State v. Richard A. Forsyth, II

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.
February 14, 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. 2021AP2034-CR Cir. Ct. No. 2019CF3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICHARD A. FORSYTH, II,

DEFENDANT-APPELLANT.

APPEAL from judgments and an order of the circuit court for
Fond du Lac County: DALE L. ENGLISH, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2021AP2034-CR

¶1 PER CURIAM. Richard A. Forsyth, II appeals his judgments of
conviction entered after a jury found him guilty of second-degree sexual assault
and fourth-degree sexual assault, both as a repeater. He also appeals from the
order denying his postconviction motion. Forsyth argues that his trial counsel was
ineffective for failing to promptly review discovery, which he asserts resulted in
the failure to obtain a missing document in time for trial. He also contends that his
trial counsel was ineffective for failing to object to the jury instructions and
verdict forms on the grounds that they were not sufficiently specific to ensure that
the verdicts were unanimous. Additionally, Forsyth argues that the circuit court
erred when it refused to instruct the jury on a lesser-included offense. We reject
Forsyth’s arguments and affirm.

¶2 The charges against Forsyth stem from a sexual assault that occurred
in December 2018, reported by the victim, Catherine.1 Catherine told police that
she was dropped off at Forsyth’s home after her date that night was called away on
a family emergency. Catherine had been friends with Forsyth for a few years.
She knew he lived nearby, and Forsyth said he could give her a ride home.

¶3 Catherine said that when she got to Forsyth’s home, they sat in the
living room watching television and “catching up.” However, Forsyth then picked
Catherine up from the couch, carried her into his bedroom, and laid her on his bed.
Catherine stated that he began rubbing a pink vibrator over her pants in her vaginal
area. She said Forsyth then put his hand inside her pants and her underwear, and
touched her vaginal area with his fingers.

1
We use a pseudonym for the victim, pursuant to WIS. STAT. RULE 809.86(4) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise indicated.

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No. 2021AP2034-CR

¶4 Catherine said that during the assault she told Forsyth to stop and
that she wanted to go home. However, he kept pushing her down by the shoulders
and held her down by putting his hand around her throat, so she was unable to
leave. She was able to text her roommate, Shane, and asked him to pick her up
from Forsyth’s home. The assault ended when she told Forsyth that Shane was on
his way.

¶5 Catherine began crying hysterically when she told Shane about the
assault. She called the police that night to report the assault and had an
examination performed by a Sexual Assault Nurse Examiner (SANE).

¶6 When the police interviewed Forsyth, he admitted to carrying
Catherine to his bedroom, but he said it was because she “was tired.” The officers
saw the vibrator that Catherine had described near Forsyth’s bed. Forsyth said that
he had showed her the vibrator “as a joke,” but he denied having any sexual
contact with her.

¶7 Forsyth was arrested and initially charged with second-degree sexual
assault and false imprisonment, as a repeater. A fourth-degree sexual assault
charge, as a repeater, was later added shortly before trial.

¶8 Forsyth made a speedy trial demand on January 17, 2019.
Subsequently, at a status conference on March 13, 2019, Forsyth’s trial counsel
advised the circuit court that the SANE exam report was missing from discovery
and that the State was trying to obtain it. However, counsel stated that the report
would likely not be available before the speedy trial date that was set for
approximately two weeks later and that she believed that they should wait for the
report before proceeding to trial.

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No. 2021AP2034-CR

¶9 The circuit court then engaged in a discussion with Forsyth as to
whether he was comfortable proceeding with the speedy trial, in spite of his trial
counsel’s position that they should wait for the SANE report. Forsyth responded
that he wanted to proceed with the speedy trial. The court explained that it would
put his counsel at a “disadvantage” if she did not have this evidence that
“potentially could help” his defense. Nevertheless, Forsyth confirmed his decision
to proceed with the speedy trial.

¶10 The matter proceeded to a jury trial. Catherine testified about the
assault and the events that led up to her being at Forsyth’s home that night. She
also stated that she and Forsyth had a consensual sexual relationship about a year
before the assault and had kept in touch, primarily over Facebook. However,
Catherine testified that when she texted Forsyth about getting dropped off at his
home that night, she indicated that she did not want to have sex with him. Forsyth
had responded that was fine, that he just wanted her “company.” The text
messages were introduced into evidence. Additional witnesses for the State
included Shane, who testified about picking up Catherine from Forsyth’s home
that night, and one of the officers who had interviewed Catherine and Forsyth.

¶11 Forsyth testified in his own defense. He stated that he had told
Catherine he would not be able to give her a ride home until the next day, but that
she could come over to his house to “hang out” and “catch up.” He said that he
had picked her up from the couch as a joke because she had said she wanted to get
high. He stated he then carried Catherine as he showed her around his house,
including his bedroom, where he set her down on the edge of the bed. He
admitted that he picked up the pink vibrator, which was next to the bed; however,
he said he only made a joke about it looking like a microphone. He testified that

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No. 2021AP2034-CR

he never turned the vibrator on, nor did he touch Catherine with it. Indeed,
Forsyth stated that he did not have “any sort of sexual contact” with Catherine.

¶12 The jury found Forsyth guilty of both sexual assault charges, but not
guilty of the false imprisonment charge. The circuit court imposed a sentence of
thirteen years of initial confinement followed by seven years of extended
supervision for the second-degree sexual assault charge and a concurrent
nine-month jail sentence for the fourth-degree sexual assault charge.

¶13 Forsyth filed a postconviction motion in May 2021. In that motion,
he claimed that: (1) his trial counsel was ineffective for failing to promptly review
discovery to secure the timely receipt of the SANE report and that this prejudiced
him by forcing him to choose between a speedy trial and the potentially
exculpatory evidence; (2) his trial counsel was ineffective for failing to object to
the jury instructions and verdict forms on the grounds that they lacked specificity
with regard to the sexual assault charges, which had likely led to non-unanimous
verdicts; and (3) the circuit court erred when it refused to give a lesser-included
jury instruction for the second-degree sexual assault charge.

¶14 A Machner2 hearing was held in November 2021. With regard to
the ineffective assistance claim relating to the missing SANE report, Forsyth’s
trial counsel testified she received discovery on January 17, 2019, and reviewed it
on March 4, 2019. She said this timeframe was not unusual, due to her large
caseload. She stated that she had contacted the prosecutor regarding the missing
SANE report, but that it was not provided prior to trial because the State had not

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

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No. 2021AP2034-CR

received it. Counsel explained that she had discussed with Forsyth the issue of not
having the SANE report for trial and that it was his decision to proceed with the
speedy trial rather than wait for the report. This was corroborated through the
transcript of the status conference held March 13, 2019, as described previously,
as well as the transcript of a hearing held on March 22, 2019, where the State’s
motion to amend the information by adding the fourth-degree sexual assault
charge was granted. At that time, the circuit court again confirmed with Forsyth
that he still wanted to proceed with his speedy trial.

¶15 Additionally, counsel testified at the Machner hearing that she
reviewed the SANE report after the trial and was of the opinion that it contained
potentially inculpatory information with regard to the false imprisonment charge,
for which Forsyth was acquitted. Specifically, counsel stated that the report
included photos of injuries to Catherine’s back and leg, which may have been
consistent with the use of force during the assault. However, the report indicated
there were no injuries to Catherine’s neck to support her allegations that Forsyth
had held her down by her throat.

¶16 As for Forsyth’s ineffective assistance claim relating to the language
of the jury instructions, trial counsel testified that her recollection was that “pretty
standard language” was used, and she did not think that a “conference discussion
of nonstandard language” had been held.

¶17 The circuit court rejected all of Forsyth’s claims. It found that for
Forsyth’s first ineffective assistance claim, trial counsel was not deficient in her
timing for reviewing discovery, based on the “highly deferential scrutiny of an
attorney’s performance and the strong presumption that counsel’s performance
falls within the wide range of reasonable professional assistance.” In making that

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No. 2021AP2034-CR

determination, the court considered that discovery in this case was “not overly
extensive” or “voluminous.”

¶18 The circuit court also stated that even if counsel had performed
deficiently, Forsyth failed to demonstrate he had been prejudiced by any error.
The court found that the SANE report included both inculpatory and exculpatory
evidence and concluded that even if the report had been received in time for trial,
there was not a reasonable probability that it would have created “reasonable
doubt respecting guilt.” Furthermore, the court recognized that Forsyth made a
“conscious decision” to go forward with the speedy trial even though the defense
did not have the SANE report. The court therefore rejected Forsyth’s ineffective
assistance claim on the issue of the SANE report.

¶19 The circuit court also rejected Forsyth’s other ineffective assistance
claim relating to the specificity of the jury instructions and the possibility that the
verdicts were not unanimous. The court pointed out that the instructions were
clear that the jury was required to make separate findings for each count. The
court further stated that the evidence was clear that the second-degree sexual
assault charge related to Forsyth putting his hand inside Catherine’s pants, while
the fourth-degree charge was his using the vibrator on the outside of her pants.
The court therefore concluded that there was no unanimity issue, and thus
Forsyth’s ineffective assistance claim relating to this issue failed.

¶20 Regarding Forsyth’s claim that the circuit court erred in not
providing an instruction for a lesser-included charge on the second-degree sexual
assault count, the court stood by its analysis presented during the jury instruction
conference. Under that analysis, the court had to consider whether the evidence
would support an acquittal under the greater charge and a conviction under the

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No. 2021AP2034-CR

lesser charge. The court reviewed the evidence that was presented—Catherine’s
version of events that Forsyth used force to hold her down during the assault and
Forsyth’s version that he had no sexual contact with Catherine whatsoever—and
concluded that the evidence did not support giving the lesser-included instruction
where the use of force was not an element.

¶21 Therefore, the circuit court denied Forsyth’s motion in its entirety.
This appeal follows.

¶22 Forsyth renews his postconviction claims on appeal. Beginning with
his ineffective assistance of counsel claims, in order to establish these claims,
Forsyth must show both that counsel’s performance was deficient and that such
performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
687 (1984). We need not address both components of the analysis if Forsyth fails
to make a sufficient showing on either one. See id. at 697.

¶23 Appellate review of an ineffective assistance of counsel claim is a
mixed question of fact and law. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369
N.W.2d 711 (1985). We will not disturb the circuit court’s findings of fact unless
they are clearly erroneous, but the ultimate determination of whether counsel’s
performance fell below the constitutional minimum is a question of law we review
independently. See id. at 634.

¶24 Regarding Forsyth’s first ineffective assistance claim relating to the
timeliness of his trial counsel’s review of discovery and failure to procure the
SANE report in time for trial, we conclude that Forsyth waived this argument
when he affirmatively chose to proceed with a speedy trial instead of waiting for
the report. See State v. Krancki, 2014 WI App 80, ¶11, 355 Wis. 2d 503, 851
N.W.2d 824 (citation omitted) (“If a defendant selects a course of action, that

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No. 2021AP2034-CR

defendant will not be heard later to allege error or defects precipitated by such
action. Such an election constitutes waiver or abandonment of the right to
complain.”). Here, Forsyth confirmed several times that he wanted to proceed
with the speedy trial, with the full knowledge that the SANE report was not going
to be available in time, and despite his counsel’s opinion to the contrary. In fact,
during discussions with the circuit court about this issue, Forsyth pointed out that
although the absence of the report meant that his counsel would not be able to
utilize any exculpatory evidence it may contain, the State would likewise not be
able to use any inculpatory evidence in the report.

¶25 Forsyth argues that he would not have had to make that choice had
his trial counsel not been deficient in failing to timely review discovery, bringing
to light the missing SANE report earlier. Even if this were to be deemed deficient
performance—which we are not concluding here—Forsyth fails to demonstrate
that he suffered prejudice as a result. To demonstrate prejudice, the defendant
must show 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.” Strickland, 466 U.S. at 694.

¶26 Forsyth argues that the SANE report could have been used to
impeach Catherine on inconsistent statements. For example, the SANE report
showed that Catherine had an injury on her back, which she told the nurse may
have occurred when Forsyth “pushed [her] into the headboard” of the bed at one
point during the assault. Forsyth contends that this is contrary to Catherine’s
claim that Forsyth had laid her down on the bed. However, it is not necessarily
inconsistent to be pushed against the headboard and forced down on your back
during an assault.

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No. 2021AP2034-CR

¶27 Forsyth contends there was another inconsistency in Catherine’s
testimony because the SANE report indicated that Catherine said she had “yelled”
at Forsyth to stop, but she did not testify at trial that she had yelled. He further
argues that his roommates, who were at Forsyth’s home in their bedrooms at the
time of the assault, did not hear a disturbance. However, Forsyth’s roommates
never testified at trial; in fact, Catherine testified that they were intoxicated and
“passed out” in their bedrooms. Furthermore, Catherine’s testimony did not
include any questions regarding the volume of her voice. In any event, Catherine
testified that she repeatedly told Forsyth “no” throughout the assault, which is
corroborated in the SANE report.

¶28 Prejudice is not established “by simply showing that an error had
some conceivable effect on the outcome.” State v. Koller, 2001 WI App 253, ¶9,
248 Wis. 2d 259, 635 N.W.2d 838. Rather, the defendant must demonstrate that
“counsel’s alleged errors actually had some adverse effect on the defense.” Id.
Forsyth has not shown that the introduction of the SANE report, with its
exculpatory and inculpatory evidence, would have had an actual effect on the
outcome here. Forsyth does not address the potential effects of the inculpatory
evidence of the SANE report. Furthermore, in addition to hearing Catherine’s
version of the incident, the jury also heard the testimony of Catherine’s roommate
Shane and the investigating police officer. Moreover, the jury was able to assess
Forsyth’s version of events through his testimony, which included the admission
that he had previously been convicted of crimes eleven times. Therefore, Forsyth
has not established that there is a reasonable probability that having the SANE
report for the trial would have affected its outcome. See Strickland, 466 U.S. at
694. As a result, his ineffective assistance of counsel claim on this issue fails. See
id. at 697.

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No. 2021AP2034-CR

¶29 Forsyth’s other ineffective assistance of counsel claim, relating to
the specificity of the jury instructions and verdict forms, fails as well because we
conclude that there is no unanimity issue. Forsyth cites State v. Marcum, 166
Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992), in support of his argument. In
Marcum, the defendant was charged with six counts of sexual assault of a child
younger than thirteen years old. Id. at 913. Three of those counts were based on
assaults that occurred during the same month, but with different types of sexual
contact. Id. However, the verdict forms for those three counts were worded
identically. Id. at 915. Furthermore, the evidence presented to the jury regarding
the number of incidents and the types of contact that occurred during each incident
was unclear, inconsistent, and confusing. See id. at 913-14. Therefore, this court
reversed one of the defendant’s sexual assault convictions “because the verdict
was so unspecific as to violate Marcum’s sixth amendment right to a unanimous
verdict and his fifth amendment due process right to verdict specificity.” Id. at
912.

¶30 That is not the case here. The counts against Forsyth are not
identical, as in Marcum, but rather were different charges: the second-degree
sexual assault charge relating to Forsyth putting his hand inside Catherine’s pants
to touch her vagina, which included the additional element of using force; and the
fourth-degree sexual assault charge for Forsyth’s use of the vibrator on the outside
of her pants. The circuit court instructed the jury that each charge was a separate
crime and that they had to be considered separately. Furthermore, the record
reflects that this was clearly explained to the jury by the State during its closing
argument. Therefore, there is no basis for arguing that a unanimity issue existed
with the jury instructions and verdict forms. See State v. Tulley, 2001 WI App
236, ¶17, 248 Wis. 2d 505, 635 N.W.2d 807. As a result, Forsyth has not

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No. 2021AP2034-CR

demonstrated that his trial counsel was deficient for failing to object to them. See
id.; State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441
(“Failure to raise an issue of law is not deficient performance if the legal issue is
later determined to be without merit.”).

¶31 Finally, we turn to Forsyth’s argument that the circuit court erred in
refusing to give a lesser-included jury instruction for the second-degree sexual
assault charge. Making this determination involves a two-step process by the
circuit court: (1) ascertain whether, as a matter of law, the crime is a
lesser-included offense; and (2) determine “whether there is a reasonable basis in
the evidence for an acquittal on the greater charge and for a conviction on the
lesser charge.” State v. Muentner, 138 Wis. 2d 374, 387, 406 N.W.2d 415 (1987).
“It is error for a court to refuse to instruct on an issue which is raised by the
evidence.” State v. Weeks, 165 Wis. 2d 200, 208, 477 N.W.2d 642 (Ct. App.
1991) (citation omitted). We review de novo whether a jury instruction on a
lesser-included offense should have been given. State v. Jones, 228 Wis. 2d 593,
598, 598 N.W.2d 259 (Ct. App. 1999).

¶32 We conclude that there was no basis in the evidence to support
giving the lesser-included jury instruction for the second-degree sexual assault
charge. The record reflects that the primary evidence on this issue was
Catherine’s testimony that Forsyth used force while putting his hand down her
pants and touching her vaginal area and Forsyth’s testimony that he did not have
any sexual contact with Catherine. There was no evidence of this assault
occurring without the use of force. In other words, the evidence does not support
giving the lesser-included instruction where the use of force was not an element.
Therefore, the circuit court did not err by refusing to give the lesser-included
instruction. See Weeks, 165 Wis. 2d at 208.

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No. 2021AP2034-CR

¶33 Accordingly, because all of Forsyth’s claims fail, we affirm the
judgments of conviction and the order denying his postconviction motion.

By the Court.—Judgments and order affirmed.

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

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