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Double Jeopardy – Multiplicity: Sexual Assault — Distinct Intrusions

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.

Holding:

¶59     There is another reason Koller’s second multiplicity challenge fails.  This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse), on the other.  Koller asserts that evidence showing a switch from mouth-to-vagina contact to penis-to-vagina intercourse, without more, does not show a “new volitional departure.”  We disagree.  When a perpetrator moves from having mouth-to-vagina contact to having penis-to-vagina intercourse, he necessarily engages in a new volitional act warranting a separate charge, conviction, and punishment.

State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct. App. 1987), distinguished, ¶60.

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