State v. Sauceda, 90-1441-CR

Decision Date01 June 1992
Docket NumberNo. 90-1441-CR,90-1441-CR
Citation485 N.W.2d 1,168 Wis.2d 486
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Abel SAUCEDA, Defendant-Appellant.
CourtWisconsin Supreme Court

For plaintiff-respondent-petitioner the cause was argued by Maureen McGlynn Flanagan, Asst. Atty. Gen., with whom on the briefs James E. Doyle, Atty. Gen.

For defendant-appellant there was a brief and oral argument by Mark Lukoff, Asst. State Public Defender.

CALLOW, Justice.

This is a review under sec. (Rule) 809.62, Stats., of a published decision of the court of appeals, State v. Sauceda, 163 Wis.2d 553, 472 N.W.2d 798 (Ct.App.1991). The court of appeals reversed in part a decision of the Kenosha county circuit court, Judge Jerold W. Breitenbach, and held that defendant-appellant Abel Sauceda's Fifth Amendment right to be free from double jeopardy was violated when he was convicted of both first and second degree sexual assault arising out of a single course of sexual conduct with a sleeping nine-year-old girl. The court of appeals remanded the case to the trial court for resentencing to be based on only one of the convictions.

The only issue raised on review is whether the defendant's convictions of first and second degree sexual assault for sexual contact with a child twelve years of age or younger whom the defendant knows is unconscious violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution 1 and art. I, sec. 8 of the Wisconsin Constitution. 2 We hold that the two convictions in this case do not violate Sauceda's right to be free from double jeopardy. Under the well-established Blockburger test, 3 each of these offenses requires proof of an element that the other does not. Therefore, double jeopardy does not bar multiple punishment for these offenses. In addition, there is no indication of a contrary legislative intent. For these reasons, we reverse the decision of the court of appeals.

The relevant facts are not in dispute. On the evening of June 29, 1989, Abel Sauceda was babysitting his two nieces, ages seven and ten. The nieces each had a female friend over to spend the night. One of the nieces, T.K., and her friend, K.J., slept in sleeping bags on the dining room floor. K.J. was nine years old. During the night, K.J. was "half asleep" when she felt someone touching her vaginal area. She did not fully wake up and fell back asleep. Later, she awoke when she felt someone tickling her feet. She saw Sauceda lying on the floor at her feet. He appeared to be asleep. K.J.'s pajamas had been pulled up and her underpants had been removed. K.J. woke T.K. and they went upstairs to wait for T.K.'s parents to return home. When the parents returned home, Sauceda was found sleeping on the dining room floor. K.J.'s underpants were found nearby.

With respect to the incident with K.J., the trial court convicted Sauceda of first degree sexual assault in violation of sec. 940.225(1)(d), Stats. 1985-86, 4 for having sexual contact with a person twelve years of age or younger and second degree sexual assault in violation of sec. 940.225(2)(d), 1985-86, 5 for having sexual contact with a person the defendant knows is unconscious. 6 6 Judge Breitenbach sentenced Sauceda to four years in prison for the first degree sexual assault and ten years probation for the second degree sexual assault. Sauceda filed a motion for post-conviction relief on the ground that the two convictions violated his right to be free from double jeopardy. The trial court denied Sauceda's motion. The trial court applied the Blockburger "elements only" test, which allows conviction of two crimes if one crime requires proof of an additional element that the other crime does not, and concluded that double jeopardy did not bar conviction on both charges.

The court of appeals, Judge Nettesheim dissenting, reversed and remanded the two convictions involving K.J., holding that Sauceda's double jeopardy rights were violated. The majority refused to apply the Blockburger "elements only" test, reasoning that it was relevant only when analyzing statutes under the lesser included offense doctrine. Instead, the court stated that this was a multiplicity problem and thus the Rabe "different fact" test should be utilized. The majority held that, although the two crimes at issue are "facially" different, both crimes share the common legal thread of inability to consent to the sexual contact. Because of this, the court held that the two crimes were the same in fact and law. In addition, the majority found that the statutory language and legislative history did not evince an intent that the violations constitute two separate offenses.

On review, the State argues that Sauceda's right to be free from double jeopardy is not violated by the convictions for first and second degree sexual assault of K.J. It contends that the Blockburger "elements only" test is applicable and satisfied because each offense requires proof of an element that the other does not. In response, Sauceda argues that the offenses are the same because each relates to the victim's inability to consent to the sexual contact. Sauceda contends that when the victim is unconscious, a rebuttable presumption arises that the victim could not give informed consent; when the victim is a minor, an absolute presumption arises that the victim could not give informed consent. He asserts, therefore, that anytime the victim of sexual assault is a minor, the limit of prosecution is first degree sexual assault.

Whether a defendant's convictions violate his double jeopardy rights under the Fifth Amendment to the United States Constitution and art. I, sec. 8 of the Wisconsin Constitution is a question of law. State v. Kramsvogel, 124 Wis.2d 101, 107, 369 N.W.2d 145 (1985). Therefore, this court owes no deference to the decisions of the lower courts on this issue. Id.

The double jeopardy language in the Fifth Amendment and art. I, sec. 8 of the Wisconsin Constitution is almost identical and declares that no person shall be placed twice in jeopardy of punishment for the same offense. The Double Jeopardy Clause is intended to provide three protections: protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction; and protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The present case deals with the third of these protections. The scope of this constitutional protection is dependent upon the meaning of the words "same offense." In State v. Gordon, 111 Wis.2d 133, 330 N.W.2d 564 (1983), we stated:

The United States Supreme Court has determined that where a court imposes multiple punishment in a single trial for violations of two or more criminal statutes arising from the same criminal conduct, the constitutionality of the multiple punishment depends on whether the state legislature intended that the violations constitute a single offense or two offenses, that is whether the legislature intended one punishment or multiple punishment.

Gordon, 111 Wis.2d at 137, 330 N.W.2d 564 (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), among others).

Initially, we note that the legislature permits prosecution under more than one statutory provision for the same conduct. Section 939.65, Stats. 7 The lower courts, however, seemed to be in confusion as to the applicable double jeopardy test. In order to effectively protect the double jeopardy interests of the defendant, Wisconsin utilizes a two-fold analysis to determine whether multiple punishments may be imposed upon the defendant. The first component of the test for multiplicity involves the application of the Blockburger "elements only" test. 8 The Blockburger "elements only" test was codified under sec. 939.66(1), Stats. 9

Under the "elements only" 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.' " State v. Carrington, 134 Wis.2d 260, 265, 397 N.W.2d 484 (1986) (quoting State v. Hagenkord [Hagenkord v. State], 100 Wis.2d 452, 481, 302 N.W.2d 421 (1981)). "[A]n offense is not a lesser-included one if it contains an additional statutory element." Id. (quoting Hagenkord, 100 Wis.2d at 481, 302 N.W.2d 421).

State v. Kuntz, 160 Wis.2d 722, 754-55, 467 N.W.2d 531 (1991). If each charged offense is not considered a lesser included offense of the other, then this court shall presume that the legislature intended to permit cumulative punishments for both offenses. Id. at 755, 467 N.W.2d 531. The "elements only" test applies regardless of whether the two offenses are contained within the same or separate statutory sections. The second component of the multiplicity test involves an inquiry into other factors which would evidence a contrary legislative intent. Id. at 756, 467 N.W.2d 531; State v. Rabe, 96 Wis.2d 48, 63, 291 N.W.2d 809 (1980).

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that where the same act constitutes a violation of two distinct statutory provisions, the test under the Double Jeopardy Clause is whether each provision requires proof of a fact which the other does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. In the present case, the pertinent statutes each require proof of a fact that the other does not. Section 940.225(1)(d), Stats. 1985-86, requires the victim of the sexual assault to be twelve years of age or younger. Section 940.255(2)(d), 1985-86, requires proof that the victim of the sexual assault was unconscious and that the defendant knew that the victim...

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