State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall
Issue: Whether the trial court properly remedied violation of § 948.025(3) (impermissible to charge in same action both repeated-acts and individual acts of sexual assault involving same victim in same time period) by dismissing the repeated-acts charge instead of the individual-act charges.
¶15. We hold that a court may reverse a conviction on the repeated acts charge under Wis. Stat. § 948.025(1) when the proscription against multiple charges in § 948.025(3) is violated. This remedy is proper even where the repeated acts charge was filed prior to an action for specific acts of sexual assault under Wis. Stat. § 948.02(1). Prosecutors should engage in charging practices that avoid violations of § 948.025(3). When necessary, the trial court should address such violations at the time of consolidation rather than during or after trial. If a violation of § 948.025(3) does arise, the State should choose which charge or charges it will pursue.
Cooper was originally charged in separate complaints with repeated-act (§ 948.025) and several individual acts (§ 948.02) of sexual assault involving the same child and all in the same time period. They were joined in one action on his motion. Section 948.025(3) bars both repeated- and individual-act charges in the same action, so the consolidation at Cooper’s instance had the effect of triggering this bar, which causes the court to invoke judicial estoppel:
¶14. The State originally brought the general charge in one action and later brought a separate action alleging the more specific charges. Cooper successfully moved to consolidate the separate actions into one. Cooper, by seeking the consolidation, contributed to what he now contends is error because of the statutory prohibition of a general charge under Wis. Stat. § 948.025(1) being joined with specific charges under Wis. Stat. § 948.02(1) in the same action. Because Cooper directly contributed to the error, he cannot benefit from the error. See State v. Gove, 148 Wis. 2d 936, 944, 437 N.W.2d 218 (1989). The doctrine of judicial estoppel prevents a defendant from benefitting (sic) from a manipulation of the judicial system and would present an alternative basis for affirming here. See Salveson v. Douglas County, 2001 WI 100, 37, 245 Wis. 2d 497, 630 N.W.2d 182 (a party cannot be allowed to play “fast and loose with the judicial system”).
Estoppel seemingly limits the holding to instances where the defendant “directly contributed to the error.” Note, in this regard, the permissive phrasing – “a court may reverse” the repeated-acts charge; not, must reverse, or may reverse only the repeated-acts charge. And, as the holding explicitly says, when the error is caught in time, the prosecution chooses which of the charges survive(s). That said, estoppel may or may not be proper in this instance. The court of appeals’ recitation of the facts is skimpy, so it isn’t clear if any of the individually charged assaults were the same acts as those underlying the repeated-acts charge. If they were, then there would be an arguable double jeopardy problem stemming from separate convictions; in other words, in that instance the “error” would inhere to the charging decision not the consolidation, and estoppel therefore wouldn’t apply. Whether this is so is impossible to determine from the opinion. Nonetheless, to understand the basis for the court’s position, here’s its characterization of Cooper’s argument on appeal: “the State was ‘stuck with’ the charge of repeated acts under Wis. Stat. § 948.025(1) and that subsequent charges for specific acts of sexual assault were a ‘blatant violation of the clear statutory mandate’ of § 948.025(3),” ¶8.