Background
Adonis I. Mosay, Jr., was charged with second-degree sexual assault of an unconscious victim after a woman testified that she awoke to Mosay having intercourse with her. She had consumed alcohol, marijuana, and Valium before falling asleep. A sexual-assault examination revealed abrasions, but DNA testing of genital swabs did not conclusively identify Mosay. His DNA was, however, strongly linked to a mixture found on the waistband of the woman’s sweatpants.
Mosay denied entering the woman’s bedroom, removing her pants, or assaulting her. At the State’s request, the circuit court instructed the jury on attempted second-degree sexual assault of an unconscious victim as a lesser-included offense. The jury convicted Mosay of that attempted offense and of two counts of felony bail jumping, all as a repeater. One bail-jumping count was based on the attempted assault; the other was based on his consumption of alcohol while released on bond. Mosay challenged only the instruction supporting the attempted-assault conviction and the related bail-jumping conviction, not the separate alcohol-related bail-jumping conviction.
The Court’s Holding
The Wisconsin Court of Appeals affirmed. It held that the lesser-included-offense instruction was proper because the evidence supplied reasonable grounds both to acquit Mosay of the completed sexual assault and to convict him of attempted sexual assault. The inconclusive genital-swab evidence permitted the jury to find that intercourse had not occurred, despite the woman’s testimony describing penetration.
At the same time, the DNA on the sweatpants waistband, combined with the woman’s testimony that she awoke to Mosay on top of her and thrusting, permitted the jury to find that he removed her pants and took unequivocal steps toward assaulting her while she was unconscious. The jury could reasonably determine that the offense was interrupted when she awoke. It was also entitled to credit portions of each witness’s testimony while rejecting other portions and to consider whether the woman’s alcohol and drug consumption affected her recollection.
Key Takeaways
- A lesser-included-offense instruction is warranted when the evidence reasonably supports both acquittal on the greater offense and conviction on the lesser offense.
- A jury may accept part of a witness’s account and reject another part rather than choosing wholesale between competing versions of events.
- Inconclusive genital-swab evidence supported acquittal on the completed offense, while waistband DNA and testimony about Mosay’s conduct supported conviction for attempt.
Why It Matters
The decision illustrates that conflicting testimonial and forensic evidence can justify an attempt instruction even when the complainant describes a completed offense and the defendant denies any criminal conduct. The question is whether a reasonable view of the full evidentiary record supports the intermediate verdict.
The opinion is unpublished and, under Wisconsin law, may not be cited as precedent or authority except for limited permitted purposes.