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Repeated Acts Case Analysis

The decision in this case brings to light two important issues that ultimately will have to be resolved, but would not arise if sec. 948.025(3) was more similar to the California statute that the court cited for guidance — waste of judicial resources, and double jeopardy.

The Wisconsin statute provides in relevant part, “The state may not charge in the same action a defendant with a violation of this section and with a felony violation involving the same child … unless the other violation occurred outside of the time period applicable under sub. (1).”

However, suppose a prosecutor is not sure on which charges he has a better chance of prevailing. The statute permits the State to commence two separate prosecutions — one for repeated sex acts, and one for specific incidents — but bars them from all being prosecuted together. This is not only a waste of judicial resources, but has the highly undesirable result of possibly compelling the victim to have to testify twice.

It also raises serious double jeopardy concerns. As the California Supreme Court noted, the purpose of these statutes are to enable the State to prosecute child molesters who engage in repeated acts, even if the child may not able to recall individual instances with sufficient clarity to build a strong case. The purpose is not double punishment. People v. Johnson, 121 Cal.Rptr.2d 197, 202 (Cal.2002).

The California statute resolves these problems easily. It provides, “No other felony sex offense involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative.(emphasis added).”

Thus, in California, the charges can all be brought in one prosecution, and the jury is given a choice on which charges to convict. From the victim’s standpoint, and from the standpoint of judicial economy, this is a better approach.

An even better approach would be to draft a statute similar to the drunk driving statutes. Defendants can be charged in the same complaint with both driving while intoxicated and driving with a prohibited blood alcohol content. If the jury finds the defendant guilty of both, then one of the two convictions is vacated. Sec. 346.63(1)(c).

If the repeated acts statute followed this approach, it would enable prosecutors to bring all charges in the same complaint, and then pick which charges to keep, should the jury find the defendant guilty of both repeated acts and specific offenses. This would be better than both the current Wisconsin statute, and the California approach, which nonsensically forces the jury to choose which offenses it will find the defendant guilty of, even when it believes the defendant guilty of all charges.

Thus, ironically, the procedures followed by the trial court in the case at bar are consistent with the way all these cases should be handled — all charges were tried together, and the prosecutor chose which convictions to keep and which to throw out.

Unfortunately, the statute, as written, does not allow that in the future. The court of appeals stated, “When necessary, the trial court should address such violations at the time of consolidation rather than during or after trial.” It is an unfortunate piece of guidance, because the best time to address the issue is, indeed, after trial, not before.

Double jeopardy is the second issue that will need to be addressed at some point. Suppose the state commences two separate prosecutions — one for repeated acts, and one for specific acts — and obtains convictions in both.

The charges contain different elements, and thus, pursuant to Blockburger v. U.S., 284 U.S. 299 (1932), and State v. Davison, 2003 WI 89, pars. 44-46, 666 N.W.2d 1, there is a presumption that the legislature did intend to allow cumulative punishments, and a defendant must show “clear legislative intent” that cumulative punishments were not intended.

The statute, however, on its face, prohibits multiple prosecution only “in the same action.” An argument that the legislature clearly did not intend cumulative punishment, in the face of such language, will be a difficult one to make.

However, the foregoing discussion of double jeopardy leads naturally to the question of whether this entire appeal was irrelevant — that the real issue is not which charges should have been dismissed, but whether any need have been dismissed, at all.


Wisconsin Court of Appeals

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for defective complaint

If it is accepted that there is no double jeopardy violation in charging a defendant both with individual acts and repeated acts, in separate complaints, there is no reason why any of the charges should have been dismissed.

The statute provides, “The state may not charge in the same action…” The State complied with that mandate; it was the defendant who moved to consolidate the proceedings, and the judge who granted the motion. Nothing in the statute prohibits either.

Had the two complaints proceeded separately, and the defendant been convicted of all counts, the court would have been free to sentence him to maximum and consecutive sentences. There is no logical reason why a defendant should be able to evade that possibility merely by a motion to consolidate the charges.

The court’s discussion of judicial estoppel, taken to its logical conclusion, would not merely bar the defendant from choosing which charges would be dismissed; it would bar him from dismissing any at all.

Thus, there is no reason why the trial court should have granted the postconviction motion in the first place; the trial court was perfectly free to impose sentences on both the individual acts counts, and the repeated acts count.

– David Ziemer

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David Ziemer can be reached by email.

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