.
The court detailed the “overwhelming evidence that GSK was not competent to
understand the nature and consequences of having sexual intercourse[,]” including
witness testimony about her “level 50 IQ, and fetal alcohol syndrome diagnosis[,]”
as well as her inability to care for herself or to comprehend her pregnancy. The

6
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (where a
defendant claims he or she received the ineffective assistance of trial counsel, a postconviction
hearing “is a prerequisite … on appeal to preserve the testimony of trial counsel”).

7
No. 2018AP2369-CR

court found that G.S.K.’s recorded interview and in-person testimony “both
demonstrated the extent of [her] mental deficiency.” Ultimately, the court
determined that “there is not a reasonable probability that the jury’s verdict
regarding the first-degree sexual assault causing pregnancy would have been
different had [trial counsel] objected to the misstatements of law presented by the
State.”

¶16 The circuit court went on to reject Mao’s other claims. Mao appeals.

DISCUSSION

Ineffective Assistance of Counsel

¶17 As pertinent to the issues on appeal, the elements of count one, first-
degree sexual assault, are that (1) Mao had sexual intercourse with G.S.K.,
(2) G.S.K. did not consent to the intercourse, and (3) Mao caused G.S.K. to
become pregnant. See WIS. STAT. § 940.225(1)(a); WIS JI—CRIMINAL 1201A.
As summarized above, the prosecutor suggested to the jury five times that the
lack-of-consent element was established by G.S.K.’s status as a sixteen-year-old.
Mao maintains that the prosecutor misstated the law, and that trial counsel’s
failure to object to the prosecutor’s repeated misstatement of law constituted
ineffective assistance of counsel. On appeal, the State does not dispute that the
prosecutor misstated the law, or that the trial counsel’s failure to object constituted
deficient performance. Instead, it argues that Mao was not prejudiced by trial
counsel’s deficiencies.

¶18 To prevail on an ineffective assistance of counsel claim, the
defendant must show that counsel’s actions or inaction constituted deficient
performance which caused prejudice. Strickland v. Washington, 466 U.S. 668,

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No. 2018AP2369-CR

687 (1984); State v. Love, 2005 WI 116, ¶30, 284 Wis. 2d 111, 700 N.W.2d 62.
To prove constitutional prejudice, the defendant must show that but for counsel’s
unprofessional errors a reasonable probability exists that the result of the
proceeding would have been different. Strickland, 466 U.S. at 694; Love, 284
Wis. 2d 111, ¶30.

¶19 Whether counsel’s actions were deficient or prejudicial is a mixed
question of law and fact. Strickland, 466 U.S. at 698. The circuit court’s findings
of fact will not be reversed unless clearly erroneous. State v. Pitsch, 124 Wis. 2d
628, 634, 369 N.W.2d 711 (1985). However, whether counsel’s conduct violated
the defendant’s right to effective assistance of counsel is a legal determination,
which this court decides de novo. Id. We need not address both prongs of the test
if the defendant fails to make a sufficient showing on either one. Strickland, 466
U.S. at 697.

¶20 We decide this appeal on the prejudice prong, and conclude that
Mao has not established a reasonable probability that, but for trial counsel’s
deficient performance, the result of the trial would have been different. The jury
was presented with overwhelming evidence of G.S.K.’s mental deficiencies and
her inability to give informed consent. Witnesses testified about her low IQ,
diagnosis of fetal alcohol syndrome, inability to function independently, impaired
capacity to process information and make decisions therefrom, and limited
understanding of reproductive and sexual development. As the circuit court
found, the video of G.S.K.’s forensic interview and her in-court testimony “both
demonstrated the extent of G.S.K.’s mental deficiency.”

¶21 Further, the circuit court properly instructed the jury on each and
every element of first-degree sexual assault under WIS. STAT. § 940.225(1)(a),

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No. 2018AP2369-CR

including the definition of consent as set forth in § 940.225(4) and (4)(b). The
court did not state or suggest to the jury that G.S.K.’s age rendered her unable to
consent to sexual contact or intercourse.

¶22 Mao argues that the pattern jury instruction did not cure any
prejudice because it did not affirmatively correct or contradict the prosecutor’s
misstatement. We are not persuaded. We presume that the jury followed the
circuit court’s instructions. State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d
432 (Ct. App. 1989). Nothing in the record suggests that the jury ignored the
pattern instruction. In light of the pertinent consent instructions given that make
no mention of age and the overwhelming evidence supporting a finding that
G.S.K. could not consent due to lack of competence, Mao’s claim is too
speculative to establish prejudice.

¶23 For these same reasons, we reject Mao’s attenuated argument that
the prosecutor’s repeated misstatement regarding the intent element in count one
might have tainted the jury’s verdict on count two. Here, Mao asserts that the
prosecutor’s misstatement could have led a reasonable jury to convict him of count
two based on the victim’s age because the “mental deficiency” definition in count
two is similar to the definition of “incompetency” in count one, and the jury was
repeatedly informed that the victim’s age met the former definition. Mao’s theory
is even more speculative as applied to count two. The jury was properly instructed
on the elements of count two and we presume it followed those instructions. The
evidence supporting count two was just as overwhelming as that supporting count
one.

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No. 2018AP2369-CR

Plain Error

¶24 In the alternative, Mao argues that the prosecutor’s repeated
misstatement of law constitute plain error, entitling him to a new trial. Plain error
is “error so fundamental that a new trial or other relief must be granted even
though the action was not objected to at the time.” State v. Jorgensen, 2008 WI
60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. A plain error must be “‘obvious and
substantial,’” and the doctrine should be invoked “sparingly”; its existence “‘will
turn on the facts of the particular case.’” Id., ¶¶21-22 (quoted sources omitted).
“If the defendant shows that the unobjected to error is fundamental, obvious, and
substantial, the burden then shifts to the State to show the error was harmless.”
Id., ¶23. An error is harmless when “it is ‘clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error.’” State v.
Harris, 2008 WI 15, ¶43, 307 Wis. 2d 555, 745 N.W.2d 397 (quoted source
omitted).

¶25 Here, the circuit court determined that the error was fundamental,
obvious, and substantial, but that the State met its burden to prove harmlessness:

[T]he State has demonstrated beyond a reasonable doubt
that a rational jury would still have found Mao guilty. The
error was unfortunately frequent. It was made three times
on the first day of trial and twice on the second day. No
curative instruction was provided to the jury. The jury did
receive the pattern jury instruction for the offense. That,
combined with the overall strength of the state’s case,
shows that the error was harmless.

The pattern instruction required the jury to find that
GSK did not consent to sexual intercourse. The instruction
gave the jury what was required for a finding that GSK was
not competent to consent to sexual intercourse. See Jury
Instructions, pp.18-19. Nothing in the jury instruction
relates to age. The evidence presented at trial, summarized
above, was overwhelming with regard to GSK’s inability to
consent to sexual intercourse because she did not have the

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No. 2018AP2369-CR

mental capacity to understand the nature and consequences
of having sexual intercourse.

Taken as a whole, and even in light of the State’s
misstatements, the result reached by the jury is reliable.
The evidence before the jury, demonstrated beyond a
reasonable doubt that GSK suffered from a mental
deficiency which prevented her from consenting to sexual
intercourse.

¶26 On our independent review of the record, for the reasons stated by
the circuit court and given our earlier analysis and conclusion that Mao was not
prejudiced by trial counsel’s failure to object, we agree that any error was
harmless. See State v. Harvey, 2002 WI 93, ¶41, 254 Wis. 2d 442, 647 N.W.2d
189 (the test for harmless error is essentially the same as the test for prejudice
under Strickland, except that the State bears the burden of proof).

Interest of Justice

¶27 Mao argues that the “real controversy” in this case was not fully
tried because the jury might have improperly convicted Mao on the basis of
G.S.K.’s age, rather than the statutory elements. We review the circuit court’s
ruling on a claim seeking a new trial in the interest of justice for an erroneous
exercise of discretion. State v. Hurley, 2015 WI 35, ¶30, 361 Wis. 2d 529, 861
N.W.2d 174.

¶28 The circuit court ruled on Mao’s claim as follows:

A new trial may be ordered in the interest of justice
“whenever the real controversy has not been fully tried.”
[State] v. D’Acquisto, 124 Wis. 2d 758, 763, 370 N.W.2d
781 (1985) (citing [State] v. Wyss, 124 Wis. 2d 681, 770,
370 N.W.2d 745 (1985)[ overruled on other grounds by
State v. Poellinger, 153 Wis. 2d 493, 504-06 & n.6, 451
N.W.2d 752 (1990)]). Justice may require a new trial in a
matter, “when the jury had before it evidence not properly
admitted which so clouded a crucial issue that it may be
fairly said the real controversy was not fully tried.” …

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No. 2018AP2369-CR

Wyss, 124 Wis. 2d at 770 (internal citation omitted). An
appeal in the interest of justice should be granted only in
exceptional cases. [State] v. Kucharski, 2015 WI 64, ¶23,
363 Wis. 2d 658, 866 N.W.2d 697.

The jury in this case had information before it that
was not correct – the idea that GSK was not competent to
consent to sexual intercourse based upon her age alone.
But, as described above, the evidence of GSK’s inability to
consent to sexual intercourse based on her mental capacity
was overwhelming. It cannot be said here that the
misinformation about age of consent clouded the jury from
fully considering whether GSK had the mental capacity to
understand the nature and consequence of having sexual
intercourse. The issue was fully tried to the jury and the
verdict reached by the jury was reliable.

¶29 The circuit court’s decision identifies the controlling principles of
law and applies them to the correct facts in a reasonable manner. This constitutes
a demonstrably proper exercise of discretion. Put another way, it cannot be said
“that no reasonable judge, acting on the same facts and underlying law, could
reach the same conclusion.” State v. Jeske, 197 Wis. 2d 905, 913, 541 N.W.2d
225 (Ct. App. 1995).

By the Court.—Judgment and order affirmed.

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

13