State v. Darryl J. Badzinski, 2011AP2905-CR, District 1, 11/27/12; court of appeals decision (not recommended for publication), petition for review granted 4/18/13; reversed, 2014 WI 6; case activity
Complaint – Adequate Notice (Child Sexual Assault) – Waived Objection
Badzinski waived his objection to the complaint – counsel conceded, at a motion to dismiss because of vagueness, that the complaint indeed passed muster when construed to allege an assault within a narrowed time frame:
¶15 … The court then instructed the State to amend the information accordingly, which the State subsequently did. The amended information stated that Badzinski had sexual contact with A.R.B. “on or about December 25, 1995 or Easter (April 7) 1996 or December 25, 1996 or Easter (March 30) 1997 or December 25, 1997 or Easter (April 12) 1998.” Badzinski did not object to the amended information. As such, while Badzinski’s attorney initially challenged the constitutionality of the complaint, he later accepted the trial court’s interpretation of the complaint as constitutional, and he failed to mount a challenge against the amended information. In doing so, he waived Badzinski’s right to raise the issue on appeal. See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (“‘waiver is the intentional relinquishment or abandonment of a known right’”) (citation omitted).
Although Badzinski frames his attack in terms of the complaint’s deficiency, the court clarifies that the “amended information … is the operative trial document,” and thus also under challenge, ¶11 n. 4. The court nonetheless reaches the merits, concluding that the complaint satisfied his “right to be informed of the nature and cause of the accusation against the defendant,” citing State v. Fawcett, 145 Wis. 2d 244, 250-51, 426 N.W.2d 91 (Ct. App. 1988):
¶18 “In a case involving a child victim, … a more flexible application of notice requirements is required and permitted.” Id. at 254. Keeping that in mind, the supreme court held in Fawcett that a complaint alleging two sexual assaults of a child that occurred at some undefined day over a six-month period adequately notified the defendant of the charges against him. Id. Here, the complaint alleged that Badzinski sexually assaulted the victim on a single occasion on one of six specific dates over a three-year period during a family gathering at a specific location. As such, the complaint here was more specific than the one found constitutional in Fawcett because, here, the complaint named six specific days, easily identified by the holiday corresponding to each date. See id.
¶19 Furthermore, while the twelve-year period that elapsed between the last potential assault date and the time Badzinski was arrested and the complaint was filed is certainly significant, that long delay “do[es] not alone render the charges insufficiently definite,” see State v. R.A.R., 148 Wis. 2d 408, 412, 435 N.W.2d 315 (Ct. App. 1988), particularly because child sexual assault “is not an offense which lends itself to immediate discovery,” see Fawcett, 145 Wis. 2d at 254. Despite the delay in arrest and in filing the complaint, the complaint itself sufficiently specifies the charges against Badzinski, setting forth the who, what, when, where, and how of the allegations. The complaint informed him that he was being charged with sexually assaulting A.R.B., in a laundry room at his parent’s home, on one of six different holidays. That specificity allowed Badzinski to name over twenty-four witnesses, many of whom testified that they attended family gatherings during that time period, that the laundry room door was never closed, and that the laundry room is in an area that is heavily trafficked during family gatherings. While the fact that Badzinski had a defense does not in and of itself demonstrate that the complaint was constitutional, the strength of his defense is evidence that the complaint was sufficiently specific to enable him to plead and put on a defense. As such, we conclude that the complaint was constitutional.
Fawcett, it might be mentioned, was itself upheld on collateral review, in Fawcett v. Bablitch, 962 F.2d 617, 619 (7th Cir. 1992).
Jury Instructions – Authorizing Guilty Verdict on Speculation
Where the only evidentiary basis for guilt was that, a decade before trial, Badzinski had allegedly assaulted his niece in a specific room – and only that room – but, if his witnesses were believed, the assault couldn’t have occurred in that room, it was reversible error to instruct the jury it didn’t have to “agree on the ‘place’ that the sexual assault occurred”:
¶36 Two of the main and irreducibly valuable protections of our criminal-justice system are that no person may be convicted of a crime unless a jury (1) unanimously finds that the government has proven the person guilty (2) beyond a reasonable doubt. Even in civil cases, jury verdicts must be based on evidence, not “conjecture and speculation.” Herbst v. Wuennenberg, 83 Wis. 2d 768, 774, 266 N.W.2d 391, 394 (1978). A fortiori, we may not permit a guilty verdict to rest on matters beyond the evidence. See United States v. Groves, 470 F.3d 311, 324 (7th Cir. 2006) (“Speculation cannot be the basis for proof in the civil context much less the basis for proof beyond a reasonable doubt.”); see also State v. Serebin, 119 Wis. 2d 837, 851, 350 N.W.2d 65, 72 (1984); State v. Watkins, 2001 WI App 103, ¶26, 244 Wis. 2d 205, 223, 628 N.W.2d 419, 428.
¶37 Accordingly, Badzinski is entitled to a new trial.
The structure of the opinion is a bit out of the ordinary: the Lead Opinion (¶¶1-31) would affirm on all of the several issues raised by Badzinski, while the nominal Concurrence (¶¶32-36) is in fact the Majority opinion, reflected in both holdings quoted above. In other words, the two opinions agree as to the notice problem and part company as to the instruction. The Lead Opinion – really, a partial dissent – may well have started out as the majority opinion only to lose a vote. We will never know, and it doesn’t really matter: as both opinions point out, you take the votes where you find them, under whatever label, State v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984). In this instance, you’ll find the controlling votes at the tail end of the opinion. One small quibble. The Majority says that, given the grant of relief, it need not discuss other issues raised by Badzinski, ¶37 n. 7, citing Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938). (The Majority did, of course, reach the notice argument – probably because that issue might well otherwise survive remand.) The idea is that the appellate court need address only dispositive issues, an imperative satisfied once the court determines that reversible error occurred. That’s undeniably correct, as far as it goes, but in this instance it goes a bit farther. One of Badzinski’s issues was sufficiency of proof (see Lead Opinion, ¶¶20-23), and the rule is “that where a defendant claims on appeal from a conviction that the evidence is insufficient to sustain the conviction, the appellate court is required to decide the sufficiency issue even though there may be other grounds for reversing the conviction that would not preclude retrial,” State v. Ivy, 119 Wis. 2d 591, 610, 350 NW 2d 622 (1984).