State v. Perkins
Decision Date | 07 August 1996 |
Docket Number | No. 95-1353-CR,95-1353-CR |
Citation | 204 Wis.2d 275,554 N.W.2d 683 |
Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Antonio M. PERKINS, Defendant-Appellant. |
Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Walworth County: MICHAEL S. GIBBS, Judge.
Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.
Antonio M. Perkins appeals from a judgment of conviction finding him guilty of one count of third-degree sexual assault contrary to § 940.225(3), Stats., and two counts of fourth-degree sexual assault contrary to § 940.225(3m). 1 He argues that the trial court erred by: (1) denying his motion to dismiss based on a claim of multiplicitous charging, (2) allowing an unqualified witness to testify as an expert, (3) allowing the expert witness to testify to unreliable scientific evidence which was inadmissible and to give an improper opinion as to the victim's credibility, (4) misstating the law when it modified the standard jury instruction definition of consent, and (5) violating his right to a unanimous verdict by the failure to give special verdict forms. Because we conclude that the claimed errors are without foundation, we affirm.
The events which led to the sexual assault charges are largely undisputed. Perkins, a student at the University of Wisconsin-Whitewater, came to the dorm room of an acquaintance, Lief C. Deanna T. and Elizabeth B. were there with Lief, as well as several other friends. 2 Deanna, who was also a Whitewater student, had never met Perkins. After a period of time, she left the room with Perkins when he asked her to help him study for a test. They moved to a student lounge and Deanna began to quiz Perkins from study cards.
At approximately 2:00 a.m., several people came to the lounge where Deanna and Perkins were studying and began to play cards. The group included Lief and Elizabeth. Deanna joined the card game and Perkins watched. After playing for awhile, Deanna went over and lay down on a couch that was in the lounge. She testified that she fell asleep almost immediately, lying on her stomach. 3 When the card playing concluded, Elizabeth called Deanna's name, but she did not respond. Perkins then said that he would awaken her so they could study some more, and Elizabeth and the others left.
Deanna testified that she was awakened by the sensation of a man on her back and simultaneously became aware that both her pants and underwear had been pulled down to her thighs and her bra was unhooked. 4 She could feel the man's penis against her buttocks. She pushed him off, stood up and saw that his pants and shorts were pulled down. She recognized Perkins, and after asking him "what the hell are you doing?" she left the room. 5
While not disputing the fact that the sexual contact occurred, Perkins portrayed the encounter as consensual. He testified that he believed Deanna was awake and aware of what was happening throughout the encounter. 6 In the statement he gave to the police after his arrest, Perkins stated that prior to Deanna pushing him off, he had lain prone on top of her back, repeatedly "grinding" his penis against her buttocks. He claimed that her body was responsive to his, although he stated she never said anything to him.
He further stated that during the encounter he unhooked her bra and touched her breasts. When he asked her to roll over and she did not respond, he reached under her and unzipped her pants. He then had digital contact with her vagina and pulled her pants and underwear down below her buttocks. Perkins then exposed his penis and resumed his hip gyrations. He testified that at this point Deanna pushed him off and asked him what he was doing.
Deanna immediately left the lounge and went to Lief's room looking for Elizabeth. After she told Elizabeth what had happened, Elizabeth called campus security. Officer Jerome VanNatta responded and spoke to Deanna in the first floor lobby of the dorm. VanNatta testified that Deanna After relating the episode to VanNatta, Deanna was taken to a hospital for a medical examination.
Marilyn Kile, a member of the Whitewater Sexual Assault Team, had been called and met Deanna at the hospital. Kile testified at trial that she spent approximately three hours with Deanna. She testified that Deanna was Kile also testified as an expert witness that Deanna's behavior and demeanor were "consistent with the initial reaction or first stage of sexual assault in adult victims."
The principal issue at trial was whether the encounter was consensual. There was also an issue as to whether Deanna was unconscious during the episode. The jury found Perkins not guilty of second-degree sexual assault. See § 940.225(2)(d), Stats. (having sexual contact with a person the defendant knows to be unconscious). Perkins was found guilty of the remaining three counts and now appeals his conviction.
Perkins' first claim of error is based on his belief that the charges were multiplicitous. 7 Perkins argues that because the separate charges arose from a single incident, that the victim became aware of all the factors of the assault simultaneously and that she was not threatened, the multiple charges were violative of his double jeopardy protections.
Multiple convictions for the same offense violate the double jeopardy protections of the state and federal constitutions. State v. Selmon, 175 Wis.2d 155, 161, 498 N.W.2d 876, 878 (Ct.App.1993). This is a question of law which is reviewed de novo. Id.
Multiplicity is defined as the charging of a single offense in more than one count. Harrell v. State, 88 Wis.2d 546, 555, 277 N.W.2d 462, 464-65 (Ct.App.1979). A two-pronged test is used to analyze questions of multiplicity. Selmon, 175 Wis.2d at 161, 498 N.W.2d at 878. The first step is to apply the "elements only" test as outlined in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). State v. Sauceda, 168 Wis.2d 486, 493, 485 N.W.2d 1, 4 (1992). If each charged offense is not considered a lesser-included offense of the other, the court shall presume the legislature intended to permit cumulative punishments. Id. at 495, 485 N.W.2d at 4. Under this test, an offense is a lesser-included one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the greater offense. Id. at 494, 485 N.W.2d at 4.
The second component of the multiplicity test involves an inquiry into whether the legislature has evinced a contrary intent to the charging of separate offenses. See id. at 495, 168 Wis.2d 486, 485 N.W.2d at 5. It is multiplicitous to charge two offenses separately if other factors clearly indicate that the legislature intended a single unit of prosecution. State v. Kuntz, 160 Wis.2d 722, 755, 467 N.W.2d 531, 544 (1991).
We begin our analysis with a comparison of the one charge of third-degree sexual assault and the two charges of fourth-degree sexual assault. Third-degree sexual assault requires that the defendant have "sexual intercourse with a person without the consent of that person." See § 940.225(3), Stats. (emphasis added). Fourth-degree sexual assault is committed whenever an individual has "sexual contact with a person without the consent of that person." See § 940.225(3m) (emphasis added).
Sexual intercourse is defined as "[vulvar penetration] ... or any other intrusion ... of any part of a person's body or of any object into the genital or anal opening." See §§ 939.22(36) and 940.225(5)(c), Stats. By comparison, the definition of sexual contact requires "any intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading ... the complainant or sexually arousing or gratifying the defendant." Section 940.225(5)(b).
An examination of the definitions of sexual intercourse and sexual contact leads to the conclusion that these two offenses are different in law. Fourth-degree sexual assault is not a lesser-included offense of third-degree sexual assault.
Perkins, however, argues that because it is not possible to commit third-degree sexual assault without also having sexual contact, the charges are multiplicitous. This claim ignores the clear differences in the definitions of sexual contact and sexual intercourse. Multiple punishments are permissible if each offense requires proof of an additional element. Sauceda, 168 Wis.2d at 493 n. 8, 485 N.W.2d at 4. The elements necessary to prove sexual intercourse are different from those which prove violative sexual contact.
The analysis then shifts to whether the legislature has evidenced a contrary intent. This requires an examination of the language of the statutes, legislative history and the appropriateness of multiple punishments. Id. at 497, 485 N.W.2d at 5.
Section 939.65, Stats., is instructive. That section states in pertinent part:
[I]f an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.
The provisions under § 940.225, Stats., are directed at protecting one's freedom from sexual assault. See Sauceda, 168 Wis.2d at 497, 485 N.W.2d at 5. The various subsections define different methods of sexual assault. Id. There is no suggestion that the violation of one subsection immunizes a defendant from violating the same or other...
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