State v. Simpson

• Decision Date: 05 June 1984
• Docket Number: No. 83-873-CR,83-873-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Robert Lee SIMPSON, Defendant-Appellant. . On Remand for Reconsideration
• Court: Wisconsin Court of Appeals

Page 673

373 N.W.2d 673

125 Wis.2d 375

STATE of Wisconsin, Plaintiff-Respondent, v. Robert Lee SIMPSON, Defendant-Appellant.

No. 83-873-CR.

Court of Appeals of Wisconsin.

On Remand for Reconsideration

June 5, 1984.

Opinion Released Feb. 25, 1985.

Opinion Filed Feb. 25, 1985.

Before GARTZKE, P.J., DYKMAN, J., and RUDOLPH T. RANDA, reserve judge.

GARTZKE, Presiding Judge.

After the decision in State v. Sarabia, 118 Wis.2d 655, 348 N.W.2d 527 (1984), the supreme court granted the state's petition for review in Simpson. The supreme court vacated that part of our opinion which reversed defendant's second degree sexual assault conviction, remanded the case to us for reconsideration in light of Sarabia, and held in abeyance its decision on the defendant's petition to review the kidnapping issue.

On reconsideration, we conclude that we erred. No reasonable basis exists in the record to support a conviction for third-degree sexual assault. The trial court therefore did not err in refusing to instruct the jury on third-degree sexual assault. Accordingly, we affirm the second-degree sexual assault conviction.

In Sarabia, the defendant was charged with second-degree murder by gunshot. He testified that he did not fire the fatal shot but requested several lesser-included offense instructions, including manslaughter (imperfect self-defense) and homicide by reckless conduct, each of which assumes commission of the act underlying the offense. The supreme court upheld the trial court's refusal to submit the requested instructions because its review of the record apart from the defendant's exculpatory testimony convinced it that there was no reasonable ground for acquittal of the offense charged.

The Sarabia court pointed out that a special problem arises when the defendant presents "wholly exculpatory testimony" and inconsistently requests the submission of a lesser-included offense. Under such circumstances, a court's duty to view the evidence in the most favorable light it will reasonably admit from the standpoint of the accused requires consideration of the possibility that the jury will disbelieve the defendant's version of the facts. 118 Wis.2d at 663, 348 N.W.2d at 532. The supreme court said:

We recognize that "there may be 'some evidence' of a lesser offense even though this depends on an inference of a state of facts that is ascertained by believing defendant as to part of his testimony and prosecution witnesses on the other points in dispute." Belton v. United States, 382 F.2d 150, 155 (D.C.Cir.1967). We hold that the defendant or the state may request and receive lesser included offense instructions, even when the defendant has given exculpatory testimony, if under a reasonable but different view of the record, the evidence and any testimony other than that part of the defendant's testimony which is exculpatory supports acquittal on the greater charge and conviction on the lesser charge.

Id.

The Sarabia court had earlier quoted with approval and at length from State v. Bergenthal, 47 Wis.2d 668, 675, 178 N.W.2d 16, 20 (1970), cert. denied, 402 U.S. 972, 91 S.Ct. 1657, 29 L.Ed.2d 136 (1971). We excerpt from that quotation the following description of how we must approach the evidence when deciding whether to submit a lesser included offense:

The key word in the rule is "reasonable." The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury. Only if "under a different, but reasonable view," the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury.

Defendant is charged with "sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence." Sec. 940.225(2)(a), Stats. The proposed lesser-included offense, third-degree sexual assault, is "sexual intercourse with a person without the consent of that person...." Sec. 940.225(3). Consent is defined as "words or overt actions ... indicating a freely given agreement to have sexual intercourse...." Sec. 940.225(4).

The meaning of consent is illustrated by the case law. Passive acquiescence and responding to directions during the sexual act is not consent when the victim tells defendant she does not want sex. State v. Clark, 87 Wis.2d 804, 815, 275 N.W.2d 715, 721 (1979). Compliance during continuous objection is not consent. State v. Lederer, 99 Wis.2d 430, 436, 299 N.W. at 457, 461 (Ct.App.1980), qualified on other grounds, State v. Feela, 101 Wis.2d 249, 264 n. 4, 304 N.W.2d 152, 159 (Ct.App.1981). Evidence that defendant had sexual intercourse with a sleeping woman is sufficient to sustain a third degree sexual assault conviction. State v. Spanbauer, 108 Wis.2d 548, 553, 322 N.W.2d 511, 513 (Ct.App.1982).

The pertinent evidence in this record consists of testimony by the victim, a police officer and the defendant, and of a hospital record. The victim's boyfriend testified but he did not relate what she told him and was not present at the alleged crime. We exclude his testimony from this analysis. We adequately summarized the victim's testimony in our original opinion. We note only that she testified that both force and violence were used and threatened.

In our original opinion, we shortened defendant's testimony and characterized part of it as involving "consensual intercourse." We inferred from his testimony that he claimed the victim consented. At no point did he testify, in fact, that she expressly consented, agreed or objected to sexual intercourse.

According to defendant, he lived in Kentucky and was visiting his brother in Beloit. The evening before the alleged assault he had been in a Beloit bar. He left the bar about 1:00 a.m. and began to walk to his brother's apartment. A girl hollered at him from a filling station. She wanted to know where he was from, and he told her. He thought he might have seen her at a bar earlier that evening. She asked where he was going. He tried to explain that to her as best he could. When she offered him a ride, he got in the car. They started the same way he was walking. With no direction from him, however, she turned at a corner. She asked if he wanted to ride around for a bit, and he agreed. She said that they would ride out into the country. At one point, perhaps four or five miles out of Beloit, she stopped the car so he could urinate. They continued a couple of miles and eventually drove onto a small road. She pulled off and stopped the car. She did not tell him why. He simply sat there, talking to her. She moved her seat back and "scooted" over on a console between the seats. She asked him when he was going back to Kentucky and wanted to know if anyone had come with him from that state and "the next thing I know I have my arm up on the seat and we were kissing each other." "We kissing and after it led to that for awhile, it went into sexual intercourse." She had undressed herself, taking off her shoes and her pants. He left the car to urinate. He then returned and she drove the car back to Beloit. The balance of his testimony is essentially as reported in our original opinion.

Officer Ludtke testified the victim was hysterical when he interviewed her about 2:45 a.m. at her house. She said a white male forced his way into her car, took her out to the country and had intercourse with her. Ludtke took a written statement from her which the trial court did not admit in evidence.

The hospital emergency room examination record states that the victim was calm, cooperative and composed but had been crying, smelled of alcohol, and had scratches on her left posterior thorax, left back knee and hands. It contains no reference to choking or bruise marks. In response to the form question, "Physically threatened?", the report states, "Yes, pull knife, hit, choked."

We return to the Sarabia analysis. The Sarabia court established that we must, for purposes of lesser-included offense analysis, reject the defendant's wholly exculpatory testimony. We then examine his remaining testimony and the other evidence to determine whether it supports an acquittal on the greater charge and conviction on the lesser charge. 118 Wis.2d at 663, 348 N.W.2d at 532.

Had defendant testified that the victim consented to intercourse, that testimony would have been wholly exculpatory. But even though we characterized his testimony in that manner, nowhere did he testify that the victim consented. His denial that he used force or violence is not wholly exculpatory, being consistent with third-degree sexual assault, sexual intercourse without the consent of the victim. Sec. 940.225(3), Stats.

Because no part of the defendant's testimony is wholly exculpatory, we exclude none of it. We therefore examine the record to determine whether it contains a reasonable basis for a finding that defendant had sexual intercourse with the victim without the use or threat of force or violence.

The victim asserts that force and violence were used and threatened. Officer Ludtke did not contradict her testimony. Nor does the hospital record. The irresistible inference from defendant's testimony is that the victim engaged in consensual sexual intercourse. No room is left for an intermediate finding of sexual intercourse without consent, third degree sexual assault.

If we were to treat as wholly exculpatory, and therefore exclude from our consideration, that part of defendant's testimony from which the inference is drawn that the victim consented, her testimony that he used and threatened force and violence would stand uncontradicted. Again no room is left for third degree sexual assault, unless we disregard the victim's testimony.

The question is therefore whether in a Sarabia analysis we must disregard the other evidence that force or violence was used or...