State v. Sauceda, 90-1441-CR

Citation163 Wis.2d 553,472 N.W.2d 798
Decision Date22 May 1991
Docket NumberNo. 90-1441-CR,90-1441-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, d v. Abel SAUCEDA, Defendant-Appellant.
CourtCourt of Appeals of Wisconsin

Mark Lukoff, First Asst. State Public Defender, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Maureen McGlynn, Asst. Atty. Gen., for plaintiff-respondent.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

ANDERSON, Judge.

Abel Sauceda appeals from judgments of conviction for three counts of first-degree sexual assault contrary to sec. 940.225(1)(d), Stats. (1985-86), 1 sexual intercourse or contact with a person twelve years of age or younger, and one count of second-degree sexual assault contrary to sec. 940.225(2)(d), sexual intercourse or contact with a person the defendant knows to be unconscious. Sauceda also appeals from an order denying his motion for postconviction relief. The four convictions stem from an incident involving Sauceda and three minor females. The second-degree count and one of the three first-degree counts travel to Sauceda's conduct with victim K.J.; the other two counts of first-degree sexual assault concern Sauceda's conduct with victims J.J. and V.K.

On appeal, Sauceda raises three issues: (1) whether the bindover following the preliminary hearing on the first-degree sexual assault count regarding victim J.J. was proper; (2) whether the convictions for both first-degree and second-degree sexual assault regarding victim K.J. is "multiple punishment" in violation of state and federal constitutional prohibitions against double jeopardy; and (3) whether there was sufficient evidence to support the "unconscious" element of the second-degree sexual assault charge regarding K.J. We hold that the trial court properly overruled the magistrate's dismissal of one count of first-degree sexual assault. However, we reverse Sauceda's conviction on the one count of second-degree sexual assault, sexual contact with K.J. while she was asleep contrary to sec. 940.225(2)(d), Stats., because it is multiplicitous with his conviction for one of the counts of first-degree sexual assault, sexual contact with a child under the age of twelve years, contrary to sec. 940.225(1)(d).

I. FACTS

On the night of June 29-30, 1989, Sauceda was babysitting for his two nieces, T.K., then age ten, and V.K., then age seven, in the girls' home. The girls' parents were at work at the time. On that evening, T.K. and V.K. each had a female friend over to play and spend the night. The two friends were also minors and sisters--K.J. was nine and J.J. was eight. Two adult males--in addition to Sauceda--were also present in the home that evening. Sauceda was playing cards with his brother Alvin and an unrelated man by the name of Reuben. By all accounts, Reuben left the house before any of the conduct in question took place.

V.K. and her friend J.J. went to bed upstairs on the floor in V.K.'s bedroom; T.K. and her friend K.J. slept in sleeping bags on the dining room floor because Alvin was staying overnight in T.K.'s room. Sometime thereafter, J.J., who was not yet asleep, felt someone touching her on the buttocks. According to J.J., the touching went on for "a minute or so," but stopped when she got up from the floor and moved away, climbing into V.K.'s bed, which was nearby. J.J. could not tell what time it was, and she did not see who touched her. When J.J. got into V.K.'s bed, she noticed that V.K. was still sleeping on the floor.

V.K. awoke that night when she felt someone touching her upper thigh and vaginal area. V.K. did not see the person who was touching her while she was being touched, but shortly after the touching stopped, V.K. saw her "Uncle Abel" leaving the room. V.K. then got into her bed and found that J.J. was already there.

K.J. and T.K. went to bed around midnight. K.J. was "half asleep" when she felt someone touching her on her vaginal area. She testified that she did not wake up entirely or open her eyes to see who was touching her. She then fell back asleep.

Sometime later, K.J. was roused from sleep when she felt someone tickling her feet. This time K.J. became fully awake and saw Sauceda lying on the floor at her feet. Sauceda appeared to K.J. to be asleep. K.J., who had gone to bed wearing underwear and pajamas, also noticed that her pajama bottoms had been pulled down and that her underpants had been removed. She awakened T.K., who was asleep beside her, and stated that T.K.'s "Uncle Abel was moving on me." The girls ran upstairs, first to the bathroom, and then to V.K.'s bedroom. Together, in V.K.'s room, the girls awaited Mr. and Mrs. K.'s return.

After Mr. and Mrs. K. returned home from work around 1:00 a.m., Mr. K. went to check on the girls. He found them in V.K.'s room, where they told him what had happened. The police were summoned, and the girls were taken to a hospital for examination. The emergency room doctor who examined K.J. that night testified at trial that K.J.'s vaginal area was reddened and sore, an abnormal condition likely produced by either a chemical or a physical irritant. K.J. testified that she had not experienced any discomfort, soreness, infection, pain, or problems with her vaginal area in the days preceding June 29-30.

Based upon the three episodes involving each of the three girls, the state charged Sauceda with three counts of first-degree sexual assault. All three girls testified before a court commissioner (magistrate) at a preliminary hearing on July 13, 1989. The magistrate bound Sauceda over for trial on the counts relating to K.J. and V.K., but dismissed the charge regarding J.J. The magistrate reasoned that:

[c]oncerning [J.J.], frankly, I really don't think there was enough established there.... She really doesn't tell us much of anything other than she was touched on the buttocks. She can't tell us who. She can't really tell us when. She doesn't really give us anything more to indicate how she was touched on the buttocks, and so I think there was a paucity of evidence concerning [J.J.]; and I will not make a finding of probable cause concerning her....

The state then filed a three-count information, omitting the J.J. charge. 2 However, the state also obtained trial court review of the magistrate's dismissal order of the J.J. charge. The trial court reversed the magistrate's dismissal order and granted the state permission to file an amended information charging the J.J. offense. The trial court reasoned that "in taking the totality of the situation on the night in question ... there is probable cause to believe that the defendant was the person who committed the alleged sexual contact."

The state filed an amended information additionally charging the J.J. offense. Sauceda entered pleas of not guilty, and a jury trial was had on October 23-25, 1989. The jury found Sauceda guilty of all four offenses. Sauceda was sentenced to forty-eight months' imprisonment on one of the first-degree sexual assault convictions. On the remaining convictions, the trial court withheld sentence and imposed three concurrent ten-year terms of probation consecutive to the prison sentence. The trial court denied Sauceda's postconviction motions. Sauceda appeals.

II. BINDOVER

Sauceda argues that the trial court erred by reversing the magistrate's order dismissing the first-degree sexual assault concerning J.J. 3

We first address the scope and standard of our review of the magistrate's decision at the preliminary hearing. The focus of a preliminary hearing is to ascertain whether the facts and the reasonable inferences drawn therefrom support the conclusion that the defendant probably committed a felony. State v. Dunn, 121 Wis.2d 389, 397-98, 359 N.W.2d 151, 155 (1984). A reviewing court plays a limited role in reviewing a magistrate's finding as to the existence of probable cause at a preliminary hearing. See State ex rel. Funmaker v. Klamm, 106 Wis.2d 624, 629, 317 N.W.2d 458, 461 (1982). A reviewing court examines the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. Id. Where a trial court reviews the magistrate's decision, the court must apply the same test for review as would the appellate court. See State v. Fouse, 114 Wis.2d 29, 33-34, 337 N.W.2d 837, 839 (Ct.App.1983). Upon appellate review of the trial court's review, we owe no deference to the trial court's determination. Id. at 34, 337 N.W.2d at 839. 4

Thus, on the one hand, Dunn recites the test which the magistrate must apply at the preliminary hearing: if a reasonable inference supports the probable cause determination, the magistrate should bind the defendant over for trial. Dunn, 121 Wis.2d at 398, 359 N.W.2d at 155. Funmaker, on the other hand, recites the test for appellate review: a reviewing court may examine the evidence only to discover whether there was any substantial ground for the exercise of the magistrate's discretion. Funmaker, 106 Wis.2d at 629, 317 N.W.2d at 461. As the court of appeals said in State v. Sorenson, 152 Wis.2d 471, 449 N.W.2d 280 (Ct.App.1989), "An appellate court must search the record made at the preliminary for any substantial ground to support the bindover. That ground is a 'believable or plausible account.' " Id. at 481, 449 N.W.2d at 284 (citation omitted).

From this reviewing scheme constructed by the case law, it becomes clear that while trial court review of the magistrate's decision is first necessary, see State v. Trongeau, 135 Wis.2d 188, 192, 400 N.W.2d 12, 13 (Ct.App.1986), appellate review of the magistrate's decision is de novo. We need not give deference to the trial court's decision because the court was in no better position than we to assess the preliminary hearing evidence. State v. Pepin, 110 Wis.2d 431, 435, 328 N.W.2d 898, 900 (Ct.App.1982).

Both Sauceda and the state agree...

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8 cases
  • State v. Sauceda, 90-1441-CR
    • United States
    • Wisconsin Supreme Court
    • June 1, 1992
    ...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......
  • State v. Pittman
    • United States
    • Wisconsin Court of Appeals
    • March 24, 1992
    ...lacks conscious awareness, whatever the cause, cannot consent by words or overt action to a sexual act. See State v. Sauceda, 163 Wis.2d 553, 579, 472 N.W.2d 798, 808 (Ct.App.1991).2 Because we conclude the proffered evidence was irrelevant, we do not address the issue of whether it qualifi......
  • State v. Davis
    • United States
    • Wisconsin Court of Appeals
    • October 22, 1992
    ...different evidentiary fact that is not required or pertinent to proof on the [first] count[ ]." State v. Sauceda, 163 Wis.2d 553, 578, 472 N.W.2d 798, 808 (Ct.App.1991), rev'd, 168 Wis.2d 486, 485 N.W.2d 1 (1992). We conclude that the two offenses are not the same in Moving to the second el......
  • State v. Kanarowski
    • United States
    • Wisconsin Court of Appeals
    • August 5, 1992
    ...I concur. I write separately to acknowledge that the double jeopardy methodology which I advocated by dissent in State v. Sauceda, 163 Wis.2d 553, 472 N.W.2d 798 (Ct.App.1991), and which the state urges here, has since been rejected by the supreme court in State v. Sauceda, 168 Wis.2d 486, ......
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