Appeals court affirms conviction tied to DOJ backlog project

The third district court of appeals in Wausau has rejected an appeal filed by a 32-year-old man who was convicted of first-degree child sexual assault (sexual contact with a child under age 13) after the Department of Justice undertook a campaign to clear a backlog of sexual assault examination kits at the state crime lab.

Brandon A. Darnick sought a new trial on the grounds his trial attorney provided ineffective assistance of counsel and the trial judge erred in denying a motion for mistrial.

In a decision released July 23, the appeals court concluded Darnick’s constitutional rights were not violated during the December 2019 trial.

An Oneida County jury convicted Darnick after hearing three days of testimony.

Evidence against Darnick included swabs taken from a 2-year-old child during a sexual assault examination in December 2013.

The child was taken to a hospital for examination after crying while trying to use the bathroom. In response to questioning, the child stated that someone they referred to as “the doctor” had touched them inappropriately. 

While a number of interviews were conducted by the Minocqua Police Department, the investigation was at a standstill until 2018 when the swabs were tested as part of the Wisconsin Sexual Assault Kit Initiative (SAKI), a Department of Justice effort to clear a backlog of kits at the crime lab. 

Darnick was charged Nov. 30, 2018, after testing showed a DNA sample he gave in 2013 matched the one collected from the toddler.

In his appeal, filed in September 2022, Darnick alleged his trial attorney provided ineffective assistance of counsel and the trial judge erred in rejecting a motion for mistrial.

First, Darnick alleged his trial counsel should have secured the services of an expert to challenge certain aspects of the state’s DNA evidence. Specifically, he argued such an expert could have provided testimony supporting the defense argument that there was an innocent explanation for Darnick’s DNA being found on the child.

At trial, the defense alleged Darnick had consensual sexual contact with an adult and failed to wash his hands prior to helping the child in the bathroom.

The court of appeals rejected the argument.

“We conclude that even if Darnick’s trial counsel performed deficiently by failing to investigate the forensic analyses with respect to cell transfer, that deficient performance did not prejudice Darnick’s defense,” the decision reads. “We reach this conclusion because sufficient evidence was elicited at trial demonstrating that accidental transfer of sperm cells was possible in this case.”

Darnick also took issue with his attorney’s examination of certain witnesses but the appeals court rejected those arguments as well. 

Finally, Darnick argued that former Oneida County Circuit Judge Patrick O’Melia erred when he denied a defense request for a mistrial after the prosecutor, Assistant Attorney General Noel A. Lawrence, stated during rebuttal that the defendant’s DNA was found inside the child as opposed to on the child.

The appeals court ruled O’Melia’s decision to deny the motion was “reasonable based on the facts in the record.”

Specifically, O’Melia noted that the jury would be given an instruction advising that closing arguments made by attorneys are not evidence and that the panel must consider only the evidence elicited during the course of testimony when determining their verdict.

“Much of the trial focused on DNA evidence,” the appeals court noted, adding that at no point, did the jury hear erroneous evidence concerning where on the child Darnick’s DNA was found. 

“ ... as the circuit court reasoned in its order denying Darnick’s postconviction motion, the court properly instructed the jury that the parties’ closing arguments were not evidence, and we presume the jury followed that instruction,” the decision reads. “Consequently, there was little risk that the jury would confuse the state’s misstatements with the actual evidence presented during trial.”

 Darnick is serving a 25-year prison sentence to be followed by 15 years extended supervision. 

Heather Schaefer may be reached at [email protected].