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EC judge dismisses sexual assault charge in 2021 attack on woman

Mar. 21—EAU CLAIRE — An Onalaska man will have his 10-year prison sentence reduced by six years after an Eau Claire judge granted his motion to dismiss a felony conviction for second-degree sexual assault related to a 2021 attack on an Eau Claire woman.

Judge Michael Schumacher dismissed the sexual assault charge against Robert B. Smith, 43, finding that Smith’s trial attorney was ineffective and prejudicial.

The charge was dismissed with prejudice, meaning prosecutors cannot re-file it.

An Eau Claire County jury convicted Smith in August 2021 of the sexual assault charge, two felony counts each of stalking and bail jumping, felony counts of strangulation and suffocation, false imprisonment and violating a no contact court order, and a misdemeanor count of battery.

Smith was sentenced in November 2021 to 10 years prison followed by four years of extended supervision.

The dismissed sexual assault charge will reduce Smith’s sentence to four years prison followed by three years of extended supervision.

As conditions of supervision, Smith cannot have contact with the victim, drink alcohol or enter taverns. He must also comply with the sex offender registry and undergo any recommended programming or treatment.

Schumacher denied two other post-trial defense motions.

Smith filed a motion for a new trial due to ineffective assistance of counsel alleging the following:

—Counsel failed to object to daughter of victim’s testimony.

—Counsel did not object to a police officer’s testimony.

—Counsel did not object to phone records as being hearsay evidence.

Smith also requested a new sentencing on the following:

—Prosecutors didn’t prove the repeat offender status.

—Smith said he wasn’t afforded the ability to review the pre-sentence report prepared by the state Department of Corrections.

According to the criminal complaint:

A woman who knew Smith called police in the early hours of April 27, 2021, because he had been outside her house and attempted to get in twice overnight. He was unable to get inside that night, but the woman told police that Smith had broken in earlier that week and sexually assaulted her.

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The woman told police that Smith emerged from her bedroom closet as she was getting ready for bed on the night of April 25.

He slapped, punched, strangled and threatened her multiple times. Police officers observed bruises on the woman’s forehead and neck that appeared to corroborate her account.

Smith used a bathrobe string to tie the woman’s hands, and sexually assaulted her twice that night. He then took a shower and left the house at about 3:30 a.m. on April 26.

After taking the woman’s report on April 27, an Eau Claire police detective called Smith on the phone. Smith said he was sleeping at the time the woman said he was trying to get into her house.

He also claimed he was at work when the detective called, but Smith’s employer later said he’d not shown up for work that day.

Chippewa County sheriff’s deputies arrested Smith at a family member’s home.

Smith had previously been convicted in September 2020 of stalking and intimidating a victim — the same woman he had been found guilty of sexually assaulting. He was out on probation for that case, which included the condition he have no contact with the woman.