State v. Schmidt

Decision Date10 June 2021
Docket NumberAppeal No. 2018AP2128-CR
CourtCourt of Appeals of Wisconsin


Appeal No. 2018AP2128-CR


June 10, 2021


This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. No. 2015CF10

APPEAL from a judgment and an order of the circuit court for Grant County: CRAIG R. DAY, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

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¶1 PER CURIAM. Travanti Schmidt appeals a judgment of conviction for one count of assault by a prisoner. He also appeals the circuit court order denying his motion for postconviction relief.

¶2 Schmidt raises three issues on appeal. First, he argues that the evidence presented at trial was insufficient to support his conviction. Second, he contends that the charging documents and jury instructions were duplicitous because they failed to specify which of two correctional officers was the target of the charged assault. Third, Schmidt argues that his trial counsel was ineffective by not objecting to the jury instructions on the basis that they violated Schmidt's right to a unanimous verdict.

¶3 For the reasons set forth below, we reject all of Schmidt's arguments and affirm.


¶4 The State filed a criminal complaint charging Schmidt with one count of assault by a prisoner with a bodily substance, in violation of WIS. STAT. § 946.43(2m)(a) (2019-20).1 The complaint alleged that Schmidt, a prisoner confined to the Wisconsin Secure Program Facility in Boscobel, Wisconsin, expelled saliva at or toward "Victim 1" while Victim 1 was escorting Schmidt from a holding cell to another cell.

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¶5 The case proceeded to trial. Correctional officers C.F. and S.P. testified to the following facts. On December 22, 2014, Schmidt was being moved through a hallway by correctional officers, including C.F., while S.P. stood off to the side. As he was being escorted, Schmidt shouted derogatory remarks and profanity at S.P. and another officer. Schmidt turned his head toward S.P., and C.F. instructed Schmidt to "face forward." At approximately the time that C.F. gave Schmidt the instruction to face forward, C.F. and S.P. heard Schmidt clear his throat to bring up spit. As Schmidt prepared to spit, C.F. brought up his arm to block the spit. Schmidt spat in the direction of S.P., and the saliva landed on C.F's right arm, shoulder and chest.

¶6 Schmidt also testified at trial, stating that he never spat or yelled at any of the officers. Instead, he testified that he "had some painful expression coming out" because C.F. stepped on his injured foot. When asked if the substance seen in one of the videos shown to the jury was spit, Schmidt responded that it was not spit but was instead "light from the top of the ceiling" and that the placement of the camera near a bright light made the light appear as spit. The jury found Schmidt guilty as charged.

¶7 Schmidt filed his first appeal, arguing that the evidence was insufficient to support his conviction and that his charge was duplicitous. In response, on March 8, 2018, this court issued an order (referred to in this opinion as the 2018 order) in which we concluded that Schmidt's arguments may have implied a unanimity problem; therefore, we provided Schmidt with an opportunity to decide whether to pursue a jury unanimity claim. Schmidt decided to pursue the jury unanimity issue and, over the State's objection, we dismissed the appeal without prejudice, concluding that Schmidt's arguments were best addressed through the postconviction process.

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¶8 Schmidt filed a motion for postconviction relief, arguing that he had received ineffective assistance of trial counsel due to counsel's failure to object to the jury instruction setting forth the elements of WIS. STAT. § 946.43(2m)(a), which Schmidt contends violated his right to a unanimous verdict. The circuit court denied the motion without a hearing, concluding that, pursuant to § 946.43(2m)(a), the jury need only have unanimously agreed that a correctional officer was the target of Schmidt's assault and did not have to unanimously agree as to which correctional officer was the specific target. Schmidt appeals the judgment of conviction and the order denying his motion for postconviction relief. Additional background will be included as needed, below.


¶9 Schmidt argues that: (1) the evidence was insufficient to support his conviction; (2) the charging documents and jury instructions were duplicitous; and (3) counsel was ineffective for failing to object to the jury instructions, which Schmidt contends violated the requirement of jury unanimity. We address and reject each argument in turn.

I. Sufficiency of the Evidence

¶10 Schmidt argues that the evidence was insufficient to support his conviction. Notably, on appeal, Schmidt no longer contends that he did not spit at anyone. Instead, he argues that the State was required to prove that he had the "intent to abuse" C.F., upon whom the saliva landed, and that the evidence was insufficient to establish such intent. We reject Schmidt's insufficiency of the evidence argument because, as noted in our 2018 order and as explained below, it is predicated on an incorrect reading of the assault-by-prisoner statute.

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¶11 In evaluating a claim of insufficiency of the evidence, we view the evidence in the light most favorable to the State and the conviction. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). We do not overturn a verdict unless the evidence is so lacking in probative value and force that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. The defendant "bears a heavy burden in attempting to convince us to set aside the jury's verdict." State v. Searcy, 2006 WI App 8, ¶22, 288 Wis. 2d 804, 709 N.W.2d 497 (2005).

¶12 As applicable to this case, in order to prove Schmidt guilty of assault by prisoner, the State was required to prove that Schmidt, while a prison inmate, expelled saliva at or toward a correctional officer without the officer's consent, with the intent that the saliva contact the officer, and with intent to abuse the officer. See WIS. STAT. § 946.43(2m)(a).2

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¶13 Schmidt concedes that the State "proved that [he] intended to abuse S.P." However, he argues that because C.F.—rather than S.P.—was the officer upon whom the saliva landed, the State was required to prove intent to abuse with respect to C.F., which the State did not do. He further argues that, as a result, his conviction for assault by prisoner could only be sustained by applying the doctrine of transferred intent, a doctrine he states should not be applied here, and that, at most, he could only have been found guilty of an attempted violation of WIS. STAT. § 946.43(2m)(a). Schmidt's arguments are without merit.

¶14 As we stated in our 2018 order, "Under the elements of the charged statute, it is irrelevant which officer was struck, or whether any officer was struck at all. No element of this charge requires the jury to consider where the saliva landed." Thus, we further explained that, if Schmidt expelled saliva at S.P. with the intent that it contact her and with the intent to abuse her, the "verdict would be proper regardless of the fact that saliva actually struck a different officer. The crime was complete or, to use Schmidt's term, accomplished, when the saliva left Schmidt's mouth."

¶15 Schmidt does not dispute our interpretation of the assault-by-prisoner statute, despite the fact that these same legal conclusions are relied upon by the State in its response brief. Instead, Schmidt simply repeats the same

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arguments rejected in our 2018 order, summarizing the issue in his reply brief as follows: "The central question is, if a defendant spits at [officer] A, intending to hit A with spittle, but the spittle hits [officer] B[] instead, was there an assault on B under this statute?" As both the assault-by-prisoner statute and our prior order make clear, the answer to this question is yes—the crime of assault by prisoner may be committed under such facts. WISCONSIN STAT. § 946.43(2m)(a) does not require that the saliva contact anyone, much less that it contact the officer that it was intended for; it requires only that the prisoner intend that it contact the officer. See § 946.43(2m)(a)1. Thus, we reject Schmidt's argument that the jury would have to rely on the...

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