State v. Theophilous Ruffin
Wis.
2022 WI 34
SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1046-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Theophilous Ruffin,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 397 Wis. 2d 242,959 N.W.2d 77
(2021 – unpublished)
OPINION FILED: May 26, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 5, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: M. Joseph Donald
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion for a
unanimous Court.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner there were briefs
filed by Jennifer L. Vandermeuse, assistant attorney general,
with whom on the briefs was Joshua L. Kaul, attorney general.
There was an oral argument by Jennifer L. Vandermeuse.
For the defendant-appellant there was a brief filed by
Nicole M. Masnica and Gimbel, Reilly, Guerin, & Brown LLP. There
was an oral argument by Nicole M. Masnica.
2022 WI 34
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1046-CR
(L.C. No. 2015CF5306)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
MAY 26, 2022
Theophilous Ruffin,
Sheila T. Reiff
Defendant-Appellant. Clerk of Supreme Court
ANN WALSH BRADLEY, J., delivered the majority opinion for a
unanimous Court.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. The petitioner, the State of
Wisconsin, seeks review of a decision of the court of appeals
that reversed the circuit court in part and remanded for an
evidentiary hearing.1 Specifically, the court of appeals
1State v. Ruffin, No. 2019AP1046-CR, unpublished slip op.
(Wis. Ct. App. Mar. 9, 2021) (affirming in part, reversing in
part, and remanding the order of the circuit court for Milwaukee
County, M. Joseph Donald, Judge).
No. 2019AP1046-CR
determined that Theophilous Ruffin alleged sufficient facts so
as to entitle him to an evidentiary hearing on his claim that
his trial counsel was ineffective for withdrawing a request for
a self-defense instruction.
¶2 The State contends that the court of appeals failed to
apply the correct legal framework and that Ruffin is not
entitled to an evidentiary hearing because the record
conclusively demonstrates that he is not entitled to relief.
Ruffin, on the other hand, argues that the court of appeals
applied the proper framework, and that he is entitled to a
Machner2 hearing on his ineffective assistance claim.
¶3 We determine that the court of appeals applied an
incorrect legal framework. In reaching our determination we
emphasize that even if the motion alleges sufficient facts, an
evidentiary hearing is not mandatory if the motion presents only
conclusory allegations or if the record as a whole conclusively
demonstrates that the defendant is not entitled to relief.
¶4 We conclude that the record here conclusively
demonstrates that Ruffin is not entitled to relief on his claim
that trial counsel was ineffective for withdrawing a request for
a self-defense instruction. As a result, the circuit court did
not erroneously exercise its discretion by denying Ruffin's
motion without an evidentiary hearing.
2 State v. Machner, 92 Wis. 2d 797,285 N.W.2d 905
(Ct. App.
1979).
2
No. 2019AP1046-CR
¶5 Accordingly, we reverse the decision of the court of
appeals.
I
¶6 Ruffin was charged with one count of second degree
sexual assault3 and one count of mayhem,4 both as acts of
domestic abuse.5 The charges stemmed from a physical altercation
between Ruffin and his partner, A.B.6 At the time of the
altercation, A.B. and Ruffin were in a relationship and lived
together, along with several children that each partner had from
previous relationships and their six-month-old son. A.B. was
pregnant with the couple's second child.
¶7 According to A.B.'s testimony at trial, she and Ruffin
had a "couple of beers" earlier in the day, and A.B. also
consumed a "couple lines of cocaine." Ruffin went to bed around
10:00 or 11:00 p.m., and A.B. stayed up later, going to bed
around 3:00 a.m. A.B. awoke to Ruffin kicking her and telling
her that the baby was crying.
¶8 Ruffin and A.B. began to argue, and A.B. got up to
prepare a bottle for the baby. They continued to exchange
3 See Wis. Stat. § 940.225(2)(b) (2015-16).
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
4 See Wis. Stat. § 940.21.
5 See Wis. Stat. § 968.075(1)(a).
6To protect the dignity and privacy of the victim, we use
initials that do not correspond to her real name.
3
No. 2019AP1046-CR
words, which eventually escalated to a physical altercation.
A.B. testified that Ruffin pulled her by her hair, hit her, and
punched the back of her head. She recounted that she hit Ruffin
with an open hand, and he responded by again hitting her.
¶9 A.B. testified next that she told Ruffin that she was
going to leave, and Ruffin responded by telling her that he was
not going to let her leave. When A.B. tried to get past Ruffin,
she testified that he picked her up by her hair and inner thigh
and threw her on the bed. She landed on her back with Ruffin
kneeling over her.
¶10 Ruffin put his left arm across her face, pinning her
on the bed. A.B. testified that with his right hand, Ruffin
"just shoves right into my vagina, rips and pulls out." Ruffin
did this at least three times. A.B. felt "all this pressure"
and instantly felt wet. She thought that Ruffin was trying to
kill her unborn child.
¶11 A.B. ran downstairs and discovered blood dripping down
her legs. She also noticed a piece of vaginal tissue "just
hanging" from her body. A.B. required surgery to repair and
reattach two to two-and-a-half inches of separated vaginal
tissue.
¶12 The treating doctor testified that "[r]oughly half of
the right labia minora ha[d] been torn off" and that she "had
never seen anything quite like it." Further, the doctor
testified that A.B. told her that "she fell down the stairs, and
it caught on her underwear and tore it off." This explanation
was suspect, in the doctor's estimation, because she "couldn't
4
No. 2019AP1046-CR
imagine any way underwear could tear [it] off" because the
tissue that makes up the labia is "not easily torn." Due to the
nature of the tissue and the extent of the injury, the doctor
thus did not believe A.B.'s initial explanation that she fell
down the stairs and instead suspected intimate partner violence.
¶13 Ruffin also testified at trial, and offered a
different version of events. According to Ruffin, when he
nudged A.B. with his foot to wake her up, she was upset and
angry, "cussing" at him. He noticed that three of his beers and
his cocaine were missing, and he "threatened to call the social
workers" to report A.B.'s drug and alcohol use. Ruffin then
testified that A.B. "started to come towards me hitting me,
punching me, try to push me down the stairs."
¶14 According to Ruffin, as A.B. hit him, he tried to push
her onto the bed. As he pushed her, she tripped and grabbed
Ruffin's collar, and both fell on the bed. In an effort to
avoid falling on A.B.'s pregnant belly, Ruffin testified that he
held himself up with his hand. In Ruffin's telling, A.B. then
put her legs around Ruffin's waist.
¶15 Ruffin indicated that he tried to free himself from
A.B.'s grasp. He used his left hand to try to push her legs off
of him. When asked on cross-examination how A.B.'s labia was
injured, Ruffin acknowledged that he "was pushing in that area"
but later stated that he "didn't never think [he] was pushing
her labia. . . . All I was trying to do was just push her legs
off of me so I can go." He further testified that he wasn't
5
No. 2019AP1046-CR
trying to use force and was "gently" trying to remove A.B.'s
legs from around him so he could leave.
¶16 Ruffin acknowledged the size disparity between him and
A.B. He stated that he was a "big man," six feet, four inches
tall, who weighed 300 pounds at the time of the altercation and
that A.B. was "small" and five months pregnant.
¶17 After the close of evidence, Ruffin's counsel asked
the circuit court to give the jury instruction on self-defense
and defense of others.7 Counsel explained that Ruffin testified
that "he didn't know what she was going to do to him and that he
was trying to get away and he was also trying to prevent himself
from falling on the unborn child so the actions he undertook
were designed to protect himself, the unborn child, quite
frankly [A.B.]." However, soon after making this request,
Ruffin's counsel withdrew it. He reasoned: "After reading
through it I don't think it can be worded the way I think it
needs to be worded. Therefore, I'm going to withdraw the
request. I'm not sure it really fits this situation."
¶18 In its stead, Ruffin's counsel asked the circuit court
to give the jury the instruction on an accident defense.8
Ultimately, the circuit court read the accident instruction with
respect to the mayhem charge, but not the sexual assault charge.
The jury convicted Ruffin of second-degree sexual assault
7 For the elements of self-defense, see infra, ¶32.
"Accident is a defense that negatives intent, and may
8
negative lesser mental elements." State v. Watkins, 2002 WI
101, ¶41,255 Wis. 2d 265
,647 N.W.2d 244
.
6
No. 2019AP1046-CR
(sexual intercourse9 without consent causing injury), and
acquitted him of mayhem.
¶19 After some additional proceedings not relevant to the
issue before us,10 Ruffin filed a postconviction motion. In his
motion, he asserted three claims: (1) that the circuit court's
error in giving a wrong jury instruction on the sexual assault
count was not harmless, (2) that the circuit court erred by not
giving the jury the accident instruction for the sexual assault
count, and (3) that his counsel was ineffective for withdrawing
the request for a self-defense instruction.
¶20 The circuit court denied Ruffin's motion without a
hearing, rejecting each of Ruffin's claims. With regard to the
claim of ineffective assistance of counsel for withdrawing the
request for a self-defense instruction, the circuit court
determined that withdrawing the request did not constitute
ineffective assistance "based on the facts of this case." It
further stated that "even if a self-defense instruction had been
given, there is not a reasonable probability the jury would have
9 Wisconsin Stat. § 940.225(5)(c) defines "sexual
intercourse" as including an "intrusion, however slight, of any
part of a person's body or of any object into the genital or
anal opening . . . by the defendant."
10 After conviction and prior to sentencing, it came to
light that the circuit court had given the incorrect jury
instruction on the sexual assault charge. Namely, the
instruction given was for sexual assault with use of force (Wis
JI——Criminal 1208) rather than the charged offense, sexual
assault causing injury (Wis JI——Criminal 1209). After briefing
from the parties on how to address the error, the circuit court
determined that giving the wrong jury instruction was harmless
error, and the case proceeded to sentencing.
7
No. 2019AP1046-CR
bought it based on the amount of force that was used." The
circuit court further commented on the extent of A.B.'s
injuries: "Almost entirely ripping off the woman's labia——she
testified it was just hanging there——that required 28 stitches
to reattach it? When she was laying on the bed face up? There
is not a reasonable probability he would have obtained an
acquittal."
¶21 Ruffin appealed, and the court of appeals affirmed in
part and reversed in part. State v. Ruffin, No. 2019AP1046-CR,
unpublished slip op. (Wis. Ct. App. Mar. 9, 2021). It affirmed
the circuit court's rejection of Ruffin's first two arguments,
but reversed the circuit court's denial of Ruffin's
postconviction motion on the basis that Ruffin's trial counsel
was ineffective for withdrawing the request for a self-defense
instruction and remanded to the circuit court for a Machner
hearing.
¶22 Specifically, the court of appeals concluded that
"Ruffin has alleged sufficient facts in his postconviction
motion that his trial counsel was ineffective for withdrawing
his request for the self-defense instruction and is, therefore,
entitled to a Machner hearing addressing his claim." Id., ¶42.
In arriving at this conclusion, the court of appeals noted that
Ruffin had alleged in his postconviction motion that A.B. was
attacking him and his decision to push what he thought were her
legs was a reasonable action, "given that he did not want to put
his weight on [A.B.] and possibly harm [A.B.] and their unborn
child," and that it must accept all of Ruffin's allegations as
8
No. 2019AP1046-CR
true for purposes of deciding the necessity of an evidentiary
hearing. Id., ¶45.
¶23 Judge White concurred in part and dissented in part,
dissenting to the majority's conclusion that Ruffin is entitled
to a Machner hearing on his ineffective assistance claim related
to the self-defense instruction. Id., ¶48 (White, J.,
concurring in part; dissenting in part). Specifically, Judge
White determined that "the record conclusively demonstrates that
Ruffin is not entitled to relief." Id., ¶53. The dissent
reasoned: "I do not believe any jury would conclude that
Ruffin's testimony showed he believed his actions that caused
[A.B.]'s injury were necessary for his self-defense." Id., ¶50.
¶24 Further, the dissent espoused the belief that
"Ruffin's theory of defense is antithetical to Wisconsin law on
self-defense. . . . Ruffin's testimony does not establish that
his use of force against [A.B.] was intentional and necessary,
even in the light most favorable to Ruffin's claims." Id., ¶51.
"It defies common sense that during a physical altercation
between a pregnant woman and a man nearly a foot taller and more
than one hundred pounds heavier than she, that there was a
reasonable basis for Ruffin's use of force." Id., ¶52.
Accordingly, Judge White concluded that "[t]here is no view of
the evidence under which the jury could have found Ruffin's use
of force was reasonably made in self-defense, and there is no
reasonable probability that the jury would have returned a
different verdict had it been instructed on self-defense." Id.,
¶53.
9
No. 2019AP1046-CR
¶25 Both Ruffin and the State petitioned for review of
aspects of the court of appeals' decision. This court granted
the State's petition and denied Ruffin's. Thus, the only issue
before the court is that raised by the State regarding
ineffective assistance of counsel due to the withdrawal of the
request for a self-defense instruction.
II
¶26 We are called upon to review the court of appeals'
determination that the circuit court erroneously exercised its
discretion by denying Ruffin's postconviction motion without an
evidentiary hearing. We are guided by a mixed standard of
appellate review. State v. Allen, 2004 WI 106, ¶9,274 Wis. 2d 568
,682 N.W.2d 433
.
¶27 First, we must determine whether the motion on its
face alleges sufficient material facts that, if true, would
entitle the defendant to relief. Id.This is a question that we review independently of the determinations rendered by the circuit court and court of appeals.Id.
Whether the record conclusively demonstrates that the defendant is entitled to no relief is also a question of law we review independently. State v. Sulla,2016 WI 46, ¶23
,369 Wis. 2d 225
,880 N.W.2d 659
.
¶28 If the motion does not raise facts sufficient to
entitle the defendant to relief, or if it presents only
conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the
circuit court has the discretion to grant or deny a hearing.
Allen, 274 Wis. 2d 568, ¶9. In other words, if the record
10
No. 2019AP1046-CR
conclusively demonstrates that the defendant is not entitled to
relief, then either option——holding a hearing or not——is within
the circuit court's discretion. We review discretionary
decisions for an erroneous exercise of discretion. Id.An exercise of discretion is erroneous if it is based on an error of fact or law. Horizon Bank, Nat'l Ass'n v. Marshalls Point Retreat LLC,2018 WI 19, ¶29
,380 Wis. 2d 60
,908 N.W.2d 797
.
¶29 Ruffin's claim arises in the context of ineffective
assistance of counsel. For an ineffective assistance of counsel
claim to be successful, a defendant must demonstrate both that
(1) counsel's representation was deficient, and (2) the
deficiency was prejudicial. State v. Dalton, 2018 WI 85, ¶32,383 Wis. 2d 147
,914 N.W.2d 120
. Both prongs of the inquiry need not be addressed if the defendant makes an insufficient showing on one.Id.
¶30 To demonstrate deficient performance, a defendant must
show that counsel's representation fell below an objective
standard of reasonableness considering all the circumstances.
State v. Carter, 2010 WI 40, ¶22,324 Wis. 2d 640
,782 N.W.2d 695
(citing Strickland v. Washington,466 U.S. 668, 688
(1984)). In evaluating counsel's performance, we are highly deferential to counsel's strategic decisions. Dalton,383 Wis. 2d 147, ¶35
. Indeed, counsel's performance need not be perfect, or even very good, to be constitutionally adequate.Id.
11
No. 2019AP1046-CR
III
¶31 We begin by setting forth and reaffirming the legal
test when determining if a defendant is entitled to an
evidentiary hearing on a postconviction motion. Subsequently,
we apply that test to the facts of this case.
A
¶32 Ruffin contends that his trial counsel was ineffective
for withdrawing his request for a self-defense instruction on
the sexual assault count. Self-defense is a defense to criminal
liability set forth by statute as follows:
A person is privileged to threaten or intentionally
use force against another for the purpose of
preventing or terminating what the person reasonably
believes to be an unlawful interference with his or
her person by such other person. The actor may
intentionally use only such force or threat thereof as
the actor reasonably believes is necessary to prevent
or terminate the interference. The actor may not
intentionally use force which is intended or likely to
cause death or great bodily harm unless the actor
reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself
or herself.
Wis. Stat. § 939.48(1). In other words, the law of self-defense allows the defendant to threaten or intentionally use force against another if (1) the defendant believed that there was an actual or imminent unlawful interference with the defendant's person, (2) the defendant believed that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference, and (3) the defendant's beliefs were reasonable. State v. Stietz,2017 WI 58, ¶11
,375 Wis. 2d 572
,895 N.W.2d 796
.
12
No. 2019AP1046-CR
¶33 "A jury must be instructed on self-defense when a
reasonable jury could find that a prudent person in the position
of the defendant under the circumstances existing at the time of
the incident could believe that he was exercising the privilege
of self-defense." Id., ¶15. To be entitled to the instruction,
the defendant bears a burden of production, but it is a low bar.
Id., ¶16; State v. Head, 2002 WI 99, ¶111,255 Wis. 2d 194
,648 N.W.2d 413
. Indeed, the defendant "need produce only 'some evidence' in support of the privilege of self-defense," a standard that may be satisfied even if the evidence is weak, inconsistent, of doubtful credibility, or slight. Stietz,375 Wis. 2d 572, ¶¶16-17
. When considering whether to permit a defense, the court must view the evidence in the light most favorable to the defendant. State v. Coleman,206 Wis. 2d 199, 213
,556 N.W.2d 701
(1996).
¶34 The court of appeals here determined that Ruffin is
entitled to a Machner hearing because, assuming that all facts
raised in his postconviction motion are true, he came forward
with "some evidence," which is sufficient to support the
instruction. Ruffin, No. 2019AP1046-CR, at ¶¶44-47. The State
contends that the court of appeals did not conduct the complete
analysis by failing to address the question of whether the
record conclusively demonstrates that Ruffin is not entitled to
relief.
¶35 Before answering this question, we provide a quick
reference regarding the legal standard under which we determine
whether a defendant is entitled to an evidentiary hearing on a
13
No. 2019AP1046-CR
postconviction motion. The test we apply in this case is well-
established. That is, we must determine first whether the
motion on its face alleges sufficient material facts that, if
true, would entitle the defendant to relief. Allen, 274
Wis. 2d 568, ¶9. "A defendant is entitled to a Machner hearing only when his motion alleges sufficient facts, which if true, would entitle him to relief." State v. Sholar,2018 WI 53, ¶50
,381 Wis. 2d 560
,912 N.W.2d 89
(citing Allen,274 Wis. 2d 568, ¶14
). However, if the motion does not raise facts sufficient to entitle the defendant to relief, or if it presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.Id.
¶36 This test was articulated in State v. Bentley, 201
Wis. 2d 303, 310-11,548 N.W.2d 50
(1996) (citing Nelson v. State,54 Wis. 2d 489, 497
,195 N.W.2d 629
(1972)). It has been repeated in numerous cases. See, e.g., Sholar,381 Wis. 2d 560, ¶50
; State v. McAlister,2018 WI 34, ¶¶25-26
,380 Wis. 2d 684
,911 N.W.2d 77
; State v. Sulla,2016 WI 46, ¶23
,369 Wis. 2d 225
,880 N.W.2d 659
; State v. Balliette,2011 WI 79, ¶18
,336 Wis. 2d 358
,805 N.W.2d 334
; State v. Love,2005 WI 116, ¶26
,284 Wis. 2d 111
,700 N.W.2d 62
; Allen,274 Wis. 2d 568, ¶9
.
¶37 Lest there be any doubt about the application of the
test, we clarified Bentley's language in State v. Howell, 2007
WI 75, ¶77 n.51,301 Wis. 2d 350
,734 N.W.2d 48
. In Howell, we
set forth:
14
No. 2019AP1046-CR
The Bentley court interpreted Nelson as follows: "If
the motion on its face alleges facts which would
entitle the defendant to relief, the circuit court has
no discretion and must hold an evidentiary hearing."
In phrasing the Nelson test this way, Bentley might be
interpreted to make an evidentiary hearing mandatory
whenever the motion contains sufficient, nonconclusory
facts, even if the record as a whole would demonstrate
that the defendant's plea was constitutionally sound.
Such an interpretation of Nelson and Bentley, however,
is not correct. The correct interpretation of
Nelson/Bentley is that an evidentiary hearing is not
mandatory if the record as a whole conclusively
demonstrates that defendant is not entitled to relief,
even if the motion alleges sufficient nonconclusory
facts.
Id. (second emphasis added) (citation omitted).
¶38 We take this opportunity to once again reaffirm the
test articulated in Bentley, clarified by Howell, and repeated
in numerous cases. Accordingly, we emphasize that an
evidentiary hearing is not mandatory if a defendant's motion
presents only conclusory allegations or if the record as a whole
conclusively demonstrates that the defendant is not entitled to
relief. Next, we move to apply this test here, with our focus
on whether the record conclusively demonstrates that Ruffin is
not entitled to relief.
B
¶39 In applying the test to the facts of this case, we
agree with the State that the court of appeals erred. Although
Ruffin's motion on its face alleges facts that, if true, would
entitle him to relief, the court of appeals majority did not
conduct the "record conclusively demonstrates" inquiry, thus
performing only half of the required analysis.
15
No. 2019AP1046-CR
¶40 The court of appeals began its analysis by setting
forth the proper legal standard for determining entitlement to
an evidentiary hearing. Ruffin, No. 2019AP1046-CR, at ¶16.
With regard to another of Ruffin's claims, it correctly applied
the standard, determining that "despite the jury having received
the wrong instruction, the record conclusively shows that there
is no reasonable probability that the outcome would have been
different had trial counsel objected and the jury received the
correct instruction on the sexual assault charge." Id., ¶22.
¶41 However, the court of appeals neglected the "record
conclusively demonstrates" analysis with respect to the claim at
issue here. Conducting such an analysis, we conclude that the
record conclusively demonstrates that Ruffin is not entitled to
relief on his claim that trial counsel was ineffective for
withdrawing a request for a self-defense instruction.
¶42 As stated, the law of self-defense allows the
defendant to threaten or intentionally use force against another
if (1) the defendant believed that there was an actual or
imminent unlawful interference with the defendant's person, (2)
the defendant believed that the amount of force the defendant
used or threatened to use was necessary to prevent or terminate
the interference, and (3) the defendant's beliefs were
reasonable. Stietz, 375 Wis. 2d 572, ¶11. We agree with the
State that no reasonable jury would find that Ruffin acted in
self-defense.
¶43 In Ruffin's telling, he and A.B. engaged in a verbal
argument, and she tried to push him down the stairs. He
16
No. 2019AP1046-CR
testified that he responded by pushing her back into the room
and onto the bed. As he pushed her onto the bed she tripped and
grabbed Ruffin's collar, dragging both of them onto the bed.
Ruffin then testified that A.B. wrapped her legs around him and
that "[a]s she did that all I know she's pulling me toward her.
I have no idea what she was trying to do so I'm trying to get
her legs from around my waist so everything happened so fast."
¶44 Even assuming that there was an unlawful interference
with Ruffin's person, there is no evidence from which a
reasonable person could find that Ruffin applied an amount of
force he reasonably believed was necessary to stop the
interference. As Judge White wrote in dissent at the court of
appeals, "It defies common sense that during a physical
altercation between a pregnant woman and a man nearly a foot
taller and more than one hundred pounds heavier than she, that
there was a reasonable basis for Ruffin's use of force."
Ruffin, No. 2019AP1046-CR, at ¶52 (White, J., concurring in
part; dissenting in part). Indeed, the amount of force used
here can only be described as heinous. There is no view of the
evidence under which such a use of force can be "reasonable"
given the size disparity between Ruffin and the victim, the
alleged actions of the victim, and the extent of the victim's
injuries, even accepting Ruffin's testimony.
¶45 Further, as Judge White observed, "Ruffin's testimony
does not establish that his use of force against [A.B.] was
intentional and necessary." Id., ¶51. Such testimony is
necessary to establish self-defense because "[o]ne exercising
17
No. 2019AP1046-CR
the privilege of self-defense intends to use force or to
threaten force against another for the purpose of self-defense."
Thomas v. State, 53 Wis. 2d 483, 488,192 N.W.2d 864
(1972) (emphasis added); see also Head,255 Wis. 2d 194, ¶84
.
¶46 Ruffin testified only that he was "pushing in that
area," not that he intentionally used the force he did because
he thought it necessary to terminate A.B.'s interference with
his person. Further, Ruffin testified that he was not trying to
use force and was just "gently" attempting to remove A.B.'s legs
from around him so he could leave. This is entirely
inconsistent with an intentional use of force of the magnitude
employed here. With no testimony that his use of force was
intentional and necessary, Ruffin's self-defense argument was
bound to fail even if the circuit court had given the
instruction he requested.
¶47 Put in the context of the ineffective assistance of
counsel analysis, the record conclusively demonstrates that
Ruffin's counsel did not perform deficiently by withdrawing the
request for a self-defense instruction. As stated, there is no
reasonable view of the evidence that would have entitled Ruffin
to the instruction. Counsel was correct in his assessment that
self-defense does not "fit[] this situation" and made an
objectively reasonable strategic decision to not request the
self-defense instruction. Failing to request a jury instruction
to an invalid defense does not constitute deficient performance.
State v. Dundon, 226 Wis. 2d 654, 676,594 N.W.2d 780
(1999).
18
No. 2019AP1046-CR
¶48 In sum, we conclude that the record conclusively
demonstrates that Ruffin is not entitled to relief on his claim
that trial counsel was ineffective for withdrawing a request for
a self-defense instruction. As a result, the circuit court did
not erroneously exercise its discretion by denying Ruffin's
motion without an evidentiary hearing.
¶49 Accordingly, we reverse the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
reversed.
19
No. 2019AP1046-CR
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