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§ 940.225(2)(a), Second-Degree Sexual Assault – Sufficiency of Evidence – Timing of Force Element

State v. Obea S. Hayes, 2004 WI 80, affirming 2003 WI App 99, 264 Wis. 2d 377, 663 N.W.2d 351
For Hayes: Philip J. Brehm:


¶64. We agree with the court of appeals that M.M.’s testimony did not follow a chronological order. A reasonable factfinder could, however, draw the inference that the defendant verbally threatened to have retaliatory sex with M.M. and that the sexual contact occurred while he was wrestling and struggling with her to overcome her resistance. Wrestling, struggling, verbally threatening unwanted sex, tearing the victim’s clothes, and breaking her finger are a sufficient use or threat of force or violence to support a conviction under Wis. Stat. § 940.225(2)(a).

The court of appeals’ holding, 2003 WI App 99, ¶16, is thus affirmed:

the element is satisfied whether the force is used or threatened as part of the sexual contact itself or whether it is used or threatened before the sexual contact. Further, where more than one sexual act occurs, a single threat may suffice; there need not be a separate threat or use of force prior to each act.

So, too, the court of appeals’ holding, id., ¶17, that any temporal ambiguities in the complainant’s account were for the jury to resolve (“We do not reverse convictions because a witness fails to describe an event in exact chronological fashion. Rather, we leave it to the jury to listen to the testimony and determine what happened.”)

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