*1 Wisconsin, Plaintiff-Respondent, State Gustafson, Defendant-Appellant.† James R. Appeals
Court September No. 81-2015-CR. Submitted briefs 1982. Decided March 1983. 848.) (Also reported in 332 N.W.2d petition decided was not pending. This to review Petition † reported press. disposition bewill Its went time the volume in later volume.
For defendant-appellant the cause was submitted Butler, Jr., public Louis B. state the brief of assistant defender. plaintiff-respondent was submitted
For the cause attorney general, Follette, Bronson La on the brief of C. general. Stephen attorney Kleinmaier, assistant W. P.J., Voss, Scott, Brown and Before JJ. case, proof
BROWN, In this submission J. supported a possibly four offenses least potential single created count of sexual assault. This jury right deprivation a unanimous of defendant’s give error, therefore, It verdict. not to curative instruction, sponte. hold, however, that the error sua We We de- was harmless under case. also the facts this *3 against appeal de- cide the other issues raised on the the fendant and affirm verdict. reciting pointed facts,
Before
the
it
out that
must be
focuses,
length, upon
v. Eisch,
our decision
State
(1980),
Harrell v.
On October walking Manitowoc and C.L.Y. were towards downtown they upon R.J.G., boy approximately the when came girls age, standing by knew was The same who car. They from R.J.G. school. soon found out R.J.G. They waiting get telephone. father off for his the buy or asked him if his father some beer would them peppermint schnapps. said would ask. When R.J.G. he got Gustafson, telephone, father, James off buy schnapps beer. if he or R.J.G. asked him would got girls affirmative, replied in bought, mostly schnapps with into the car. Beer and were money. girls suggested place B.J.G.’s The then designated drink it. Gustafson went to the secluded area girls. girls There, consumed most of the got schnapps and drunk.
Upon returning area, girls from the secluded started to feel and Gustafson sick, took them to his apartment. girls immediately retired to the bath- room with to deal their sickness. After about ten min- utes, Gustafson entered the bathroom and led B.J.G. out living joined room, while R.J.G. C.L.Y. bathroom, asleep uninvited. B.J.G. fell on the couch but upon becoming was awakened aware that Gustafson was pulling up her sweater. Gustafson succeeded unhook- ing bra, squeezing B.J.G.’s feeling her breasts them with sucking his hands. He then succeeded her breasts despite protestations. get her She was able to him to stop with the statement that she had to use the bath- again. room stayed in
B.J.G. the bathroom for about ten minutes with fighting C.L.Y. who had been off R.J.G. Then Gus- tafson came and again, led her to the couch where she asleep fell once more. She was awakened when Gustaf- son, for time, the second pulled up assaulted her. He her sweater and time, felt her as breasts before. This however, went unzipped pants further and her placed pubic his hand on her area. B.J.G. then started hitting running Gustafson and succeeded in out *4 apartment street, the across where she hid in some asleep. bushes and fell Police were soon informed that young girl spot was drunk at picked up. her
Meanwhile, C.L.Y. learned that the B.J.G. had left premises, and C.L.Y. demanded that take her Gustafson did, home. He but stopping car, pulling not before his going her him, over to touching under her shirt and her fought breasts with hand. off, C.L.Y. him and Gus- tafson then drove her close to her home he let where her go.
373 attorney charged The district Gustafson with two second-degree counts of contrary assault, sexual to sec. 940.225(2) (e), Stats. One count was the sexual assault B.J.G., and the other count was the sexual assault of C.L.Y. The concerning state’s evidence assault of the only possible C.L.Y. showed one sexual assault. There- fore, conviction is not central to the discussion of major the issue. It is the assault of B.J.G. that causes the concern. testimony
After closed, the trial court issued, inter alia, following regarding proof instruction re- quired alleged toas assault on B.J.G.: requires The first element that the defendant have sexual contact any clothed or with Sexual contact [B.J.G.]. intention- touching al area, pubic the breasts or un- the clothed, of with the defendant’s hand or [B.J.G.] defendant’s mouth. right contends this instruction him denied to a unanimous verdict as established Holland v. 134, (1979). Wis. 2d 138, 288, 280 N.W.2d preliminary issue,
A posited by state, is whether defendant waived consideration the issue not objecting at trial. The issue has no merit. In State v. Baldwin, Wis. 304 N.W.2d (1981), supreme our court held: challenge disjunctive jury defendant’s instruc- tion questions raises state and federal constitutional rela- proof beyond tive to the state’s burden of a reasonable right doubt and the defendant’s to a unanimous verdict. go directly integrity These matters to the of the fact finding process, object and the defendant’s failure preclude trial raising should not ap- him from them on peal. [Footnote omitted.] In order to potential determine whether there is a problem require with trial court’s failure to unanimi ty regarding acts involved in assault of B.J.G., this court must! determine evidence whether the *5 one or the defendant committed shows
adduced complete than one sexual assault. more determining in when course conduct criteria for of assault volves more than one and distinct sexual by supreme v. Eisch. in were forth our court State set They v. cited with were discussed Harrell also decisions approval in Eisch. are bound We Eisch and Harrell.
Reading one would meticulously, Eisch and Harrell that B.J.G. this case have conclude under the facts of Thus, more the victim of not but or assaults. one duplicity, problem which is we are faced with the of sep- single joining in a more distinct count of two or 555, Harrell, at 277 N.W.2d arate 88 Wis. 2d offenses. at 465. are
Harrell crimes com reaffirms that when different although mitted, prosecuted separately all each be sequence part of form events. one transaction or necessary to Crimes are different when the evidence Wisconsin, a establish from the Id. In one differs other. primary which test to be used is the “additional fact” test requires proof of an ad examines “whether each count do or counts not.” ditional fact which the other count 809, Rabe, State 291 N.W.2d Wis. (1980). according applied
As to both sexual assault cases Eisch, allegation facts, Harrell all of substitute legal crime, which furnish same element of the charges multiplicitous if are does not result in facts these significantly separated either are differ- time or Eisch, ent 2d at nature in fact. 291 N.W.2d the offend- 803. These different shown when facts are Harrell, perpetrated separate In er has volitional acts. awhile, raped victim, paused then the offender for *6 again. raped her Harrell defend- The court concluded the again ant formed the and intent to assault the victim again applied pur- necessary accomplish force his to pose thereupon completed separate and distinct a and assaulting crime. In Eisch, the defendant all his did separate within a continuous time frame committed but fellatio, intercourse, volitional acts: intercourse, anal and foreign object vagina. insertion into victim’s The separate Eisch court held that each act constituted crime because each act:
separately humiliation to injury, pain, danger, and resulted in fear hardly victim. It can that the be said by allegedly were assaultive acts so similar so committed the defendant they merged other nature that one into the perpe- to be as treated but one Each as offense. by separate acts, trated in- each exercise of volitional body, required volved a different area of the victim’s each separate application ed in a new threat, of force result- and and each danger pain. humiliation, and different and Eisch, Wis. 2d at at 806. N.W.2d finding require
The facts in Harrell and Eisch both here there at least com- were assaults against mitted B.J.G. B.J.G. was assaulted Gustafson squeezed when he her breasts with his hands sucked and got away them with his mouth. She minutes ten passed before he led back couch her to the and assaulted again. only breasts, her This time not did feel but he her placed pubic pants also down hand her and into her area.
The Harrell court identified seven factors determine whether the accused had “fork in the road come to a nevertheless decide to invade a different interest [so [d] subject him his successive intentions that] ma[d]e punishment.” cumulative Harrell, 88 Wis. 2d at Judge 466, quoting N.W.2d at Leventhal’s concurrence (D.C. Cir Irby States, 390 F.2d 437-38 United 1967). applied
The as this are: seven factors case (1) of the Nature the Act. kind and character The attack, In the first acts were different. sucked squeezed Then, he her with his hands. breasts attack, he her. In the second Both hurt her breasts. again placed his hand inside her and also felt breasts squeezing penetrating pubic pants, to her area. her which in- sucking acts are volitional and the and were not pain humiliation fear, duced additional merge another. Like- as into one similar in nature so *7 pubic touching wise, then the and the of the breasts otherwise, say separate acts. To volitional area are also reading Eisch, dishon- pursuant would be to a of strict est.
(2) at least ten Time. The second attack occurred may one, from the first one infer after the and minutes might longer. been interval have even record couch, had able leave Gustafson B.J.G. was to When in the to his “fork time think over. He had come to it a new humiliation road” and did not to commence have upon victim, did. but Although
(3) Place. both occurred the assaults in the interim. couch, the victim in the bathroom was This the couch. The defendant moved the victim back to tends to back to the location of the lend movement couch credence to the of acts. establishment according (4) time, lapse the Har- Intent. The of light in- opinion, rell can further shed on the offender’s illustrates, “interrupted” tent. The conduct here was words, in the of Harrell court’s the “formed intent gratify defendant his victim a himself or abuse Harrell, second act . . . .” 277 N.W. Wis. 2d at at 2d 473.
(5) Cumulative Punishment.
Each act of the defend-
ant,
touching
i.e.,
breasts, sucking
placing
the breasts,
area, is, according
pubic
of
hands on the
the Eisch
interpretation
legislative
separately charge-
of
intent,
Perhaps
able offense.
the Eisch case means that Gustaf-
charged
four,
son
two,
should be
with not
but
all,
counts
squeezing
for violation of B.J.G. After
of
they
painful
the breasts
so
hurt B.J.G. and the
suck-
ing are
Eisch,
not “trivial”
differences. See
(6) suggested by factor, Muscular Contraction. This Harrell, being successfully pulling illustrated as like trigger firing gun If several shots. taken literally, general medical Gustafson’s ac- terminology, multiple tions constituted acts. hands When Gustafson’s another, and face moved from one mus- area B.J.G. cular contractions occurred.
(7) Obviously, multiple Number Victims. victims multiple Here, charged result in offenses. *8 against separate girls. Beyond awith sexual assault both that, this factor is of no concern.
Analyzing criteria, in this case terms of the above logical that, there can nobe conclusion other than accord- ing to Harrell, Eisch and Gustafson should have stood two, accused of or three four of sexual assault counts against B.J.G. problem prosecutors
Herein lies the and trial both judges face as a of the criteria. result Eisch/Harrell defendant, multiple by Where a how acts are committed many charge? prosecutor counts does a Where the evi- separate (and potentially more more acts
dence shows judge charged, do crimes) a are what does trial than instructing jury ? when questions Eisch and Neither of is answered subject are in Eisch and Harrell Harrell. The criteria varying used interpretations can be or wide and and reasonably separation in in time this case abused. The charges. cases, separate In the time supports other Splitting into may this case not be so clear. element though arguably sup- may excessive, four counts be even ported by and Harrell. Eisch face, judge under problems prosecutor a trial a and prosecu- If a circumstances, these not insubstantial. are may counts, charges be there tor numerous problems if she jeopardy multiplicity or double or guesses charges many. prosecutor conserva- on too If a tively guesses wrong, jury instructed is unless unanimity separate act, a unanimi- be for each there ty problem. prosecutors prosecutorial discretion
While have wide multiple charging defendant, point a a where there involving charges single conduct, for a course of albeit touchings body, multiple parts of the could of different legislative unduly intent, some violate the be harsh on defendants, jeopardy a violation. and amount double against splitting a Prosecutors should be forewarned multiple simply into counts because course conduct body Likewise, prose- different area of the touched. judges recognize problems and trial cutors should argu- acts, proof which when the arise shows more ably crimes, charged. more than are potential multiplicity jeop-
Because double ardy problems if criteria that can arise the Eisch/Harrell literally applied split are too and crimes in manner are reason, doubt, prosecutor should excess when conservatively. Eisch read and Harrell He or she should *9 charge, separate counts, only many as as are crimes necessary reasonable and potential punish- so that the charged ment all gravity for counts the fits the alleged course of conduct to have This been committed. may very well mean that in some evidence will cases the potential show more separate acts than are crimes charged. occurs, jury this Where should be instruct- ed on how to with possible deal the evidence to avoid right violation of the defendant’s ato unanimous verdict. defining offense, After the elements court give substantially following should an instruction in form: The case is a criminal case. Your verdict must therefore abe unanimous verdict. A verdict means that unanimous you all twelve of must find each of the offense element proven beyond a this reasonable doubt. In case there is proof may engaged that the defendant have more than may one might you act which constitute a crime. Before guilty you find must charged, the defendant of the offense unanimously agree specific on the act the defendant guilty
committed. You not find if the defendant agree you some of acts, he committed but not one of other, you agree while the rest of he committed the other act. By instructing jury, right so defendant’s protected.1 unanimous verdict will be 1Any argument general that a trial on unan court’s instruction duplicity problem imous verdict would be sufficient to cure the contrary general would be to established case law. The instruc tion reads as follows: jury legally can return a verdict which can be re- [B]efore ceived, unanimously. such verdict must be reached In a criminal jurors agree case all twelve verdict. must in order to arrive at a already supreme Wis J I—Criminal 515. The held that court has reus each volitional act is a harm Actus victim. society has been used describe the harm victim to the 867, 372, Wray as well as the act itself. (Ct. 1978). App. specific N.W.2d Bach harm is conceptual act, or actus case law reus act. Wisconsin *10 unanimity given case, even in this instruction was No though Without were assaults. there at least two viewing any particular and look- the of case of facts this any ing or in are two at the facts time there abstract, the single count, it is crimes combined in a more jury split which of the crimes conceivablethat could judge Therefore, trial should a defendant committed. the jury requirement unanimi- on the of have instructed the ty. reviewing case, however, we the this After facts unanimity problem could been have cannot find that the any defendant testified more than an issue. The abstract girls, they picking up drove the two to that after get cigarettes. apartment into his He went some got cigarettes girls apartment the remained while the dropped the car. He then drove them downtown touching request. of He either them off at their denied girls anywhere any there evidence the time. Had been touching at one or that admitted B.J.G. question in an inno- but claimed to have done times so manner, cent no harmless error. Addi- there would be tionally, testimony if as B.J.G.’s had been inconsistent so juror that one lead reasonable believe of might happened other, but there events have not the question. physical Further, would also be a if evi- testimony adduced, were to differ from similar dence might prob- problems The arise. record disclosesno such lems. jury credibility
The
was faced with the
of B.J.G.
jury
credibility
of
If
be-
versus
the defendant.
juries
separate conceptual
demands
be unanimous as to
each
prohibits.
act that
the law
Holland
(1979).
general
not
instruction
does
N.W.2d
regarding
spe-
jury
must
each
inform
it
be unanimous
crime).
argu-
(separate
accept
an
cific volitional act
To
such
disagree-
guilt
though
would
even
there
be
ment
be
allow
jury
within
to which volitional act was committed.
ment
as
Holland,
Wray
Eisch.
We are
and footnote 5 in
bound
B.J.G.,
guilty
lieved
the defendant was
of all
the acts.
jury
defendant,
guilty
If the
believed the
he was not
any
way
jury
There
offense.
is no
could have
found from the evidence that
defendant
committed
the first set of assaults but not the second or vice versa.
By
jury
guilty,
the unanimous verdict of
found the
guilty
prosecutor’s
defendant
all
the assaults. The
charge
only
decision to
the defendant with
one count of
deprived
sexual assault
in this case
Gustafson of no
*11
right and,
fact,
Any
in
inured to his
error
benefit.
beyond
Chap
this case was harmless
a reasonable doubt.
California,
(1967).
man v.
It is claimed that from Gustafson’s concerning plea minor son the son’s of no contest juvenile right process. court denied Gustafson his to due R.J.G. had been called as a witness on Gustafson’s During cross-examination, behalf. if was asked R.J.G. pled juvenile arising had proceeding he no contest in a out of the same incident. He was also asked if he under- plea essentially guilt. stood was in admission of questions impeach were asked to direct ex- R.J.G.’s testimony sexually amination had not assaulted girl. either objected initially Gustafson’s counsel to this questioning line of acquiesced. argues but soon The state waiver, agree. and we specific objection
A required challenge is an error appeal. Holmes State, 259, 271, v. 2d 251 Wis. (1977). N.W.2d specific objection. There was no claims, however, The defendant plain error, that this was and, therefore, argument the waiver cannot be successful. plain We hold there was no error. which as that has been defined error
Plain error rights seriously of the accused. the substantial affects 166, 192-93, Virgil 267 N.W.2d permits (1978). which It that kind of error is condition proceed fundamental trial in violation of a necessary fair trial. Id. at 267 N.W.2d for a 865. prior disposi- prohibits use of
It the law is true that by juvenile. policy in our state’s This is echoed tions 906.09, Stats., impeach- with deals evidence code. Section Section crime. ment evidence conviction juvenile 906.09(4) specifically evidence of states that It adjudications this rule. is not under admissible affirmatively argued, legislature therefore, that when compels procedure, failure follow certain courtroom plain it is error. however, case, shows in this
Observation of facts legislature Although argument misplaced. to be adjudications prior juvenile has forbidden the use of proceedings, prior adjudication subsequent was court no juvenile ad- used here. not asked about R.J.G. *12 Rather, judication. plea. he was asked about adjudication plea a contrast a and an is The between purpose distinction a The of sec. 906.09 with difference. juvenile prior (4), Stats., prevent what is akin to is being subsequent from in a court “conviction” used however, proceeding. plea, denotes an The tender of a by prior place juvenile, which admission takes adjudication. admission, come an it not actual As does dealing impeachment evidence under sec. 906.09 with Instead, conviction crime. it comes under sec. of of concerning 906.13, Stats., prior witnesses. statements of prior in- of a Section 906.13 allows extrinsic evidence Here, consistent R.J.G. testified statement of witness. girl. that did not assault either admission of His guilt juvenile prior proceeding at a is with inconsistent testimony. Thus, his direct examination prosecution’s purpose presenting juvenile’s plea in only to cast upon credibility doubt of his in-court statement. The purpose atmosphere dishonesty is not to infer an in the witness’ by proof nature which be inferred previous conclude, commission aof crime. We there- fore, procedural that no emasculation of mandate took place here, plain and no error occurred.
The other issue is whether Gustafson’s statement police following incident, in which he admitted girls that bought he had been with liquor them involvement, involuntary. but denied sexual We originally findings note that the trial court’s on this satisfactory. issue were not We remanded to the trial findings court which Drogs issued of fact. See State v. vold, 247, 276, Wis. 2d (Ct. 311 N.W.2d App. 1981). findings against great are not weight preponderance and clear of the evidence. pro arguments, se twenty number,
Gustafson’s in are comprised twenty conclusory sup- sentences with no porting legal authority. thoroughly We have reviewed twenty the record and find all issues to be without merit.
By Judgment affirmed. Court. — YOSS, (concurring P.J. part dissenting part). agree I majority with the that Gustafson’s con- second-degree viction on the involving sexual assault agree C.L.Y. should be I affirmed. also the trial failing give court erred unanimity an instruction on in the however, agree B.J.G. I cannot, case. trial court’s error was harmless.
384 States the United Amendment of
The Fourteenth right trial. guarantees a fair persons all a to Constitution right guarantee to unanimous in this is Inherent process requirement that jury and the due verdict of the offense prosecution prove essential element each 358, Winship, beyond In re 397 U.S. doubt. a reasonable (1970). 364 acknowledge errors of constitutional
I that some doctrine, subject error are to the harmless dimension 150, Sharlow, N.W.2d 317 State v. App. 1982). However, stated (Ct. has this court that: harm- to be We find a constitutional error federal only if it less we “able declare belief are beyond In doubt.” ... order a reasonable
harmless no belief, we must find that there declare such “might have possibility” that the error “reasonable conviction.” contributed [Citations omitted.] Feela, 249, 269, N.W.2d Wis. 2d State (Ct. reviewing App. 1981). I can- record, After not conclude trial court’s to instruct that the failure jury unanimity I was harmless error because believe strong possibility deprived there is a omission right jury of his fundamental to a unanimous verdict. jury improper received instructions. Since the disjunctive instructing
trial court used the mode in jury, jury may they not what have understood actu- ally agree sexually had to on to find that Gustafson had appeal, assaulted way B.J.G. this On court has no knowing during happened jury’s what deliberation. Thus, only speculate jury we can properly on whether the right convicted Gustafson. Since the properly to be peers important tried one’s is an and fundamental safeguard legal process, very our I am reluctant *14 engage speculation. Therefore, in such I cannot because say place jury room, what took in the I declare cannot possibility is no there reasonable the error might to the have contributed conviction. Marriage Attorney’s the Matter Fees re
I n of Maren Rahkonen L. David Rahkonen: Davis, Appellant,
J.M. David L. Respondent.† Rahkonen, Appeals
Court of January 4, No. 82 - 1089. Submitted 1983. briefs Decided March 1983. (Also reported 855.) in 332 N.W.2d pending. petition to review This Petition was not decided at † press. disposition reported went to time the volume Its be will in a later volume.