¶1. The issue in this case is whether the evidence was sufficient to convict the defendant, Brian C. Wulff, of the version of the offense the jury was instructed to deliberate, attempted second-degree sexual assault by attempted genital or anal intrusion.
¶ 2.
We hold that there was insufficient evidence presented at trial to suppоrt a finding of guilt on attempted vaginal or anal intrusion. We therefore reverse the court of appeals' decision and remand to the circuit court with instructions to enter a judgment of acquittal based on
United States v. Burks,
¶ 3. The State filed an information charging Brian Wulff with the offense of attempted second-degree sexual assault. The trial was before the La Crosse County Circuit Court, the Honorable John J. Perlich. The jury was instructed in part that the crime of second-degree sexual assault is committed when a person has sexual intеrcourse with someone who the defendant knows is unconscious. The jury was further instructed that '"sexual intercourse' means any intrusion, however slight, by any part of a person's body or of any object into the genital or anal opening of another." Wis. Stat. § 940.225(5)(b) and (c). The jury returned a general verdict finding Wulff guilty as charged in the information. He was sentenced to probation for a period of four years, with the condition that he be incarcerated for four months with Huber privileges.
¶ 4. Wulff filed a motion for post-conviction relief in the circuit court. In addition to requesting a new trial because of alleged trial errors, Wulff complained that after the verdict it became known that at least one of the jurors had reached her verdict by relying on a definition that was inteijected into the deliberations from an outside source. Wulff also asserted in his motion that the State impermissibly referred to his invocation of the right to remain silent during police questioning. The judge denied the motion.
¶ 5. The сourt of appeals affirmed the conviction, finding it irrelevant that the State failed to prove each of the theories of Wulff s guilt advanced at trial.
State v. Wulff,
*146 ¶ 6. Carrie D., the victim, was 22 years old when she testified. In the early morning hours of September 17,1993, the victim and the defendant encountered one another outside a bar in La Crosse, Wisconsin. The victim and the defendant knew each other from their high school days and had run into one another occasionally while living in LaCrosse. The two began to talk, and Carrie became sepаrated from her friends. After an unsuccessful search for her friends, the victim told the defendant she was about to walk home because she was too drunk to drive. The defendant agreed to walk with her. What happened after they began to walk together to Carrie's apartment is disputed.
¶ 7. According to the victim, Wulff repeatedly tried to kiss her during the hour-long walk to her apartment but she only permitted him to do so once. When they reached her apartment at about 3:00 a.m., she agreed that Wulff could stay overnight if he slept on the couch. After they entered the apartment she showed him the couch in the living room and she went to her bedroom to sleep.
¶ 8. Carrie testified she did not remove her sweatshirt, bra, underwear, or socks before she went to sleep. However, when she awoke she was completely naked and Wulff was sitting on top of her, facing her, and trying to open her mouth with one hand and force his erect penis into her mouth. She screamed, and Wulff got оff her. He kept repeating: "nothing happened, don't worry." Wulff then grabbed his clothes and left. Carrie could not recall how her clothes came off or how a tampon she remembered having in when she fell asleep had been removed.
¶ 9. An examination at the hospital revealed the victim had suffered a superficial abrasion on the inner part of her lip. However, there was no semen found on *147 the tampon she had inserted prior to the examination or on the vaginal, cervical, oral, or anal swabs or smears taken from the victim. Additionally, there were no strands of the defendant's hair found in combings taken from the victim, and no strands of the victim's hair were found in combings taken from the defendant.
¶ 10. According to the defendant's version of the incident, the walk back to Carrie's apartment was marked with interludes of consensual kissing and petting. Wulff also testified that as they approached her apartment, Carrie invited him to spend the rest of the night with her.
¶ 11. Wulff further testified at trial that upon arriving at Carrie's apartment, they went into her bedroom and began to pet heavily and remove their clothes. They abruptly stopped what they were doing when they were startled by a noise. Shortly after they had determined that no one was walking in on them, she passed out.
¶ 12. Wulff claims that he was unable tо fall asleep, so he tried to awaken Carrie to say goodbye. When she awoke, he claimed, she was disoriented and confused. At trial, Wulff asserted that Carrie misconstrued the events of that evening because she had too much to drink.
¶ 13. The information charged Wulff in the precise language of Wis. Stat. § 940.225(2)(d). 2 It alleged that Wulff had сommitted the attempted second-degree sexual assault because he had "sexual contact or sexual intercourse with a person who the defendant knows is unconscious."
*148 ¶ 14. The terms "sexual contact" and "sexual intercourse" are both specifically defined in Wis. Stat. § 940.225(5)(b) and (c). The statutory definition of sexual intеrcourse is:
(b) "[s]exual intercourse" includes the meaning assigned under sec. 939.22(36) [vulvar penetration] as well as cunnilingus, fellatio, or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required,
Wis. Stat. § 940.225(5)(c). The jury instructions, however, did not provide the complete statutory definition of sexual intercourse. The relevant jury instructions were:
Take the lav/ as it is given in the jury's instructions and apply the law to the facts in the case which are properly proven by thе evidence. Consider only the evidence received dining this trial and the law as given to you by these instructions and from these alone, guided by your soundest judgment, reach your verdict.
The crime of second degree sexual assault is committed by:
A person who has sexual intercourse with a person the defendant knows is unconscious.
The first element requires that the defendant had sexual intercourse with Carrie D.
"Sexual intercourse" means any intrusion, however slight, by any part of a person's body or of any object, into the genital or anal opening of another. Emission of semen is not required.
*149 ¶ 15. The jury's verdict was that Brian Wulff was "Guilty of sexual assault as charged in the Information." Wulff asks this court to reverse his conviction because he claims that there was insufficient evidence to support a finding of guilt for attempted genital or anal intrusion.
¶ 16. This court should only reverse the conviction if the evidence, after being viewed most favorably to the prosecution, still has insufficient probative value to prove the theory of guilt submitted to the jury beyond a rеasonable doubt.
State v. Poellinger,
¶ 17. One can commit attempted sexual intercourse in different ways. Although each of the different ways of accomplishing sexual intercourse is conceptually similar, each one constitutes a separate crime when done in a manner proscribed by the statute.
State v. Eisch,
¶ 18. Wulff relies on this court's decision in
State v. Crowley,
¶ 19. In Crowley, alternative theories of the defendant's guilt were presented to the jury. The jury returned a guilty verdict, but it was unclear as to which ground the jury used to convict. This court explained, as follows, the proper means by which to review such situations:
We conclude that, when alternative methods of proof resting upon different evidentiary facts are presented to the jury, it is necessary, in order to sustain a conviction, for an appellate court to conclude that the evidence was sufficient to convict beyond a reasonable doubt upon both of the alternative modes of proof.
Id. at 329. Wulff argues that Crowley stands for the proposition that a general jury verdict can be sustained only if the trial testimony was sufficient to sustain the conviction under any and all theories submitted to thе jury.
¶ 20. Wulff contends that there was insufficient evidence to support a guilty verdict on the theory of genital and anal intrusion. To allow such a conviction based on evidence that is unrelated to the jury instructions violates the fundamental right to trial by jury in two ways: 1) it makes the jury instructions defining the offense superfluous, and 2) it violates the defendаnt's right to a unanimous verdict. 3
¶ 21. The State argues that the opinion in
Crowley
has been called into doubt by the Supreme Court case
Griffin v. United States,
¶ 22. The State argues that based on
Griffin,
Wulff s conviction must stand. We disagree. In
Griffin,
the jury was told that it could return a verdict of guilty if it found Griffin guilty of either one of the two objects of the conspiracy. In the case at bar, the jury was not instructed that it could return a verdict of guilty if it found Wulff guilty of either attempted anal or genital intrusion
or
attempted fellatio. The issue here is not determined by discussing that "[j]ury unanimity in the determination of the mode of committing a single crime is not required."
State v. Crowley,
¶ 23. Here, the issue of attempted fellatio was not submitted to be decided by the jury. Therefore, the jury was not told to consider fellatio as an alternative means of committing sexual contact. It was instructed only on the charge of attempted anal or genital intrusion, and wе can uphold this conviction only if the evidence presented at trial was sufficient to uphold this charge.
*152 ¶ 24. The only facts presented to the jury on the State's theory of an attempted act of genital intrusion were that 1) when Carrie D. went to bed she was dressed and when she became aware of Wulff on top of her, shе was undressed, and 2) she believes she had a tampon inserted and when she came to there was no tampon. The police could not find it any place on the premises. The evidence of attempted genital intrusion is insufficient to support a conviction on this charge.
¶ 25. Although there was no evidence to рrove an attempted genital or anal intrusion, admittedly there was evidence sufficient to sustain a conviction on review if the jury had been instructed to deliberate the fellatio intercourse or sexual contact theories of culpability. However, in
Chiarella v. United States,
¶ 26. The Illinois Court of Appeals recently decided this issue in a case with facts analogous to those in
Wulff.
In
People v. Scott,
¶ 27. The situation in this case is similar to that in Scott. The evidence before the jury did not support a finding of guilt on attempted genital or anal intrusion, and the general verdict leaves us uncertain as to under what theory the jury found guilt. We can uphold Wulffs cоnviction only if there was sufficient evidence to support guilt on the charge submitted to the jury in the instructions.
¶ 28. The instructed definition of "sexual intercourse," did not include the term "fellatio" or the words "oral intercourse." There was sufficient evidence, if believed by the jury, to find the defendant guilty of fellatio. However, the jury was not instructed оn that charge, so we cannot affirm Wulffs criminal conviction based on the theory of attempted fellatio.
¶ 29. As to attempted genital intrusion evidence, the "appellate court may not reverse a conviction unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt."
Poellinger,
¶ 30. We hold that there was insufficient evidence presented at trial to support a finding of guilt on attempted vaginal or anal intrusion. We therefore reverse the court of appeals' decision and remand to the circuit court with directions to enter a judgment of acquittal. There are two other issues presented. However, since our insufficiency of evidence determination is dispositive, we need not address these issues.
By the Court. — The decision of the court of appeals is reversed and the cause is remanded with directions to enter a judgment of acquittal.
Notes
The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. Amend. V.
Wis. Stat. § 940.225(2)(d) provides that whoever "[h]as sexual contact or sexual intercourse with a person who the defendant knows is unconscious" shall be guilty of a Class C felony.
The right to a unanimous verdict is secured under Article I, sections 5 and 7 of the Wisconsin Constitution.