State v. Wulff

• Court: Wisconsin Court of Appeals
• Writing for the Court: Before EICH, C.J., GARTZKE, P.J., and SUNDBY; EICH; SUNDBY
• Citation: State v. Wulff, 546 N.W.2d 522, 200 Wis.2d 318 (Wis. App. 1996)
• Decision Date: 22 February 1996
• Docket Number: No. 95-1732-CR,95-1732-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Brian C. WULFF, Defendant-Appellant. d

Page 522

546 N.W.2d 522

200 Wis.2d 318

STATE of Wisconsin, Plaintiff-Respondent, v. Brian C. WULFF, Defendant-Appellant. ^d

No. 95-1732-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 17, 1996.

Opinion Released Feb. 22, 1996.

Opinion Filed Feb. 22, 1996.

Appeal from a judgment and an order of the circuit court for LaCrosse County: John J. Perlich, Judge.

For the defendant-appellant the cause was submitted on the briefs of James Geis of James Geis Law Office of Chicago and Stephen Hurley and John Hyland of Hurley, Burish & Miliken of Madison.

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Attorney General, and Sharon Ruhly, Assistant Attorney General.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

Brian C. Wulff appeals from a judgment of conviction and sentence following a jury trial at which he was found guilty of attempted second-degree sexual assault, and from an order denying his postconviction motions. Wulff challenges the conviction on four grounds. He claims that: (1) the State failed to prove each of the several "theories" of his guilt advanced at trial; (2) extraneous information relating to the burden of proof in criminal cases received by some jurors during deliberations prejudiced his defense; (3) the prosecutor's comment on his refusal to answer police questions denied him due process; and (4) the trial court committed prejudicial error in allowing hearsay testimony from the victim.

We reject each of Wulff's challenges and affirm the judgment and order.

Wulff, a student at the University of Wisconsin-La Crosse, was charged with the attempted sexual assault of another student, Carrie D. The testimony established that Wulff met Carrie D. on the street late one evening and when she told him she was too drunk to drive home, he offered to escort her on foot. According to Carrie D., she permitted Wulff to kiss her once on the way to her apartment, although he made several additional attempts to do so. She said she agreed to let him spend the night on the living-room sofa at her apartment, and that after arriving there she went to her bedroom, where she fell asleep fully dressed. According to Carrie D., she awakened to find herself naked and Wulff sitting on top of her, attempting to force her to engage in oral sex. She said his efforts ceased when she screamed. She also testified that a tampon she had been wearing when she went to sleep was missing.

Wulff offered sharply contradictory testimony. He said that their walk to Carrie D.'s apartment was marked with several episodes of kissing and consensual sexual activity, and that when they arrived at the apartment she invited him into her bedroom where they engaged in some "heavy petting," during which he took her sweatshirt off and unsnapped her bra. According to Wulff, Carrie D. then passed out and, after unsuccessfully attempting to go to sleep himself, he woke her up to tell her he was leaving. He claims that he moved her to a sitting position to wake her and that when she awoke she acted surprised and alarmed and became "hysterical."

Wulff was charged with attempted sexual assault on Carrie D.'s complaint. After he was found guilty by the jury, the trial court withheld sentence and placed him on probation for a period of four years, with the first four months to be spent in the La Crosse County Jail (with work-release privileges). Other facts will be discussed in the body of the opinion.

I. Sufficiency of the Evidence

The crime of second-degree sexual assault includes "sexual contact or sexual intercourse with a person who the defendant knows is unconscious." Section 940.225(2)(d), STATS. "Sexual contact" is defined as "any intentional touching ... by the use of any body part or object, of the complainant's or defendant's intimate parts" for purposes of sexual gratification or humiliation; "sexual intercourse" is defined to include "vulvar penetration," as well as "fellatio ... or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening ... by the defendant." Section 940.225(5)(b) and (c).

Wulff contends that the prosecutor asked the jury to convict him on three different bases or "theories": that he attempted to have (1) sexual contact with Carrie D. while she was unconscious and both (2) oral and (3) vaginal sexual contact with her. ¹ He also claims that a fourth theory was presented to the jury by the court's instructions on the statutory definition (quoted above) of "sexual intercourse" as including "any intrusion ... into the genital ... opening." He argues that when the State puts forth multiple alternative theories of guilt, it must prove each theory in order to convict, and that the evidence is insufficient to do so here. He concedes that the prosecution presented evidence which, if believed by the jury, was sufficient to support conviction of attempted sexual contact with an unconscious person and attempted fellatio. He argues, however, that there was no evidence of any attempted vulvar penetration.

Wulff's argument is based on the supreme court's statement in State v. Crowley, 143 Wis.2d 324, 334, 422 N.W.2d 847, 851 (1988), that

where the jury may have arrived at its verdict by one of two independent grounds and there is no certainty in respect to which ground is used, a court is obliged to search the record in an effort to support the verdict of conviction and to determine that the evidence is sufficient under each mode of proof.

Citing Crowley, Wulff states, without elaboration, that because "no evidence exists to prove the ... theories [of] genital intrusion and vaginal intercourse," the verdict must be set aside.

We think Crowley does not compel the result Wulff urges. The Crowley court's statement of the "rule" is expressly based on Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), and Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Crowley, 143 Wis.2d at 334-35, 422 N.W.2d at 851-52. In a later case, however, the United States Supreme Court concluded that neither Yates nor Stromberg stands for such a broad proposition--that those cases "do not ... stand for anything more than the principle that, where a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground." Griffin v. United States, 502 U.S. 46, 53, 112 S.Ct. 466, 471, 116 L.Ed.2d 371 (1991) (emphasis added). The Court said in Griffin that no cases exist "in which we have set aside a general verdict because one of the possible bases of conviction was neither unconstitutional ... nor even illegal ... but merely unsupported by sufficient evidence." Id. at 56, 112 S.Ct. at 472.

There is no question that we are generally bound by decisions of the Wisconsin Supreme Court. State v. Carviou, 154 Wis.2d 641, 644-45, 454 N.W.2d 562, 564 (Ct.App.1990). But where, as here, a Wisconsin decision is based on a United States Supreme Court case which that court later says does not stand for the proposition advanced, we are excused from that rule and may base our own decision on the most recent U.S. Supreme Court precedent. State v. Whitaker, 167 Wis.2d 247, 261, 481 N.W.2d 649, 655 (Ct.App.1992).

Wulff does not argue that any of the bases of his conviction--attempted sexual contact, intercourse or fellatio--is either unconstitutional or otherwise "illegal." His only challenge is to the sufficiency of the evidence to support two of them; indeed, as indicated, he concedes the sufficiency of the evidence on the other two. And because the case on which he bases his argument for reversal on sufficiency-of-the-evidence grounds lends no support to his position, we reject the argument. We agree with the Supreme Court that where the question is one of the sufficiency of the evidence, as opposed to one of constitutional or legal principle, "jurors are well equipped to analyze the evidence" and arrive at a proper result. Griffin, 502 U.S. at 59, 112 S.Ct. at 474. ²

II. The Jury's Receipt of Extraneous Information

After his conviction, Wulff moved for a new trial, asserting, among other things, that extraneous information relating to the legal definition of "reasonable doubt" had been "injected into the [jury's] deliberations by an outside influence," and that that information tainted the verdict. In support of his motion Wulff filed the affidavit of a juror who stated that during deliberations one juror told one or more of the others that earlier in the week she had discussed the concept of "reasonable doubt" with an attorney, who said that "reasonable doubt meant that any doubts about the defendant's guilt that could be reasoned away should be disregarded."

Because any attempt to impeach a jury's verdict must necessarily be based upon the testimony or affidavits of jurors, the first step in analyzing such a challenge is to determine whether that evidence is admissible under § 906.06(2), STATS., which generally bars jurors from testifying as to anything occurring during deliberations. The statute provides only two exceptions to the rule: a juror is competent to testify as to "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."

Section 906.06(2), STATS., has been held to require the party seeking to impeach a verdict to first establish the admissibility of the proffered juror testimony by proving that the testimony concerns " 'extraneous information' " (rather than the deliberative processes of the jurors), that the extraneous information was improperly brought to the jury's attention, and that it was potentially prejudicial to the party's case. Castaneda v. Pederson, 185 Wis.2d 199, 209, 518 N.W.2d 246, 250 (1994) (quoted source omitted). Then, if it is...