State v. Holt

Decision Date18 July 1985
Docket NumberNo. 84-1711-CR,84-1711-CR
Citation128 Wis.2d 110,382 N.W.2d 679
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Thomas J. HOLT, Defendant-Appellant. . Oral Argument
CourtWisconsin Court of Appeals

Review Denied.

Steven D. Phillips, Asst. State Public Defender (argued), for defendant-appellant.

Bronson C. La Follette, Atty. Gen. and Barry M. Levenson, Asst. Atty. Gen. (argued), for plaintiff-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

Thomas J. Holt appeals from the judgment convicting him of first-degree murder and first-degree sexual assault contrary to secs. 940.01(1) and 940.225(1)(a), Stats. He claims that the sexual assault prosecution was barred by sec. 939.71, Stats., that the circuit court erroneously failed to instruct the jury on second-degree murder and committed various additional evidentiary and other errors and that he was entitled to credit against his sentence. The state no longer disputes, and we agree, that Holt should receive credit for time spent in custody in Illinois, but we otherwise affirm the convictions.

On the night of June 20, 1979, Holt followed Alice Alzner, a resident of Lake Forest, Illinois, when she and a friend drove home after spending the evening at a bar in Kenosha. After Alzner dropped her friend off, Holt followed Alzner to her house, forced her into his car and drove back to Kenosha. He apparently attempted to have sex with her but later claimed not to know whether they had sex or not because he was "totally out of it" 1 from drinking beer and smoking marijuana. He stated that Alzner kneed him in the groin and that he "must have freaked out," hit her in the face and "may have" choked her by tying her bra and sweater around her neck. He then buried her in his neighbor's yard. When Alzner's unclothed body was found, her bra and long-sleeved sweater were knotted tightly around her neck.

Holt was convicted in Illinois of aggravated kidnapping, battery and felony murder and was sentenced to death. In 1982, the Illinois Supreme Court reversed the felony murder conviction, ruling that Illinois lacked jurisdiction over the crime since the murder occurred in Wisconsin. Holt was then tried and convicted in Wisconsin for first-degree murder, first-degree sexual assault and theft from a person and was sentenced to consecutive prison terms of life, ten years and three years, respectively.

Motion to Dismiss

Holt argues first that the trial court should have granted his motion to dismiss the sexual assault charge because it was barred under sec. 939.71, Stats., due to the prior Illinois convictions on two counts of aggravated kidnapping. Section 939.71 provides Limitations on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.

Illinois Revised Statutes ch. 38, sec. 10-2(a)(3) (1978), provides that a kidnapper is guilty of aggravated kidnapping when he inflicts great bodily harm or commits another felony upon his victim. Holt was convicted of two counts of aggravated kidnapping, one alleging great bodily harm to the victim and the other alleging sexual intercourse with the victim, a female person not his wife, by force and against her will. The facts to be proved under the first count were thus: (1) kidnapping, and (2) infliction of great bodily harm. The facts to be proved under the second count were: (1) kidnapping; (2) sexual intercourse; (3) the victim was female and not Holt's wife; (4) the intercourse was achieved by force, and (5) the intercourse was against the victim's will.

Section 940.225(1)(a), Stats., provides that first-degree sexual assault is committed when a person has sexual contact or intercourse with another person without consent of that person and causes pregnancy or great bodily harm to the victim. The facts to be proved in the instant case were thus: (1) sexual contact or intercourse; (2) lack of consent, and (3) great bodily harm.

Holt contends that the Wisconsin charge of first-degree sexual assault requires proof of no fact which was not required for the two Illinois counts of aggravated kidnapping, taken together, and is therefore barred by sec. 939.71, Stats. He admits, however, that his argument succeeds only if the elements of the two aggravated kidnapping charges are added together. Because sec. 939.71 refers to individual provisions and does not allow the adding together of claims to circumvent the "additional fact" test, we reject Holt's argument.

Our supreme court has made clear that when multiple charges arise from a single course of conduct, the additional fact test is to be strictly construed; as long as conviction under each provision requires proof of a fact that the other does not require, the charges will not be found to be multiplicitous. State v. Eisch, 96 Wis.2d 25, 291 N.W.2d 800 (1980); State v. Rabe, 96 Wis.2d 48, 63, 291 N.W.2d 809, 816 (1980).

Kidnapping aggravated by great bodily harm, kidnapping aggravated by rape and sexual assault aggravated by great bodily harm are three different offenses. None is a lesser-included offense of any of the others. The Wisconsin sexual assault charge does not require proof of kidnapping. The first count of aggravated kidnapping under the Illinois statute did not require proof of sexual assault and the second did not require proof of great bodily harm. The requirements of sec. 939.71, Stats., are met and the circuit court did not err in refusing to dismiss the first-degree sexual assault charge.

Sufficiency of the Evidence

Holt argues next that the sexual assault conviction was not supported by sufficient evidence. We disagree. The evidence, considered most favorably to the state and the conviction, is not so insufficient in probative value and force that it can be said as a matter of law that no reasonable jury could find guilt beyond a reasonable doubt. See State v. Stanfield, 105 Wis.2d 553, 563-64, 314 N.W.2d 339, 344 (1982).

Circumstantial evidence may establish the fact of sexual intercourse. Hagenkord v. State, 94 Wis.2d 250, 254-55, 287 N.W.2d 834, 837 (Ct.App.1979), aff'd in part and rev'd in part, 100 Wis.2d 452, 302 N.W.2d 421 (1981). Holt admitted that he intended to have sex with Alzner. Alzner's body was found unclothed and vaginal swabs taken at the autopsy revealed the presence of spermatozoa and acid phosphatase, the enzyme found in semen. A semen-stained blanket found in the trunk of the car Holt drove the night of the crime was further circumstantial evidence of intercourse.

Holt argues that no scientific evidence was presented identifying the semen found in Alzner's vagina as his. While the presence or absence of such serological typing evidence is a matter for the jury to consider, it is not necessary for conviction. See, e.g., Hagenkord, 94 Wis.2d at 254-55, 287 N.W.2d at 837.

Holt also contends that the testimony of one of the state's expert witnesses indirectly refutes that of another. Pathologist John Sanson testified that he performed the autopsy on Alzner less than three days after her death, that he found a high concentration of acid phosphatase in her vagina and that acid phosphatase begins to deteriorate after about four days. Sanson's testimony thus raised the implication that the enzyme found in Alzner's vagina could be no more than three or four days old. Chemist Michael Johnson testified that he examined the stained blanket six days after the incident and that an acid phosphatase test allowed him to conclude that the stain was in fact a semen stain.

Holt argues that Johnson's identification of the enzyme after six days refutes Sanson's implication that the enzyme in Alzner's vagina could be only three or four days old. We reject this argument. Sanson stated that the enzyme begins to deteriorate after about four days but gave no limits as to how long deterioration takes under varying conditions or how much time can elapse before the enzyme is no longer identifiable. The testimony of the two experts is not irreconcilable. Moreover, the weight and credibility to be given to testimony is a matter for the jury, and even where testimony of a single witness is inconsistent, the jury is free to choose which evidence, if any, to believe. Nabbefeld v. State, 83 Wis.2d 515, 529, 266 N.W.2d 292, 299 (1978).

Continuing his argument of insufficient evidence, Holt contends that a conviction for sexual assault requires the victim to have been alive during the alleged intercourse and that there is inadequate evidence in the present case to support a finding that Alzner was alive if and when intercourse occurred. The state agrees that sexual intercourse with a dead body does not violate Wisconsin's sexual assault laws but argues the jury could reasonably have believed that Alzner was alive when Holt had intercourse with her.

We conclude that in a rape-murder case where the exact sequence of events cannot be proved, the jury may reasonably infer, though it need not do so, that the victim was alive during the sexual assault, at least in the absence of evidence of necrophilic tendencies on the part of the accused. See Hines v. State, 58 Md.App. 637, 473 A.2d 1335, 1349 (1984). Such an inference, because permissive, does not improperly shift to the defendant the burden of disproving an element of the crime. See Sandstrom v. Montana, 442 U.S. 510, 514-15, 99 S.Ct. 2450, 2454, 6 L.Ed.2d 39 (1979).

Holt argues that an assailant with no necrophilic tendencies could have intercourse with his victim without realizing that she was dead. In such a case, the defendant is free to conduct his...

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