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SCOW to address issues concerning sufficiency of evidence review

State v. Donald P. Coughlin, 2019AP1876-CR, petition for review of an unpublished court of appeals decision granted 9/14/21; case activity (including briefs)

Issues presented (from State’s petition for review)

1. How does a court consider the theory of guilt in an evidence sufficiency claim when an inconsistency exists between a jury instruction and verdict?

2. Must a court accept a jury’s resolution of any vagueness in testimony as jury credibility and weight determinations and must a court then adopt the reasonable inferences that a jury may have drawn from the evidence?

3. Has Coughlin, as the defendant challenging the sufficiency of the evidence, met his heavy burden to overcome the great deference this Court gives to the jury and its verdict to satisfy that the evidence, viewed most favorably to the State and the convictions, was insufficient to sustain the 15 guilty verdicts relating to his sexual assaults of John Doe 2 and John Doe 3?

The court of appeals vacated 15 of Coughlin’s 21 child sexual assault convictions based on insufficient evidence. But as we noted in our post on the court of appeals’ decision, there was an issue in the case that might land the case in the supreme court. And here we are.

The issue is the first one in the state’s PFR, and it involves how sufficiency of the evidence should be measured in this case: is it measured against the elements described in the jury instructions, which is the typical method, 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? The question arises because the instructions defined two methods of sexual contact—Coughlin either touching the child’s penis or causing the child to touch his penis—but the verdict form, following the amended information, asked only whether Coughlin was guilty because he touched the child’s penis.

As the court of appeals said, it’s “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. (¶¶1819 n.11). Coughlin argued sufficiency should be measured against the crime described in the verdict forms, which makes abundant sense given that they copied the amended information and, of course, posed the question the jury ultimately answered. The state didn’t argue anything on this score, but instead “act[ed] as though the inconsistency did not exist,” which drew a well-earned rebuke from the court of appeals. (¶¶17 n.10, 19). So the court of appeals assumed without deciding that Coughlin was correct, and it compared the trial evidence with the crime as described in the verdict form rather than as defined in the jury instructions.

But the court of appeals also said that even if it compared the evidence to the jury instructions, the evidence regarding the 15 charges was insufficient. (¶37 n.13). Coughlin argued in his objection to the PFR that there was no need to grant review, since the answer to the unanswered legal question makes no difference in this case. The supreme court’s granted review anyway, and that grant now very generously gives the state a second chance to address a novel issue it ignored below.

The other two issues in the PFR, on the other hand, are error-correction claims, gussied up as claims that the court of appeals failed to follow precedent when it concluded that the testimony of two of the three complaining witnesses was too vague to support verdicts. To the state, finding the testimony “vague” is another way of saying that the testimony wasn’t credible or weighty enough, and sufficiency review doesn’t second-guess the jury’s determination of credibility and weight. But the “vagueness” here is real, not just a linguistic substitute for “credibility” or “weight.” The complaining witness’s testimony didn’t describe the purported illegal acts or when they may have happened with any specificity, as the summaries in the court of appeals decision make abundantly clear. (¶¶24, 29).

Regardless of whether issues two and three meet the criteria for review, the court will now review the sufficiency of the evidence itself. What it says on that question could subtly (or not so subtly) affect how sufficiency is done in the future.

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