State v. Ludwig Guzman, 2001 WI App 54, 241 Wis. 2d 310, 624 N.W.2d 717
For Guzman: Robert E. Haney
Issue: Whether a verdict of acquittal in the defendant’s prior trial estopped the prosecution from retrying the ultimate fact resolved by that acquittal.
¶7 ‘Under the collateral estoppel doctrine an issue of ultimate fact that is determined by a valid and full judgment cannot again be litigated between the same parties in a subsequent lawsuit.’ State v. Vassos, 218 Wis. 2d 330, 343, 579 N.W.2d 35 (1998). The issue of ultimate fact presented in both trials was whether Guzman handed the gun over to a co-conspirator during a meeting at Guzman’s house on November 24, 1997. The jury in the first trial concluded that Guzman was not in possession of a gun at that time. Therefore, the State was estopped from arguing during the second trial that Guzman was in possession of a gun at that time. The first jury had already decided this issue of ultimate fact in Guzman’s favor.¶8 Our conclusion, however, does not affect the conviction on the substantive charge of criminal gang member solicitation because there is other evidence in the record sufficient to sustain the jury’s conviction on that charge. See State v. Peete, 185 Wis. 2d 4, 23, 517 N.W.2d 149 (1994). Based on our conclusion, however, Guzman is entitled to a resentencing on the criminal gang member solicitation conviction, without consideration of the penalty enhancer for use of a dangerous weapon. See State v. Avila, 192 Wis. 2d 870, 893, 532 N.W.2d 423 (1995). Accordingly, we reverse that portion of the judgment and remand for resentencing with directions to the trial court to resentence Guzman on the gang solicitation charge without the while armed penalty enhancer.