State v. Jason Howard LaVigne

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.
December 29, 2022
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. 2021AP825-CR Cir. Ct. No. 2018CF95

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON HOWARD LAVIGNE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marinette County: JAMES A. MORRISON, 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. Jason LaVigne appeals from a judgment convicting
him of third-degree sexual assault and from an order denying his postconviction
No. 2021AP825-CR

motion for a new trial. The sole issue on appeal is whether LaVigne’s trial
counsel provided ineffective assistance by asking to send the jury an unredacted
DNA report containing passages that the circuit court previously had excluded
from evidence. Based upon the strength of the other evidence at trial, we conclude
that LaVigne has not demonstrated the prejudice element of an ineffective
assistance claim. We therefore affirm.

BACKGROUND

¶2 The charge at issue was based upon the allegation of a sixteen-year-
old girl, April,1 that LaVigne had supplied her with alcohol and then sexually
assaulted her while on a pontoon boat. April reported the incident the same day
and underwent a forensic examination by a sexual assault nurse examiner (SANE).
The SANE nurse documented one suction bruise, or hickey, on April’s right
shoulder; another hickey on her left breast; and an area near April’s vaginal
opening that was red and abraded and painful to the touch. The SANE nurse took
swab samples from the hickeys and from April’s external and internal vaginal and
rectal areas, and sent them to the State Crime Laboratory.

¶3 The State Crime Laboratory detected saliva on the swab from
April’s breast and obtained a match to LaVigne’s DNA profile. A trace amount of
male DNA on the swabs from April’s external vaginal areas was insufficient for
further testing. A low quantity of male DNA detected on April’s internal vaginal
swab was not selected for further analysis. No male DNA was detected on the
rectal swab.

1
This matter involves the victim of a crime. Pursuant to WIS. STAT. RULE 809.86(4)
(2019-20), we use a pseudonym instead of the victim’s name.

2
No. 2021AP825-CR

¶4 Prior to trial, LaVigne moved to exclude the incomplete DNA test
results from April’s vaginal swabs. Based on the State’s concession that the DNA
results from the vaginal swabs were not probative, the circuit court excluded them
from evidence.

¶5 At trial, April testified that she was a friend of LaVigne’s daughter,
whom we will call Erin. LaVigne drove April and Erin to a cabin on a lake to
spend a day on his pontoon boat. LaVigne brought along a cooler with beer and
vodka. Once they were out on the lake, LaVigne provided April with four vodka
lemonades that he mixed himself. After lunch, Erin, who had also been drinking,
fell asleep. LaVigne then pulled April onto his lap on the captain’s chair and
started forcibly touching and kissing her breasts while holding her down around
her waist. LaVigne pulled off April’s swimsuit bottom and made her have sex
with him on the chair for about ten minutes, until Erin started to wake up. April
said she was shocked and too scared to react. When they all returned to the cabin,
April called her parents to come get her, told them what had happened, and went
to a hospital where the SANE examination was performed.

¶6 The SANE nurse testified about the injuries she had observed on
April’s shoulder, breast, and vaginal area, and she authenticated photographs of
the injuries she had taken during the examination. The photographs were then
introduced into evidence. The nurse said the vaginal injury would be consistent
with penetration by either a penis or a finger. The nurse described April’s
demeanor as “[q]uiet, very nervous, [and] disheveled” and observed that April
appeared intoxicated. The nurse also noted that April’s memory was “a little bit
fuzzy,” which in her experience was common for traumatized sexual assault
victims. April’s alcohol level came back at 0.122.

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No. 2021AP825-CR

¶7 An analyst from the State Crime Laboratory testified that LaVigne
was the source of DNA in the saliva sample taken from April’s breast. The
analyst’s only mention of the vaginal swabs was to affirm on cross-examination
that out of all the material she tested, the only DNA analysis linked to LaVigne
came from the breast swab. However, the State introduced the analyst’s report
containing references to the vaginal swabs without objection.

¶8 The State presented other-acts evidence regarding two other
incidents that occurred with another teenaged friend of Erin’s, whom we will call
Anna. In one incident, Anna testified that LaVigne had provided her with alcohol
at his cabin, then touched her thighs in a hot tub and tried to pull her over to
straddle him. In the other, LaVigne put his arms around Anna in a car and tried to
kiss her after he had given her a ride home.

¶9 LaVigne took the stand in his own defense. He admitted that he had
mixed a vodka and lemonade drink for April, although he claimed it was the girls
who had brought the vodka along and that he refused April’s requests for more
drinks. He testified that he fell asleep in the captain’s chair on the boat while Erin
was sleeping on the sun deck. The next thing he knew, he awoke to find April on
his lap trying to kiss him and pressing herself against him. After taking “a
second” to realize what was happening, he lifted April up, slid out from under her,
and went over to a nearby couch. LaVigne said April followed him to the couch,
pressed her breasts into his face, climbed onto him without her swimsuit bottom
on, and asked him to have sex with her. He told her to knock it off and pushed her
away. By LaVigne’s account, April continued to press him to have sex while
“rubbing her private area” while he packed up the boat to head back to the cabin.

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No. 2021AP825-CR

¶10 Erin testified that she and April had both been drinking vodka and
lemonade on the boat before Erin took a nap. When Erin woke up, she saw April
on top of her father in the captain’s chair, with no swimsuit bottom on. Erin heard
April saying “please” and her father say “no,” as well as some “moaning and
seducing” for a few minutes. By the time Erin sat up, April was back on the
couch, acting “drunk and just kind of crazy” and asking for her phone so that she
could call her mom. Back at the cabin, April told Erin that LaVigne had raped
her. Later on, Erin texted her father to say she was not asleep on the boat, and he
replied, “This is an uncomfortable conversation, but [April] was drunk and acting
crazy and I kept trying to push her away.” During Erin’s cross-examination, the
State played a portion of a jail telephone call in which Erin asked her father what
to say to the police, and LaVigne told Erin to say she had seen April “trying to do
stuff” to LaVigne, rather than “the other way around.”

¶11 After the close of evidence, the State suggested that the DNA report
should not be included in the materials sent to the jury, unless it was first redacted,
because it contained the excluded information about testing of the vaginal swabs.
However, at defense counsel’s request, the circuit court included the entire
unredacted report in the materials sent to the jury.

¶12 The jury found LaVigne guilty. LaVigne moved for a new trial,
alleging that his counsel provided ineffective assistance by failing to object to
having the DNA analyst’s unredacted report sent to the jury. During a Machner2
hearing, LaVigne’s trial counsel testified that he did not object because it could be
helpful to the defense to have the jury think that some unknown male’s DNA had

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP825-CR

been found on April. The court denied the postconviction motion, and LaVigne
now appeals.

DISCUSSION

¶13 To establish a claim of ineffective assistance, a defendant must
prove two elements: (1) deficient performance by counsel; and (2) prejudice
resulting from that deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. We will not set aside the circuit court’s factual
findings about what actions counsel took or the reasons for them unless they are
clearly erroneous. See State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358, 805
N.W.2d 334. However, whether counsel’s conduct violated the constitutional
standard for effective assistance is ultimately a legal determination that this court
decides de novo. See id.

¶14 We need not address both elements of the ineffective assistance test
if the defendant fails to make a sufficient showing on one of them. State v.
Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12. Here, we
conclude that LaVigne has failed to establish prejudice.

¶15 A defendant proves prejudice by demonstrating there is a reasonable
probability that, but for counsel’s unprofessional conduct, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
694 (1984). The “reasonable probability” standard does not require a showing that
it is “more likely than not” that a jury would have acquitted the defendant.
Sholar, 381 Wis. 2d 560, ¶¶44-45. Still, the “reasonable probability” standard is
tied to the reviewing court’s confidence in the outcome, and the “likelihood of a
different result must be substantial, not just conceivable.” Id., ¶45; Harrington v.
Richter, 562 U.S. 86, 112 (2011) (citation omitted). Thus, there is no reasonable

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No. 2021AP825-CR

probability of a different result based on alleged errors in a criminal trial when the
conviction was otherwise supported by overwhelming evidence. Sholar, 381
Wis. 2d 560, ¶58.

¶16 We are satisfied that the evidence against LaVigne was
overwhelming. That evidence included: (1) April’s direct testimony describing
the assault; (2) three documented injuries from the SANE examination consistent
with April’s description of the assault; (3) LaVigne’s DNA in the saliva sample
taken from the hickey on April’s breast—which was inconsistent with LaVigne’s
own account of the incident; (4) Erin’s partially corroborating testimony that her
father had provided the girls with alcohol and that she had seen April straddling
her father in the captain’s chair without a swimsuit bottom; (5) the recorded jail
call in which LaVigne coached Erin to support his version of the incident; and
(6) the other-acts evidence.

¶17 In addition, there is no indication in the record that the jury actually
looked at the DNA report. While the jury did ask several questions during its
deliberations, none pertained to the DNA evidence. The jury did not expressly ask
for the report; it was merely sent with twenty-nine other exhibits. Nor did the
State or LaVigne’s trial counsel during closing arguments invite the jury to read
the report. In conjunction with the evidence at trial, we conclude there is no
reasonable probability that sending the jury a redacted copy of the DNA report
rather than the full report would have led to a different result at trial.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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