State v. Eisch
| Citation | 96 Wis.2d 25,291 N.W.2d 800 |
| Decision Date | 06 May 1980 |
| Docket Number | No. 78-256-CR,78-256-CR |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Robert Edward EISCH, Defendant-Respondent. |
| Court | United States State Supreme Court of Wisconsin |
Kirbie Knutson (argued), Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., on brief, for plaintiff-appellant-petitioner.
James P. Burnett, Chilton, for defendant-respondent.
The defendant was originally charged with four counts of second degree sexual assault, contrary to sec. 940.225(2)(a), Stats. After a preliminary examination and a bindover to Circuit Court for Calumet County, the defendant moved to dismiss the information on the ground that it was multiplicitous, i. e., that it charged the same offense sexual intercourse without consent and by use of force in four different counts. The court ordered the dismissal of three counts and directed the prosecutor to file an amended information charging one count of forcible unconsented intercourse, contrary to sec. 940.225(2)(a).
The state appealed the order to this court. Because the appeal was taken when the court system was in transition, the appeal was transferred to the court of appeals pursuant to sec. 131, ch. 187, Laws of 1977.
The appeal was heard in the court of appeals, and the trial court order of dismissal of three counts was affirmed. 1 1 In the exercise of our appellate discretion, we granted the state's petition for review.
The question posed is whether four acts of sexual intercourse, each different in kind from the others and differently defined in the statutes, constitute four separately chargeable criminal offenses, when all of the acts took place at the same location within a period of time that did not exceed two and one-half hours.
We conclude that the offenses are separate and distinct and may be separately charged. We reverse the court of appeals and direct that the record be remanded to the circuit court for Calumet County for further proceedings on the basis of the four counts charged by the district attorney.
Because we confront the case at the pleading stage, we are confined to the facts alleged in the complaint, information, and transcript of testimony of the witnesses at the preliminary examination. The parties have stipulated to the use of these documents as the record on this appeal.
The facts revealed by the record are these: The complainant was hitchhiking from Appleton to Neenah when she was picked up by the defendant Eisch at about 1 a. m. on May 18, 1978. Eisch drove his automobile into a field; and, according to the complainant's testimony, he forcibly removed her clothing. He accompanied this action with striking her and choking her. She stated that he inserted his penis into her vagina several times. She recounted that Eisch repeatedly stated that, if she would not cooperate, he would beat her. He also inserted his penis into the complainant's anus several times and forced a beer bottle into her vagina. Additionally, the complainant stated that Eisch forced his penis into her mouth. During all of this period, the complainant stated the defendant was striking her and pounding her head against the side of the car. 2 She escaped after she took the beer bottle and struck her assailant, cutting him badly. After her escape from the car, she hid in the field for two or three hours to escape recapture by her assailant. She eventually went to a nearby home, and the police were called. It is impossible from the skeletal facts to determine how long the entire assaultive episode took. It is, however, apparent that the ordeal was continuous. The record reveals that Eisch called a friend at about 3:30 a. m. to help get his car out of the field, and at about 5:30 a. m. he sought medical attention. The affidavit supporting the warrant recites that the sheriff's department was sent at 5:30 a. m. to a farmhouse where the victim sought refuge. From the record, it may be surmised that the alleged attack took place between 1 a. m. and 3:30 a. m. on May 18, 1978.
The statute under which Eisch was charged is sec. 940.225(2)(a), Stats.:
The information recited that Eisch had forcible and unconsented sexual intercourse with the victim in four respects: Count 1, "genital intercourse"; Count 2, "anal intercourse"; Count 3, "fellatio"; Count 4, "by inserting an object, to-wit: a beer bottle into her genitals."
Sec. 940.225(5)(c), Stats., provides:
"(c) 'Sexual intercourse' includes the meaning assigned under s. 939.22 (36) as well as cunnilingus, fellatio, anal intercourse or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening of another, but emission of semen is not required."
Sec. 939.22 (36), Stats., provides:
"(36) 'Sexual intercourse' requires only vulvar penetration and does not require emission."
The defense motion to dismiss all but one count rested on the argument that the counts were multiplicitous because all of the acts arose out of one incident. The state argues that each of the acts alleged was a separate instance of prohibited sexual assault and, although they took place during one period of time, each act was separate and distinct from the others, and that there were four separate penetrations different in kind and at different times.
The trial court ruled in favor of the defendant, concluding that, although the various acts were separate and different, they all constituted elements of the same offense under the statute and arose out of the same course of conduct. The court specifically provided that evidence of the four types of sexual conduct could be offered at trial as proof of the single count.
The general problem of multiplicity and the underlying prohibition against double jeopardy have been extensively discussed in State v. Rabe, 96 Wis.2d 48, 291 N.W.2d 809, of even date herewith, and in Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462 (Ct.App.1979), and will not be repeated here. 3
In resolving this appeal contrary to the assertions of the defendant, we rely principally upon the perceived legislative intent and upon the societal interest sought to be protected by the statutes.
In addition, we conclude, contrary to the position taken by the trial court and the court of appeals, each count requires proof of a significant evidentiary fact not required or pertinent to proof of the other counts.
We believe the court of appeals also erred when it equated the additional-fact or additional-evidence test with the additional-element test. It is, of course, true that the charging of a second crime which requires proof of an additional element eliminates the possibility of multiplicity. But it is logically erroneous to assume the converse that only the charging of an unrelated element will satisfy the test. Proof of any of the four separate assaultive acts is sufficient to furnish a factual and legally sufficient element for a single charge under sec. 940.225, Stats. But that is not the question. The question is whether the elements, which are legally identical, are sufficiently different in fact to demonstrate that a separate crime has been committed.
In the present case, sexual intercourse was accomplished by four separate bodily intrusions, each of which is defined in the statutes. Sec. 940.225(5) (c), Stats. In law they are the same in the sense that each would constitute a legal predicate for prosecution under the statute.
An analogous rationale was utilized in Anderson v. State, 221 Wis. 78, 265 N.W. 210 (1936), when this court affirmed a conviction on a charge of embezzling tax funds in October when the defendant had previously been acquitted of a charge under the same statute of embezzling funds in August. The court emphasized that, (at 87, 265 N.W. at 214) The statement serves to illustrate the point that merely because the same elements appear in separately charged crimes does not resolve the question of multiplicity. We do not carry the analogy further, because in Anderson the factual conduct which was the same in kind took place at substantially different times.
In the instant case the conduct was, we conclude, substantially different in fact, although not in law, and took place within a relatively short period. We conclude that under Wisconsin law the allegation of substitute facts, all of which furnish the same legal element of the crime, does not result in multiplicitous charges if these facts are either separated in time or are of a significantly different nature in fact. 4
The mere fact that factual elements are somewhat different does not, however, resolve the question or terminate our inquiry in determination of the question of multiplicity. Blenski v. State, 73 Wis.2d 685, 245 N.W.2d 906 (1976), illustrates the point. This court refused to allow multiple prosecutions where illegal solicitations were effected by use of multiple testimonials by different persons who had not given consent to have their names used for that purpose. The court reasoned that the use of different names did not result in multiple crimes, because the legislative intent was not to protect persons whose names were used without authorization, but rather to protect the public against fraudulent charitable solicitations. In the context of Blenski, the additional fact, the use of different unauthorized names, was, in view of the legislative intent, not sufficient to demonstrate that the crimes were so significantly different that they were separately chargeable.
The rationale was discussed by Judge Rutledge in his concurring opinion in ...
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State v. Moats
...of multiplicity now before this court has already been discussed as it relates to allegations of sexual assault in State v. Eisch, 96 Wis.2d 25, 291 N.W.2d 800 (1980) and Harrell. Based on a review of the principles in Rabe and the facts of Eisch and Harrell, we conclude that the facts in t......
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...only that an act of rape occurred while all were present. The defendant also argues that this court's decision in State v. Eisch, 96 Wis.2d 25, 291 N.W.2d 800 (1980), compels the reversal of his conviction. In Eisch, we held that it was not multiplicitous to charge a defendant with four cou......
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