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Charge Duplicity – Juror Unanimity

State v. Darryl P. Benson, 2010AP2455-CR, District 1, 5/8/12

court of appeals decision (not recommended for publication); for Benson: Mary Scholle, SPD, Milwaukee Appellate; case activity


Sexual assault charges were not duplicitous, and in any event, potential unanimity problem was resolved by the instructions:

¶17      To begin, we conclude that the amended information properly notified Benson of the charges against him.  The counts were set forth with enough specificity to allow Benson to plead and defend himself and to protect him from being tried twice for the same offense.  See State v. Conner, 2011 WI 8, ¶¶20, 25, 331 Wis. 2d 352, 795 N.W.2d 750.  Each count set forth the date, location, and the act charged—either “sexual contact” or “sexual intercourse”—and the counts were distinguishable from each other.  Counts one and two, while alleged to have occurred on the same date and at the same location, described two different types of sexual assault, which were each defined by the jury instructions.  Counts three and four were distinguishable from counts one and two by date, and distinguishable from each other by location.

¶18      Next, we conclude that the jury instructions cured any potential unanimity issue by unambiguously informing the jurors that they must unanimously agree on the specific acts that formed the basis for their verdict on each of the counts.  See State v. Marcum, 166 Wis. 2d 908, 918, 480 N.W.2d 545 (Ct. App. 1992) (holding “that any unanimity problem could have been avoided by an instruction telling the jurors that they must be unanimous about the specific act that formed the basis for each count”).  Prior to deliberations, the trial court informed the jurors:

The defendant is charged with four counts of sexual assault.  However, evidence has been introduced of more than one act, any one of which may constitute sexual contact or intercourse.

Before you may return a verdict of guilty, all twelve jurors must be satisfied beyond a reasonable doubt that the defendant committed the same acts and that the acts constituted the crime charged.[[4]]

(Emphasis added.)  The instructions properly informed the jurors that they must agree that Benson “committed the same acts” constituting the four counts charged.

¶19      Because, as we set forth above, each count was distinguishable from the others by date, location, or act charged, the jury could not have used the same act to form the basis of its verdict for one count to form the basis of its verdict on another count.  As such, if the jurors agreed on “the acts constitut[ing] the crime charged” they would be agreeing on four different acts, one act for each of the counts, as required by the concept of jury unanimity.

The court separately rejects Benson’s ineffective-assistance claims (relating to failure to impeach witnesses) for fact-specific reasons on lack of prejudice, ¶¶23-29.

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