State v. Wulff
| Decision Date | 30 January 1997 |
| Docket Number | No. 95-1732-CR,95-1732-CR |
| Citation | 557 N.W.2d 813,207 Wis.2d 143 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Brian C. WULFF, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Stephen Hurley, John Hyland and Hurley, Burish & Miliken, Madison; of counsel, James Geis and James Geis Law Office, Chicago, IL, and oral argument by James Geis.
For the plaintiff-respondent the cause was argued by Sharon Ruhly, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
The issue in this case is whether the evidence was sufficient to convict the defendant, Brian C. Wulff, of the version of the offense the jury was instructed to deliberate, attempted second-degree sexual assault by attempted genital or anal intrusion.
We hold that there was insufficient evidence presented at trial to support a finding of guilt on attempted vaginal or anal intrusion. We therefore reverse the court of appeals' decision and remand to the circuit court with instructions to enter a judgment of acquittal based on Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Burks, the Court held that "once a reviewing court has found the evidence legally insufficient, the only just remedy available for that court is the direction of a judgment of acquittal." Id. at 18, 98 S.Ct. at 2151. To subject Wulff to a new trial would violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. 1 Id. There were two other issues presented in this case. However, because our insufficiency of evidence determination is dispositive, this court need not reach these other issues.
The State filed an information charging Brian Wulff with the offense of attempted second-degree sexual assault. The trial was before the La Crosse County Circuit Court, the Honorable John J. Perlich. The jury was instructed in part that the crime of second-degree sexual assault is committed when a person has sexual intercourse with someone who the defendant knows is unconscious. The jury was further instructed that " 'sexual intercourse' means any intrusion, however slight, by any part of a person's body or of any object into the genital or anal opening of another." Wis.Stat. § 940.225(5)(b) and (c). The jury returned a general verdict finding Wulff guilty as charged in the information. He was sentenced to probation for a period of four years, with the condition that he be incarcerated for four months with Huber privileges.
Wulff filed a motion for post-conviction relief in the circuit court. In addition to requesting a new trial because of alleged trial errors, Wulff complained that after the verdict it became known that at least one of the jurors had reached her verdict by relying on a definition that was interjected into the deliberations from an outside source. Wulff also asserted in his motion that the State impermissibly referred to his invocation of the right to remain silent during police questioning. The judge denied the motion.
The court of appeals affirmed the conviction, finding it irrelevant that the State failed to prove each of the theories of Wulff's guilt advanced at trial. State v. Wulff, 200 Wis.2d 318, 546 N.W.2d 522 (Ct.App.1996). The court of appeals also rejected all of Wulff's other challenges to the conviction.
Carrie D., the victim, was 22 years old when she testified. In the early morning hours of September 17, 1993, the victim and the defendant encountered one another outside a bar in La Crosse, Wisconsin. The victim and the defendant knew each other from their high school days and had run into one another occasionally while living in LaCrosse. The two began to talk, and Carrie became separated from her friends. After an unsuccessful search for her friends, the victim told the defendant she was about to walk home because she was too drunk to drive. The defendant agreed to walk with her. What happened after they began to walk together to Carrie's apartment is disputed.
According to the victim, Wulff repeatedly tried to kiss her during the hour-long walk to her apartment but she only permitted him to do so once. When they reached her apartment at about 3:00 a.m., she agreed that Wulff could stay overnight if he slept on the couch. After they entered the apartment she showed him the couch in the living room and she went to her bedroom to sleep.
Carrie testified she did not remove her sweatshirt, bra, underwear, or socks before she went to sleep. However, when she awoke she was completely naked and Wulff was sitting on top of her, facing her, and trying to open her mouth with one hand and force his erect penis into her mouth. She screamed, and Wulff got off her. He kept repeating: "nothing happened, don't worry." Wulff then grabbed his clothes and left. Carrie could not recall how her clothes came off or how a tampon she remembered having in when she fell asleep had been removed.
An examination at the hospital revealed the victim had suffered a superficial abrasion on the inner part of her lip. However, there was no semen found on the tampon she had inserted prior to the examination or on the vaginal, cervical, oral, or anal swabs or smears taken from the victim. Additionally, there were no strands of the defendant's hair found in combings taken from the victim, and no strands of the victim's hair were found in combings taken from the defendant.
According to the defendant's version of the incident, the walk back to Carrie's apartment was marked with interludes of consensual kissing and petting. Wulff also testified that as they approached her apartment, Carrie invited him to spend the rest of the night with her.
Wulff further testified at trial that upon arriving at Carrie's apartment, they went into her bedroom and began to pet heavily and remove their clothes. They abruptly stopped what they were doing when they were startled by a noise. Shortly after they had determined that no one was walking in on them, she passed out.
Wulff claims that he was unable to fall asleep, so he tried to awaken Carrie to say goodbye. When she awoke, he claimed, she was disoriented and confused. At trial, Wulff asserted that Carrie misconstrued the events of that evening because she had too much to drink.
The information charged Wulff in the precise language of Wis.Stat. § 940.225(2)(d). 2 It alleged that Wulff had committed the attempted second-degree sexual assault because he had "sexual contact or sexual intercourse with a person who the defendant knows is unconscious."
The terms "sexual contact" and "sexual intercourse" are both specifically defined in Wis.Stat. § 940.225(5)(b) and (c). The statutory definition of sexual intercourse is:
(b) "[s]exual intercourse" includes the meaning assigned under sec. 939.22(36) [vulvar penetration] as well as cunnilingus, fellatio, or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.
Wis.Stat. § 940.225(5)(c). The jury instructions, however, did not provide the complete statutory definition of sexual intercourse. The relevant jury instructions were:
Take the law as it is given in the jury's instructions and apply the law to the facts in the case which are properly proven by the evidence. Consider only the evidence received during this trial and the law as given to you by these instructions and from these alone, guided by your soundest judgment, reach your verdict.
The crime of second degree sexual assault is committed by:
A person who has sexual intercourse with a person the defendant knows is unconscious.
The first element requires that the defendant had sexual intercourse with Carrie D.
"Sexual intercourse" means any intrusion, however slight, by any part of a person's body or of any object, into the genital or anal opening of another. Emission of semen is not required.
The jury's verdict was that Brian Wulff was "Guilty of sexual assault as charged in the Information." Wulff asks this court to reverse his conviction because he claims that there was insufficient evidence to support a finding of guilt for attempted genital or anal intrusion.
This court should only reverse the conviction if the evidence, after being viewed most favorably to the prosecution, still has insufficient probative value to prove the theory of guilt submitted to the jury beyond a reasonable doubt. State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990).
One can commit attempted sexual intercourse in different ways. Although each of the different ways of accomplishing sexual intercourse is conceptually similar, each one constitutes a separate crime when done in a manner proscribed by the statute. State v. Eisch, 96 Wis.2d 25, 291 N.W.2d 800 (1980). In closing argument, the prosecution advanced three theories: attempted sexual contact, attempted sexual intercourse by fellatio, and attempted sexual intercourse by vulvar penetration. However, the court did not instruct the jury to consider all of these theories of culpability. The jury was instructed to convict if it found that Wulff had committed attempted second-degree sexual assault by attempting a single version of sexual intercourse--genital or anal intrusion. The State did not produce sufficient evidence of attempted genital or anal intrusion during the course of the trial.
Wulff relies on this court's decision in State v. Crowley, 143 Wis.2d 324, 422 N.W.2d 847 (1988), to assert that the conviction must be reversed because it is unclear what theory the jury relied on in reaching its guilty verdict--the theory of attempted fellatio advanced at trial, or the theory of attempted genital or anal intrusion presented in the jury instructions.
In Crowley, alternative...
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