State v. Joshua L. Vinson, Sr.

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT II
October 27, 2021
To:
Hon. Mark F. Nielsen
Circuit Court Judge
Electronic Notice
Samuel A. Christensen
Clerk of Circuit Court
Racine County
Electronic Notice
Gregory Bates
Electronic Notice
Winn S. Collins
Electronic Notice
Patricia J. Hanson
Electronic Notice
Joshua L. Vinson Sr., #319099
Columbia Correctional Center
P.O. Box 900
Portage, WI 53901-0900
You are hereby notified that the Court has entered the following opinion and order:
2021AP370-CRNM State of Wisconsin v. Joshua L. Vinson, Sr. (L.C. #2018CF92)
Before Gundrum, P.J., Reilly and Grogan, JJ.
Summary disposition orders 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).
Joshua L. Vinson, Sr. appeals a judgment of conviction for first-degree sexual assault of a
child and felony bail jumping. Vinson’s appointed appellate counsel has filed a no-merit report
pursuant to WIS. STAT. RULE 809.32 (2019-20)1 and Anders v. California, 386 U.S. 738 (1967).
Vinson filed a response, which raises, among other issues: (1) concerns about double jeopardy;
(2) the sufficiency of the jury instructions; and (3) the constitutional effectiveness of his various
1 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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attorneys. Vinson’s counsel filed a supplemental no-merit report addressing the response. Upon
consideration of the no-merit report, Vinson’s response, and the supplemental no-merit report,
and following an independent review of the record as mandated by Anders and RULE 809.32, we
conclude there is no arguable merit to any issue that could be raised on appeal and we summarily
affirm the judgment. See WIS. STAT. RULE 809.21(1).
Vinson was charged in a seven-count Criminal Complaint and Information with repeated
sexual assault of the same child, possession of cocaine as a second or subsequent offense,
possession of drug paraphernalia, and four counts of felony bail jumping, with all but possession
of cocaine charged as a repeater. Following the preliminary hearing, the State moved to dismiss
the cocaine charge and the associated bail-jumping charge because the crime lab did not
positively identify the substance as cocaine. The case proceeded to trial. Prior to voir dire, the
State moved to dismiss an additional bail-jumping charge, and it submitted a proposed Amended
Information renumbering the remaining offenses. The circuit court approved the Amended
Information for filing and the State immediately filed it during the hearing. The State also
notified the circuit court and defense counsel that it intended to request instructions for first-
degree sexual assault of a child as a lesser-included offense of repeated sexual assault of the
same child.
The victim testified at trial, alleging that on each day between January 5 and 7, 2018,
Vinson had put his hand inside her underwear and penetrated her vagina with his finger. A DNA
sample obtained following a sexual assault examination, performed a few days after the last
reported incident, contained male DNA consistent with Vinson’s Y-STR profile. The jury
acquitted Vinson of the drug paraphernalia charge and the related bail-jumping charge, as well as
of repeated sexual assault of the same child. However, the jury found Vinson guilty of the

No. 2021AP370-CRNM
3
lesser-included offense of first-degree sexual assault of a child and the related bail-jumping
charge. The circuit court sentenced Vinson to thirty years’ initial confinement and twelve years’
extended supervision on the sexual assault conviction, and it imposed a consecutive sentence of
three years’ initial confinement and three years’ extended supervision on the bail-jumping
conviction.
The no-merit report addresses the following: (1) sufficiency of the Complaint;
(2) sufficiency of the preliminary hearing and Information; (3) Vinson’s personal presence at the
arraignment and entry of not guilty pleas to the charges; (4) Vinson’s assertion of his right to a
speedy trial; (5) pretrial evidentiary motions; (6) the filing of the Amended Information and
notice to Vinson; (7) the jury selection, during which defense counsel successfully raised a
Batson2 challenge to the State’s decision to strike the only two potential African-American
jurors; (8) sufficiency of the evidence to support Vinson’s convictions for first-degree sexual
assault of a child and bail jumping; (9) Vinson’s decision not to testify at trial; (10) jury
instructions; (11) opening statements and closing arguments of counsel; (12) the circuit court’s
responses to the jury’s questions during deliberations; (13) Vinson’s competency, which was
raised by defense counsel and addressed in presentencing proceedings; (14) the circuit court’s
denial of Vinson’s request to adjourn sentencing to review the presentence investigation (PSI);
(15) corrections to the PSI offered by the parties; and (16) the sentencing court’s exercise of its
discretion. Our review of the record satisfies us that the no-merit report thoroughly analyzes
these matters as being without arguable merit.
2 See Batson v. Kentucky, 476 U.S. 79 (1986), as modified by Powers v. Ohio, 499 U.S. 400
(1991).

No. 2021AP370-CRNM
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Vinson’s response primarily argues that he was improperly convicted of the lesser-
included offense of first-degree sexual assault of a child. He asserts he lacked notice that he was
charged with that offense, the State’s Amended Information was inadequate and filed too late,
the jury was improperly instructed, and his conviction constituted a double jeopardy violation.
Vinson’s assertion that his charging documents should have alleged a violation of both WIS.
STAT. §§ 948.02 and 948.025 lacks arguable merit because such dual charging is prohibited
under § 948.025(3). However, subsec. (3) states that it “does not prohibit a conviction for an
included crime under [WIS. STAT. §] 939.66 when the defendant is charged with a violation of
this section.” As the circuit court explained to Vinson, a single instance of sexual assault of a
child during the relevant time frame is by definition a lesser-included offense of repeated sexual
assault of the same child.
Vinson’s conviction on the lesser-included offense of first-degree sexual assault of a
child did not present a double jeopardy or jury unanimity problem. Vinson’s conviction on the
lesser-included offense does not implicate any of the Double Jeopardy Clause’s three
protections. See State v. Nommensen, 2007 WI App 224, ¶5, 305 Wis. 2d 695, 741 N.W.2d 481.
Contrary to Vinson’s argument, no multiplicity issue exists because the jury was instructed not to
consider the lesser-included offense unless it first acquitted him of repeated sexual assault of the
same child. Moreover, the circuit court guarded against the potential for jury confusion arising
from the lesser-included instruction by charging the jury with WIS JI—CRIMINAL 517, which
mitigated any risk that the jury might convict Vinson of first-degree sexual assault of a child

No. 2021AP370-CRNM
5
without reaching a consensus on which specific act constituted the crime.3 There is no issue of
arguable merit to a challenge to Vinson’s conviction on the lesser-included offense of first-
degree sexual assault of a child.
To the extent Vinson argues he lacked notice of the charges against him, the record belies
his argument. Vinson was present for the reading of the charges against him at his initial
appearance. At the hearing on September 25, 2018, Vinson was present when his defense
counsel and the prosecutor agreed that the State would dismiss the cocaine charge and the related
bail-jumping charge because the material had not been verified to be cocaine. Vinson was not
present in the courtroom on the first day of trial when, prior to voir dire, the State notified the
circuit court and defense counsel that it would be filing the Amended Information. However,
defense counsel stated she had no objection to the filing of the Amended Information, and the
circuit court informed Vinson of what had occurred outside of his presence immediately upon his
return to the courtroom shortly thereafter.
Vinson’s response appears to raise issues regarding two of his attorneys’ withdrawal
requests. Vinson’s first attorney twice sought to withdraw from the case. The circuit court
3 Following the language of WIS JI—CRIMINAL 517, the circuit court instructed the jury as
follows:
In regard to the lesser offense, the defendant is accused of one count
of first degree sexual assault of a child under twelve years of age.
However, evidence has been introduced of more than one act, any one of
which may constitute Intercourse with a child under the age of twelve.
Before you may return a verdict of guilty on the charge of first degree
sexual assault of a child under twelve years of age, all twelve jurors must
be satisfied beyond a reasonable doubt that the defendant committed the
same act and that the act constituted the crime charged.

No. 2021AP370-CRNM
6
granted the motion after the second request based on Vinson’s verbal abuse and threatening
conduct toward her. His second attorney was appointed and proceeded to trial. On the first day
of trial, Vinson requested a new attorney, but his request was denied because the circuit court
found no merit to the objection Vinson wished his counsel to raise regarding the accreditation of
the laboratory that had conducted the DNA analysis. Prior to Vinson’s sentencing hearing, his
attorney advised the circuit court that Vinson had behaved aggressively toward her during a jail
visit. Vinson refused to speak with his attorney at the sentencing hearing, requested a new
attorney, and the circuit court granted the request. There are no issues of arguable merit
regarding the decisions to allow the withdrawals. See State v. McDowell, 2004 WI 70, ¶66, 272
Wis. 2d 488, 681 N.W.2d 500.
Vinson’s response also alleges that his first attorney sought to adjourn the preliminary
hearing without his consent, and that the State failed to establish probable cause at the
preliminary hearing. The adjournment hearing transcript shows the circuit court personally
asked Vinson if he had any objection to the one-week delay requested by his attorney. Vinson
responded, “No.” Vinson’s assertion to the contrary lacks arguable merit. Additionally, the
record developed at the preliminary hearing, which occurred the following week, demonstrates
that the State, through the testimony of Investigator Joshua LaForge, established probable cause
to believe Vinson had committed a felony.
Vinson’s response asserts his various attorneys were constitutionally deficient in several
ways. To the extent he claims his attorneys were deficient by failing to raise a multiplicity
challenge, we have concluded that any such objection would have lacked arguable merit. He

No. 2021AP370-CRNM
7
also contends his trial attorney provided ineffective assistance by having him sign an Old Chief4
stipulation, whereby Vinson stipulated to two elements of the bail-jumping charge: (1) he was
on bond at the time of the alleged sexual assaults and (2) a condition of that bond required that
he commit no crimes. The stipulation prevented the jury from knowing the details of Vinson’s
past criminal conduct, and the circuit court engaged Vinson personally in a thorough colloquy
before accepting this stipulation. There is no basis on this record to conclude there is any
arguable merit to a claim that trial counsel was ineffective for entering into the Old Chief
stipulation. Vinson’s suggestion that there was no felony for which he was on bond at the time
of the sexual assault is belied by the record.5
Vinson’s response raises issues regarding the sufficiency of the appellate record. He
asserts his appellate attorney received redacted transcripts with no filing dates entered by the
circuit court clerk. He also asserts he was unable to access certain e-filed documents. Despite
these claims, the appellate record includes the challenged documents and it appears reasonably
4 See Old Chief v. United States, 519 U.S. 172 (1997).
5 The charging documents identify the bail-jumping charges as being predicated on the bond
ordered in Racine County case No. 2017CF790, in which CCAP records show Vinson was charged with
two felonies.

No. 2021AP370-CRNM
8
complete.6 This court has reviewed the entire record, consistent with its obligations under
Anders, and Vinson’s appellate counsel avers that Vinson was provided with all transcripts. The
transcripts appear free of any redactions.
Vinson alleges fraudulent conduct by his appointed attorneys and other officials,
including the circuit court and the court reporters, suggesting that these individuals conspired in
some fashion to procure his convictions and deprive him of his rights. Nothing in the record
substantiates Vinson’s allegation that the court reporters intentionally or maliciously omitted
statements from the transcripts, nor does the record support Vinson’s conspiracy allegations.
Indeed, the transcripts include material he accuses the court reporters of omitting; specifically,
the sentencing transcript shows Vinson repeatedly interrupted the proceedings to address the
circuit court regarding his belief that his convictions were invalid. Moreover, the supplemental
no-merit report includes an affidavit by appellate counsel averring that the other participants in
those hearings do not support Vinson’s claims of erroneous transcription.
Vinson’s response also asserts he has filed a federal lawsuit based on the foregoing
allegations. We agree with appellate counsel that this lawsuit does not appear to have any
6 Appellate counsel represented in his no-merit brief that he would be filing a request to
supplement the appellate record with four transcripts from pretrial hearings that occurred between January
and March 2019. It does not appear any request to supplement the record was filed. Counsel represents
that at those hearings, the circuit court granted Vinson’s first attorney’s motion to withdraw, discussed
Vinson’s requests for “modification of the circuit court’s minutes” of a previous hearing and to reduce
bail, and appointed his second attorney, who filed a speedy trial demand on Vinson’s behalf. The
contents of the appellate record substantiate counsel’s representations, including first counsel’s
withdrawal request filed on January 10, 2019, and an order appointing his second attorney dated
February 27, 2019. Vinson’s representations about what occurred at these hearings do not materially
differ from his counsel’s. We therefore accept counsel’s representations about the subject matter of those
hearings.

No. 2021AP370-CRNM
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bearing upon whether the appellate record demonstrates an issue of arguable merit. Our
independent review of the record discloses no other potential issue for appeal.
Therefore,
IT IS ORDERED that the judgment of the circuit court is summarily affirmed pursuant to
WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that Attorney Gregory Bates is relieved of his obligation to
further represent Joshua L.Vinson, Sr. in this matter. WIS. STAT. RULE 809.32(3).
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Sheila T. Reiff
Clerk of Court of Appeals