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Defense win: Evidence about sexual activity with children too general to support many of the convictions

State v. Donald P. Coughlin, 2019AP1876-CR, District 4, 3/4/21 (not recommended for publication), state’s petition for review granted 9/14/21; case activity (including briefs)

In 2010 Coughlin was charged with over 20 counts of having sexual contact with three different children during various periods between 1989 and 1994. The court of appeals holds the evidence was insufficient to convict him of the counts involving  two of the children.

Each child (John Doe 1, 2, and 3) testified that Coughlin engaged him in various “sexual activities” over multiple time periods over many years, including: the charged conduct (Coughlin touching the child’s penis); conduct that falls within the statutory definition of “sexual contact” but was not charged (Coughlin directing the children to touch his penis); and other conduct, that, although sexual in nature, was not charged and that (the trial court ruled) does not constitute sexual assault—for instance, Coughlin watching the child masturbate or masturbating in the child’s presence. (¶¶6-9, 14-15). (That conduct might violate, for instance, § 948.07(3) or 948.10, neither of which were charged here. (¶34 n.12).)

Coughlin argues that when eliciting testimony from the victims that was specific to each of the charged time periods, the prosecutor inquired broadly about whether “it happened” or whether “this type of sexual activity [took] place.” As a result, the testimony failed to distinguish between the charged “sexual contact” and other activities that were not charged or that do not constitute sexual assault, so that for some of the time periods the testimony referred only to conduct that was not charged or that the circuit court had ruled could not form the basis for a sexual assault conviction. Thus, Coughlin argues, the jury was left to speculate about how often and when the charged conduct occurred, and it was not possible to determine beyond a reasonable doubt that Coughlin assaulted any of the victims during any of the charged time periods. (¶¶14-15).

Before addressing Coughlin’s claim, the court notes there’s an issue about how sufficiency of the evidence should be measured in this case: Against the elements described in the jury instructions, as is typical, State v. Beamon, 2013 WI 47, 22, 347 Wis. 2d 559, 830 N.W.2d 681? Or against the crime described in the verdict form? It’s an issue because the instructions defined two methods of sexual contact—Coughlin touching the child’s penis, or causing the child to touch his penis—while the verdict form, like the amended information, asked only whether Coughlin was guilty because he touched the child’s penis. (¶¶16-17).

It is “not normal” for the jury instructions and verdict forms to describe the crime inconsistently, and neither the parties nor the court found any binding authority on how to proceed when the differences between the two could affect the jury’s determination of guilt. (¶¶18 & 9 n.11). Coughlin asserts the court should affirm only if there’s sufficient evidence for the crime described in the verdict forms, which makes abundant sense given that they copied the amended information. Unexpectedly, the state doesn’t argue the court should base its review based on how sexual contact was defined in the instruction, but instead “acts as though the inconsistency did not exist” (¶19), drawing a rebuke from the court for its briefing. (¶17 n.10). So the court assumes without deciding that Coughlin is correct and compares the trial evidence with the crime as described in the verdict form rather than as defined in the jury instructions. (¶19). Needless to say, this issue could well land the case in the supreme court.

The court of appeals disagrees with Coughlin’s claim as to John Doe 1, who testified that Coughlin performed oral sex on him at least once a month from when he was 7 and ending until he left high school. Because this covered all the time periods alleged in the six counts involving John Doe 1, there was sufficient evidence to convict Coughlin of those counts. (¶21). (The court also rejects Coughlin’s argument that oral contact has to be charged as intercourse rather than contact. (¶22).)

But the court agrees with Coughlin that the testimony of John Doe 1 and John Doe 2 isn’t sufficient to support the 15 counts involving them:

¶24     …. Doe 2 testified that “[w]e would play with ourselves, [Coughlin] might play with somebody, might not play with somebody. But [Coughlin] would always masturbate and ejaculate.” Doe 2 was asked about the frequency with which “sexual activity” occurred, but he was never asked about the frequency with which Coughlin touched his penis. When the prosecutor turned to each of the charged time periods, the prosecutor asked Doe 2 whether “it” or “this” happened during those time periods. ….


¶29     As with Doe 2, the majority of the incidents Doe 3 described appeared to involve Coughlin masturbating in Doe 3’s presence and instructing Doe 2 to masturbate in Coughlin’s presence. Doe 3 also testified that “there were times when [Coughlin] would want to masturbate us,” and that there “were times when [Coughlin] masturbated [Doe 3].” Doe 3 testified that “something happened” at least once a week throughout the year. However, Doe 3 was never asked about the frequency with which Coughlin touched his penis. And when the prosecutor asked Doe 3 about each of the charged time periods, the prosecutor asked whether “some type of sexual activity” occurred during that period. ….

Thus, even though both Doe 2 and Doe 3 said that “sexual activity” occurred in each of the time periods, the jury would have had to speculate about whether Coughlin touched either boy’s penis during any of the charged time periods.

The state attempted to “bridge the gap” between the testimony and the elements it had to prove by “capitaliz[ing] on potential ambiguities created by the dual meaning that the prosecutor and witnesses gave to the term ‘masturbate’ throughout the trial.” (¶25 & n.6). While Doe 2 described an incident of Coughlin touching Doe 2’s penis as “masturbation,” and both Doe 2 and 3 testified to frequent incidents of “masturbation,” that testimony, even when viewed in a light most favorable to the verdict, doesn’t support a reasonable inference that Coughlin touched the penis of each boy with the frequency alleged. (¶¶25, 30)

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