State v. Sauceda

Wisconsin, Plaintiff-Respondent-Petitioner, State Sauceda, Defendant-Appellant. Abel

Supreme Court February argument 1992.—Decided Oral No. 90-1441-CR. June 1992. 1.) (Also reported in 485 N.W.2d For the plaintiff-respondent-petitioner the cause argued by was McGlynn Flanagan, Maureen assistant attorney general, with whom on the briefs James E. Doyle, attorney general.

For defendant-appellant there was a brief and argument by oral Mark Lukoff, public assistant state defender.

CALLOW, G., WILLIAM J. This is a review (Rule) 809.62, Stats., under sec. published of a decision Sauceda, of the court appeals, State v. (Ct. 1991). App. N.W.2d 798 The court of

appeals part reversed in a decision of the Kenosha court, county circuit Judge Breitenbach, Jerold W. and that defendant-appellant held Abel Sauceda's Fifth Amendment right to be free from jeopardy double was violated when he was convicted of both first and second degree sexual arising assault out of a single course of sexual nine-year-old conduct with a sleeping girl. The appeals court of remanded the case to the trial court for resentencing only to be based on one of the convictions. issue raised on review is whether defendant's convictions of first degree and second sexual years age contact with a child twelve assault for sexual the defendant knows is unconscious younger whom Jeopardy Double Clause of the Fifth Amend- violates the I, Constitution1 and sec. 8 ment to the United States art. Constitution.2 We hold that the two of the Wisconsin right in this case do not violate Sauceda's convictions jeopardy. from double Under the well-established be free test,3 Blockburger requires proof each of these offenses Therefore, of an element that the other does not. double multiple punishment for these jeopardy does not bar addition, contrary there is indication offenses. no of a reasons, For these we deci- legislative intent. reverse the appeals. sion of in dispute.

The relevant facts are not On the eve 29, 1989, ning babysitting of June Abel Sauceda was his nieces, nieces had a ages two seven and ten. The each nieces, spend night. friend over to One of the female T.K., friend, K.J., slept sleeping bags and her on the years During K.J. was nine old. dining room floor. night, asleep" K.J. was "half when she felt someone fully up area. She not wake touching vaginal her did Later, she she felt someone asleep. fell back awoke when tickling lying her feet. She saw Sauceda on the floor at appeared asleep. pajamas her feet. He to be K.J.'s had pulled up underpants been and her had been removed. Jeopardy to the 1 TheDouble Clause of the Fifth Amendment United States Constitution states: any person subject ... shall for the same offense to be twice [N]or

put of life or limb. I, states, in 2 Article sec. 8 of the Wisconsin Constitution part: (1) person put in ... for the offense twice same [N]o punishment. States, (1932).

3 Blockburger v. United U.S. 299 they K.J. T.K. upstairs woke went to wait for T.K.'s parents parents to return home. When the returned home, Sauceda was sleeping found on the dining room underpants floor. K.J.'s nearby. were found respect K.J., With to the incident with the trial degree convicted Sauceda of first sexual assault in 940.225(1)(d), 1985-86,4 violation of sec. Stats. for hav ing sexual person years contact with a age twelve or younger degree and second sexual assault violation of 940.225(2)(d), 1985-86,5 sec. for having sexual contact person with a the defendant is knows unconscious.6 Judge Breitenbach sentenced Sauceda to years four prison for the degree first sexual years assault and ten probation for the second degree sexual assault. Sauceda post-conviction filed motion for relief on ground the two convictions violated his right to be free 940.225(1), 1985-86, provides 4 Section Stats. in relevant part: degree (1) any assault. Whoever does First sexual of the

following guilty felony: is of a Class B (d) person Has contact or sexual intercourse with a sexual years age younger. 940.225(2), 1985-86, provides 5 Section Stats. in relevant part: degree (2) any assault. Whoever does Second sexual

following guilty felony: of a Class C (d) person Has sexual contact or sexual intercourse with a who the defendant knows is unconscious. 6 The defendant was also convicted of an additional two degree counts of first sexual assault violation of sec. 940.225(1)(d), 1985-86, involving Stats. two of the other children However, evening. these additional convictions are not at issue on this review. jeopardy. court denied Sauceda's The trial double

from Blockburger applied "ele- The trial motion. only" crimes test, conviction of two which allows ments requires proof an additional element of crime if one not, that double and concluded crime does other charges. jeopardy both conviction on not bar did dissenting, Judge appeals, Nettesheim The court involving the two convictions remanded and reversed K.J., rights holding were double that Sauceda's Blockburger apply majority refused to The violated. reasoning only" test, was relevant that it "elements analyzing included under the lesser statutes when Instead, this was a the court stated that offense doctrine. problem multiplicity Rabe fact" thus the "different and although majority that, held be utilized. test should "facially" different, both at issue are the two crimes inability legal thread of the common crimes share this, the court contact. Because to the sexual consent and law. the same fact the two crimes were held that majority addition, lan- found that In guage history an intent did not evince and separate two offenses. violations constitute that the right argues review, State jeopardy that Sauceda's On the con- is not violated from double be free degree assault of K.J. second sexual for first and victions only" Blockburger is "elements test contends that the It requires applicable because each offense satisfied response, proof does not. that the other of an element argues because are the same that the offenses Sauceda inability to the to consent to the victim's each relates the victim contends that when Sauceda sexual contact. presumption that the unconscious, arises a rebuttable is give consent; victim when the informed could not victim presumption the vic- minor, arises that an absolute give asserts, there- consent. He informed tim could not fore, anytime minor, victim sexual assault is a prosecution degree the limit of is first sexual assault. a Whether defendant's convictions violate his jeopardy rights double under the Fifth Amendment I, the States United Constitution and art. sec. 8 of the question Wisconsin Constitution ais of law. State v. 101, 107, 124 Kramsuogel, Wis. 2d 369 N.W.2d 145 (1985). Therefore, this owes no deference to the the on decisions of lower courts this Id. issue. The jeopardy language double Fifth Amend- I, ment sec. and art. 8 of the Wisconsin Constitution is person almost identical and declares that no shall be placed in jeopardy punishment twice of for the same Jeopardy offense. The Double pro- Clause is intended to protections: protection vide three against pros- a second ecution for the same acquittal; protection offense after against prosecution a second for the same offense after conviction; protection against punishments Pearce, for the offense. same North Carolina v. 395 U.S. (1969). present The 717 case deals with the third of these protections. scope of this pro- constitutional dependent tection upon meaning the words Gordon, "same offense." State v. (1983),

N.W.2d 564 we stated: Supreme The United States Court has determined imposes multiple punishment that where a court in a single trial for violations two or more criminal arising conduct, statutes from same criminal constitutionality multiple punishment depends of the on legislature whether the state intended single offenses, violations constitute a offense or two legislature punish- is whether the intended one multiple punishment. ment or Gordon, v. 2d North Carolina (citing Wis. at Hunter, Pearce, (1969), U.S. 711 and Missouri others). (1983), among 459 U.S. 359 permits prose- Initially, legislature we note that the statutory provision more than one for the cution under courts, 939.65, Section Stats.7 The lower same conduct. however, applicable be in to the seemed to confusion as effectively protect jeopardy test. In order to double defendant, jeopardy interests of the Wisconsin double multi- analysis to determine whether utilizes two-fold imposed upon the ple punishments defendant. component multiplicity The first the test for involves Blockburger only" test.8 application "elements 939.65, Stats., 7 Section states: permitted. than 939.65 Prosecution under more one section punishable for more If an act forms the basis a crime under than one any statutory provision, prosecution may proceed under or all such provisions. Corbin, (1990), Grady But see also v. 495 U.S. 508 for discussion parameters in which the same conduct of the constitutional may already prosecuted has be used to which the defendant been subsequent of an in a establish essential elements offense prosecution. regarding applicable for claims of multi

8 Confusion test applied plicity the tests has arisen because of the various labels to charging particular of used this court to determine whether the multiplicious. analysis is An of tests demonstrates offenses these test, Blockburger only" "additional fact" that the "elements Rabe, in test and the "identical law or "different fact" found Meter, 242 fact" test of State Van 72 Wis. 2d (1976), essentially Regardless are all same test. N.W.2d called, is the test remains whether each offense what test requires proof which other of an additional element or fact punishments permissible Multiple do not. are offense offenses requires proof if an element or fact each offense additional Blockburger only" "elements test was codified under 939.66(1), sec. Stats.9 " test, only"

Under the "elements an 'offense is a statutory 'lesser if included' one all of its ele- proof any ments can be demonstrated without fact proved or element in addition to those which must be " 'greater' Carrington, for the offense.' State v. 260, 265, (1986) Wis. 2d (quoting N.W.2d 484 Hagenkord, 452, 481, State v. which the Conversely, multiple other offense or offenses do not. punishments constitutionally are barred as the "same offense" under double if the offenses are both identical in law and aptly explains identical in fact. The dissent how the focus of the changes respect particular situations, test with In cases. some case, present such as the underly- where the factual circumstances ing identical, the offenses are the same or the determinative inquiry is whether the offenses are lesser-included offenses of requires proof each other—whether each offense of an additional situations, element that the other does not. other such as Rabe, alleged where a course of conduct is to have constituted statutory provision, violations of the same the determi- inquiry requires native proof whether each offense of an addi- tional that the other offenses recog- do not. The Rabe court fact though may nized that even the offenses be identical and section, contained within the same the factual circum- may separated stances significantly in time or different justify Rabe, multiple punishments. nature to 96 Wis. 2d at 65-66. The acknowledge dissent refuses to that the test remains though application the same particular even its situations differ. 939.66(1), Stats.,

9 Section states: permitted. Upon prosecution Conviction of included crime for a crime, may charged the actor be convicted of either the crime or an crime, any included but not both. An included crime of the following: (1) require proof any A crime which does not fact addi- provided charged. tion to those which must be for the crime (1981)). N.W.2d offense is not a lesser- "[A]n if included one it contains an additional Hagenkord, Id. (quoting element." 100 Wis. 2d at 481). Kuntz,

State v. 722, 754-55, 467 N.W.2d (1991). If charged each offense is not considered a lesser other, pre included offense of the then this court shall legislature permit sume that the intended to cumulative punishments for both offenses. Id. at 755. The "elements only" applies regardless test of whether the two offenses separate statutory are contained within the same or sec component tions. The second multiplicity test inquiry involves an into other factors which would evi intent. Id. at contrary dence State v. 756; a Rabe, 48, 63, (1980). 2dWis. 291 N.W.2d 809 Blockburger States, v. United

In 284 U.S. 299 (1932), Supreme the United States Court held that where the same act constitutes a violation of two distinct statutory provisions, Jeopardy test under the Double provision requires proof Clause is whether each of a fact Blockburger, which the other does not. 284 U.S. at 304. case, present pertinent require statutes each proof of a fact the other does not. Section 940.225(1)(d), 1985-86, requires Stats. the victim of the years sexual assault to be age younger. twelve Sec- 940.225(2)(d), 1985-86, tion requires proof that the vic- tim of the sexual assault was unconscious and that defendant knew that the victim was unconscious. These completely are different factual elements that must be doubt, proved, beyond a reasonable the state. Con- trary appeals' opinion to the court of and Sauceda's con- tention, inability to consent to the sexual contact is not required statutory provision. element of either Section 940.225(4), 1985-86, specifically states that ”[c]onsent (1)(d) and of subs. alleged violations

not an issue (e)." Therefore, for first (2)(c), (d) the convictions and satisfy in this case sexual assault degree and second only" presump test. The statutes Blockburger "elements multiple punishments.10 tively allow for dissenting opinion's the defen conclusion that while 10 The offenses, felony may multiple the defendant dant be convicted depar penalty is may only subject to for one offense a radical be practice in Section present and Wisconsin. ture from the law may 973.15(2), Stats., specifically provides that ”[t]he may pro many and impose sentences as there are convictions as to any be concurrent with or consecutive that such sentence vide previously." If imposed any at the same time other sentence punishment imposed upon the is concerned about the the dissent offenses, point multiple that one of we out defendant convicted sentencing judge impose options is to concur available to the upon than consecutive sentences the defendant. rent rather pages dissenting opinion on 504 and 505 at nn.5 and 6 supports dissent contends cites to several cases which the proposition present convictions but that law allows However, only punishment of those convictions. limits one they in because fact reinforce the dissent misreads those cases 973.15(2), Stats., majority's position pursuant a court to sec. convictions, if may impose many but as sentences as there are verdicts, may jury presented the defendant be with alternate only charges guilty set forth found and convicted on one of Karpinski, in State v. the alternate verdicts. The court 611, 175 (1979), 599, merely prosecut reiterated the N.W.2d 729 attorney's ability prosecute ing under more than one Resler, provision In State v. for the same criminal conduct. 285, (1952), 293, the court directed the circuit Wis. 55 N.W.2d jury defendant is court to instruct the the case where a influence, death, (1) charged driving causing with under the (2) manner, death, negligent causing driving in a reckless and may guilty charges. jury on one of the find the defendant Similarly, Bohacheff, in State v. 2d Wis. (1983), a defendant is

N.W.2d 466 this court held that where contrary A intent derived from statutes, language history, of the the legislative the the conduct, proscribed of the appropriate- nature the and Kuntz, multiple punishments. ness of 160 Wis. 2d at 756. However, analysis an of these fails to factors indicate a contrary intent. legislative

The language of the statutes and their history support the conclusion the legislature intended punishments for these offenses. The 940.225, 1985-86, provisions prima- under sec. Stats. are rily protecting directed at one's freedom from sexual Its subsections assault. various define different methods any of sexual assault. The violation of one of those sub- in way no immunizes from sections the defendant violat- ing the any during same or other subsections course of sexual misconduct. years,

For more than the criminal offenses of sexually sexually a minor assaulting assaulting and a incapable person communicating of consent to the sex separate ual contact or intercourse have remained and See secs. 944.02 and provisions. distinct 944.10-.11, Stats. created 1955 c. which repealed 940.225, recreated as of part were and sec. Stats., by Recently, legislature 1975 c. 184. created 948.02, Stats., Child," sec. entitled "Sexual Assault of a charged (1) driving with both while under influence of an intoxicant, (2) driving having while alcohol a blood count of more, may only 0.10% or the defendant be convicted and sen- holding, for one of tenced the offenses. so Bohacheff rejected possibility allowing judgment of to render the court multiple convictions, limiting punishment but one convictions. Neither Resler nor judg- those allowed a Bohacheff charges ment of on both conviction for set forth of the alter- nate verdicts. consolidation of crimes major of a revision and part

as 1985-86, 940.225(1)(d), Stats. children. Section against 948.02(1), Stats. 1987 repealed and recreated as sec. was 940.225(2)(d), Stats., has 332. Section Wis. Act of an unconscious intact for the sexual assault remained may legal that a "common person. While it be true offenses involved this thread" with the two criminal informed inability give of the victim con- case is the appeals activity, the court of erred sent to the sexual analysis by focusing solely on the narrow issue of its sense the case of an consent. Common dictates itself, state without person unconscious the unconscious more, presumptively prevents giving informed consent. by the introduction presumption This be rebutted 940.225(4), other evidence. Section Stats. With minor, an respect to a victim of sexual assault who is a activity inability give to informed consent to the sexual by presumption absolute not be rebutted is an A of the various subsections other evidence. review 940.225, 1985-86, differing punish- under sec. and their clearly inability demonstrates to consent to ments activity the sexual is not the sole consideration punishment.

A sexual assaults is legal common thread for all inability consent or lack of consent to the sexual con However, legislature punishes or intercourse. tact differently convicted of assault based defendants sexual solely sec. age on the victim's or mental state. Under 940.225(1)(d), 1985-86, Stats. sexual contact with a years felony B age younger minor twelve a Class punishable by up twenty years imprisonment. Under 940.225(2)(e), 1985-86, sec. sexual contact with a minor age years age who is over the of twelve and under the years felony punishable by sixteen is a Class C a fine up years imprisonment. sec. to ten Under and/or 940.225(2)(d), person 1985-86, sexual contact with a who the defendant knows is unconscious is also a Class felony. C Nonconsensual sexual contact with an adult 940.225(3), 1985-86, under sec. A is a Class misde- punishable by up meanor imprisonment. a fine to nine months and/or punished Because these offenses are dif- ferently, inability to consent or lack of consent is not the by legislature sole factor considered when determin- ing punishment for defendants convicted of these likely offenses. Other factors included the nature of the ability conduct, the of the victim to understand the com- plexities consequences activity, involved with sexual especially potential and, physi- victims, with minor psychological resulting cal and harm from the sexual molestation. proscribed supports

The nature of the conduct also legislature the conclusion that intended punishments. appeals posit Sauceda and the court of an interpretation of the sexual assault statute that flies in precedent the face of established this court and sound They reason. contend that a course of sexual misconduct upon the same victim could not constitute more than one 940.225, sexual assault under sec. Stats. stark contrast, Eisch, this court held State (1980), charging 291 N.W.2d 800 that an information degree the defendant with four counts of second sexual multiplicious assault was not and did not violate double charges single where the resulted from a course against spanned just of conduct the same victim that two genital and one-half hours and included and anal inter- object course, fellatio, and the insertion of an into the genitals. Eisch, victim's 96 Wis. 2d at 42. The Eisch although court stated that the sexual misconduct against during the same victim and the same course of multiplicious charges conduct, do not if arise the facts significantly in or are of a time separated "are either case, Id. at 31. present In the in fact." nature different time, acts, separated not while separate assaultive in fact. nature different significantly are assault the sexual of a minor and The sexual assault separate and distinct person are two unconscious of an distinction, the fol- this To illustrate offenses. criminal helpful.11 The scenario scenario is hypothetical lowing sexual molesta- attempted but unsuccessful an involves Minor, age of twelve minor under a tion of conscious until Minor old, Offender waits by adult Offender. years concern, A major the child. asleep and then molests falls sleep- is awake or the minor victim of whether regardless harm psychological potential physical ing, is the However, an the sexual molestation. resulting from events described the two important distinction between Unlike a con- state of the victim. is the conscious above individual —adult or person, an unconscious scious an by words or actions communicate minor —cannot activity prevent or enter into the sexual unwillingness to possible occurring. quite It is assault from the sexual sexually have never would instance that Sauceda this time. He asleep been at the K.J. had she not assaulted sexually molest a con- had the nerve might not have opportunity to might K.J. have had the person, scious or or by fleeing the situation sexual molestation avoid the fact, upstairs run K.J. and T.K. did help. yelling awoke and parents T.K.'s once K.J. the return of await interpretation happened. what had realized posited by Sauceda and the sexual assault statute hypothetical to illustrate the distinction is used 11 This unconscious options a conscious and an between the available way facing possible It no sexual assault. individual supplement of this supplant the facts on the record intended to case. appeals impression creates the absurd legisla- that the

ture intended to address one of the primary two concerns involved here. We do not think that the legisla- ture intended such an absurd result. An important aspect of freedom from sexual person's ability assault is a prevent unwanted sexual contact. Even though the target of aggression may minor, sexual be a the minor possesses ability prevent the sexual molestation. An person unconscious no longer possesses the ability of prevention. reasons,

For the foregoing we conclude that leg- islature intended that multiple punishments attend the separate two offenses. Sauceda's convictions of first and second degree sexual assault for the sexual contact with K.J. while she was sleeping multiplicious and, are not therefore, do not jeopardy. violate double Accordingly, we portion reverse that appeals' the court of decision insofar as it holds that the convictions of Sauceda for degree first and second sexual assault of K.J. violates his right to be free from double jeopardy, and we reinstate Sauceda's sentences on both offenses as determined the trial court.

By the Court —The decision appeals of the court of is reversed. ABRAHAMSON,

SHIRLEY S. J. (dissenting). defendant was charged with violating two statutes in a (1) single prosecution: sexual contact with a child under 12 (first-degree assault), (2) sexual sexual contact with an person unconscious (second-degree sexual assault). offense, For each the state introduced evidence of one act —the single, defendant's uninterrupted touch- ing of the vagina child's while the child was sleeping. The defendant was punished convicted of and for violat- the defen- concludes that majority statute. The

ing each violated have not been jeopardy guarantees dant's double I appeals. court reverses the decision and dissent.

I. Supreme States of the United pronouncements The perplexing puzzle.1 The jeopardy are a Court on double the Tower courts opinion concludes that majority [in applica- in as to the to be confusion seemed Wisconsin] opinion Any 493. Majority at jeopardy test." ble double appeals in or the court of the circuit courts confusion majority opinion.2 dissipated the will not be opinion's majority I with the characteriza- disagree Blockburger v. only test from elements tion of the States, (1932), "essentially as the United 284 U.S. 299 fact," fact," "different or "iden- as the "additional same" Majority opinion in test. at 493 n.8. tical fact and law" though these tests even we have distinguish Our cases imprecise language. the tests with often stated Blockburger the test as an ele- Wisconsin law treats given a only ments test used to determine whether another, included offense of sec. 939.66 offense is a lesser 1989-90, (1), whether for double and to determine Stats. charged the two or more crimes are jeopardy purposes only test applying offense.3 When the elements the same Jeopardy: Pieces Are the Double McKay, 1 See Monroe G. Puzzle?, (1983). L.J. Washburn multiple jeopardy and 2 For criticism of this state's double Note, Multiple Punishment decisions, punishment Wis see It Desirable to Permit Two the Wolske Decision: Is consin Death?, Causing Single Homicide Convictions for 1990 Wis. L. 553; Note, Critique Lesser Included Wisconsin's Rev. Offense Rule, 896, Wis. L. Rev. 896. Carrington, 263-64, 260, 3 State v. 2d 397 N.W.2d 134 Wis. offenses, defining we focus "on the statutes not the State v. Car given activity." facts of a defendant's rington, 260, 264, 397 (1986). 134 Wis. 2d In N.W.2d 484 case, majority opinion apparently this applying Blockburger test elements determining whether one crime is the lesser included offense of the (1) other under sec. 939.66 and whether two crimes under charged are the same offense double guarantee. Rabe, v. State majority cites 96 Wis. 2d Meter, and State Van (1980),

N.W.2d 809 (1976), which, 242 N.W.2d 206 unlike the case at bar, the accuseds each faced convictions under a single statutory provision. these cases searches intent for the about the unit of con- Furthermore, in Rabe punishable. duct court Van Meter applied test, an additional fact not an ele- test, ments only applying because a statute single prove elements that the state to needed under each count were To imper- identical. decide whether the state would missibly multiple convict the accuseds times for the same course of conduct in violation the constitutional the Rabe and Van guarantee against jeopardy, double Meter courts needed to determine whether charge each required proof of an fact of additional the accused's con- Meter, duct.4 Rabe and Van resolve a double State, (1986); Hagenkord 452, 481, 302 v. 484 Wis. 2d 100 N.W.2d State, Randolph (1981); 630, 640, 421 Wis. 266 2d N.W.2d (1978); Note, Multiple Punishment in Wisconsin and the Wolske Is Decision: It Desirable Permit Two Con Homicide Death?, Causing Single victions a Rev. 1990 Wis. L. for n.42; Note, Critique & Wisconsin's Lesser Included Offense Rule, L. Rev. Wis. 896. Rabe, order, pretrial 4 In reviewing permitted the court charge state to an accused with four counts of homicide intoxi- jeopardy issue the case from the double issue distinct this case. thus do not control at bar and II. prosecutor could I this case conclude offenses, but attempt prove both charge and only punished one the defendant would' comports with This conclusion upon offense conviction. precedent. judicial the statutes and 1989-90, 939.65, provides that "if an Stats. Section punishable under more the basis for a crime act forms may proceed statutory provision, prosecution than one This statute states a any provisions." or all such under may prosecutor and makes clear that the pleading rule of multiple sections of the criminal code proceed under under each statute. It does not alleging the same conduct convictions, on purport to state the limitations sentences, prosecutions for the same conduct.5 more than one

When the same conduct satisfies legisla- and the court concludes that the criminal statute punished only once even ture intended the accused to be statutes, or more our though the conduct violates two submit all counts to cases hold that the circuit punished fact-finder but the accused is once.6 resulting from the deaths of four cated use of a motor vehicle Meter, In Van upheld people in the same auto accident. the court officers, fleeing police eluding two convictions for one for Wood eluding Portage County County and for officers officers one same car chase. Judiciary Legislative Council Committee

5 V Wisconsin Karpinski, v. Code, (1953); State Report on the Criminal at 52 599, 611, (1979); Remington 175 N.W.2d 729 Frank J. Wis. 2d Convicting, Sentencing Joseph, Charging, and Allan J. and Offender, Multiple Criminal L. 1961 Wis. Rev. 530-31. (1) jury, submitted to the whether defen- the two counts are [I]f According to United States Supreme prece- Court dent, in determining the legality multiple punish- ments under different statutes a single prosecution act, single the determinative factor is legislative intent. Did the legislature punishment intend one or more than punishment?7 one The state's brief concedes that operated liquor, dant a motor vehicle while under the influence of death, (2) causing operated and whether defendant a motor vehicle negligent

in such a reckless and manner as to cause the death —the jury guilty court should instruct if it finds the defendant count, finding second, on the first it should make no on the and if it guilty second, finding finds him on the it should make no on the first. Resler, 285, 293, (1952). State v. 262 Wis. 55 N.W.2d 35 940.25(1)(a), (b), (c), 1981-82, Section Stats. authorized the prosecutor charge causing accused with two great counts of bodily being by operation harm to another human of a motor operation vehicle. One count was for while under the influence of intoxicant, an operation and the second count was for while hav ing a blood alcohol concentration of 0.10% or more. The statute further authorized the guilty fact-finder to find the accused both counts. The guilty court concluded that the dual verdicts rise, give however, only punishment, one conviction and one stating "although provisions might these of sec. 940.25 legislature read to indicate that the intended two convictions even only occurrence, if there is one incident or legisla other indicia of legislature tive intent make it evident that the authorized purposes one Bohacheff, conviction for all ...." State 114 Wis. 402, 412, (1983). 2d 338 N.W.2d 466 Remington

See Joseph, Charging, also Frank J. and Allan J. Convicting, Sentencing Multiple Offender, Criminal L.Wis. Rev. 545-51. question punishments

7 The of whether two are constitution ally permissible, regardless of whether the two statutes constitute offense, depends legislature the same on whether the intended one punishment or two. The focus is on intent when deter mining constitutionality multiple punishments. Missouri v. presented in of intent this case legislative issue

ultimate susceptible more than one is, theoretically, at least A common- analysis. State's Brief at 29. philosophical leads to the analysis of the sexual assault statutes sense punish legislature that intended to an conclusion the perpe- sexual assault or contact accused once each legislature not victim that the did intend trated on a statutory punishments for the two violations multiple was this case for charged which the defendant with single act. his multiple pun- silent

The statutes at issue are about against of sexual contact one single ishments for act I must examine legislative victim. To determine intent statute, proscribed the language nature of conduct, single is a or course of con- whether there act duct, are significantly whether two offenses different they may separate punish- as deserving so that be viewed ment, different interests whether two offenses invade Hunter, Kuntz, 359, (1983); State U.S. 160 459 368-69 Wis. 2d Gordon, 753-54, (1991); State v. 2d N.W.2d 531 Wis. (1983). 133, 137-38, 330 N.W.2d 564 noted, Supreme incorpo- have As others Court's formula by rating jeopardy into the state law reference double clause is Supreme The Court has effect made the constitutional flawed. irrelevant, guarantee jeopardy superfluous or of double redundant analysis of when it decreed a court's constitutional double jeopardy analysis is identical to and derivative from its Hunter, (Marshall, J., of intent. 459 U.S. at 369-74 Jeopardy: Three Westen, Faces Double dissenting); Peter Statutes, Appeals on Government Criminal Reflections (1980). proposes L. Rev. Westen Mich. Professor operate presumption against as a the double clause find- punishments; ing presumption that state law intends can be overcome clear and unmistakable evidence that punishments law intends the offenses and the to be cumula- state L. Rev. tive. 78 Mich. at 1026. public, the victim or and rules statutory of

construction.8

In this the in engaged case defendant one time one proscribed against form of victim. conduct one The protected interest both is the statutes same —freedom from non-consensual sexual contact. Both statutes deal give with a victim ability whose to informed and mean- ingful to impaired: consent sexual contact is a victim years under 12 of age; a victim who unconscious. Nothing legislative history the of the assault sexual laws legislature pun- demonstrates the intended ish a twice touching defendant for one the when victim was under precluded two disabilities which meaningful and informed consent. the Applying strictly rule of con- struing criminal statutes safeguard the defendant's rights, or rule I lenity,9 any the of conclude that doubt concerning legislature's the intent should resolved against a turning single opportunity act into an for mul- tiple punishments. sum, the language and history statutes, the of proscribed nature the con- duct, similarity the statutory of the two offenses and addressing their the public same interests of the and the victim, and the rules of all lead to construction the conclusion that the legislature punish- one intended ment for overlapping statutory the two offenses and that did legislature not so signifi- view offenses as cantly separate different as to punishments. deserve Kuntz, 722,

8 State v. (1991); 160 Wis. 2d 467 N.W.2d 531 Bohacheff, v. 402, 338 (1983); State State Wis. 2d N.W.2d 466 Gordon, 133, (1983); Missouri v. 330 N.W.2d 564 Hunter, (1983). 459 U.S. Bohacheff,

9 State v. 2dWis. 338 N.W.2d 466 Morris, (1983); 282, 289-90, State v. 2d 108 Wis. N.W.2d 264 (1982). years legislature adopted a has multi-

Over the overlapping prohibiting the same tude of statutes gov- multiplicity This of statutes of conduct. courses prosecu- overlapping gives erning conduct the same or charge. choosing which crimes to broad discretion tors changes majority, approach however, taken prosecu- adopted facilitating legislatively means punishing means accuseds times into a tion approach majority's act. The increases the for the same oppression, governmental potential harassment, legislature I not think intended to create do abuse. punish- should The courts not cumulate this outcome. single act in for the accused's the absence ments legislature. from definitive directive clear and forth, I For the reasons set dissent. Chief

I am authorized to state Justice Nathan joins dissenting opinion. HEFFERNAN this S.

Case Details

Case Name: State v. Sauceda

Court Name: Wisconsin Supreme Court

Date Published: Jun 1, 1992

Citation: 485 N.W.2d 1

Docket Number: 90-1441-CR

Court Abbreviation: Wis.