Criminal Procedure — new trials — ineffective assistance — newly-discovered evidence — sufficiency of the evidence

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — new trials — ineffective assistance — newly-discovered evidence — sufficiency of the evidence

Following a 2006 jury trial, John C. Berard was convicted of first-degree sexual assault of a child under thirteen, exposing a child to harmful material and possession of child pornography. Because Berard vehemently denied the accusations, the principal issue was the perpetrator’s identity. A series of postconviction proceedings followed, including an extended Machner hearing, an appeal to this court, see State v. Berard, No. 2008AP3187-CR, unpublished slip op. (WI App Feb. 3, 2010), review and cross-review denied (Apr. 19, 2010), a remand to the trial court and several motions for reconsideration. This appeal arises from the denial of Berard’s motion to reconsider his request for a new trial based on ineffective assistance of trial counsel, newly discovered evidence and insufficiency of the evidence. Using our discretionary authority under Wis. Stat. § 752.35 (2009-10), we reverse in the interest of justice and remand for a new trial because we conclude that the real controversy—identity—was not tried. This opinion will not be published.

2010AP2439-CR State v. Berard

Dist II, Waukesha County, Drefus, J., Per Curiam

Attorneys: For Appellant: Adent, Leonard G., Pewaukee; For Respondent: Balistreri, Thomas J., Madison; Schimel, Brad, Waukesha