State v. Badzinski, 2011AP2905–CR.

• Decision Date: 29 January 2014
• Docket Number: No. 2011AP2905–CR.,2011AP2905–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Darryl J. BADZINSKI, Defendant–Appellant.
• Court: Wisconsin Supreme Court

352 Wis.2d 329

843 N.W.2d 29

2014 WI 6

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,

v.Darryl J. BADZINSKI, Defendant–Appellant.

No. 2011AP2905–CR.

Supreme Court of Wisconsin.

Jan. 29, 2014.

For the plaintiff-respondent-petitioner, the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant, there was a brief by Basil M. Loeb and Schmidlkofer, Toth, & Loeb, LLC, Wauwatosa, and oral argument by Basil M. Loeb.

ANN WALSH BRADLEY, J.

¶ 1 The State of Wisconsin seeks review of an unpublished decision of the court of appeals that reversed both a judgment of conviction and a circuit court order denying post-conviction relief.¹

¶ 2 The defendant, Darryl Badzinski, was charged with sexually assaulting his niece, A.R.B. At trial, A.R.B. testified that the assault occurred in the laundry room at a family gathering. During jury deliberations, the jury asked the circuit court if it needed to agree on the location of the assault. The court responded “no.” The court of appeals determined, however, that this permitted the jury to speculate beyond the evidence and remanded the case for a new trial.

¶ 3 The State argues that the court of appeals erred in reversing the circuit court. It contends that the jury did not have to unanimously agree on the location because it is not an essential element of the crime charged. The State further asserts that the court's response of “no” did not mislead the jury into speculating beyond the evidence.

¶ 4 In reply, Badzinski maintains that the circuit court's response of “no” deprived him of a unanimous verdict. He further argues that the circuit court's response of “no” violated his due process rights in that it impermissibly misled the jury into believing that the victim's credibility was irrelevant and that it could speculate beyond the evidence.

¶ 5 We conclude that the circuit court's response of “no” did not deprive Badzinski of a unanimous verdict. Jury unanimity is required only on the essential elements of the crime. Here, the location of the crime was not one of those elements. Thus, it was not something that the jurors needed to agree upon unanimously.

¶ 6 We further conclude that Badzinski failed to show that the court's response of “no” was ambiguous or reasonably likely to cause the jury to apply the jury instructions in a manner which violates due process. Given the evidence presented, the parties' closing arguments, and the court's other instructions, the response was unlikely to mislead the jury into believing that the victim's credibility was irrelevant and that it could speculate beyond the evidence.

¶ 7 Accordingly, we reverse the court of appeals.

I

¶ 8 In 2006, Badzinski's then 15–year–old niece, A.R.B., told a sheriff's deputy that she had a history of sexual abuse but declined to provide any details. Three years later, A.R.B. revealed to her mother that Badzinski molested her when she was five or six years old. She said that it happened at a holiday gathering held at her grandparents' house.

¶ 9 After A.R.B. and her mother reported the incident to the police, the State charged Badzinski with first-degree sexual assault of a child. The complaint and information alleged that the assault occurred either at Christmas or Easter time between October 2, 1995, and April 30, 1998. After Badzinski objected, the State filed an amended information limiting its case to the six dates between 1995 and 1998 when A.R.B.'s grandparents hosted Easter and Christmas gatherings.

¶ 10 In support of the charges, the State had four witnesses testify at trial: A.R.B., Dr. Liz Ghilardi, Deputy Steven Schmitt, and A.R.B.'s mother.

¶ 11 A.R.B. testified that during a Christmas or Easter gathering, when she was four to six years old, she stumbled upon Badzinski in the laundry room in her grandparents' basement. A.R.B. did not recall why she entered the laundry room, but guessed she may have been playing hide-and-seek. She remembered that she was looking for a place to hide. She stated that when she entered, Badzinski was sitting against the freezer masturbating. Badzinski then closed the door to the room, had her sit next to him, told her his penis was a toy, and tried to make her touch it. At one point he took her hand and placed it on his penis. She did not recall how long the incident lasted or how it ended.

¶ 12 Dr. Ghilardi testified as an expert witness on child sexual abuse victims. When discussing their ability to recall events, she explained that it is not uncommon for victims to have trouble remembering peripheral details outside the fact of the assault itself:

It is quite common they will remember the core details of the assault itself and what happened to their bodies or what they were made to do, whatever the case may be. But they may not be able to remember all of what we call peripheral details, the things going on around them, the party, who was there, what they were wearing, what the perpetrator was wearing, where the dog was, those kind of things. Those memories may fall off more quickly for them than the core event, because that is something that really stood out in their mind.

Dr. Ghilardi further explained that it was quite common for child victims to delay reporting the abuse. She also testified that children who have not disclosed the abuse might manifest their distress in other ways, such as abusing drugs or alcohol or engaging in other self-harming behavior like cutting.

¶ 13 Deputy Schmitt testified that in April 2006 he was dispatched to the Children's Hospital to do an emergency detention evaluation of A.R.B., who was 15 years old at the time. After noticing numerous cuts on her body, he asked her if she was an abuse or assault victim. A.R.B. responded “yes,” but refused to talk about it. The only detail Deputy Schmitt was able to get was that the abuser was a male family member.

¶ 14 Likewise, A.R.B.'s mother testified that she was unable to get any information about the incident from A.R.B. at that time. It was not until 2009, after another family gathering, that A.R.B. told her mother that Badzinski had been the perpetrator.

¶ 15 Badzinski had 11 family members testify on his behalf. Their stories were largely consistent. The family got together for Christmas and Easter at A.R.B.'s grandparents' house. Approximately 20 to 25 people would attend. The house was a one-story ranch home with a finished basement and three bedrooms upstairs.² The gatherings mainly took place in the basement. The laundry room was in the basement and it contained a freezer. Guests would regularly go to the laundry room to get ice from the freezer and frosted beer mugs. They would also pass by the laundry room when going to the bathroom, which was located next to it. The witnesses agreed that the door to the laundry room was usually kept open. None of the witnesses saw the assault or believed it could have occurred in the laundry room.

¶ 16 Some of the witnesses also indicated that they were not always in the basement during these gatherings. Some of the witnesses testified that on Easter, if the weather was nice, the family would go outside on the deck. Badzinski's sister stated that the children would play games like hide-and-seek upstairs during the events. His brother-in-law agreed that there were other rooms in the house, such as the upstairs bedrooms, where someone could masturbate unnoticed.

¶ 17 After the close of evidence, the court read the instructions to the jury. These included the instruction that the jury must follow all the jury instructions and “consider only the evidence received during this trial.” The court informed the jury that the State must prove: “One, that this defendant had sexual contact with [A.R.B.]. Two, that [A.R.B.] was under the age of 13 years at the time of alleged sexual contact.” It stated that “[t]he burden of establishing every fact necessary to constitute guilt is upon the State.” It further instructed “[d]raw your own conclusions from the evidence and decide upon your verdict according to the evidence, under the instructions given to you by the court.”

¶ 18 The jury instructions also addressed the issue of credibility. The court told the jurors that they “are the sole judges of credibility.” It suggested numerous factors that the jurors could consider in determining credibility, in addition to “all other facts and circumstances during the trial which tend to support or discredit testimony.” The court concluded that instruction by stating, “[i]n every day life you determine for yourselves the reliability of the things people say to you. You should do the same here.”

¶ 19 After closing arguments the court reminded the jurors that “it is a violation of the juror's oath ... [to] rely on any information outside the evidence.” It then indicated that if the jury had any questions during deliberations, it should send a note and the court would respond either orally or in writing.

¶ 20 During deliberations the jury asked the judge if it must agree where the assault occurred. With the parties' consent, the judge responded that the jury must agree that the assault took place at the address of the gathering. ³ The jury subsequently asked if it needed to agree that the assault occurred in the laundry room. Over the defendant's objections, the judge responded, “no.”

¶ 21 The jury found Badzinski guilty. Badzinski filed a motion for post-conviction relief, arguing that the long delay in reporting by the victim and the non-precise nature of the allegations prevented him from being able to properly prove a defense. He further argued that no rational trier of fact would have believed the victim and that the real controversy had not been tried.

¶ 22 The State responded that the time period of the alleged assault was sufficiently specific. It further asserted that the verdict was supported by the evidence, as the jury could have chosen to...