State v. Johnson, 99-2968-CR.

• Decision Date: 30 May 2001
• Docket Number: No. 99-2968-CR.,99-2968-CR.
• Citation: 627 N.W.2d 455,2001 WI 52,243 Wis.2d 365
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William G. JOHNSON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

243 Wis.2d 365

2001 WI 52

627 N.W.2d 455

STATE of Wisconsin, Plaintiff-Respondent, v. William G. JOHNSON, Defendant-Appellant.

No. 99-2968-CR.

Supreme Court of Wisconsin.

Oral argument February 5, 2001.

Decided May 30, 2001.

For the defendant-appellant there were briefs and oral argument by Martha K. Askins, assistant state public defender.

For the plaintiff-respondent the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DIANE S, SYKES, J.

This case presents a constitutional challenge to the statute making it a crime to engage in repeated acts of sexual assault of the same child, Wis. Stat. § 948.025 (1997-98).¹ The defendant challenges the provision in the statute that relieves the jury of any requirement of unanimity as to the specific individual acts of sexual assault that combine to constitute the crime, as long as it unanimously agrees that the defendant committed the minimum number required, to wit, at least three.

¶ 2. The statute previously survived a unanimity challenge under the state constitution in State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997). In Molitor, the court of appeals concluded that the statute's requirement of jury unanimity on the existence of a continuing course of sexually assaultive conduct satisfied the defendant's right to a unanimous verdict, even though unanimity is not required as to each discrete act of sexual assault comprising the course of conduct. Then came Richardson v. United States, 526 U.S. 813 (1999), in which the United States Supreme Court held that to convict a defendant under the federal "continuing criminal enterprise" drug statute, the jury must unanimously agree on the specific underlying drug code violations that comprise the "continuing criminal enterprise". Id. at 815. ¶ 3. After Molitor but before Richardson, the defendant in this case, William G. Johnson, was convicted under Wis. Stat. § 948.025 for repeated sexual assault of the same child, after a trial in which the state introduced evidence of more than three separate acts of sexual assault against the same victim. On postconviction motion and appeal, Johnson argued that Molitor cannot survive Richardson, and since the jury in his case had not been instructed that it must be unanimous on the specific predicate acts of sexual assault that comprised the crime, his right to a unanimous verdict had been violated. The court of appeals certified the case to us.² We conclude that Molitor survives Richardson, and under the state and federal constitutional analyses in both cases, the statute is constitutional. Accordingly, we affirm the circuit court's denial of the motion for a new trial.

I

¶ 4. Johnson was charged with repeated sexual assault of the same child in violation of Wis. Stat. § 948.025 arising out of a series of incidents involving Roshunda R., who was 14 years old when the incidents occurred.³ At trial, Roshunda testified that she used to live across the street from Johnson's girlfriend and that she would sometimes play with his girlfriend's children. Roshunda testified that during the summer of 1997, Johnson touched her sexually a number of times. The first of these sexual contacts occurred on a day in July 1997, when a person Roshunda knew as "Marianne" got in trouble with the police; a detective's testimony determined this date to be July 8, 1997. Roshunda was on Johnson's porch that evening with a number of other people, and Johnson touched her chest over her clothes. When she moved to a different spot on the porch, Johnson followed her and touched her again on her chest and "butt."

¶ 5. Roshunda also testified about a separate incident that occurred later that summer, on a day when her family returned to Kenosha from Waukegan, Illinois, where they were living at the time. Roshunda's mother established this date as August 21, 1997. Roshunda testified that while she and her sister were visiting at Johnson's house on that day, Johnson touched her on her breast and "bottom." When she tried to leave the house, Johnson asked her for a hug and a kiss and then hit her "bottom" as she was going out the door.

¶ 6. Roshunda also testified about a game of tag that occurred sometime in July 1997. She said that during the game of tag, Johnson caught her from behind and touched her chest, "butt," and vagina.

¶ 7. At the conclusion of the trial, the Kenosha County Circuit Court, the Honorable Michael S. Fisher, instructed the jury on the elements of the crime of repeated sexual assault of the same child:

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

The first element requires that the defendant committed three or more sexual assaults of Roshunda. In this case, the sexual assaults are alleged to have involved sexual contact.

. . .

The second element requires that Roshunda had not attained the age of 16 years at the time of each act of sexual contact.

. . .

The third element requires that at least three of the alleged sexual assaults took place from a specific period of time. The specific period of time is from July 1, 1997 through August 21, 1997.

¶ 8. This instruction derives from the pattern jury instruction applicable to this crime. See Wis JI — Criminal 2107. However, the circuit court did not read the entire instruction to the jury, but, rather, omitted the part of the instruction recommended for use in cases in which evidence of more than three acts of sexual assault has been admitted. That section of the pattern instruction paraphrases Wis. Stat. § 948.025(2) and tells the jury: "Before you may find the defendant guilty, you must unanimously agree that at least three sexual assaults occurred. . .but you need not agree on which acts constitute the required three." Johnson was convicted and sentenced to ten years in prison.

¶ 9. Johnson moved for a new trial, arguing that his right to a unanimous verdict had been violated because the State introduced evidence of more than the minimum number of sexual assaults required to constitute the crime, but the jury was not instructed that it had to agree unanimously on the specific acts of sexual assault before convicting him. Johnson argued that Richardson, decided after his trial, called into question the constitutionality of Wis. Stat. § 948.025 because the statute specifically allows conviction in the absence of jury unanimity on the individual acts of sexual assault that make up the crime. The circuit court denied the postconviction motion, concluding that Richardson was distinguishable from Molitor. Johnson appealed, and the court of appeals certified the case to us.

II

[1-4]

¶ 10. The constitutionality of a statute is a question of law that this court reviews without deference to the lower courts. State v. Randall, 192 Wis. 2d 800, 824, 532 N.W.2d 94 (1995). Statutes are presumed to be constitutional. Gloria A. v. State, 195 Wis. 2d 268, 276, 536 N.W.2d 396 (Ct. App. 1995). A statute will not be invalidated unless it has been proven unconstitutional beyond a reasonable doubt. Bachowski v. Salamone, 139 Wis. 2d 397, 404, 407 N.W.2d 533 (1987). The party challenging a statute's constitutionality bears the burden of overcoming the strong presumption in favor of the statute's validity. State v. Borrell, 167 Wis. 2d 749, 762, 482 N.W.2d 883, 887 (1992).

[5-7]

¶ 11. The Wisconsin Constitution's guarantee of the right to trial by jury includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. Wis. Const., art. I, §§ 5⁴ and 7;⁵State v. Derango, 2000 WI 89, ¶ 13, 236 Wis. 2d 721, 731, 613 N.W.2d 833. To say that the jury must be unanimous, however, does not explain what the jury must be unanimous about. For this we look to the statutory language defining the crime and its elements. "The principal justification for the unanimity requirement is that it ensures that each juror is convinced beyond a reasonable doubt that the prosecution has proved each essential element of the offense." Derango at ¶ 13 (quoting State v. Lomagro, 113 Wis. 2d 582, 591, 335 N.W.2d 583 (1983)). Thus, while jury unanimity is required on the essential elements of the offense, when the statute in question establishes different modes or means by which the offense may be committed, unanimity is generally not required on the alternate modes or means of commission. Derango, 2000 WI at ¶¶ 13-14.

[8]

¶ 12. Ordinarily, then, the first step in a unanimity challenge is an examination of the language of the statute in order to determine the elements of the crime and whether the legislature has created a single offense with multiple or alternate modes of commission. Derango, 2000 WI at ¶ 14. "The point is to determine legislative intent: did the legislature intend to create multiple, separate offenses, or a single offense capable of being committed in several different ways?" Id. at ¶ 15. For example, where the legislature has specified that any of several different mental states will satisfy the intent or mens rea element of a particular crime, unanimity is not required on the specific alternate mental state as long as the jury unanimously agrees that the state has proven the intent element beyond a reasonable doubt. Id. at ¶¶ 23-25.

[9]

¶ 13. Federal constitutional due process considerations, however, limit the state's ability to define a crime so as to dispense with the requirement of jury unanimity on the alternate means or modes of committing it. Richardson, 526 U.S. at 820 (citing Schad v. Arizona, 501 U.S. 624, 632-33 (1991) (plurality opinion) and Id. at 651 (Scalia, J., concurring); Derango, 2000 WI at ¶ 22 (citing Schad, 501 U.S. at 635). So the second step in the analysis is an evaluation of whether the lack of jury unanimity on the alternate means or modes of commission violates...