State v. Becker

• Citation: 2009 WI App 59,767 N.W.2d 585
• Decision Date: 08 April 2009
• Docket Number: No. 2007AP2941-CR.,2007AP2941-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Christopher F. BECKER, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Court of Appeals of Wisconsin

767 N.W.2d 585

2009 WI App 59

STATE of Wisconsin, Plaintiff-Respondent, v. Christopher F. BECKER, Defendant-Appellant.^†

No. 2007AP2941-CR.

Court of Appeals of Wisconsin.

Oral Argument December 2, 2008.

Opinion Filed April 8, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Diana M. Felsmann, assistant state public defender of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and J.B. Van Hollen, attorney general. There was oral argument by Marguerite Moeller.

Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.

¶ 1 ANDERSON, P.J

Christopher F. Becker was convicted of two counts of first-degree sexual assault of a child. He filed a postconviction motion alleging that the manner in which the trial court responded to a jury question deprived him of a unanimous jury verdict on both counts. The motion was denied. Becker appeals both his conviction and the denial of his postconviction motion, claiming that the trial court erroneously exercised its discretion when it inaccurately responded to a critical jury question and that he was deprived of his right to effective assistance of counsel when his trial counsel failed to object to the trial court's incomplete and misleading answer to that jury question. We affirm the judgment and order.

¶ 2 Becker was charged with and convicted of two counts of first-degree sexual assault of a child, in violation of WIS. STAT. § 948.02(1) (2003-04).¹ In the complaint, it was made clear that the two counts were based on two acts allegedly committed by Becker: first, his touching of the victim's vagina; second, his allowing or causing the victim to touch his penis.

¶ 3 In the information, the two counts were charged in identical language. In its instruction to the jury, the trial court repeated the identical charges made in Count 1 and Count 2 of the Information.

The first Count in the Information in this case charges that on or between June 1, 2003, and August 1, 2003, the defendant had sexual contact with a child under the age of 13....

To this charge the defendant has entered a plea of not guilty, which means the State must prove every element of the offense charged beyond a reasonable doubt.

The second Count of the Information charges that on or between June 1, 2003, and August 1, 2003, the defendant had sexual contact with a child under the age of 13....

To this charge the defendant has also entered a plea of not guilty, which means that the State must prove every element of the offense charged beyond a reasonable doubt.

¶ 4 The trial court then instructed on the two offenses charged:

First degree sexual assault of a child, as defined in the Criminal Code of Wisconsin, is committed by one who has sexual contact with a person who has not attained the age of 13 years.

Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following two elements were present.

¶ 1. The defendant had sexual contact with [the alleged victim].

¶ 2. [The alleged victim] was under the age of 13 years at the time of the alleged sexual contact. Knowledge of [the alleged victim's] age is not required; and mistake regarding her age is not a defense.

Consent to sexual contact is not a defense.

Sexual contact is an intentional touching by the defendant of the vagina of [the alleged victim]. The touching may be of the vagina directly or it may be through clothing. The touching may be done by any body part or by any object, but it must be intentional touching.

Sexual contact also requires that the defendant acted with intent to become sexually aroused or gratified.

Sexual contact also is an intentional touching by [the alleged victim] of the penis of the defendant, if the defendant intentionally caused or allowed [the alleged victim] to do that touching. The touching maybe [sic] of the penis directly or it maybe [sic] through the clothing.

Sexual contact also requires that the defendant acted with intent to become sexually aroused or gratified.

¶ 5 The last four paragraphs of the foregoing instructions on the charged sexual assaults identified Becker's two acts of sexual contact with the victim that underlie the two charged counts. However, they failed to tie a particular act to a particular count. The verdict forms, likewise, did not tie a particular act of sexual contact to a particular count. The verdict on Count 1 provided:

We, the jury, find the defendant, Christopher F. Becker, guilty of, on or between June 1, 2003 and August 1, 2003, at the Village of Germantown, having sexual contact with a child under the age of thirteen ... contrary to § 948.02(1), Wis. Stats., as charged in the first count of the information.

The verdict on Count 2 provided:

We, the jury, find the defendant, Christopher F. Becker, guilty of, on or between June 1, 2003 and August 1, 2003, at the Village of Germantown, having sexual contact with a child under the age of thirteen ... contrary to § 948.02(1), Wis. Stats., as charged in the second count of the information.

¶ 6 The jury sent the following question to the judge during deliberations:

Does count one and count two correspond to the specific events? i.e., is one the vaginal contact and two the penis contact?

¶ 7 After consulting with counsel, and obtaining both sides' approval of the response, the trial court sent the jury the following written response to its question:

The answer is "No".

The Judge.

¶ 8 It is the "No" answer to the jury's question that triggers both of Becker's contentions on appeal. He first argues that the trial court erroneously exercised its discretion in responding to the jury's question in the manner it did. He argues second that his trial attorney rendered ineffective assistance of counsel in failing to object to the trial court's response to the jury's question.

¶ 9 While the trial court may have had reason for answering the jury's question in the manner it did,² it does appear, and the State concedes, that the answer may have compounded a potential problem that was already present as a result of (a) the two charges of sexual assault of a child made in the first two counts of the information, (b) the jury instructions on those two counts, and (c) the verdict forms for those two counts, all of which failed to tie a particular act of sexual contact to a particular count. This potential problem was recognized in State v. Marcum, 166 Wis.2d 908, 480 N.W.2d 545 (Ct.App.1992): the possibility that the jury might return a non-unanimous verdict on the nonspecific counts.

¶ 10 Before we proceed to our analysis, we make the following edifying clarifications. This entire issue could have been avoided if the State had not put it in play with its sloppy draftsmanship. In the complaint and information, the district attorney did not tie the specific act of Becker touching the victim's vaginal area to a specific count; nor did he tie the specific act of Becker allowing or causing the victim to touch his penis to a separate, specific count. Where a defendant, such as Becker, is charged with multiple acts violating a criminal statute, the district attorney should tie a specific act to each count in the case. The complaint and/or information should then specify in each count the specific act to which it applies. This should also be done if there are multiple acts occurring at different times or on different days. If the district attorney fails to charge with particularity, defense counsel should bring a motion to make the complaint and/or information more definite and certain. Finally, the trial court should not overlook sloppy charging by the State. Rather, regardless of the State's lack of care, the trial court should take great care to not give generic, nonspecific instructions or verdict forms to the jury. Having conveyed, with particularity, how to avoid this problem in the future, we continue with our analysis.

¶ 11 In Marcum, we found a unanimity problem that arose out of the manner in which three of the charged counts were handled. Id. at 923, 480 N.W.2d 545. Like Counts 1 and 2 here, Counts 4, 5, and 6 in Marcum were charged in identical language. See id. at 913, 480 N.W.2d 545.

¶ 12 At the trial in Marcum, the State introduced evidence that the defendant had hand-to-vagina, hand-to-breast, penis-to-vagina, and penis-to-mouth contact with the child-victim. Id. at 914, 480 N.W.2d 545. As in Becker's case, the jury instructions in Marcum's case for certain counts did not tie any particular type of contact to any particular count. See id. at 915, 480 N.W.2d 545. Also, as in Becker's case, the verdict forms for these counts were identically worded. See id.

¶ 13 In Marcum, the jury returned a guilty verdict on Count 6, one of the three identically worded counts, but not on the other two (Counts 4 and 5). Id. On appeal, we reached the issue of unanimity under Marcum's claims of ineffective assistance of counsel. Id. at 916, 480 N.W.2d 545. We concluded that Marcum's trial counsel was deficient for failing to object to the verdict forms and that Marcum was prejudiced by his counsel's deficient performance, given that Marcum's due process rights were violated by the lack of verdict specificity. Id. at 924-25, 480 N.W.2d 545. We explained:

The standard instruction when applied to unspecific verdicts, as in this case, left the door open to the possibility of a fragmented or patchwork verdict. For instance, there was nothing to prevent three jurors from thinking there was hand-to-vagina contact, three thinking hand-to-breast contact, three thinking penis-to-vagina contact, and three thinking penis-to-mouth contact when they agreed to find him guilty of count six. Yet, those same acts could already have formed the basis for the jurors' agreement to find Marcum not guilty of counts four and five. Such an...