99-2968 State v. Johnson

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We further hold that the statute, Wis. Stat. sec. 948.025, is constitutional, and defendant, who was convicted of the repeated sexual assault of a child, is not entitled to a new trial.

In sum, even though the State introduced evidence of more than the minimum number of sexual assaults required to constitute the crime but the jury was not instructed that it had to agree unanimously on the specific individual acts of sexual assault that make up the crime, there was no error and defendant’s constitutional right to a unanimous verdict was not violated.

“It is clear from this language that the predicate acts of sexual assault are not themselves elements of the offense, about which the jury must be unanimous before convicting the defendant. Rather, to convict under this statute, the jury need only unanimously agree that the defendant committed at least three acts of sexual assault of the same child within the specified time period. Where evidence of more than three acts is admitted, the jury need not unanimously agree about the underlying acts as long as it unanimously agrees that the defendant committed at least three. …

“The language of sec. 948.025, Stats., plainly shows that the legislature intended to create a single crime, the repeated sexual assault of the same child within a specified time period. The question before us, then, is whether the legislature may, like prosecutors, aggregate conceptually similar acts in a single ‘course of conduct’ crime, albeit for acts committed over an indefinite, and presumably longer, period of time. We conclude that it may. …

“Applying the Supreme Court’s analysis in Richardson to Wis. Stat. sec. 948.025 does not require us to overrule Molitor or invalidate the statute. To the contrary, as we have set forth above, an examination of the statute’s language and an application of the Schad due process test for fundamental fairness and rationality yields the same conclusion as that reached in Molitor. Unlike the federal CCE statute at issue in Richardson, Wis. Stat. sec. 948.025 plainly does not designate the predicate acts of sexual assault as elements of the offense of repeated sexual assault of a child, about which the jury must be unanimous.

“Rather, the statute explicitly excludes the predicate acts from any unanimity requirement. As such, and in contrast to Richardson, no exercise in statutory interpretation is necessary here. …

“Accordingly, we conclude that Johnson has not overcome the presumption of constitutionality that attends the legislative determination to dispense with a unanimity requirement for the individual acts of child sexual assault that comprise the crime of repeated sexual assault of the same child. Under the state and federal constitutional analyses of Molitor, Richardson, and Schad, Wis. Stat. sec. 948.025 does not violate due process or the right to a unanimous verdict. We affirm the order of the circuit court denying Johnson’s motion for a new trial.”

DISSENTING OPINION: Bradley, J. “The defendant’s challenges are grounded in different constitutions and implicate different bodies of law. I believe a properly conceived and applied Fourteenth Amendment due process inquiry, guided by the principles enunciated in United States v. Richardson, 526 U.S. 813 (1999), requires that sec. 948.025(2) be declared unconstitutional. I also believe that by undermining established Wisconsin precedent, the majority obfuscates the guarantee of a unanimous jury verdict provided by Article I, Sections 5 and 7 of our state constitution. Accordingly, I respectfully dissent.”

Kenosha County, Fisher, J., Sykes, J.

Attorneys:

For Appellant: Martha K. Askins, Madison

For Respondent: Marguerite M. Moeller, James E. Doyle, Madison