### COURT OF APPEALS DECISION DATED AND FILED December 16, 2020

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W I S . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP886

- CR Cir. Ct. No. 2016CF421 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V . C HIDIEBELE P RAISES O ZODI ,
D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for
Walworth County: KRISTINE E. DRETTWAN , Judge. Affirm ed

.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

¶ 1 NEUBAUER, C.J. Chidiebele Praises Ozodi appeals from a judgment convicting him of attempted second

- degree sexual assault, operating a vehicle without consent, and disorderly conduct and from an order denying his postconviction motion for a new trial. Ozodi took LSD prio r to his actionsNo. 2019AP886

- CR

2 supporting the charges. He contends his voluntary intoxication negated his ability to form the requisite intent to commit the charged crimes . He argues the trial court misstated the law when it instructed the jury that Ozodi’s voluntary intoxication “is not by itself a defense.” Ozodi also argues that the court’s allegedly flawed instruction denied Ozodi his constitutional right to present a defense. We disagree . T he trial court did not err in providing the jury instruction on voluntary
intoxication

. Moreover, Ozodi was not precluded from presenting evidence and argument that his voluntary intoxication may have impacted his intent

. Accordingly, we affirm.

BACKGROUND

¶ 2 The parties do not dispute the material facts , all of which occurred

on or near the campus of UW

- Whitewater . On October 4, 2016, Ozodi and a
frien d took LSD. Later on, Ozodi d rove his friend’s mother’s car , crashing it into
a tree and flee ing the accident while naked.

¶ 3 Ozodi ended up near a group of about fifteen female college rugby players who had just finished practice

. Some of the women gave him clothes to

wear

. Ozodi then pushed one of the m to the ground and told her that he was going
to have sex with her. A m ale rugby player promptly pushed Ozodi off. Now being pursued by police, Ozodi sprinted through an athletic field, suddenly stopped, pulled down his shorts, sat down, and be gan mastur bating. He was arrested and charged with attempted second

- degree sexual assault, operating a vehicle without consent, and disorderly conduct

.No. 2019AP886

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3 Ozodi’s Trial

¶ 4 Ozodi entered a plea of not guilty. A two

- day jury trial was held, at
which Ozodi present ed evidence of his voluntary intoxication and argued t hat it impacted his ability to form the intent required to commit the charged sexual
assault and motor vehicle offenses

. 1 We now discuss the court rulings , key
evidence , and the jury inst ructions that matter to this appeal and to the central
issu e before the jury , namely, Ozodi’s intent

. Pertinent Trial Court Rulings

¶ 5 In a pretrial motion in limine, Ozodi asked the court to allow a witness to testify to her opinion that Ozodi had a good moral character and would not sexually assault anyone. Ozodi argued that the character evidence was essential to negating the element of intent and that this witness would demonstrate to the jury Ozodi’s lack of crimin al intent by testifying that Ozodi “is not the kind of person who would intentionally harm anoth er or sexually assault anyone.”

¶ 6 After hearing arguments from the parties on the morning of the trial,
the court decided to allow the witness to testify “that [Ozodi] is a good moral person and that he would not harm or sexually assault someone.” In making this

1 At trial, Ozodi conceded he should be found guilty of disorderly conduct, as its elements were met. Intent is not among them. See W IS

. S TAT

. § 947.01(1) (2017

- 18) (“Whoever ... engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct ... [tending to] ... provoke a disturbance

.... ”). As we discuss in depth in the body of this opinion, intent is a necessary element to the other crimes with which Ozodi was charged. While the concept of voluntary intoxicatio n addresses mental state or state of mind, the parties’ arguments largely focus on the element of intent and not knowledge or awareness , and as such, we adopt the same focus.

All references to the Wisconsin Statutes are to the 2017

- 18 version unless otherw ise noted.No. 2019AP886

- CR

4 ruling, the court explained “that under the law whether the defendant had the intent does make the proffered evidence of the defendant ’ s quote, unquote, good
character trait relevant to this action. ” But the witness did not have the foundation to say that O zodi ’s admirable reputation permeated the greater community beyond
his circle of friends

. ¶ 7 The court further narrowed the scope of t he “character testimony” that it would allow at trial. The court explained that “ per the law, the defense cannot have this witness offer specific instances of good conduct to support her opinion. However, the stat e during cross

- examination may cross her on specific instances that are inconsistent behaviors with her opinion. ” The court also ruled the witness could not say “that it was the drugs that made him act this way, ” though she could describe how strangely an d differently Ozodi was acting and that this was not how he normally behaved

. As the court explained:

I will not allow her to give that specific opinion that it was the drugs or it was the alcohol. First of all, voluntary intoxication is not a defense. Second, I think that it smacks of jury nullification. And, third, she ’ s not an expert. So for all of those reasons I will not allow her to give the opinion that it was the drugs or the alcohol that made him act that way that day

.
Af ter making its ruling, the court asked for feedback from the parties and neither party took further issue with the court’s ruling.

¶ 8 At trial, the witness testified that she had known Ozodi for a couple years, that he was normally of stro ng moral character and not a danger to anyone,
and that his behavior after the crash on the day of the incident was very strangeNo. 2019AP886

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5 and not normal for Ozodi. The State cross

- examined the witness regarding the relatively short length of time she had known Ozodi leading up to the day in question and the fact that sh e was not concerned with Ozodi’s health when she saw him after he had taken drugs on that day.

The Jury Instruction s and Voluntary Intoxication Evidence

¶ 9 T he State requested the following jury instruction explaining that Ozodi’s voluntary intoxication was not a defense to the crimes and was not
relevant to his knowledge or intent :

Evidence has been presented which, if believed by you, tends to show that the defendant was voluntarily intoxicated at the time of the alleged offense(s). Voluntary intoxication of any witness may be relevant evidence and may have bearing on the credibility of that witness. However, a defendant’s voluntary intoxicati on is not a defense and cannot be used to show that the defendant lacked the necessary knowledge to commit the alleged offense(s) or that the defendant did not intend to commit the alleged offense(s).
¶ 10 At the jury instruction conference during a break in the trial, Ozodi challenged the last sentence of the State’s proposed instruction , arguing that his voluntary intoxication was relevant to his intent. While acknowledging that the
l egislature had recently eliminated the statutory defense of voluntary intoxication , 2
he asserted that the change does not prohibit juries from considering whether voluntary intoxication affect s state of mind in every case. Suggesting that giving the State’s instruction might violate his Sixth Amendment right t o present a defense , Ozodi argued that “[t]he defense has a tenable argument depending on the

2 Ozodi’s counsel stated that “ w e are not asking for an instruction on the affirmative defense of involuntary intoxication

. ”No. 2019AP886

- CR

6 strength of the intoxication evidence that it is relevant to whether the defendant acted with intent or with another required mental state

. ”

¶ 11 P ointing to the pertinent statute, W IS

. S TAT

. § 939.42, the State argued that “the plain language reading of the statute says that voluntary intoxication is not a defense.” B ecause the evidence showed that Ozodi voluntarily ingested the LSD, the State furt her argued , “[i]t is not a defense available to [Ozodi] in this case.” The State’s position was summed up by the prosecutor as follows: voluntary intoxication “can ’ t be used as a defense by a defendant to try to show that they didn ’ t intend or know what they were doing. If that was the reading of the statute, the statute would be moot, it would have no point.”

¶ 12 After hearing argument from both parties, t he trial court decided to modify the State’s instruction, lea v ing it intact up to the point that Ozodi found objectionable and replacing the remaining proposed language with the following
sentence: “H owever, a defendant ’ s voluntary intoxication is not by itself a
defense

. ” Having done independent research on the i ssue, the court concluded that there is little guidance available a s to what the statutory change means in terms of how to instruct a jury on the subject. Specifically, the court said that:

There isn ’ t any further legislative or Jury Instruction Committee insight. There isn ’ t any case that ’ s on point looking to this. So, clearly, the legislature intended to remove that absolute

— or I should say that affirmative defense as I ’ ve already said, but on the other side, the Committee didn ’ t choose to create an i nstruction saying that voluntary intoxication is not a defense. And we don ’ t have a jury instruction for everything out there that is not a defense. We don ’ t instruct the jury in that regard for the most part. So my point is I think that both attorneys recognize this is a very gray area.No. 2019AP886

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7 ¶ 13 With the objectionable language removed and the substituted language in place , the court stated that the jury would know that voluntary
intoxication was not a defense by itself , but it wou ld still be allowed to hear Ozo d i present his “ case in showing that, yes, there is this voluntary intoxication but look at all these facts and circumstances that negate the mental state in addition to the voluntary intoxication.”

¶ 14 The fu ll intoxication instruction the court gave at trial stated:

Evidence has been presented which if believed by you tends to show that the defendant was voluntarily intoxicated at the time of the alleged offenses. Voluntary intoxication of any witness ma y be relevant evidence and may have bearing on the credibility of that witness. However, a defendant’s voluntary intoxication is not by itself a defense

. (Emphasis added.)

¶ 15 Throughout the trial, Ozodi faced no obstacles in attempting to present his argument that he did not have the requisite intent to commit these
crimes , i.e., he was a good person who would not normally commit these crimes,
but he was on LSD at the time. As noted above, the tria l court allowed Ozodi to
have a close friend testify on his behalf. Ozodi also testified, including discussing
the LSD experience , about which he had very little recollection. A state lab expert testified to the chemicals in Ozodi’s blood, indicating tha t one who takes LSD can experience the distortion of realit y, including hallucinations.

¶ 16 After the close of the evidence, in addition to giving the voluntary
intoxication instruction as set forth above, and other standard instructions, the

court instructed the jury that the sexual assault and vehicle charges required
elements of intent as follows :No. 2019AP886

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8  “[T]he first element of attempted second degree sexual assault requires that the defendant intended to commi t the crime of second degree sexual assault.”

 “Sexual contact is an intentional touching of the [genitalia].... [I] t

mus t be an intentional touching.”

 “Sexual contact also requires that the defendant acted with intent to
become s exually aroused or gratified.”

 “[Operating a vehicle without consent] is committed by one who intentionally drives or operates any vehicle without the consent of the owner.”

¶ 17 The trial court instructed the jury that “the [S] tate must prove every element of the offense ch arged beyond a reasonable doubt,” including intent. The
court also e xplained to the jury how to consider the element of intent

. The court instructed the jury that it “ [could] not look into a person’s mind to find intent.
Intent must be fo und, if found at all, from the defendant’s acts, words, statements, if any, and from all the facts and circumstances in this case bearing upon intent.” The court essentially repeated these instructions when discussing the vehicle charge.

¶ 18 The court also gave Ozodi’s counsel leeway to argue intent in closing, where she contended: “[This case is] not about doing weird things. It’s
about intent

.... [L]et’s talk about the evidence that shows that he did not intend to do anything to [the ass aulted woman]. That he was high, that he was talking, and doing weird things, but that wasn’t his intent.” “Now what other things did we hear about that we can use to infer intent. Well we’ve heard a lot about LSD.No. 2019AP886

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9 We’ve heard that [Ozodi] was naked, t hat he was running through campus

.... ”
Counsel continued:

If his intent was to have sexual contact, to sexually arouse himself and to gratify himself, wouldn’t that be easier if he was naked like he was moments before?

... He didn’t try to get her away f

rom those people. He didn’t. Because that wasn’t his intent....

.... Now you saw the instruction voluntary intoxication in itself is not a defense but it is relevant evidence. It is something you can consider in determining whether or not the state has proven to you beyond a reasonable doubt that [Ozodi] actually intended to have sexual contact. You don ’ t have to disregard that evidence.
¶ 19 Neither the S tate no r the court took any issue with this line of argument on Ozodi’s behalf

. I n fact, the S tate acknowledged Ozodi ’s intent argument and argued, to the contrary, that “he definitely vocalized that intent
when he said I ’ m going to have sex with [the victim].”

¶ 20 The jury convicted Ozodi on all counts. He appeals , arguing that the court’s voluntary intoxication instruction misstated the law , misled the jury, and
violated his right under both the United States and Wisconsin Constitution s to present a defense at trial

. 3

3 Ozodi’s postconviction motion asserted that W IS JI

— C RIMINAL 140 (burden of proof and presumption of innocence ) misstated the “reasonable doubt” standard. Ozodi has abandoned this issue on appeal. See Johnson v. Cintas Corp. No. 2 , 2011 WI App 5, ¶16 n.7, 331 Wis. 2d 51, 794 N.W.2d 475 (2010) (we do not address ceded, abandoned issues).No. 2019AP886

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10 DISCUSSION

Standard of Review and Applicable Legal Principles

¶ 21 The central issue on appeal is whether the trial court erred in its instructions to the jury. We review jury instructions under the well

- e stablished
erroneous exercise of discretion standard. Dakter v. Cavallino , 2014 WI App 112, ¶33, 358 Wis. 2d 434, 856 N.W.2d 523, aff ’ d , 2015 WI 67, ¶33, 363 Wis. 2d 738, 866 N.W.2d 656 (as long as “the instructions are not erroneous and adequately
inform the jury as to the law to be applied, the court ’ s exercise of discretion will be affirmed on appeal” )

. Trial courts have wide discretion when instructing a jury.
See State v. Langlois , 2018 WI 73, ¶ 34, 382 Wis. 2d 414, 913 N.W.2d 812

. D iscretion must be exercised in order “to fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence. ” State v. Stietz , 2017 WI 58, ¶ 12, 375 W is. 2d 572, 895
N.W.2d 796 (citatio n omitted) . T he court’s “discretion extends to both choice of language and emphasis.” State v. Roubik , 137 Wis. 2d 301, 308, 404 N.W.2d 105 (Ct. App. 1987).

¶ 22 An appropriate exercise of that discretion entails administering a n instructi on so long as the instructions as a whole correctly stat e the law and accord
with the facts of the case. Weborg v. Jenny , 2012 WI 67, ¶42, 341 Wis. 2d 668,
816 N.W.2d 191. T he question of “ whether a jury instruction is a correct
statement of the law ” is one that we review de novo

. Id. “On review, the challenged words of jury instructions are not evaluated in isolation.” State v. Ellington , 2005 WI App 243, ¶7, 288 Wis. 2d 264, 707 N.W.2d 907 (citation omitted)

. Instructions are to be examined with in t he context of the overall charge. Id.No. 2019AP886

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11 Changes in t he Law o

f Voluntary a nd Involuntary Intoxication

¶ 23 Before we analyze Ozodi’s argum ent, we briefly lay out what
Wisconsin law has been and what it is now. Until April 17, 2014, W IS

. S TAT

. § 939.42 (2011

- 12) stated as follows:

An intoxicated or a drugged condition of the actor is a defense only if such condition: (1) Is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the al leged criminal act at the time the act is committed; or (2) Negatives the existence of a state of mind essential to the crime, except as provided in [ W IS

. S TAT

. §] 939.24 (3).
(Emphasis added.) Under the old law, voluntary intoxication was a defense if that intoxication negated the existence of the necessary state of mind. Id. The current
version states as follows:

An intoxicated or a drugged condition of the actor is a defense only if such condition is involuntarily produced and does one of the following: (1) Renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed. (2) Negatives the existence of a s tate of mind essential to the crime.

W IS

. S TAT

. § 939.42 (emphasis added).

¶ 24 T he new statute elevated the condition of being involuntarily
i ntoxicat ed into the overall main premise of the statute, making involuntary
intoxication a general requirement and meaning that this statutory defense now only appl ies if the intoxication was involuntary. Ozodi does not disagree

.No. 2019AP886

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12 Under t he Facts o

f t his Case, Ozodi’s Objection w as Significantly Mitigated, i f n ot Felled, b y t he Court’s Modified Instruction
¶ 25 W e find no error in the trial court ’s instruct ions to the jury as a
whole under the facts of this case

. See Weborg , 341 Wis. 2d 668 , ¶42 (we will uphold a trial court’s instructions as long as they comport with the law an d are supported by the facts of the case).

¶ 26 Ozodi argues that the trial court’s instruction “is not an accurate
statement of the law. ” He argues that “[v]oluntary intoxication can ‘by itself’ be a
defense if the defendant is able to present sufficient evidence to establish that he
was unable to form the requisite criminal intent

. ” The State co ntends that , assuming the law allows consideration of the effect of Ozodi’s voluntary intoxication on his intent, the instructions did not reli eve the State of the burden to prove intent or limit the jury’s consideration of Ozodi’s intoxication

. ¶ 27 As a preliminary matter, w e agree with the trial court that the interpretation of the statutory change deleting voluntary intoxicatio n as well as
related due process considerations is undeveloped in our case law and, we note, on appeal by the parties. Our research indicates that the import of voluntary
intoxication on a mental state varies from state to state. According to
Professor W ayne LaFave, whether voluntary or involuntary, “ [n]early half of the state criminal codes provide either that intoxication is a defense if it negatives a mental state or that it is admissible in evidence whenever relevant to negate an
element of the offens e charged.” 2 W AYNE R. L A F AVE , S UBST ANTIVE C RIM INAL
L AW § 9.5(a) n. 8 (3d ed. Oct. 2 020 update). “ The remaining codes are either silent on the question, while the rest assert either that voluntary intoxication is not a
defense and/or that evidence of same is not admissible to establish absence of aNo. 2019AP886

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13 required mental state

. ” Id. The commentator notes th is latter position risks violation of a defendant’s due process rights

. 4

¶ 28 However, w e agree with the State that we need not decide w hether Wisconsin’s new statute falls into the latter category for several reasons

. 5 U nder the new statute, voluntary intoxication is no longer an express statutory “negative
defense. ” 6 At a minimum, t he import of the statutory change appears to be that a defendant is not entitled to an instruction that the jury may consider evidence of

4 For example, an instru ction that a defendant’s voluntary intoxication creates a presumption that all acts that follow are intended, relieving the s tate of its burden of proof to establish intent beyond a reasonable doubt , could violate a defendant’s due process rights

. 2 W AYNE R. L A F AVE , S UBST ANTIVE C RIM INAL L AW § 9.5(a) n. 25 (3d ed. Oct. 20 20 update) ( citing Sandstrom v. Montana , 442 U.S. 510, 520 , 522, 525 (1979) ( “ [D] ue process

... protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged

. ” The i nstruction that “[t]he law presumes that a person intends the ordinary consequences of his voluntary act s ” contradicted the instruction that the s tate must show the defendant acted “purposefully or knowingly

. ” (citations omitted) )

.

5 Appellate issues sho uld be decided on the narrowest possible grounds. State v. Castillo , 213 Wis. 2d 488, 49 2 , 570 N.W.2d 44 (1997). This is particularly applicable here because neither party has adequately addressed the due process implications of the State’s proposed instruction and interpretation of the statutory change argued t o the trial court

.

6 Both parties recognize that the prior statute provided a “negative defens e ,” for voluntary intoxication, in which the s tate had the burden to prove intent beyond a reasonable doubt. See State v. Schulz
, 102 Wis. 2d 423, 42 9

- 30 , 307 N.W.2d 151 (1981) (i f the defense is
an attack on an element of the crime, “the s tate bears the burden of proving this element beyond a reasonable doubt” and when a negative defense is asserted, “the burden of persuasion cannot be placed upon the defendant without violating his right to due process”); State v. Pettit , 171 Wis. 2d 627, 640, 492 N.W.2d 633 (Ct. App. 1992) ( i f a defendant successfully raises a negative defense, “the burden is upon the s tate to prove beyond a reasonable doubt that defendant ’ s e vidence did not negate an element necessary to convict ”). By contrast, “ [a] n ‘ affirmative defense ’ is ... ‘ a defendant ’ s assertion raising new facts and arguments that, if true, will defeat the plaintiff ’ s or prosecution ’ s claim even if all allegations i n the complaint are true .” State v. Watkins , 2002 WI 101, ¶ 39, 255 Wis. 2d 265, 647 N.W.2d 244 (citatio n and emphasis omitted). When a defendant successfully establishes an affirmative defense (satisfies the burden of production) , the burden moves to the s tate to disprove the defense beyond a reasonable doubt. State v. Austin , 2013 WI App 96, ¶ 12, 349 Wis. 2d 744, 836 N.W.2d 833

.No. 2019AP886

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14 vo luntary intoxication in determining if the defendant had the requisite mental

state

. Here, however, rather than simply omitting an instruction on a statutory defense , the court stated the negative, that voluntary intoxication “is not by itself a defense.”

¶ 29 Thus, the question presented, given the State’s assumption that evidence of voluntary intoxication is admissible and can be considered to negate intent, is whether the instruction provided otherwise. 7 As discussed above, upon Ozodi’ s request, the trial court did not instruct the jury, despite the State’s request, that Ozodi’s voluntary intoxication “cannot be used to show that the defendant lacked the necessary knowledge to commit the alleged offense or that the
defendant did not int end to commit the alleged offense.” Rather, the court reminded the jury that it heard evidence about Ozodi’s voluntary intoxication, that such intoxication of any witness may be relevant evidence, and that such intoxication may bear on a witness’ s credibility. We disagree with Ozodi that the
reference to witnesses would not include Ozodi himself

. ¶ 30 Beyond that, we reject Ozodi’s argument s in light of the jury instructions and proceedings as a whole. The instruction that Ozodi’s voluntary intoxication was not “by itself” a defense did not create a presumption that Ozodi’s actions that followed were also voluntary. Rather, and to the contrary, the
instruction counseled that the intoxication without more would not relieve Ozodi
of the intent necessary to render his actions criminal, i.e. , that the intoxication “by

7 Ozodi asserts that the instruction only allowed the jury to consider the voluntary intoxication with respect to the “ credibility of the witnesses, but not as to whether the defendant committed the crimes charged.” He asserts that the “jury was told that it may not consider voluntary intoxication as it bears upon Ozodi’s intent.” As explained, we disagree that the instr uctions as a whole conveyed either directive.No. 2019AP886

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15 itself” did not excuse his behavior. Ozodi stood in the same shoes as a sober
person because an intoxicated person can form intent, but , as discussed next,
evidence of hi s intoxication could be and was considered to negate his intent. Importantly, the instruction did not mention intent or a mental state element in any
way. People v. Stone , 471 P.3d 1148 ( Co. Ct. App. 2020) ( nothing in the instruction from which a juror c ould conclude that a defendant is criminally responsible for his conduct simply as a result of his voluntary intoxication ).

¶ 31 T he trial court’s additional instructions as well as the evidentiary rulings made clear that voluntary intoxication was relevant and the jury was to consider all the facts and circumstances, that the State had the burden of proof beyond a reasonable doubt on this element (instructions that Ozodi had no objection to), and that Ozodi was not preclud ed from attempting to factually establish and argue that his intoxicated state negated his ability to form the requisite intent to commit the crimes charged

. See State v. Sanders , 2011 WI App 125, ¶13, 337 Wis. 2d 231, 806 N.W.2d 250 ( “[J]ury instructions that, considering
the ‘ proceedings as a whole, ’ adequately give to the jury the appropriate legal principles will be upheld even though they may not be phrased” with precision or elegance (citation omitted) ).

¶ 32 We do not see a reasonab le likelihood that a jury could be confused or led to believe by the instruction s that it was not allowed to consider the
evidence that Ozodi did not intend to commit the offenses

—his intent was a focal point of the testimony and of the arguments on both s ides at trial. See State v.
Burris , 2011 WI 32, ¶¶45

- 46, 333 Wis. 2d 87, 797 N.W.2d 430 (“A defendant is entitled to reversal if ‘there is a reasonable likelihood that the jury applied the challenged instruction[] in a manner that violates the constitution’” and “[i]t is the
defendant ’ s burden to establish a reasonable likelihood that the juryNo. 2019AP886

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16 unconstitutionally applied an instruction.” (first alteration in original; citation omitted) ).

¶ 33 Not only did the trial court allow th e jury to hear and consider voluntary intoxication testimony from Ozodi’s friend, a State lab expert, Ozodi himself, and other witnesses , counsel focused on the issue throughout the trial and in argument

. Ozodi’s counsel forcefully argued to the jury abou t the connection between LSD and his intent and explained that the law allows the jury to consider whether voluntary intoxication negated his intent. Indeed, a s explained by defense counsel in closing argument, while voluntary intoxication “ itself is not a defense , ”
it was “ relevant evidence.” “ It is something you can consider in determining
whether or not the [S] tate has proven to you beyond a reasonable doubt that [Ozodi] actually intended to have sexual contact. You don ’ t have to disregard that
eviden ce .” The State’s arguments confirmed that position.

¶ 34 In short, w e do not agree with Ozodi ’s suggestion that there existed a reasonable likelihood that the jury underst ood the instruction to relieve the S tate of its burden of proof as to a statutory element

— that the jury would believe that if
Ozodi was intoxicated, he was criminally responsible for what followed regardless
of his intent

. T he trial court did not err in giving the instruction

.
Ozodi’s Claimed Denial of a Constitutional R ight to Present a Defense Fails

¶ 35 Finally, Ozodi makes conclusory references to being denied his
constitutional right to present a defense but offers nothing more than his own bare assertions in support of this argument . Whether the defendant has been denied the right to present a defense is an issue of constitutional due process we review independently. See State v. Prineas , 2012 WI App 2, ¶15, 338 Wis. 2d 362, 809 N.W.2d 68 (2011).No. 2019AP886

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17 ¶ 36 Ozodi suggests that t he trial court’s instructions effectively precluded him from establishing that his intoxicated state negated his intent to commit the crimes, in violati o n of his due process right to present a defense. Our United States Supreme Court has stated as f ollows:

“ O ur cases establish, at a minimum, that criminal defendants have the right to the government ’ s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determinati on of guilt. ” Few rights are more fundamental than that of an accused to prese nt witnesses in his [or her] own defense. Indeed, this right is an essential attribute to the adversary system itself.

“ We have elected to employ an adversary system of
c riminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be fo unded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. ”

....

“ The right to offer the testimony of witnesses, and to compel their a ttendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant ’ s version of the facts as well as the prosecution ’ s to the jury so it may decide where the truth lies. Just as an accused has the right to confro nt the prosecution ’ s witnesses for the purpose of challenging their testimony, he [or she] has the right to present his [or her] own witnesses to establish a defense. This right is a fundamental element of due process of law. ”No. 2019AP886

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18 Taylor v. Illinois , 484 U.S

. 400, 408

- 09 (1988) ( citations omitted); see also 9
C HRISTINE M. W ISEMAN AND M ICHAEL T OBIN , W IS CONSIN P RAC TICE S ERIES : C RIMINAL P RACTICE & P ROCEDURE § 17:2 7 n.3 (2d ed. Aug. 2020 update)

. ¶ 37 As we explain above, Ozodi was allowed to present evidence of his intoxication and argue that it showed he did not ha ve criminal intent, eliciting testimony about his strange behavior and statements , explaining that he normally was not a danger to women , and questioning an expert about the effects of LSD

. Ozodi’s counsel also discussed the intoxication’s effect on Ozodi’s intent in both her opening statement and in closing argument she specifically advised the jury that it could consider Ozodi’s intoxication when determining if the State had
prove d that he acted intentionally

. Ozodi was allowed to fully present the
evidence that he wished , and the jury was not precluded from considering that evidence as it pertained to his intent

.
CONCLUSION

¶ 38 W e conclude that the trial court’s jury instruction on voluntary intoxication was not a misstatement of the law or confusing to the jury . T he court
did not err in instructing the jury. T he court did not deprive Ozodi of his constitutional right to present a defense. Therefore, we affirm

.

By the Court.

— Judgment and order affirmed.

Not r ecommended for publication in the official reports.