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Court of Appeals decides novel double jeopardy issue

State v. Alexander M. Schultz, 2019 WI App 3, petition for review granted 4/9/19; case activity (including briefs)

Addressing an issue of first impression in Wisconsin, the court of appeals holds that to ascertain the scope of the double jeopardy bar against a successive prosecution when the charging language of the prior case is ambiguous, a court must consider, in light of the entire record of the prior case, how a reasonable person familiar with the facts and circumstances of a particular case would understand that charging language. Applying the test here, the court rules Schultz’s prosecution wasn’t barred.

Schultz was acquitted of repeated sexual assaults of Melanie, a child, alleged to have occurred “in the late summer to early fall of 2012.” Melanie testified she and Schultz had intercourse in July and August 2012 and broke up early in September 2012. Also, she was pregnant when she disclosed she and Schultz had sexual intercourse, but she insisted the father was not Schultz, but Beckman, another guy she was having sex with. (¶¶4-9)

After Schultz’s acquittal the state got the results of Melanie’s paternity test. Schultz was the father. Further, based on Melanie’s medical records, the conception date was put at October 19, 2012. So the state charged Schultz with one count of sexual assault on or about that date. (¶¶9-10).

Schultz moved to dismiss, saying the prosecution was barred by his acquittal in the first case because the offenses were identical in law—which the state concedes—and identical in fact because October 19 is a date in “early fall of 2012”—which the state disputes because Melanie testified their relationship ended in September 2012. (¶¶10-11). The court of appeals holds the offenses aren’t identical in fact.

The threshold question is how to ascertain the scope of jeopardy when the charged timeframe—“in the late summer to early fall”—is ambiguous? Neither the parties or the court find any Wisconsin cases that address this issue, so it is an issue of first impression. (¶18). Schultz and the state agree it must be an objective test—how a reasonable person would read the charging document—but Schultz argues proceedings or events occurring after jeopardy attached are irrelevant, while the state argues the entire record of the prosecution should be considered. Finding support for the state’s position in federal cases and in the second sentence of § 971.29(2), which says that “[a]fter verdict the pleading shall be deemed amended to conform to the proof” absent objection to the evidence, the court adopts the state’s approach:

¶30      …[W]e conclude that the proper test to ascertain the scope of the jeopardy bar when the charging language of an Information is ambiguous is to consider how a reasonable person familiar with the facts and circumstances of a particular case would understand that charging language. To make this determination, it is proper to consider the entire record, including proceedings that take place after jeopardy attaches and the evidence introduced at trial. ….

Applying this test to the facts of Schultz’s 2012 prosecution, the court concludes that a reasonable person familiar with the circumstances of that prosecution would not understand the phrase “early fall of 2012” to include any dates beyond September 30, 2012. It points to the following:

  • The original complaint in Schultz’s first case included a police report saying police were investigating an alleged sexual assault of Melanie by Beckman which police then believed resulted in Melanie’s pregnancy and that occurred in “early to mid-October,” and that said Melanie told police she had intercourse with Schultz “approximately one month before” the incident with Beckman—i.e., in September 2012. (¶31).
  • On the first morning of trial, before the jury was sworn, the state represented that although Melanie had not yet received the results of a paternity test, it was believed Beckman was the father of Melanie’s child, with the inference being the state was not alleging that Melanie had had sex with anyone besides Beckman, including Schultz, in early-to-mid-October. (¶32).
  • The timeframe Melanie testified to at the first trial was July, and August, and September of 2012, and Schultz conceded there was no evidence of sexual assaults by Schultz for the month of October 2012. (¶33).


¶34     Based on all of the above evidence, we conclude that a reasonable person, familiar with the facts and circumstances of the first prosecution against Schultz, would not consider the phrase “early fall of 2012” to include October 19, 2012. There is no indication in the record that the State ever alleged that Schultz and Melanie had sexual intercourse in October 2012. In fact, the State did not even believe it possible that Schultz had impregnated Melanie in that month. Only after the trial did the State become aware that a paternity test showed a “99.99998” percent chance that Schultz had impregnated Melanie on or about October 19, 2012. The State then charged him for that offense. The alleged date of commission for this charge was separated in time from the charges in the first prosecution and, therefore, was not barred by double jeopardy.

If you’re thinking the court’s missing a nice, simple solution based on meteorological versus astronomical “fall,” forget about it. Schultz argued October 19 occurs in the early fall because astronomical “fall” (September 22 to December 20) is a ninety-one-day season and October 19, as the twenty-seventh day of fall, is in the first third of the season. Accordingly, to hold that October 19 is not early fall is “to deny the very movement of the celestial bodies; to deny that the Earth orbits the Sun.” Nice bit, that; but the court rejects it as a “hypertechnical and arbitrary definition” because it fails to explain why the first third—and not, say, the first fourth of the fall season, of which October 19 falls outside—is “early fall.” “Moreover, in common vernacular, when ‘fall’ begins varies based on one’s perception. For example, many people consider ‘fall’ to begin after the Labor Day holiday in early September. We conclude the phrase ‘early fall’ is ambiguous and not susceptible to Schultz’s categorical, solar-calendar argument.” (¶18 n.4).


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