01-1406 State v. Miller

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“Here, the jury was instructed to agree upon a specific act committed within a specific time period. Miller contends that the verdict form should have required the jury to nail down when the agreed-upon offense was committed. However, where the date of the commission of the crime is not a material element of the offense charged, it need not be precisely alleged or determined. … ‘Time is not of the essence in sexual assault cases, and the pertinent statute [here, Wis. Stat. sec. 940.22], does not require proof of an exact date.’… The jury unanimously found that the agreed-upon offense occurred between March 1, 1989, and November 28, 1992. We conclude that the verdict form adequately established a time period during which the specific offense was committed. …

“The trial court’s jury instructions eliminated any ‘continuing offense’ issues in this case. The form of the special verdict and the jury’s answers, supported by sufficient evidence, assured that there was no statute of limitations violation in this case and also eliminated any issues relating to possible duplicity or vagueness. Finally, Miller was not denied his constitutional right to present a defense when the trial court denied his request to introduce irrelevant evidence from the deputy district attorney.”

Judgment affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Mawdsley, J., Nettesheim, P.J.

Attorneys:

For Appellant: Daniel P. Fay, Pewaukee; Matthew H. Huppertz, Waukesha; Craig M. Kuhary, Waukesha

For Respondent: Lloyd V. Carter, Waukesha; Sandra L. Nowack, Madison