Badzinski was charged with sexually assaulting his niece, A.R.B., during a family gathering at the home of his parents. (¶¶8-9). A.R.B. testified the assault occurred in a specific room–the basement laundry room. (¶11). But there was also testimony from multiple defense witnesses that it was not possible for the assault to have happened in the laundry room. (¶¶15-16). During deliberations, the jury asked two questions. First, they asked if they had to agree on the “place” the assault occurred; the court told them they had to agree it occurred at Badzinski’s parents’ house. They then asked whether they had to agree on which room the assault occurred in; to this question the trial judge answered “no.” (¶20).
Badzinski claimed that because the only evidence of the crime was A.R.B.’s testimony, and that A.R.B. testified that the assault occurred in the laundry room, the room in which the assault occurred is a fact necessary to prove an essential element of the crime. Thus, he argued, the jury had to be unanimous about which room the assault occurred in. The supreme court rejects this claim.
While the a defendant has a right to a unanimous verdict on the essential elements of the crime, unanimity is not required with respect to the alternative means or ways in which the crime can be committed. Holland v.State, 91 Wis. 2d 134, 143, 280 N.W.2d 288 (1979); State v. Derango, 2000 WI 89, ¶14, 236 Wis. 2d 721, 613 N.W.2d 833. The essential elements of the crime charged in this case are (1) that the defendant had sexual contact with A.R.B. and (2) that A.R.B. was under the age of 13 years at the time of the alleged sexual contact, § 948.02(1)(e), so those are the only elements that the jury must have agreed upon unanimously:
¶32 … The location of the room is not a fact necessary to prove either of the essential elements in this case. A.R.B. testified that Badzinski’s actions occurred in the laundry room. The contrary evidence regarding the location of the assault was relevant to A.R.B.’s credibility. See Kohlhoff v. State, 85 Wis. 2d 148, 154, 270 N.W.2d 63 (1978). However, a jury does not need to accept a witness’s testimony in its entirety. State v. Balistreri, 106 Wis. 2d 741, 762, 317 N.W.2d 493 (1982); State v. Kimbrough, 2001 WI App 138, ¶29, 246 Wis. 2d 648, 630 N.W.2d 752. The jury could have believed A.R.B.’s testimony about the sexual contact itself without believing that it occurred in the laundry room. Indeed, [the state’s expert on child sexual assault victims] testified that child victims do not always remember the peripheral details of the assault.
¶33 Furthermore, … there was evidence in the record from which the jury could have concluded that the assault occurred elsewhere in the house. A.R.B. indicated that the assault occurred when she was playing hide-and-seek. Badzinski’s sister testified that the children would play games such as hide-and-seek upstairs. His brother-in-law testified that it would be possible for someone to masturbate in one of the upstairs bedrooms without anyone noticing. The jury could have reasonably inferred from this evidence that the assault occurred somewhere other than in the laundry room.
The court also rejects Badzinski’s argument that the trial court’s answer to the jury’s second question misled the jury into thinking A.R.B.’s credibility was irrelevant, thus allowing the jury to disregard A.R.B.’s testimony and to speculate beyond the evidence about where the assault occurred:
¶37 To prevail on an argument that the jury was unconstitutionally misled in violation of a defendant’s due process rights, a defendant must show: (1) “that the instruction was ambiguous” and (2) “that there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.” [State v.] Burris, [2011 WI 32,] 333 Wis. 2d 87, ¶48[, 797 N.W.2d 430] (quoting Waddington v. Sarausad, 555 U.S. 179, 190 (2009)).
¶38 In evaluating these factors, we consider the instruction “in light of the proceedings as a whole, instead of viewing a single instruction in artificial isolation.” [State v.] Lohmeier, 205 Wis. 2d [183,] 193[, 556 N.W.2d 90 (1996)]. …
¶46 In … context, the circuit court’s instructions were not ambiguous. It told the jury what elements the State needed to prove, that it could rely only on the evidence, that credibility was for the jury to decide, and that it did not have to agree on the room where the assault occurred. The court’s instructions were accurate. As long as the jury followed the instructions literally, it would be prevented from speculating beyond the evidence and would not be required to ignore evidence that may discredit A.R.B.
¶47 Even if the instructions were potentially ambiguous, considering the proceeding as a whole, it is not reasonably likely that the jury believed it could not consider the victim’s credibility and could reach conclusions based on speculation. The focus of the trial was on credibility and the room in which the assault occurred. Further, the jury instructions informed the jurors that credibility was an issue for them to decide, and required them to base their decisions on evidence and not rely on evidence outside the record. Under the instructions, the jury was free to consider and weigh all of the evidence presented at trial, including A.R.B’s credibility. It is unlikely that a single word answer from the court during deliberations would negate everything that preceded it.
Nor does the verdict show that the jury speculated beyond the evidence presented at trial, as there was evidence from which the jurors could have inferred that the assault in fact occurred somewhere else in the house. (¶49).