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SCOW finds sufficient evidence to reinstate 15 child sexual assault convictions

State v. Donald P. Coughlin, 2019AP1876-CR, 2022 WI 43, reversing an unpublished court of appeals opinion; case activity (including briefs)

How should an appellate court measure the sufficiency of the evidence to support a jury verdict where the instructions and the special verdict define the crime differently? In a 5-1 opinion, the majority held, based on the facts of this particular case, that the jury instructions should control. It then considered whether the evidence of child sexual assault was sufficient even though the State failed to prove that the charged conduct occurred during the charged time periods. The majority drew inferences in favor of the verdict and answered “yes.” Justice Dallett dissented on both points. Justice Karofsky did not participate.

Coughlin was convicted of 21 counts of violating §948.02(1) and (2) by having “sexual contact” with multiple boys during particular date ranges.  The court of appeals reversed 15 of those counts for insufficient evidence. The State petitioned for review.

As explained in our post on the PFR, the jury instructions defined “sexual contact” as either Coughlin touching a child’s penis or causing a child to touch his penis. The special verdict, like the amended information, only asked whether Coughlin was guilty because he touched a child’s penis. The lead issue was whether an appellate court should test the sufficiency of the State’s evidence against the instruction or the verdict form.

In SCOW, the parties agreed that, for this case,  the jury instruction should control the analysis. Opinion, ¶28. The majority held that their agreement was consistent with Wisconsin law.

¶29 In State v. Beamon, this court addressed a situation where the jury instructions contained an erroneous statement of law. 347 Wis. 2d 559, ¶37. We measured the sufficiency of the evidence against the statutory elements of the crime, not the jury instructions, because the jury instructions did not correctly set forth the law. Id., ¶¶24, 40. However, the court observed that “[g]enerally, when the jury instructions conform to the statutory requirements of that offense, we will review the sufficiency of the evidence by comparison to those jury instructions.” Id., ¶22.

¶30 In this case, the jury instructions adhere to the statutory elements of the offenses. Unlike in Beamon, the jury instructions here did not constitute an erroneous statement of the law. Therefore, in reaching our conclusion, we take into
account Beamon’s statement regarding the trajectory of the law.

¶31 Further, a review of this record indicates that the parties seemingly understood “sexual contact” to mean both Coughlin touching the victims’ penises and Coughlin causing the victims to touch his penis. “[J]ury instructions may be erroneous if they fail to instruct the jury on the theory of the crime that was presented to the jury during trial.” State v. Williams, 2015 WI 75, ¶57, 364 Wis. 2d 126, 867 N.W.2d 736.

¶32 Here, the definition as reflected in the jury instructions was the theory of the crime presented throughout trial. The victims testified to both types of sexual contact, and the State explicitly acknowledged both forms of sexual contact in its closing argument. The record does not indicate that the jury was led to believe only Coughlin touching the boys’ penises constituted sexual contact. Therefore, the jury
instructions did not fail to instruct the jury on the theory of crime presented at trial. Under the facts of this case, we thus evaluate the sufficiency of the evidence against the jury instructions. (Emphasis supplied).

Justice Dallet disagreed with the majority on this point. She noted that under Williams jury instructions must present a theory of guilt consistent with both the crime’s statutory elements and the factual theory that the State presented to the jury. When they don’t, the appellate court must determine what the jury would have done absent the erroneous instructions. In Coughlin’s case, the verdict form is the only evidence of what the jury actually found. The verdict showed that for each count the jury concluded only that Coughlin touched a victim’s penis during the relevant time periods. The jury did not find that the victims touched Coughlin’s penis. Dissent, ¶¶59-63.

If you’re working on this issue, see our posts on Beamon and Williams.

Onto the sufficiency of the evidence. The State charged Coughlin with having “sexual contact” with each victim during specified periods of time. But it elicited testimony of various kinds of sexual activity. Some of it qualified as “sexual contact,” and some of it qualified as crimes under statutes that were not charged. To make matters worse, the State’s questioning about when specific conduct occurred was ambiguous.

The majority and the dissent agreed that when a defendant challenges a jury’s verdict the appellate court defers to the jury’s verdict and draws reasonable inferences in favor of it. Opinion, ¶¶33-34; Dissent, ¶64. Boiled down, the majority held:

¶53 We cannot conclude that the jury acted unreasonably when it convicted Coughlin of all 15 counts at issue. Based on the testimony that indicates the victims essentially lived with this abuse in their day-to-day lives over a longer time period that spanned the charged time periods, we cannot agree with Coughlin that there is no evidence that the charged conduct occurred during those specific time periods. We acknowledge that the charged conduct was mixed in with uncharged conduct and the State’s questioning occasionally lacked specificity, but the evidence that the charged conduct occurred at all relevant times is not so lacking in probative value and force such that we should substitute our judgment for that of the jury.

In contrast, Justice Dallett argued that the jury’s verdict could not be sustained based on the victims’ testimony that some sort of abuse occurred during each charged time period. There had to be evidence allowing the jury to conclude beyond a reasonable doubt that “sexual contact” occurred with respect to each victim during each charged time period. Dissent, ¶65 (citing State v. Hall, 53 Wis. 2d 719, 723, 193 N.W.2d 653 (1971)(reversing conviction because the evidence showed defendant committed some crime but the crime he was charged with). Without that evidence, the State failed its heavy burden of proving guilt beyond a reasonable doubt. Dissent, ¶71.

Does the majority opinion relieve the state of having to prove specific conduct during specific periods of time in future child sexual assault cases based on “sexual contact”? It never says that. Instead, all the inferences it draws in favor of the verdict seem driven by the fact that this is not a run-of-the-mill child sexual assault case. The abuse occurred over 20 years ago when the victims were children. It occurred so frequently–even during uncharged periods of time–that the victims had trouble recalling which specific acts occurred at which specific times. Majority, ¶¶47-53.

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