State v. Alexander M. SchultzState v. Alexander M. Schultz
¶1 REBECCA GRASSL BRADLEY, J. The State charged Alexander M. Schultz with repeated sexual assault of a child for engaging in sexual intercourse with the fifteen-year-old victim, M.T.,1 in “late summer to early fall of 2012.” A jury acquitted him of this charge. Shortly thereafter, paternity test results revealed Schultz to be the father of M.T.‘s child. The State then charged Schultz with sexual assault of a child under 16 years of age
¶2 We hold that a court may examine the entire record of the first proceeding, including the evidence admitted at trial, when determining the scope of jeopardy in a prior criminal prosecution. Because the complaint incorporated the police report, which documents a certain end date for the intercourse, and the evidence presented at Schultz‘s first trial did not encompass the same timeframe of the offense charged in his second prosecution, we conclude that Schultz was not twice in jeopardy for the same criminal offense. Specifically, the State‘s second prosecution of Schultz for sexual assault of a child under 16 “on or about October 19, 2012,” did not include the same timeframe as its first prosecution for repeated sexual assault of a child in the “late summer to early fall of 2012.” We affirm the court of appeals.
A. Schultz‘s First Prosecution
¶3 In December 2012, Merrill Police Officer Matthew Waid interviewed then-fifteen-year-old M.T. after learning she was pregnant. Waid learned that M.T. had sexual intercourse with a male named “Dominic” in early to mid-October. M.T. also informed Waid that she had sexual intercourse with Schultz “approximately one month before she had sexual intercourse with Dominic.” M.T. confirmed that “she had her period between the time she had sexual intercourse with Alex” and when she had intercourse with Dominic in early to mid-October. When questioned by Waid, Schultz denied having a sexual relationship with M.T.
¶4 In January 2013, Officer Waid conducted two follow-up interviews with M.T. about her sexual relationship with Schultz. In the first, M.T. claimed she and Schultz had sexual intercourse more than five times, beginning in the middle of 2012 and lasting for a few months. Schultz was either 19 or 20 years old when the intercourse began. In the second, M.T. showed Waid Facebook messages between her and Schultz on September 3, 2012. In these messages, Schultz was angry and dismissive of M.T. because he believed that she was telling other people things that “can put me in prison.” Based upon these messages, the interviews with M.T., and interviews with multiple witnesses who suggested knowledge of a sexual relationship between Schultz and M.T., Waid recommended charges against Schultz.
¶6 Schultz‘s trial took place on January 21-22, 2014.
¶7 During his testimony, Officer Waid confirmed that in the course of his initial investigation, M.T. told him she had sexual intercourse with Schultz in the month or so prior to early October 2012. He also read Facebook messages between M.T. and Schultz from September 3, 2012. These messages confirmed M.T.‘s testimony regarding the relationship with Schultz ending by early September. In the messages, Schultz stated “[U]r dead to me now” and “[I] was gonna try to get back with you[.]” While not explicitly mentioning a sexual relationship, Schultz accused M.T. of breaking a promise
¶8 No evidence at trial indicated M.T. and Schultz had sexual intercourse in October 2012. One of Schultz‘s own witnesses, A.O., testified that she and Schultz were in a romantic relationship between September 2012 and the spring of 2013.
¶9 While instructing the jury, the circuit court reiterated that the timeframe alleged for the assaults was “late summer to early fall of 2012.” In closing argument, the State argued the intercourse between Schultz and M.T. ended in September. In summarizing M.T.‘s testimony regarding sexual intercourse with Schultz, the State specifically mentioned that M.T. indicated intercourse occurred in the month before October 2012; the assaults started in July and ended in September 2012; and the assaults happened during “September, August, and July.” After deliberations, the jury acquitted Schultz of “repeated acts of sexual assault of a child as charged in the information,” which had charged Schultz with this crime during the timeframe of “late summer to early fall of 2012.”7
¶10 Five days after Schultz‘s acquittal, Officer Waid learned from Lincoln County Victim Services that M.T. had received her paternity test results. These results indicated a 99.99998 percent certainty that Schultz, not Dominic, was the father of M.T.‘s baby. Although incarcerated at the time, Schultz participated in a phone interview with Waid about the statements
¶11 In March 2014, the State filed charges against Schultz in Lincoln County Circuit Court.8 Count 3 charged Schultz with sexual assault of a child under 16 years of age, a Class C felony, “on or about October 19, 2012.”9 The State again charged Schultz with a penalty enhancer for being a repeat criminal offender, pursuant to
¶12 Schultz moved to dismiss Count 3, arguing it violated his constitutional protections against double jeopardy. Because “fall” started on September 22, 2012, and October 19, 2012 fell within the first thirty days after the September equinox, Schultz argued the date alleged for his second sexual assault charge——“on or about October 19, 2012“——fell within the timeframe alleged for his first charge, which included “early fall.” The circuit court denied Schultz‘s motion because it found no evidence of any assault
¶13 Schultz thereafter pled guilty to Counts 1 and 3——perjury and sexual assault of a child under 16 years of age, respectively. The circuit court sentenced Schultz to two years of initial confinement plus two years of extended supervision for perjury, and five years of initial confinement plus five years of extended supervision for the sexual assault against M.T, both sentences to run concurrently.
¶14 Schultz moved for postconviction relief, again raising the double jeopardy argument he set forth in his motion to dismiss. Having concluded the defendant presented no new evidence for his argument, the circuit court denied the motion. Schultz appealed.
¶15 The court of appeals rejected Schultz‘s assertion that his second prosecution violated the constitutional proscription of double jeopardy and affirmed the circuit court. See State v. Schultz, 2019 WI App 3, ¶3, 385 Wis. 2d 494, 922 N.W.2d 866. The court of appeals held that the test to determine the scope of jeopardy in the face of an ambiguous charging document is how a reasonable person would understand the charging language, based on the evidence introduced at trial and the entire record of the proceeding. Id., ¶30. The court of appeals agreed with the circuit court‘s analysis of the evidence presented at Schultz‘s first trial: the sexual assaults were alleged to have occurred only in July, August, and September 2012, but not October. Id., ¶¶33–34. Schultz filed a petition for review, which this court granted.
II. STANDARD OF REVIEW
¶16 Whether a defendant‘s convictions violate the Double Jeopardy Clauses of the Fifth Amendment and Article I, Section 8 of the Wisconsin Constitution, are questions of law appellate courts review de novo. State v. Steinhardt, 2017 WI 62, ¶11, 375 Wis. 2d 712, 896 N.W.2d 700 (citation omitted); see also State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992) (citation omitted).
¶17 As part of our analysis, we interpret
III. ANALYSIS
A. Double Jeopardy Overview
¶18 The Fifth Amendment provides, in relevant part: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]”
¶19 In order to apply the original meaning of the Double Jeopardy Clause, we interpret this provision “through the historical ascertainment of the meaning that it would have conveyed to a fully informed observer at the time when the text first took effect.” Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 435 (2012). Unlike other constitutional protections, the right to be free from double jeopardy does not have identifiable roots in a specific legal system or a particular point in time. Whereas the writ of habeas corpus traces its origin to English common law,10 and the Eighth Amendment‘s ban on cruel and unusual punishment derives directly from the English Bill of Rights,11 the protection against double jeopardy enshrined in the Constitution represents the amalgamation of legal principles applied throughout documented history. See David S. Rudstein, A Brief History of the Fifth Amendment Guarantee against Double Jeopardy, 14 Wm. & Mary Bill Rts. J. 193, 196-202 (2005) (stating “[t]he precise origins of the guarantee against
¶20 Precursors to the principle against subjecting people to punishment multiple times for the same wrongful act predate the common law and are found in ancient civilizations. See, e.g., Bartkus v. Illinois, 359 U.S. 121, 151 (1959) (Black, J., dissenting) (“Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times.” (footnote omitted)); see also David S. Rudstein, Double Jeopardy: A Reference Guide to the United States Constitution 2–11 (2004) (tracing double jeopardy principles from the Ancient Greeks in 355 B.C.E. through Roman and canon law to the English common law, and ultimately the Fifth Amendment). In the lengthy history underlying this principle, one idea has remained constant: a subsequent prosecution must be for the “same offense” in order to violate the right to be free from double jeopardy. Rudstein,
¶21 The Supreme Court identified three constitutional protections provided by the Double Jeopardy Clause: (1) “against a second prosecution for the same offense after acquittal[,]” (2) “against a second prosecution for the same offense after conviction[,]” and (3) “against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). This case involves the first of these protections.
¶22 Over 40 years ago, we held that two prosecutions are for the “same offense,” and therefore violate the Double Jeopardy Clause, when the offenses in both prosecutions are “identical in the law and in fact.” State v. Van Meter, 72 Wis. 2d 754, 758, 242 N.W.2d 206 (1976) (citation omitted). Offenses are not identical in law if each requires proof of an element that the other does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (citation omitted). Offenses are not identical in fact when “a conviction for each offense requires proof of an additional fact that conviction for the other offenses does not.” State v. Lechner, 217 Wis. 2d 392, 414, 576 N.W.2d 912 (1998) (citing Sauceda, 168 Wis. 2d at 493-94 n.8; Van Meter, 72 Wis. 2d at 758). Offenses are also not identical in fact if they are different in nature or separated in time. State v. Anderson, 219 Wis. 2d 739, 749, 580 N.W.2d 329 (1998) (citation omitted); see also State v. Stevens, 123 Wis. 2d 303, 323, 367 N.W.2d 788 (1985) (holding offenses were not the same in fact because they were separated by a significant period in time).
B. The Dispute
¶23 The parties agree that the offenses in Schultz‘s first and second prosecutions, repeated sexual assault of a child and sexual assault of a child under 16, are identical in law. The parties disagree as to whether the offenses are identical in fact. Schultz argues that both offenses are identical in fact because the timeframe for the offenses charged in the first prosecution, “late summer to early fall of 2012” encompasses the date for the offense charged in the second prosecution, “on or about October 19, 2012.” Schultz contends the charging language is unambiguous and the proper inquiry considers how a reasonable person would construe the indictment at the time jeopardy attaches, without considering later evidence introduced at the previous trial.12
C. Determining the Scope of Jeopardy
¶24 Whether courts may consider the record to determine the scope of jeopardy is a question of first impression in Wisconsin. In his reply brief, Schultz argued that the record‘s relevance is limited to considering only “how a reasonable person would have understood the scope of jeopardy ‘at the time jeopardy attached in the first case.‘” (quoting United States v. Olmeda, 461 F.3d 271, 282 (2d Cir. 2006)).13 At oral argument, Schultz again conceded
The court: But counsel, isn‘t that . . . why we look at the rest of the record, to try to figure out what does “early fall” mean?
Schultz‘s counsel: When . . . we look at the record, we‘re not looking at the record to determine whether evidence was submitted to show that there was sex in the month of October, what we‘re looking at is evidence of what was the common understanding of the parties as to what the timeframe was.
The court: [Y]ou mentioned that we should apply the test described in Olmeda,14. . . it says, a court must further determine that such a conclusion would be reached by an objective arbiter. That determination will require examination of the plain language of the
indictments in the two prosecutions, as well as the entire record of the proceedings. Schultz‘s counsel: And I agree with that. . . . I do acknowledge that the entire record is relevant but only relevant to the understanding at the time of jeopardy . . . .
¶25 As Schultz conceded, the entire record of the proceedings may be relevant in determining the scope of jeopardy. Contrary to Schultz‘s argument, however, no binding authority limits courts to using the record only to determine the subjective understanding of the parties in the first criminal proceeding at the time jeopardy attaches. Instead, substantial authority indicates courts may review the entire record of the first proceeding to determine the scope of jeopardy.
¶26 In Van Meter, we decided there was no double jeopardy violation when, after a jury trial, the trial court convicted Van Meter of knowingly fleeing a police officer in Wood County, after he was previously convicted of knowingly fleeing a police officer in Portage County, with both charges arising from the same high speed chase across county lines, in violation of the same statute. Van Meter, 72 Wis. 2d at 755–59. The defendant argued the Double Jeopardy Clause barred the second prosecution. Id. at 757. Acknowledging the “identity of legal elements” based on both prosecutions charging violations of the same statute, this court concluded that the requisite “identity in fact[] cannot be shown” because “eluding Wood county officers in Wood county” is not the same offense as “eluding Portage county officers in Portage county.” Id. at 757-58. We held a double jeopardy violation exists when “facts alleged under either of the indictments would,
¶27 All of the federal circuit courts of appeal that have addressed this issue have also examined the record, including evidentiary facts, in determining the scope of jeopardy. For example, in United States v. Walsh, 194 F.3d 37 (2d Cir. 1999), abrogated on other grounds by Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), an indictment charged a corrections officer three
¶28 In United States v. Castro, 776 F.2d 1118 (3d Cir. 1985), multiple defendants were charged with and convicted of conspiracy to possess with intent to distribute more than 1,000 pounds of marijuana, among other offenses, based upon attempted drug transactions in Pennsylvania, Texas, and Florida. Id. at 1120. The appellate court acknowledged a variance between the indictment and the evidence produced at trial, with the jury finding a conspiracy and attempt to purchase marijuana in Pennsylvania only. Id. at 1123. On appeal, Castro contended this variance would expose him to prosecution in Texas for the same crime. Id. The
¶29 While the Castro court framed the analysis in terms of the “record supporting the conviction,” courts also examine the record in cases involving an acquittal, like Schultz‘s, in order to determine the scope of jeopardy. For example, in United States v. Crumpler, 636 F. Supp. 396 (N.D. Ind. 1986), the defendant was charged with multiple drug offenses in Florida, of which he was acquitted. Id. at 397-98. He was subsequently charged with multiple drug offenses in Indiana, in response to which he filed a motion to dismiss on double jeopardy grounds. Id. at 398. The Crumpler court resolved the motion “based solely on the record before it which includes all pleadings, affidavits, and the evidence adduced during that evidentiary hearing[]” on the motion to dismiss. Id. at 399. Regardless of whether the first prosecution resulted in an acquittal or a conviction, “[a] defendant claiming that he has been subjected to double jeopardy bears the burden of establishing that both prosecutions are for the same offense . . . . The defendant must show that ‘the evidence required to support a conviction on one indictment would have been sufficient to warrant a conviction on the other’ indictment.” Id. at 403 (citing United States v. Roman, 728 F.2d 846 (7th Cir. 1984); United States v. West, 670 F.2d 675, 681 (7th Cir. 1982); United States v. Buonomo, 441 F.2d 922, 925 (7th Cir. 1971)). In
¶30 The other circuits are in accord with Walsh and Castro. See United States v. Stefanidakis, 678 F.3d 96, 100-01 (1st Cir. 2012) (in reviewing a double jeopardy challenge, courts must see if the record “contains facts sufficient to supply a rational basis for a finding that [the prosecutions] were predicated on different conduct.” (citations omitted)); United States v. Bonilla, 579 F.3d 1233, 1241-44 (11th Cir. 2009) (court reviews the record to determine whether convictions violated double jeopardy); United States v. Hamilton, 992 F.2d 1126, 1130 (10th Cir. 1993) (“[F]or purposes of barring a future prosecution, it is the judgment and not the indictment alone which acts as a bar, and the entire record may be considered in evaluating a subsequent claim of double jeopardy.” (citation omitted)); United States v. Vasquez-Rodriguez, 978 F.2d 867, 870-72 (5th Cir. 1992) (holding the two prosecutions were not for the same offense after reviewing the evidence admitted at trial after noting that “acts as described in
¶31 In addition to precedent from the federal courts, historical sources support examining the defendant‘s actual exposure to jeopardy in a prior prosecution. “The guarantee against double jeopardy became firmly entrenched in the [English] common law in the form of the pleas of autrefois acquit (a former acquittal), autrefoits convict (a former conviction), and pardon.”
¶32 In light of the common law interpretations of jeopardy, as well as its historical meaning, we apply Van Meter‘s holding
D. The Record of Schultz‘s Case
¶33 In this case, we apply the test originally adopted in Anderson v. State and reaffirmed in George and Van Meter, and examine the entire record of Schultz‘s first prosecution for repeated sexual assault of a child to determine whether the “facts alleged under either of the indictments would, if proved under the other, warrant a conviction under the latter.”15 Van Meter, 72 Wis. 2d at 758; George, 69 Wis. 2d at 98; Anderson, 221 Wis. at 87 (quoted source omitted). Specifically, we determine whether the initial charge for repeated sexual assault of a child during the timeframe of “late summer to early fall of 2012” includes the date charged in the second prosecution for sexual assault of a child “on or about October 19, 2012.”
1. An Unambiguous Complaint
¶34 We begin our analysis with the complaint charging Schultz in the initial prosecution. The complaint‘s language of “early fall,” viewed alone, does not answer the question because “early fall“——standing alone——could be ambiguous.16 However, the complaint in this case expressly incorporates by reference the attached police report of Officer Waid, which contains some detail elucidating the meaning of “early fall.” The police report plainly establishes the timeframe in which Schultz was subject to jeopardy for repeated sexual assault of a child. The report identifies
¶35 Nothing in the police report mentions or even suggests sexual intercourse between Schultz and M.T. during October. The attached police report unambiguously identifies the latest date of intercourse for which Schultz was charged in the first prosecution. If, as the report indicates, M.T.‘s sexual intercourse with Schultz occurred one month before her sexual intercourse with Dominic in early to mid-October, and she had no sexual intercourse between her intercourse with Dominic and December 4, 2012, then the State‘s charging language of “early fall” means the intercourse for which Schultz was charged concluded in early to mid-September, well before October 19, 2012. Coupled with the fact that the police report indicates M.T. had her period in between the sexual activity
¶36 Contrary to Schultz‘s assertion, none of the “five times” of sexual intercourse charged in the first prosecution occurred in October. The police report included Facebook messages between M.T. and Schultz on September 3, 2012 indicating the relationship was over on that date, offering additional confirmation that the first prosecution encompassed sexual assaults by Schultz that ended in September. The police report, incorporated by reference into the complaint, clearly identifies Schultz‘s scope of jeopardy in the first prosecution at the time jeopardy attached.
2. The Record At Trial
¶37 Even though the incorporated and attached police report renders the complaint unambiguous, we also review the record of the first trial to see if anything suggests “early fall” extended past mid-September to include October 19, 2012. We do so in order to safeguard the defendant‘s constitutional right against double jeopardy. The facts alleged under the second complaint——a sexual assault “on or about October 19“——would not, if proven, support a conviction in the first prosecution. The complaint in the first prosecution alleged repeated sexual assaults during “late summer to early fall[,]” which the attached and incorporated police report clarified to have concluded in early to mid-September. Limiting our review to the complaint, however, would not protect the
¶38 The trial transcripts reveal no evidence extending the end date identified in the police report. M.T testified at Schultz‘s first trial that they began having intercourse in July or August and broke up in the beginning of September 2012. She also testified to having a conversation with a friend “closer to October,” after she stopped seeing Schultz, during which she disclosed to her friend the previous intercourse with Schultz. A
¶39 The lone remaining reference to the month of October came from Schultz‘s counsel during his opening statement, who mentioned a “bombshell that occurred sometime in October of 2012.” Counsel indicated the “bombshell” was friends alerting Schultz that M.T. told others she and Schultz were in a sexual relationship. Immediately after, counsel said Schultz and M.T. exchanged Facebook messages in which she denied making the statements and “his contact with her ended shortly thereafter.” However, as the trial evidence and police report show, the Facebook conversation occurred on September 3, 2012, not in October. Schultz‘s counsel offered no evidence suggesting a second conversation occurred in the month of October.
E. Schultz‘s Arguments
¶41 Schultz primarily relies on three cases to support a double jeopardy violation based on the State‘s second prosecution. For the reasons discussed below, none of them help his case.
¶42 First, Schultz encourages us to apply the test set forth in George for a continuing crime. In George, we analyzed a complaint alleging 29 counts of sports betting, with most counts alleging continuing conduct over the span of a definite time period, such as from September 15, 1971 to January 15, 1972. George, 69 Wis. 2d at 95-96. In that case, we concluded that if one prosecution charges a continuing crime, “a conviction or acquittal for a crime based on a portion of that period will bar a prosecution covering the whole period.” Id. at 98 (quoting 1 Anderson, Wharton‘s Criminal Law and Procedure 351 (1957))
¶43 Schultz next contends that the double jeopardy principles espoused by our court of appeals in State v. Fawcett resolve this case in his favor. In Fawcett, the State charged the defendant with two counts of first-degree sexual assault. State v. Fawcett, 145 Wis. 2d 244, 247, 426 N.W.2d 91 (Ct. App. 1988). The complaint alleged the sexual assaults of a child occurred in the “six months preceding December [] 1985.” Id. The defendant challenged this time period as a violation of his Fifth Amendment right against double jeopardy. Id. at 247. The court of appeals applied our sufficiency-of-the-charge test set forth in Holesome v. State, using the second prong of the Holesome test, which asks whether conviction or acquittal of the complained-of-charge is a bar to another prosecution for the same offense. Fawcett, 145 Wis. 2d at 251 (quoting Holesome v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968)). In analyzing whether the six–month time period in the Fawcett complaint implicated double jeopardy concerns under
¶44 We agree with the court of appeals’ statement in Fawcett but it does not support Schultz‘s double jeopardy argument. Fawcett expressly limited its “rigid double jeopardy analysis” to later prosecutions “based upon the same transaction during the same time frame[.]”18 Id. (emphasis added). In this case,
¶45 Finally, Schultz proposes that this court adopt the test pronounced by the Second Circuit Court of Appeals in United States v. Olmeda. In Olmeda, the defendant moved to dismiss an indictment from June 2002, charging him with unlawful possession of ammunition in Manhattan. Olmeda, 461 F.3d at 275. Olmeda had previously pled guilty to an earlier indictment charging him with ammunition possession in June 2002 “within the Eastern District of North Carolina and elsewhere.” Id. Olmeda argued the conduct alleged in the North Carolina indictment, specifically the use of the word “elsewhere,” subsumed the conduct alleged in the later Manhattan indictment, which therefore violated constitutional protections against double jeopardy. See id. at 277–78. The State charged Olmeda under the same statute for both offenses, leaving the determination of whether the offenses were identical in fact the central issue in the double jeopardy analysis. Id. at 279, 282.
¶46 To decide whether successive prosecutions were the same in fact, Olmeda crafted the following test: courts must decide
¶47 We decline to adopt Olmeda‘s “reasonable person” test.19 As a preliminary matter, we are not bound by Olmeda, which was
¶48 Secondly, Olmeda did not identify any legal authority for its “reasonable person” test. The pertinent section of the opinion reads:
To determine whether two offenses charged in successive prosecutions are the same in fact, a court must ascertain whether a reasonable person familiar with the totality of the facts and circumstances would construe the initial indictment, at the time jeopardy attached in the first case, to cover the offense that is charged in the subsequent prosecution. Thus, where a defendant pleads guilty . . . .
Olmeda, 461 F.3d at 282. Olmeda cites no cases from the United States Supreme Court incorporating the “reasonable person” test into the Double Jeopardy Clause of the Fifth Amendment, and we have discovered none.
¶49 Finally, we reject Olmeda‘s test because the “reasonable person” standard is typically applied in common law areas such as contract and tort. See John Gardner, The Many Faces of the Reasonable Person, 131 L.Q. Rev. 563, 563 (2015) (referring to the reasonable person standard as the “common law‘s helpmate” and “most closely associated with the law of torts“). The double jeopardy clauses of the Fifth Amendment and
¶50 Applied in this case, the Olmeda test could yield different results depending upon the geographic location of the “reasonable person” who determines what “early fall” means. The “reasonable person” in Hurley, Wisconsin might perceive “early fall” to commence in late September, coinciding with changes in the color of leaves on trees and dropping temperatures. In contrast, the “reasonable person” in Madison may associate “early fall” with the opening game of the University of Wisconsin Badgers football team. The constitutional protections against double
F. Wisconsin Stat. § 971.29
¶51 Schultz also contends the court of appeals erred in relying on
At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.
(Emphasis added.)
¶52 Only “at the trial” must the circuit court consider prejudice to the defendant of allowing an amendment to the pleading. “After verdict the pleading shall be deemed amended to
G. Admonition
¶53 Our opinion should not be read to approve attempts by the State to use imprecise charging language in an effort to skirt
¶54 Further, we reaffirm a principle already established in cases involving child sexual assaults: the law does not require definitive dates in charging documents in such cases. See State v. Hurley, 2015 WI 35, ¶¶33–34, 361 Wis. 2d 529, 861 N.W.2d 174. This is because children are often incapable of remembering traumatic incidents by the day, week, or month, but instead might correlate them to other events in their lives, such as holidays, birthdays, or school semesters. See id.
IV. CONCLUSION
¶55 We hold that when the State charges a defendant in a subsequent prosecution for conduct the defendant contends overlaps the first prosecution‘s timeframe, courts may examine the entire record of the first proceeding to determine the actual scope of jeopardy in the first proceeding. The test to determine whether the earlier timeframe included the second is not what a reasonable person would think the earlier timeframe includes. Instead, the reviewing court ascertains the parameters of the offense for which
¶56 The State‘s prosecution of Schultz for sexual assault of a child under 16, “on or about October 19, 2012,” did not violate the double jeopardy provisions of the
By the Court.—The decision of the court of appeals is affirmed.
¶58 Our state and federal constitutions protect against two prosecutions for the same offense. When asking whether a second charge is based on the same facts, the test is whether the facts alleged under the second complaint would, if proved, support a conviction under the first complaint. See Anderson v. State, 221 Wis. 78, 87, 265 N.W. 210 (1936).
¶59 Applying this test, evidence of sexual assault on October 19 would have supported a conviction for repeated sexual assault during “late summer to early fall.” Because those charges are for the same offense, the subsequent prosecution violated Schultz‘s constitutional protection against double jeopardy and should have been dismissed. I respectfully dissent.
¶60 Both the United States and Wisconsin Constitutions protect against a second prosecution for the same offense after acquittal.1 The constitutional protection against double jeopardy features both front-end and back-end safeguards; that is, our double jeopardy cases examine whether the protection is secure both at the time an original complaint is filed and when a subsequent prosecution is brought.
¶61 On the front end, a defendant charged with a crime is entitled to be informed of “the nature and cause of the accusation against him.” Holesome v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968) (citing
¶62 In child sexual assault cases, these due process protections——though still required——are viewed through a “more flexible” lens. State v. Hurley, 2015 WI 35, ¶34, 361 Wis. 2d 529, 861 N.W.2d 174 (quoting State v. Fawcett, 145 Wis. 2d 244, 254, 426 N.W.2d 91 (Ct. App. 1988)). This is so because of the unique nature of these offenses. In particular, the “vagaries of a
¶63 Given all this, complaints alleging child sexual assault generally pass constitutional muster despite featuring more expansive and imprecise charging periods than other criminal offenses. For example, in Hurley, we concluded that a complaint charging the defendant with repeated sexual assault of the same child “on and between” 2000 and 2005 was constitutionally sufficient. Id., ¶¶10, 53; see also State v. Kempainen, 2015 WI 32, ¶¶1, 4, 361 Wis. 2d 450, 862 N.W.2d 587 (holding sufficient notice provided with charging periods of “on or about August 1, 1997 to December 1, 1997,” and “on or about March 1, 2001 to June 15, 2001“).
¶64 But it is also true that this charging flexibility necessitates a counterbalancing assurance——that is, because the prosecution is held to a less-exacting standard for charging period precision, the defendant‘s protection against double jeopardy must be firmly and rigidly guarded.
¶65 In Fawcett, the court of appeals reviewed the sufficiency of two sexual assault charges alleged to have occurred “during the six months preceding December A.D. 1985.” 145 Wis. 2d at 247. In conducting its double jeopardy analysis, the court explained:
[W]e do not conclude that double jeopardy is a realistic threat in this case. In its brief, the state concedes that Fawcett may not again be charged with any sexual assault growing out of this incident. Courts may tailor double jeopardy protection to reflect the time period charged in an earlier prosecution. Therefore, Fawcett‘s double jeopardy protection can also be addressed in any future prosecution growing out of this incident. If the state is to enjoy a more flexible due process analysis in a child victim/witness case, it should also endure a rigid double jeopardy analysis if a later prosecution based upon the same transaction during the same time frame is charged.
Id. at 255 (emphasis added) (citing State v. St. Clair, 418 A.2d 184, 189 (Me. 1980)). In other words, as long as the State enjoys front-end pleading flexibility, defendants are deserving of equally extensive back-end protection against any threat of double jeopardy that could arise from such flexibility.
¶66 Other jurisdictions have recognized the same dynamic in cases involving broad and vague charging language, and provide guidance for what a “rigid double jeopardy analysis” looks like.
¶67 In State v. Martinez, the Nebraska Supreme Court affirmed the need for pleading flexibility in child sexual assault cases: “It is preferable to allow the State to conduct one vigorous prosecution to protect a child rather than to bar any prosecution at all because of a child‘s natural mnemonic shortcomings.”2 550 N.W.2d 655, 658 (Neb. 1996). To compensate for that, however, the State must face a “blanket bar” against any
The State may allege a timeframe for its allegations of sexual assault of a child in its first prosecution; as a quid pro quo to ensure that this liberty is not abused, the State must survive double jeopardy scrutiny if it attempts a second prosecution based upon the same transaction during the same timeframe. Unless the offense charged in the second prosecution is clearly separate and apart from the offense charged in the first prosecution, the timeframe alleged in the first prosecution acts as a “blanket bar” for subsequent prosecutions. This is the only viable means of balancing the profound tension between the constitutional rights of one accused of child molestation against the State‘s interest in protecting those victims who need the most protection.
Id. at 658 (emphasis added). Again, the blanket bar extends to all subsequent offenses unless they are “clearly separate and apart” from the timeframe charged in the first offense.
¶68 Similarly, the Maine Supreme Court decision cited in Fawcett explained, “[w]hen an offense charged consists of a series of acts extending over a period of time, a conviction or acquittal for a crime based on a portion of that period will bar a prosecution covering the whole period.” St. Clair, 418 A.2d at 189 (quoted source omitted). This meant that an indictment broadly alleging the commission of embezzlement “during and between the months of November, 1973, and December, 1975,” would bar a prosecution across that whole period even though the evidence presented at trial was limited to a transaction occurring on November 1, 1973. Id. at 188-90. These cases are not unique. This concept is a common, well-understood theme in sister courts around the country.3
¶69 Our repeated sexual assault statute also embodies the notion of a blanket bar unless the second charge is clearly separate and apart from the first. It expressly prohibits the State from charging a defendant with repeated acts of sexual assault (under
¶71 The Maine Supreme Judicial Court applied this principle in a case where a defendant challenged a sexual assault indictment on double jeopardy grounds because the indictment charged him with a “sexual act,” a general statutory term that was elsewhere statutorily defined as any of several different forms of behavior. State v. Hebert, 448 A.2d 322, 326 (Me. 1982). The court rejected the defendant‘s front-end double jeopardy claim based on the indictment. The vague charge, the court explained, means the scope of jeopardy in any subsequent prosecution is commensurately vast, encompassing anything fairly included within the charging document:
Because that statutory language may mean, under [the statutory definition], several different forms of behavior, that allegation in this indictment is ambiguous. It is clear, however, that when a defendant is placed in jeopardy under a valid indictment, he or
she may not thereafter be placed in jeopardy for any offense of which he properly could have been convicted under that indictment. The scope of jeopardy created by an indictment is therefore as broad as that indictment may be fairly read. The ambit of the constitutional bar to subsequent prosecution is co-extensive with the scope of jeopardy created in the prior prosecution. Thus, if the allegations in one prosecution describe an offense which is shown to be within the scope of the charging allegations of a prior prosecution, then the defendant may successfully raise a defense of former jeopardy to the subsequent proceedings.
Id. at 326 (second and third emphases added) (citations omitted).
¶72 Putting this all together, a “rigid double jeopardy analysis” necessarily depends on the specific charging language of a given case. This case-specific approach recognizes that the State has more pleading flexibility in child sexual assault cases because of the unique nature of such offenses. Where that relaxed standard leads to expansive and imprecise allegations, the State must be held responsible for any flexibility it exercises when those same allegations are considered from a double jeopardy perspective. This means a broad charging period must be paired with a blanket bar on subsequent prosecutions involving the same victim and the same timeframe. And vague allegations should likewise be coupled with a scope of jeopardy as broad as the charging language may be fairly read.
II
¶73 This common-sense approach matches the test we set forth 84 years ago in Anderson. Where the issue is whether the charges are identical in fact, double jeopardy is violated if the facts alleged under the second complaint would, if proved, support a conviction under the first complaint. See Anderson, 221 Wis. at 87; see also State v. George, 69 Wis. 2d 92, 98, 230 N.W.2d 253 (1975) (applying Anderson); State v. Van Meter, 72 Wis. 2d 754, 758, 242 N.W.2d 206 (1976) (same). The logic of this test is apparent. If allegations of a subsequent prosecution describe an offense that falls within the scope of jeopardy in an earlier prosecution, the defendant is twice subject to conviction and punishment for the same conduct. This the constitution does not allow.
¶74 Applying this test, the proper question is whether evidence of an act of sexual assault on or around October 19 would have supported a conviction for repeated sexual assault occurring in the “late summer to early fall.” Reading “early fall” as broad as it may be fairly read, with the whole record in view, the answer is yes.
¶75 The majority comes out the other way, its logic proceeding in three steps. First, although it doesn‘t explicitly say so, it implicitly concludes that “early fall” is ambiguous. Then, it determines that this ambiguity should be resolved by looking to the entire record to determine what “early fall” meant in the context of the original prosecution. Finally, it concludes that the police report attached to the complaint and evidence presented at trial show “early fall” meant, in effect, mid-September.5
¶77 The investigation into sexual assault against fifteen-year-old M.T. began in December 2012 precisely because she was pregnant. The investigating officer turned his attention to twenty-year-old Alexander Schultz after M.T. stated in interviews that the two of them had sex multiple times. Schultz denied a sexual relationship with M.T. He stuck with that story even after the investigating officer informed him that M.T. was pregnant and “may believe that [he] is the father of the child.”
¶78 Schultz was eventually charged with committing at least three acts of sexual assault against M.T. in the “late summer to early fall of 2012.” As part of his defense against that charge, Schultz moved the court to order a paternity test. On the morning of trial, the results of that test were still an open question. M.T. wanted the trial to be continued until the father‘s identity was known. Her mother supported that plan.
¶79 Schultz previously had also hoped to postpone the trial in anticipation of the paternity test results. However, after M.T. and her mother made their desires known, Schultz reversed course and asked to proceed with trial that day. The court agreed, and a jury found Schultz not guilty. Four days later, the paternity test results came in, revealing that Schultz was the
¶80 As an initial matter, the conception-inducing sexual assault is what commenced the investigation that led to Schultz‘s original prosecution in the first place. The majority‘s assertion that everyone agreed the pregnancy was not pertinent at trial is not a fair picture. Majority op., ¶5. While the State seemingly entered trial presuming that Schultz was not the father, it was certainly not certain about that. Instead, the State went to trial with the evidence it had, knowing all the while that Schultz could be the father.
¶81 Moreover——and this is important——if the evidence was clear that no sexual activity occurred after mid-September, the State could have charged Schultz accordingly. As the majority tells it, the police report itself definitively excludes any conduct occurring in the month of October. Majority op., ¶34. Yet, instead of so charging, the State chose to use the vaguer and less precise language, “early fall.” Why? Because that is the imprecise language witnesses used throughout the initial investigation,7 and undoubtedly the State hoped to capture the full array of evidence that could have emerged at trial to support a conviction.
¶83 Returning to our long-established test, charges are factually identical if facts alleged under the second complaint would, if proved, support a conviction under the first complaint. See Anderson, 221 Wis. at 87. Applying this test, the benchmark that proves the point is this: if the results of the pregnancy test showing an estimated conception date of October 19 had been presented at the first trial, that evidence would have supported a conviction for repeated sexual assault during the charging period without any need for the State to amend its complaint. The same would be true if M.T. testified that she and Schultz had sex through the middle of October——that is, testimony that merely days later would be proven true by way of the pregnancy test results.
¶84 The majority dismisses this as a hypothetical, and then says that if evidence of an October 19 sexual assault was introduced at the first trial, Schultz‘s second prosecution would be barred under double jeopardy. Majority op., ¶37 n.17. This is true, but misses the point being made in this dissent. If the majority is correct that the ambiguous phrase “early fall” meant nothing beyond mid-September, then an effort by the State to
¶85 The key difference between the majority and my own view is that the majority draws on the record to establish a date certain that the State did not delineate for what was actually a deliberately vague and imprecise charging period. The majority construes the ambiguous timeframe narrowly, whereas I believe a proper protection of Schultz‘s constitutional right to be free from double jeopardy requires us to construe such ambiguity against the State. This is the “rigid double jeopardy analysis” that the State must endure. Fawcett, 145 Wis. 2d at 255. While this seems deferential to the defendant, that is precisely the point.
¶86 Reading the charging language as broad as it may be fairly read, evidence of an October 19 sexual assault would support a conviction during a timeframe including “early fall.” As Schultz points out, October 19 is, from an astronomical perspective, early fall; it occurs in the first full month of the astronomical season of fall. While this is not conclusive, it is a fair reading of how early fall can be understood. October 19 is not clearly separate and apart from a charging period that runs through “early fall.”8
¶88 The Second Circuit emphasized the danger of constructive amendments of this kind in United States v. Olmeda, warning that double jeopardy is threatened when broad or imprecise charging language is implicitly narrowed after the fact based on the lack of certain evidence:
The law recognizes constructive amendment of an indictment to broaden a defendant‘s criminal exposure as a “serious error.” In general, a constructive amendment
narrowing the scope of an indictment is not troublesome because it does not similarly increase a defendant‘s criminal exposure. But where the government constructively narrows an indictment after jeopardy attaches only to refile the dropped charge at a later date, a variation on the problem of increased exposure arises implicating due process if not double jeopardy concerns.
461 F.3d 271, 287 n.15 (2d Cir. 2006) (citations omitted).
¶89 The majority suggests that fear of this threat is misplaced because the State never sought to narrow or amend its first charge against Schultz. Majority op., ¶47 n.19. No formal amendment occurred; this is true, but it‘s not the danger Olmeda flags. Olmeda‘s warning is aimed at exactly what the majority does here——not formal amendment, but constructively narrowing a charge based on evidence presented after jeopardy attaches.
¶90 In short, because evidence of a sexual assault on or about October 19 would have supported a conviction in his first trial without the need to amend the charging period in the complaint, the State‘s second prosecution violated Schultz‘s constitutional protection against double jeopardy. The State chose to charge Schultz for repeated sexual assault over a time period with a vague and ambiguous end point. It is inconsistent with a vigorous protection against double jeopardy to construe that ambiguity to conform to the more limited evidence presented, rather than to construe it broadly to encompass the very evidentiary indeterminacies that caused the State to pick an indeterminate timeframe in the first place. Reading the charging language as broad as it may be fairly read, evidence of an October 19 sexual assault would support a conviction over a timeframe
¶91 I am authorized to state that Justices ANN WALSH BRADLEY and REBECCA FRANK DALLET join this dissent.
Notes
The parties in this case do not disagree on whether the record may be consulted; they simply part ways over how such information can be used.
- the police report summarizing Officer Waid‘s investigation, which was attached to and incorporated in the initial indictment;
- M.T.‘s statements to Officer Waid regarding the timeline of the sexual activity with Schultz and Dominic;
- the Facebook messages exchanged between M.T. and Schultz, shedding light on the nature and timeframe of their relationship;
- the withdrawal of Schultz‘s request for an adjournment pending receipt of the paternity test results, based on the State‘s representation that M.T.‘s pregnancy would not be mentioned at trial, and never was;
- Schultz‘s pretrial admission, in a motion to dismiss the first charge for selective prosecution, that “the complainant had sexual intercourse with at least one other adult during the time period involved” and “the other adult has admitted to sexual intercourse and has been determined to be the father of the complainant‘s child[]“; and
- the State‘s acknowledgment that “Dominic [] [has been] imputed the father of the victim‘s child, that‘s been in the reports for months as well.”
Seefeldt, 261 Wis. 2d 383, ¶17 (citation omitted). The United States Supreme Court similarly expressed the reasoning underlying this rule:The protection against double jeopardy limits the ability of the State to request that a trial be terminated and restarted. This protection is important because the unrestricted ability of the State to terminate and restart a trial increases the financial and emotional burden on the defendant, extends the period during which the defendant is stigmatized by an unresolved accusation of wrongdoing and may increase the risk that an innocent defendant may be convicted.
Washington, 434 U.S. at 503-05 (internal footnotes omitted). The point at which jeopardy attaches has nothing to say about the actual scope of jeopardy.[A] second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.
Olmeda, 461 F.3d 287 n.15.[W]here the government constructively narrows an indictment after jeopardy attaches only to refile the dropped charge at a later date, a variation of the problem of increased exposure arises implicating due process if not double jeopardy concerns.
This footnote is irrelevant to Schultz‘s case. The dissent misrepresents this court‘s “approach” as “endors[ing] the idea that the scope of jeopardy is limited to and reduced by the evidence presented.” Dissent, ¶87. Not so. As explained at length in this opinion, review of the record is necessary in order to protect the defendant from double jeopardy. As already made clear, if the first trial produced evidence of a sexual assault occurring “on or about October 19,” then regardless of the mid-September end date for the assaults alleged in the first prosecution, double jeopardy would preclude the State from subsequently prosecuting Schultz for a sexual assault occurring “on or about October 19.” In the first case, the State did not narrow its prosecution of Schultz after jeopardy attached only to refile a dropped charge at a later date. There was no constructive amendment by the State for the purpose of pursuing a second prosecution for conduct within the timeframe of the first prosecution. The government never dropped a charge or sought to narrow the timeframe of the first indictment. Instead, the State merely learned of similar criminal activity occurring after the activity charged in the first proceeding ended, and charged Schultz for that later conduct, which was outside the timeframe of the first prosecution.
If the complaint charged sexual assaults occurring July 1, 2012 through November 1, 2012, but no evidence of assaults beyond September was introduced at trial, double jeopardy would preclude the State from later filing a complaint against Schultz for assaults alleged to have occurred in October. Under that scenario, the State would indeed be attempting to “constructively narrow[] [the] indictment[.]” That is not what happened in this case. Misleadingly, the dissent clouds the distinction between “constructively narrow[ing] an indictment” for the purpose of refiling a “dropped charge” with determining what the original scope of jeopardy was in the first place.