Criminal Procedure — right to unanimous jury

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Wisconsin Supreme Court

Criminal

Criminal Procedure — right to unanimous jury

Where the location of a crime is not an element of the offense, it does not deprive the defendant of the right to a unanimous jury if the jury does not agree on the location.

“The location of the room is not a fact necessary to prove either of the essential elements in this case. A.R.B. testified that Badzinski’s actions occurred in the laundry room. The contrary evidence regarding the location of the assault was relevant to A.R.B.’s credibility. See Kohlhoff v. State, 85 Wis. 2d 148, 154, 270 N.W.2d 63 (1978). However, a jury does not need to accept a witness’s testimony in its entirety. State v. Balistreri, 106 Wis. 2d 741, 762, 317 N.W.2d 493 (1982); State v. Kimbrough, 2001 WI App 138, ¶29, 246 Wis. 2d 648, 630 N.W.2d 752. The jury could have believed A.R.B.’s testimony about the sexual contact itself without believing that it occurred in the laundry room. Indeed, Dr. Ghilardi testified that child victims do not always remember the peripheral details of the assault.”

Reversed.

2011AP2905-CR State v. Badzinski

Bradley, J.

2004 WI 6

Attorneys: For Appellant: Loeb, Basil M., Wauwatosa; For Respondent: Kassel, Jeffrey J., Madison; Loebel, Karen A., Milwaukee