State v. Schultz
922 N.W.2d 866
Wis. Ct. App.2018Background
- Victim Melanie (15) disclosed in Dec 2012 she had intercourse with Schultz (20) "starting mid-2012" and "more than five times." Police charged Schultz with repeated sexual assault alleging offenses occurred "in the late summer to early fall of 2012."
- At trial for the repeated-sexual-assault charge, Melanie testified intercourse with Schultz began "between July and August" and they broke up "in the beginning of September 2012." Jury acquitted Schultz.
- Five days after acquittal the State received a paternity test showing Schultz was the likely father and obtained medical records indicating a conception date of on or about Oct. 19, 2012.
- The State then charged Schultz with second-degree sexual assault of a child (alleged date Oct. 19, 2012). Schultz moved to dismiss on double jeopardy grounds, arguing the earlier charge covered "early fall 2012," which included Oct. 19. The circuit court denied the motion.
- Schultz pled guilty to the October 19 charge and appealed the double jeopardy denial. The appellate court considered whether an ambiguous charged timeframe should be fixed by the charging document alone at the moment jeopardy attached or by reference to the entire record of the first prosecution.
Issues
| Issue | Plaintiff's Argument (Schultz) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether the second prosecution (Oct. 19, 2012) violated double jeopardy because the first information charged "late summer to early fall 2012" | "Early fall" should be read as could include Oct. 19; scope of jeopardy is what a reasonable person would understand at the time jeopardy attached, using the charging document only; later proceedings irrelevant | A reasonable person should interpret the charged timeframe in light of the entire record of the first prosecution, including trial testimony and pretrial statements; the first prosecution did not encompass Oct. 19 | Held: Use the entire record to clarify ambiguous charging language. A reasonable person familiar with the full first-record would not read "early fall 2012" to include Oct. 19, 2012; no double jeopardy bar. |
Key Cases Cited
- United States v. Olmeda, 461 F.3d 271 (2d Cir. 2006) (scope-of-jeopardy test: reasonable person view of initial indictment at time jeopardy attached; ambiguity may be clarified by entire record)
- United States v. Roman, 728 F.2d 846 (7th Cir. 1984) (double jeopardy protection rests on the whole record, not indictment alone)
- United States v. Castro, 776 F.2d 1118 (3d Cir. 1985) (scope of double jeopardy bar determined by conviction and supporting record)
- State v. Fawcett, 145 Wis.2d 244 (Ct. App. 1988) (repeated sexual assaults are not the same in fact if alleged assaults occurred in different time frames)
- State v. Duda, 60 Wis.2d 431 (Wis. 1973) (pleading deemed amended to conform to proof after verdict; technical variances in names and dates addressed)
- United States v. Crowder, 346 F.2d 1 (6th Cir. 1964) (record as a whole can define scope of alleged conduct where indictment lists a subset of items offered at trial)