Gates v. State

• Decision Date: 21 August 1979
• Docket Number: No. 79-222-CR,79-222-CR
• Citation: 91 Wis.2d 512,283 N.W.2d 474
• Parties: Eugene A. GATES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Court of Appeals

Page 474

283 N.W.2d 474

91 Wis.2d 512

Eugene A. GATES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 79-222-CR.

Court of Appeals of Wisconsin.

Argued June 21, 1979.

Opinion Released Aug. 21, 1979.

Opinion Filed Aug. 21, 1979.

Richard L. Cates, State Public Defender and Steven P. Weiss, Asst. State Public Defender, argued, for plaintiff in error.

Bronson C. La Follette, Atty. Gen. and Betty R. Brown, Asst. Atty. Gen., argued, for defendant in error.

Before VOSS, P. J., BROWN and BODE, JJ.

VOSS, Presiding Judge.

The defendant, Eugene Gates, was convicted of second-degree sexual assault contrary to sec. 940.225(2)(a), Stats. Judgment The incident occurred on the evening of May 20, 1977 near the Top Deck Bar in Lake Geneva, Wisconsin. On July 5, 1977, Gates was charged with second-degree sexual assault. Following the preliminary examination, Gates' appointed counsel requested to withdraw because of a conflict of interest. Gates' new attorney moved for dismissal of the charge or a new preliminary hearing on the ground that Gates had been denied effective assistance of counsel. The motion was denied, and the case proceeded to trial by jury.

was entered January 23, 1978 sentencing Gates to an indeterminate term not to exceed four years. On July 28, 1978, the trial court [91 Wis.2d 516] denied Gates' motion for a new trial. Writs of error were issued to review both the judgment and the order.

At trial, the victim testified that she had met Gates for the first time the evening of May 20, 1977 at the bar when he asked her to dance. After dancing with Gates four times, the victim agreed to have a drink with him and then go for a walk in a nearby park. They walked to the part of the park farthest from the bar, sat on a bench and began kissing. When Gates started to caress her breasts, the victim stated that she wanted to return to her friends in the bar. Gates then asked her to accompany him further and wait so that he could "take a leak." The victim sat on the top of some stairs leading to the lake while Gates disappeared into some bushes for about a minute.

When Gates returned, he again started to kiss and caress the victim, who testified that she did not return the kisses. He asked her to touch him, but she refused. When he took her hand and began to move it toward his lap, she withdrew and started to walk back to the bar. She testified that Gates caught up with her, grabbed her by the shoulders and threw her to the ground. He sat on her back while she screamed and attempted to fight him. Eventually, he turned her over onto her back and squeezed her throat until she had difficulty breathing. He threatened to tear out her voice box and kill her if she did not stop struggling. At his demand, she then removed her pants, and they had intercourse.

She testified that she did not wish to return to the bar because she was bruised, dirty and humiliated. Instead, she walked back to her car with Gates, locked him out and drove away. She then stopped a sheriff's car and reported that she had been beaten up. Other witnesses testified that Gates was the man with whom she left and that she was bruised and cut about the face, neck and back as a result of the attack. Gates did not testify.

Gates did not dispute the sufficiency of the evidence to sustain his conviction. Instead, he attacks the constitutionality of the statute and the jurisdiction of the trial court. Specifically, the issues raised are: (1) whether sec. 940.225(4), Stats., gives an unconstitutionally vague definition of consent, (2) whether sec. 940.225(2)(a), Stats., impermissibly shifts the burden of proof on consent to the defendant, (3) whether the jury instructions were erroneous and (4) whether Gates was denied effective assistance of counsel at the preliminary hearing thereby depriving the trial court of jurisdiction.

VAGUENESS

Section 940.225(4), Stats., defines "consent" for purposes of the sexual assault law as "words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact." Gates argues this definition is so general that a reasonable person is precluded from determining whether he is in violation of the law. At trial, the jury returned twice for further instructions on the elements of the crime. In addition, the foreman asked specifically for the meaning of consent. Gates cites the jury's apparent confusion as strong evidence of the statute's vagueness.

Gates' assertions that the statute is too vague to allow an individual to determine whether there has been consent must be viewed by the appropriate standard. The summary of that standard given in Where First Amendment rights are not involved and it is not contended that First Amendment questions are presented by this case a defendant who challenges the enactment under which he was convicted on grounds of vagueness is limited to the conduct actually charged. Where that conduct is clearly within the prohibited zone, the defendant will not be heard to hypothesize other factual situations which might raise a question as to the applicability of the statute or regulation. (Citations omitted.)

State v. Courtney, 74 Wis.2d 705, 713, 247 N.W.2d 714, 719 (1976), is equally applicable here:

Gates was charged with using force and threats of violence in order to compel the victim to engage in sexual intercourse. The victim struggled and screamed repeatedly before complying with his demands. There can be no doubt that Gates was given fair notice this was not the "freely given agreement" required by the statute. Therefore, Gates cannot sustain his contention that sec. 940.225(4), Stats., is unconstitutionally vague.

Another aspect of Gates' "vagueness" challenge appears to be a claim that any statutory definition which causes substantial confusion among the members of the jury deprives a defendant of his due process right to a fair trial. This claim is without merit. There are many possible reasons for a jury's request for further instruction besides statutory infirmity or an absence of due process. There has been no showing that the verdict returned was improper. A particular jury's desire to have certain instructions repeated does not mean that they were ultimately unable to comprehend and properly apply the statutory definitions.

BURDEN OF PROOF

Gates argues that sec. 940.225(2)(a), Stats., is unconstitutional because it shifts the burden of proof on the issue of consent to the defendant when read in conjunction with sec. 940.225(4), Stats. He claims that, by defining consent as words or overt actions indicating a freely given agreement and requiring there be no consent, the burden of proof is shifted to the defendant. Gates asserts that where intercourse and force are shown, the State can obtain a conviction without introducing any evidence pertaining to consent, while the defendant is required to show words or overt actions of consent in order to gain acquittal. Such a result can only be obtained by misconstruing the statute.

Section 939.70, Stats., provides: "No provision of the criminal code shall be construed as changing the existing law with respect to presumption of innocence or burden of proof." "The state in a criminal case is obligated to prove every essential fact of the crime charged beyond a reasonable doubt." Turner v. State, 76 Wis.2d 1, 10, 250 N.W.2d 706, 711 (1977). Thus, there is a clear legislative mandate to avoid any construction of sec. 940.225(2)(a), Stats., which would result in the State being relieved of its obligation to prove every element of the crime beyond a reasonable doubt.

The plain words of sec. 940.225(2)(a), Stats., dictate, as the State concedes, that there are three elements of the crime of second-degree sexual assault. The State must prove that the defendant (1) had sexual contact or sexual intercourse with another person, (2) without that person's consent and (3) by use or threat of force or violence. Gates contends that, by defining consent as words or overt actions indicating an agreement to have sexual relations and then requiring the State to prove an absence of such words or actions, the legislature has relieved the State of its burden on the element of consent. We disagree.

In the absence of proof on the issue of consent, the State cannot obtain a conviction for second-degree sexual assault. The State must introduce evidence that there was no consent, and this evidence must be sufficient to convince the jury beyond a reasonable doubt. There is no presumption, as Gates asserts, that all acts of sexual contact or intercourse are without consent unless shown to have been preceded by words or overt actions of consent.

At argument, the State conceded that by enacting sec. 940.225, Stats., the legislature intended to relieve the State and the victim of the need to show "that her utmost resistance (was) overcome or prevented by physical violence or that her will to resist (was) overcome by threats of imminent physical violence likely to cause great bodily harm." Sec. 944.01(2), Stats. (1973). The removal of the requirement of proof of "utmost resistance," however, does not relieve the State of the burden of showing there was no consent. As the State concedes, it is still required to prove the victim did not by either words or overt actions freely agree to have sexual contact or intercourse with the defendant.

The evidence presented in this case was sufficient to meet the State's burden. The victim testified she screamed and struggled with Gates for at least five minutes before fear and exhaustion led her to comply with his demands. Earlier in the park and as she started to walk back to the bar, the victim responded to Gates' attempts to caress her breasts by stating that she wished to return to her friends in the bar. In this manner, the State established that the victim did not, by either her words or actions, freely agree to...