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Whose ox was gored? COA upholds inconsistent verdicts

State v. Corey Stauner, 2019AP81-CR, District 3, 3/10/20, (1-judge opinion, ineligible for publication); case activity (including briefs)

This seems wrong. The State charged Stauner with resisting an officer and bail jumping for committing that crime. The jury acquitted him of resisting an officer but found him guilty of bail jumping. The court of appeals recognized that the 2 verdicts were inconsistent, but said that this result was permissible pursuant to State v. Rice, 2008 WI App 10, 307 Wis. 2d 335, 743 N.W.2d 517 (2007).

In Rice a jury convicted a defendant of bail jumping while acquitting him of burglary, the crime underlying the bail jumping charge. Rice held that the inconsistent verdicts did not matter under U.S. v. Powell, 469 U.S. 57, 65 (1984), a case  where SCOTUS let inconsistent verdicts stand because it was impossible to know “whose ox had been gored”–the defendant’s or the government’s.

Following Rice, the court of appeals noted that it may only review the sufficiency of the evidence supporting the jury’s conviction for bail-jumping (which requires proof of resisting an officer). Furthermore, its review must be highly deferential to the jury verdict. Opinion, ¶12. That stacked the appellate deck against Stauner.

The State’s evidence of resisting an officer was marginal–as demonstrated by the inconsistent verdicts.  But looking at the bail-jumping conviction in isolation and applying a deferential standard of review ensured that Stauner’s ox would be gored on appeal. The same will be true in virtually all appeals involving inconsistent verdicts. tie goes to the State. The appellant in Rice did not file a petition for review. And Powell did not involve the acquittal of a crime supporting a bail jumping charge. So maybe it is time to revisit this issue.

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