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Sexual Assault of Child, § 948.02 – Unanimity – Separate Counts, Failure to Tie Particular Act to Particular Count

State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: Waived objection to jury instruction “which failed to tie a particular act of sexual contact to a particular count” on a 2-count information of sexual assault of a child, not prejudicial (State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992), distinguished):

¶22   … As noted earlier, the Marcum jury returned a combination of verdicts, two acquittals and one guilty, making it impossible to know if all twelve jurors agreed that Marcum committed the same act in the count where there was a guilty verdict. See id. at 920. …

¶23   Unlike the defendant in Marcum, Becker was not prejudiced by his counsel’s failure to make a timely objection to the jury instructions, and thus does not prevail on this claim. See id. at 924. Unlike the Marcum jury, the jury here did not return a combination of acquittal and guilty verdicts; rather, it convicted Becker on both counts in question, returning two verdicts of guilty. See id. at 920. This eliminates the risk that the jury was not unanimous and, thus, does not give rise to prejudice by offending the unanimous jury requirement. The unanimity of the jury is accurate even if the jurors, as a result of the trial court’s answer to their question, did not all agree on which act should be assigned to which count.

¶24   Moreover, the jury was explicitly told that “[e]ach Count charges a separate crime and you must consider each one separately.” We agree with the State that no reasonable juror could hear that instruction and conclude that he or she could predicate both guilty verdicts on the same act. Thus, when all the jurors agreed that Becker was guilty of both counts, they unanimously agreed beyond a reasonable doubt that he had committed both of the acts of sexual assault charged: the act of touching the victim’s vaginal area and the act of allowing or causing the victim to touch his penis. How each individual juror assigned the two acts between the two counts made no difference; for however each juror assigned them, each juror could not find Becker guilty of both counts without concluding beyond a reasonable doubt that Becker engaged in both acts charged.

One count involved touching the victim’s vagina, the other involved touching the defendant’s penis—the court stresses absence of “any suggestion that Becker touched the victim’s vaginal area two times,” ¶26, in other words, absence of any possibility the jury would have confused the necessary showing. (“Given the jury’s guilty verdicts on both counts, it is inconsequential as to which type of touching was tied to which count by the individual jurors because the jurors unanimously agreed that Becker was guilty beyond a reasonable doubt of both a sexual assault consisting of his touching the victim’s vaginal area and a sexual assault consisting of him allowing or causing the victim to touch his penis,” ¶27.)The court does, though, recognize the potential for mischief and serves up some stern advice; cold comfort for Becker no doubt, but worth the next litigant’s close attention:

¶10   Before we proceed to our analysis, we make the following edifying clarifications. This entire issue could have been avoided if the State had not put it in play with its sloppy draftsmanship. In the complaint and information, the district attorney did not tie the specific act of Becker touching the victim’s vaginal area to a specific count; nor did he tie the specific act of Becker allowing or causing the victim to touch his penis to a separate, specific count. Where a defendant, such as Becker, is charged with multiple acts violating a criminal statute, the district attorney should tie a specific act to each count in the case. The complaint and/or information should then specify in each count the specific act to which it applies. This should also be done if there are multiple acts occurring at different times or on different days. If the district attorney fails to charge with particularity, defense counsel should bring a motion to make the complaint and/or information more definite and certain. Finally, the trial court is not a lemming and should not overlook sloppy charging by the State. Rather, regardless of the State’s lack of care, the trial court should take great care to not give generic, nonspecific instructions or verdict forms to the jury. Having conveyed, with particularity, how to avoid this problem in the future, we continue with our analysis.



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