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2009AP118 State v. Burns

Criminal Procedure
New trials

A defendant convicted of sexual assault is not entitled to a new trial, even though the victim did not tell the truth in saying that the defendant took her virginity.

“Burns argues at length that S.B.’s virginity testimony was particularly prejudicial because the concept of rape of a virgin causes significantly more outrage in our society than rape of a non-virgin, especially in ‘agricultural county’ where this trial took place.  We disagree with Burns, and conclude that given the facts of this case, testimony that S.B. lost her virginity to Burns is not more prejudicial than testimony that Burns had intercourse with a 14-year-old child.”

“Furthermore, while Burns was not allowed to challenge the veracity of S.B.’s virginity statement, he was able to challenge S.B.’s allegation that Burns had intercourse with her.  For example, on cross-examination of S.B., she admitted that when she reported the assaults, she didn’t mention intercourse and that she wasn’t sure whether Burns had intercourse with her.”

“Moreover, Attorney Benavides was able to challenge S.B.’s credibility on numerous other points during cross-examination.  For instance, she admitted that she had given incorrect testimony during direct examination.  She admitted that prior to trial she had never mentioned that on both occasions when Burns had intercourse with her, he removed her tampon.”

Affirmed.

2009AP118 State v. Burns

Roggensack, J.

Attorneys: For Plaintiff: Daniel J. O’Brien, Madison; For Defendant: David R. Karpe, Madison

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