State v. Wachsmuth

• Court: Wisconsin Court of Appeals
• Writing for the Court: MYSE
• Citation: State v. Wachsmuth, 480 N.W.2d 842, 166 Wis.2d 1014 (Wis. App. 1992)
• Decision Date: 28 January 1992
• Docket Number: No. 91-1178-CR,91-1178-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Andrew C. WACHSMUTH, Defendant-Appellant.

Page 842

480 N.W.2d 842

166 Wis.2d 1014

STATE of Wisconsin, Plaintiff-Respondent, v. Andrew C. WACHSMUTH, Defendant-Appellant.

No. 91-1178-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 30, 1991.

Opinion Released Jan. 28, 1992.

Opinion Filed Jan. 28, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven P. Weiss, Asst. State Public Defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Andrew Wachsmuth appeals his conviction for first-degree sexual assault and the denial of his postconviction motions for relief. Wachsmuth raises a variety of alleged errors. One issue Wachsmuth raises is that the jury verdict was improperly influenced by extraneous prejudicial information. We conclude that extraneous prejudicial information was received by the jury and that there is a reasonable possibility that this information contributed to the conviction. Therefore, Wachsmuth is entitled to a new trial.

Although we order a new trial, we address the following alleged errors because of double jeopardy considerations, reasons of judicial economy and the efficient administration of justice. Wachsmuth alleges that the evidence was insufficient to establish guilt beyond a reasonable doubt because the only direct testimony concerning the sexual assault was that of the five-year-old alleged victim whose testimony Wachsmuth asserts is incredible as a matter of law. Wachsmuth next argues that he was denied his right to confrontation because the child's testimony was presented at trial by videotape. Wachsmuth also contends that his conviction must be reversed because he was charged with a violation of sec. 948.02(1), Stats., which did not exist at the time the alleged incident occurred.

We conclude that the jury was entitled to believe the child's testimony and that his testimony was sufficient to establish guilt beyond a reasonable doubt. We also conclude that Wachsmuth was not deprived of his right to confrontation by the presentation of the child's testimony on videotape. Finally, we conclude that Wachsmuth failed to demonstrate any prejudice as a result of the technical charging error made by the state. Nevertheless, due to our disposition of the first issue, we reverse the conviction and remand for a new trial.

Wachsmuth was charged with the sexual assault of R.J.E., a child under the age of thirteen. The alleged incident occurred when Wachsmuth and his father, Donald Wachsmuth, were baby-sitting R.J.E., and his baby sister. R.J.E. was three years old at the time the alleged incident occurred. R.J.E. testified at trial, via his deposition videotape, that Wachsmuth kissed his private parts. When asked what he meant by private parts, R.J.E. pointed to his genital area and explained "you go potty with 'em."

Donald was tried and convicted earlier of sexual assault against R.J.E. in a different trial based on conduct arising from the incident alleged in this case. Prior to jury selection, Wachsmuth moved in limine to exclude the evidence of Donald's conviction. The trial court, finding that the information would be highly prejudicial to Wachsmuth, granted the motion and the trial proceeded without reference to Donald's trial or conviction.

On the morning of the second day of trial, however, a local newspaper reported a story about the trial that included facts concerning Donald's trial and conviction and identified the offense as arising out of the same incident. Consequently, the trial court inquired of the jury whether anyone had read the article. It received an affirmative response from a male juror who was then voir dired separately in chambers. The juror acknowledged that the report probably affected his thinking; however, he ultimately asserted that he could weigh Wachsmuth's case on its own merits and remove from his consideration the information he had received in regard to Donald's conviction. The trial court permitted the juror to remain, but instructed him not to discuss the information with the rest of the panel.

During deliberations, the jury sent a question to the judge inquiring "Who is Don and was he there at [the] time of [the] alleged perpetration"? After the court declined to answer the jury's question, the jury proceeded with its deliberations. The jury returned a guilty verdict.

Wachsmuth's postconviction motions resulted in a hearing to determine the extent and effect of the knowledge that the jury had concerning Donald and his conviction. At least three jurors testified that during the course of deliberations, Donald's identity and his involvement in the offense was discussed. Each of the three indicated that a female juror, someone other than the juror who was voir dired separately, had identified Donald as Wachsmuth's father. Two indicated that the juror related the fact that Donald had been convicted of sexual assault arising from this incident. They also indicated that this information was disclosed after the judge declined to answer the jury's question. The source of the juror's knowledge apparently was the newspaper article published during the course of the trial. The court denied Wachsmuth's postconviction motions.

First, we address Wachsmuth's contention that he is entitled to a new trial on the grounds that the jurors received prejudicial extraneous information during deliberations. Because of public policy considerations including the prevention of jury harassment, encouragement of free and open jury deliberation, promotion of finality of verdicts and reduction of the incentive for jury tampering, a litigant's right to impeach a jury verdict is extremely limited. After Hour Welding v. Laneil Mgmt. Co., 108 Wis.2d 734, 737-38 n. 2, 324 N.W.2d 686, 689 n. 2 (1982).

However, if a litigant can show that the proffered evidence is competent to impeach the jury verdict, that the evidence demonstrates a substantial ground sufficient to overturn the verdict and that the defendant was prejudiced, a jury verdict can be impeached. Id. at 738, 324 N.W.2d at 689. The state concedes that the evidence is competent. It also concedes that the evidence demonstrates a substantial ground sufficient to overturn the verdict. The argument in this case centers around whether Wachsmuth was prejudiced by the jury's receipt of this information.

In State v. Poh, 116 Wis.2d 510, 343 N.W.2d 108 (1984), the Wisconsin Supreme Court characterized the test for this third element as whether there is a reasonable possibility that the extraneous prejudicial information might have contributed to the conviction. Id. at 514, 343 N.W.2d at 111. If the court finds a reasonable possibility that the information contributed to the verdict, the conviction must be reversed.

The prejudice to a moving party is a question of law that we review de novo. Id. at 523, 343 N.W.2d at 116. Factors we are to consider in this determination include

the nature of the extraneous information and the circumstances under which it was brought to the jury's attention; the nature of the state's case; the defense presented at trial; and the connection between the extraneous information and a material issue in the case.

Id. at 530, 343 N.W.2d at 119. Based on a consideration of these factors, we conclude that in this case there is a reasonable possibility that the information might have contributed to the conviction.

First, the extraneous information indicated that Wachsmuth's father was tried and convicted of sexual assault involving conduct arising out of the same incident. The nature of this information was such that it went directly to a material issue of fact in this case. The jury could reasonably believe after hearing such information that there was no issue as to whether a sexual assault took place on the day Wachsmuth was baby-sitting. The only determination left for the jury, if they relied on this information, was whether Wachsmuth committed the sexual assault.

Second, the information was presented to the jury under circumstances that indicate that the jury thought the information was significant. The jury questioned the court during deliberations about the identity and relationship of Donald to the case. After the judge refused to answer this question, a juror who had the information furnished it to the balance of the jury.

Third, the nature of the state's case against Wachsmuth is primarily one statement by a five-year-old child, who had a vivid imagination. The defense consisted of a complete denial of any wrongdoing and an assertion that perhaps the child's sexual knowledge came from acts performed with an older child on a day other than the day on which Wachsmuth was baby-sitting.

Finally, there is a direct connection between the extraneous information and material issues in the case. A reasonable jury may have been led to believe that Donald's conviction conclusively resolved that the sexual assault occurred, leaving to this particular jury only the question whether Wachsmuth committed the offense. In addition, because the information regarding Donald's conviction corroborated R.J.E.'s testimony that he was sexually assaulted, it also enhanced the credibility of R.J.E.'s testimony that Wachsmuth committed the assault. This information, therefore, constituted improper corroboration of R.J.E.'s testimony that a sexual assault occurred and that Wachsmuth committed...