State v. Killian

Decision Date19 July 2022
Docket Number2020AP2012-CR
PartiesState of Wisconsin, Plaintiff-Appellant, v. James P. Killian, Defendant-Respondent.
CourtCourt of Appeals of Wisconsin

State of Wisconsin, Plaintiff-Appellant,

James P. Killian, Defendant-Respondent.

No. 2020AP2012-CR

Court of Appeals of Wisconsin, District III

July 19, 2022

APPEAL from an order of the circuit court for Trempealeau County Cir. Ct. No. 2019CF163 RIAN RADTKE, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.


¶1 The State appeals an order dismissing all of its charges against James Killian. Before filing the charges at issue in this appeal, the State had previously charged and prosecuted Killian for one count of first-degree sexual assault of a child under the age of thirteen and one count of repeated sexual assault


of a child under the age of sixteen. Those charges stemmed from allegations that Killian had sexual contact with Britney in 2014 and had sexually abused his daughter Ashley over a ten-year period.[1] The circuit court in that prior case ultimately dismissed the previously filed charges with prejudice after it found that the prosecutor intentionally forced a mistrial to get "another 'kick at the cat,'" to charge Killian with more crimes, and to increase the likelihood of conviction.[2]Notably, the State did not appeal that decision, and it therefore cannot be, and is not, under review in this appeal.

¶2 Instead, over a year later, the State filed a new criminal complaint in this case charging Killian with three counts of first-degree sexual assault of a child, six counts of incest with a child, and one count of repeated sexual assault of the same child. Those charges were again based on allegations that, over many years, Killian had sexually abused Ashley (Counts 1-9) and had sexual contact with Britney multiple times (Count 10). The circuit court granted Killian's motion to dismiss, concluding that those charges would subject Killian to double jeopardy-and thus be unconstitutional-because the State had previously prosecuted him for those offenses.

¶3 The State argues that the present charges would not subject Killian to double jeopardy because they are either factually or legally different from the charges in the first prosecution. The State contends that the circuit court


improperly deviated from the Blockburger test[3] to determine whether Killian was being prosecuted for the same offenses as in the first prosecution.

¶4 We reject the State's arguments. Our analysis requires us to consider the context of the first prosecution, wherein the State intentionally engaged in misconduct expressly to achieve the opportunity to file additional charges against Killian, including those in the instant case. We conclude, in accordance with State v. Schultz, 2020 WI 24, 390 Wis.2d 570, 939 N.W.2d 519, that the circuit court properly considered the entire record of the first prosecution to determine whether Killian was in jeopardy for the offenses now charged. In reviewing that record, including the prosecutor's arguments and the evidence that had been presented during the trial, we agree with the circuit court in this case that Killian was, in fact, in jeopardy of being convicted of the offenses now charged. In reaching this conclusion, we do not depart from the well-established Blockburger test to determine, for purposes of double jeopardy, whether Killian was previously prosecuted for the same offenses. Rather, we first examine the scope of jeopardy in the first prosecution-pursuant to Schultz and cognizant of the prosecutor's misconduct in the first trial-before determining whether Killian was at risk of being found guilty for the offenses now charged. Accordingly, we affirm the order dismissing the State's current charges against Killian.[4]



¶5 On March 17, 2015, the State charged Killian in Trempealeau County case No. 2015CF47 with one count of first-degree sexual assault of a child under twelve years old. The complaint alleged that "on or about Monday, August 18, 2014," Killian lay down beside Britney in bed "and grabbed her buttocks." The complaint further alleged Britney, who was twelve years old at the time of the assault, had reported in a forensic interview that Killian "squeezed her butt on five different occasions," that Killian had "touched her 'boobies' underneath her clothes" once in 2014, and that Killian had "had rubbed her belly area all over and under her clothes when she [was] lying in bed with him." An amended Information was later filed, amending the charge to first-degree sexual assault of a child under thirteen years old, pursuant to Wis.Stat. § 948.02(1)(e).

¶6 On March 15, 2016, the State filed a new criminal complaint (Trempealeau County case No. 2016CF38), charging Killian with one count of repeated sexual assault of child under sixteen years old, pursuant to Wis.Stat. § 948.025(1). The complaint alleged that Killian committed three or more violations of Wis.Stat. § 948.02(1) or (2) involving Ashley from "April 1994 through December 1999." The complaint's probable cause statement further alleged that Ashley, who was born in 1982, had reported that Killian sexually assaulted her "starting at the age of six and ending at 17 years of age," which Ashley stated "would have started in about January 1988 and ended about December 1999." The assaults occurred "every day for several years" and ranged from Killian touching Ashley's vagina to Killian having sexual intercourse with her.


¶7 At an October 2016 hearing in case No. 2015CF47 involving Britney, the circuit court granted the State's motion to introduce other-acts evidence at trial regarding Killian's sexual assaults against Ashley "between January 1988 and December 1999." The prosecutor did "not object," however, to Killian's motion to exclude any additional other-acts evidence, such as other sexual assaults not involving Ashley. The prosecutor acknowledged that he intended to introduce evidence of Killian's "grooming behavior" toward Britney, but the prosecutor did not believe such evidence constituted other-acts evidence. The prosecutor described the grooming behavior as Killian asking Britney "if he could be her boyfriend"; "[b]uying her gifts"; and "[n]ormalizing the behavior of sleeping with her in the bed together." The court agreed with the prosecutor that evidence of grooming behavior would not constitute other-acts evidence and that the State could introduce that evidence at trial. With that noted, the court granted Killian's motion to exclude any additional other-acts evidence-aside from the other-acts evidence related to Ashley-because the prosecutor had not objected. The following month, the court joined the two cases pursuant to the parties' stipulation.

¶8 Two business days before Killian's jury trial, the State filed a motion seeking leave to file an amended Information. The State wanted to assert a new count of incest pursuant to Wis.Stat. § 948.06(1), alleging that Killian had sexual intercourse with Ashley sometime between April 1994 and December 1999. The State also sought to increase the date range of the allegations involving Britney from what was then "on or about … August 18, 2014," to sometime "on or between January, 2014 [and] August 18, 2014."

¶9 On the morning of June 19, 2017-the first day of Killian's jury trial-the circuit court addressed the State's proposed amended Information. The


court denied the State's request to add the incest count, stating: "[I]t's extremely prejudicial to be just figuring out the dates the morning of trial. I mean, this was charged in 2015. The offenses were back in 1994 through '98 here. And now we're just figuring out on the eve of trial what we want to charge."

¶10 The circuit court also addressed the State's proposal to expand the date range for the count related to Britney. Killian's defense counsel expressed concern that the prosecutor was attempting to "expand the date range in the hopes that it would make admissible evidence of other allegations that have not been charged." Defense counsel acknowledged that "[t]here have been, in the discovery, references to other potential allegations of sexual contact but they weren't charged." In responding to defense counsel's concerns, the prosecutor argued, in part, that "if more acts are disclosed at trial, the Information could be changed." The prosecutor then reiterated that argument, stating that "[i]f more facts are introduced at trial, the [c]ourt can amend the Information and give that instruction to the jury."

¶11 The circuit court responded to the prosecutor's comments, stating: "Well, it sounds to me like that's not the intent of your motion to add things because we've clearly had motions." The prosecutor confirmed, "That is not the intent. I just want an abundance of caution. I want to be clear that that's possible." The court allowed the State to expand the date range for the count involving Britney, acknowledging that Britney "was a younger-aged child" at the time of the alleged offense. The court, however, reaffirmed its prior ruling that the State could not introduce other alleged instances of sexual contact beyond the act that formed the basis of the original charge-i.e., the grabbing of Britney's buttocks-and the other-acts evidence related to Ashley.


¶12 After the jury was empaneled, the prosecutor gave his opening statement. While discussing the allegations involving Britney, the prosecutor stated that Britney "told her mother that the defendant was touching her inappropriately." The prosecutor described instances where Killian took Britany for rides on a four-wheeler, during which they would sometimes "talk about sex and, in fact, he would rub himself on her." The prosecutor further stated that

you're going to hear … that she then is confronted several times by behavior that is inappropriate and illegal. That he … was motivated by sexual gratification. I think the evidence is clear there was no other reason for him to be having those conversations and to be touching her.


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