Oakley v. State

• Decision Date: 21 January 1964
• Citation: 22 Wis.2d 298,125 N.W.2d 657
• Parties: Donald R. OAKLEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 657

125 N.W.2d 657

22 Wis.2d 298

Donald R. OAKLEY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

Supreme Court of Wisconsin.

Jan. 21, 1964.

The district attorney for Rock county filed an information against the plaintiff in error, Donald R. Oakley, pursuant to a complaint signed by Mrs. * * *. The information charged Oakley with attempted rape and impersonating a peace officer in violation of secs. 939.32, 944.01 and 946.70, Stats. The jury found Oakley guilty on both charges and judgment was entered on the jury verdict. Oakley's motions for a new trial and for judgment notwithstanding the verdict were denied. After a presentence examination, Oakley was committed to the state department of public welfare pursuant to sec. 959.15(6), Stats., ¹ for treatment at the sex deviate facilities of the Wisconsin State Prison, 'until released therefrom pursuant to law.' The defendant Oakley obtained a writ of error to review that portion of the judgment of conviction finding him guilty of attempted rape.

J. Richard Long, Beloit, for plaintiff in error.

George Thompson, Atty. Gen., William A. Platz and Robert D. Martinson, Asst. Attys. Gen., Madison, William F. Donovan, Dist. Atty., Rock County, Janesville, for defendant in error.

DIETERICH, Justice.

The sole issue involved on appeal is whether there is credible evidence in the record upon which a jury could be convinced beyond a reasonable doubt that defendant Oakley was guilty of the crime of attempted rape. No issue is raised on this appeal as to the charge of impersonating a peace officer.

The testimony of the complaining witness, Mrs. * * *, revealed the following facts. Mrs. * * * was driving north on Highway 51 between Beloit and Janesville on a Sunday morning at approximately 6:45 a. m. It was daylight, and although there was some haze, visibility was good. Mrs. * * * testified that there was little traffic on the highway at that hour. As she was driving toward Janesville, the defendant Donald Oakley, who was driving a 1941 model pickup truck, passed her and slowed down, crowding Mrs. * * * off the traveled portion of the highway and onto the shoulder. Oakley stopped his truck directly in front of Mrs. * * *, walked back to her car and asked her through the open car window whether she knew the speed limit in that area. She replied that the speed limit was 50 miles per hour and then testified as follows:

'A. He said I was going faster than 50 and he said I'd better move the car off the road, and he moved his truck and then I noticed he had taken my car keys. By that time I became suspicious, when he came back I asked who he was * * * He said he was in charge in this area. He said, I am in charge in this area, he said could I see your driver's license * * *

'Q. As this man came up to the car, you were behind the steering wheel, is that correct? A. Yes.

'Q. Was the window up or down? A. The window was down.

'Q. And what did he say? A. He asked me if I knew what the speed limit was there.

'Q. You told him you did? A. Yes.

'Q. And then what happened? A. He said I was going faster and I said I couldn't have been, I had looked at the speedometer, and he opened the car door and said he'd better move the car off the road and that he would check my speedometer.

'Q. You automatically moved over without any further comment as he opened the door? A. He pushed me over said he wanted to move the car off the road so that he could check the speedometer.

'Q. You didn't say anything to him about moving the car? A. No, he surprised me when he opened the door--I had no reason to believe he was anything other than what he said he was.

'Q. He didn't say he was an officer did he? A. No--he acted like one.

'Q. In what way did he act like one? A. His manner at the time he talked about the speed limit that was just as I would expect a policeman to do.'

According to Mrs. * * *, Oakley was not wearing a uniform, but was dressed in clean, well-pressed blue jeans and a light blue sport shirt.

After they had traveled five or six blocks north on Highway 51, Oakley turned east on the Avalon Road leading to Janesville. He drove on Avalon Road for about five or six blocks and stopped the car. Mrs. * * * was then asked:

'Q. And all that time were you and he talking together? A. No. I had asked for identification, he had said I have it here and other than that, I asked three times for that, and other than that there was no conversation.'

She testified that she asked Oakley for identification after he had stopped the car on Avalon Road and that he then put his hands on her shoulders. Mrs. * * * continued her testimony as follows:

'Q. Did he continue to keep his hands on your shoulders? A. Yes, he had them on me all the time.

'Q. Did he do anything else? A. He tried to kiss me, he had one hand around my shoulder, it would be his right hand and with his left hand he tried to pull up my skirt.

'Q. What were you doing during this period of time? A. Trying to push him away and plead with him to please let me go.

'Q. Did you make any attempt to get out the door of the automobile? A. I couldn't--the position I was in.

'Q. Why not? A. My back was against the door and I would have had to reach behind me * * *

'Q. Did he attempt to touch any other portion of your body during this particular period of time? A. He tried to open my blouse, he did get one button open.

'Q. Did he make any attempt to reach inside your blouse? A. Yes, I pushed his hand away * * *

'Q. In the course of this conduct, was there any conversation between you and the defendant? A. Yes, I was crying at the time and I asked him to let me go, he said, not just yet. I was trying to push him away but I was not having very much luck. I asked him to please just let me go. I told him I had had a recent miscarriage and was doctoring and would he please leave me alone. He said could he just put it in once. He said it's not going to hurt you, then I explained to him I was menstruating at the time and would he please let me alone. He said he wouldn't believe me unless I showed him, I said no and he kept on trying to pull up my skirt and said I should show him I had a pad on, I said all right and he said he would let me go.

'Q. During the time this conversation you have related took place, where were his hands? A. He had one around my shoulder and the other hand he was trying to pull up my skirt.

'Q. Then what happened? A. Then he said he would let me go.

'Q. Did he in fact do so? A. He started the car and went to go and he put the front end of the car in the ditch.

'Q. What happened then? A. He worked for a while getting the car out of the ditch, when he got it back on the road, he stopped the car and grabbed me again.

'Q. Would you describe again how the grabbed you at this point? A. He again put his arms around my shoulders just as he had before.

'Q. What did he do at this time? A. He said he was going to put it in just once, it was not going to hurt. He said it's not going to hurt you * * *

'Q. Was he fully clothed? A. Yes, he had opened his pants and taken his penis out.

'Q. Did you see his penis? A. Not until after I had pleaded with him to let me go home, I pleaded with him to let me go home, I pleaded with him to let me go and explained to him about my doctoring and would he please let me alone and then he said if you will touch it I will let you go, then I noticed it.

'Q. When you say touch it, to what do you refer? A. His penis.

'Q. Then what happened? A. I said no, I wanted to go home and would he please let me go that my children were waiting--about them being on my mind, I thought maybe if I told him about their being home he would feel sorry for me and let me go. He took hold of me and pushed my head down.

'Q. When you say he pushed your head down, down where? A. Onto his penis. * * *

'Q. With reference to his penis, did he force it into your mouth? A. He pushed my head down. I was squirming and his penis entered my mouth for a few seconds. I managed to pull away--I was squirming and trying to get away.'

Oakley then drove back to his truck, got out of the car and left, after telling Mrs. * * * not to scream or holler. Mrs. * * * drove into Janesville, and from there to her home in a nearby city, arriving at her residence at about 8:30 a. m. She took a sleeping pill and went to bed for a few hours. She phoned her home-town police department at about 3:30 p. m., and told the officer that a man had forced her off the road near Janesville, but she mentioned nothing about any assault. She testified that she didn't stop and report the incident while she was in Janesville earlier in the day because she was too frightened and she didn't know where the Janesville police station was located. After telephoning the police, Mrs. * * * went to Milwaukee where she remained until the following Wednesday, July 27.

On cross-examination, Mrs. * * * testified that the whole encounter with Oakley lasted for about one hour. She testified that at no time did Oakley harm her although she 'ached all over' for three days afterwards and that she was not bruised at all; that he never actually had sexual intercourse with her; that he made no effort to penetrate her; that to her knowledge she did not scratch Oakley; and that she did not attempt to sound the car horn at any time. Mrs. * * * was asked whether Oakley had threatened her with physical violence at any time, and she replied; 'He didn't say he would kill me, anything like that, he made statements, I am going to put it in just once, it's not going to hurt you, things like that. As far as saying I will kill you, things like that, No.' She was also asked by defense counsel about her testimony on this point at the preliminary examination:

'Q. Mrs. * * *, in that same preliminary examination, you were asked a question, referring to this man who was in your car:

"Q. He at no time had threatened to hurt you? A. He didn't threaten to kill...