Upshaw v. Powell

• Decision Date: 15 November 1979
• Docket Number: Civ. A. No. 79-C-219.
• Citation: 478 F. Supp. 1264
• Parties: Robert B. UPSHAW, Petitioner, v. James POWELL, Director, Central State Hospital, Waupun, Wisconsin, and Bronson C. La Follette, Attorney General of the State of Wisconsin, Respondents.
• Court: U.S. District Court — Eastern District of Wisconsin

478 F. Supp. 1264

Robert B. UPSHAW, Petitioner, v. James POWELL, Director, Central State Hospital, Waupun, Wisconsin, and Bronson C. La Follette, Attorney General of the State of Wisconsin, Respondents.

Civ. A. No. 79-C-219.

United States District Court, E. D. Wisconsin.

November 15, 1979.

Richard M. Sals, Asst. State Public Defender, Madison, Wis., for petitioner.

Bronson C. La Follette, Atty. Gen. by Kirbie Knutson, Asst. Atty. Gen., Madison, Wis., for respondents.

DECISION AND ORDER

REYNOLDS, Chief Judge.

The petitioner Robert B. Upshaw, who is presently an inmate of the Central State Hospital in Waupun, Wisconsin, has filed an application challenging his conviction on June 30, 1977, in the county court for Rock County, Wisconsin, of one count of attempted first degree sexual assault in violation of §§ 939.32(1) and 940.225(1)(b), Wis.Stats., one count of attempted burglary while armed in violation of § 943.10(2)(b), Wis.Stats., and one count of concealing identity while committing a crime in violation of § 946.62, Wis.Stats. On August 17, 1977, the petitioner was committed to the Central State Hospital pursuant to § 975.06(2), Wis.Stats., for specialized treatment based on the attempted sexual assault conviction. On August 19, 1977, he was sentenced to five years on each of the other two charges, the sentences to run concurrent with each other and concurrent with the commitment.

The petitioner challenges his conviction on the ground that there was insufficient evidence to support a conviction for attempted first degree sexual assault. The State concedes that his conviction for attempted burglary while armed is dependent on the sexual assault conviction, and therefore if the evidence was insufficient to support the latter conviction, then the former also must fall. Having reviewed the state trial record, the Court is satisfied that the evidence was sufficient to sustain both convictions. Therefore, the petitioner's application will be denied.

In Jackson v. Virginia, ___ U.S. ___, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Court considered the standard to be applied under the Fourteenth Amendment to the United States Constitution by a federal district court in reviewing a habeas corpus petition challenging the sufficiency of evidence to support a criminal conviction. The Court concluded that:

"After In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362. Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon `jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law." (At ___ _ ___, 99 S.Ct. at 2789-90)

First degree sexual assault is defined in Wisconsin in § 940.225 (1975):

"(1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony:

"* * *

"(b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon."

An attempted crime is defined in § 939.32(2):

"(2) An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor."

Section 943.10, Wis.Stats., provides in part:

"(1) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to * * * commit a felony therein may be imprisoned not more than 10 years:

"(a) Any building or dwelling; or

"* * * "(2) Whoever violates sub. (1) under any of the following circumstances may be imprisoned not more than 20 years:

"* * *

"(b) While unarmed, but arms himself with a dangerous weapon while still in the burglarized enclosure; * * *"

There is no Wisconsin case law describing the type of conduct required to demonstrate attempted first degree sexual assault under §§ 940.225 and 939.32(2), Wis.Stats. Under the predecessor rape statute, § 944.01 (1973), in conjunction with § 939.32(2), Wis. Stats.:

"* * * (2) the male must act toward the commission of the rape by overt acts which demonstrate unequivocally, under all the circumstances, that he formed the intent to rape and would have committed the rape except for the intervention of another person or some other extraneous factor." Oakley v. State, 22 Wis.2d 298, 306, 125 N.W.2d 657, 661 (1964).

Section 944.01 proscribed "sexual intercourse with a female * * * by force and against her will * * *." (Emphasis added.) Thus the case law required that the State demonstrate that the defendant "had done acts toward the commission of the crime of rape which demonstrated unequivocally under all the circumstances, that he intended to perform the acts, constituting the crime * * *," and not merely to perform some other sexual perversion or a lesser act of battery. Jaworski v. State, 74 Wis.2d 134, 137, 246 N.W.2d 137, 138 (1976). See also Le Barron v. State, 32 Wis.2d 294, 299, 145 N.W.2d 79 (1966); Adams v. State, 57 Wis.2d 515, 520, 204 N.W.2d 657 (1973); Leach v. State, 83 Wis.2d 199, 216, 265 N.W.2d 495 (1978); Lhost v. State, 85 Wis.2d 620, 628, 271 N.W.2d 121 (1978). Section 940.225(1)(b), Wis.Stats. (1975), however, proscribes "sexual contact or sexual intercourse." (Emphasis added.) Sexual contact is defined in § 940.225(5)(b) and includes "any intentional touching of the intimate parts, clothed or unclothed, of a person to the intimate parts, clothed or unclothed, of another, * * * for the purpose of sexual arousal * * *." Thus § 940.225 proscribes a far greater range of activity than did § 944.01, and the cases interpreting the earlier statute are not illuminative of the acts required to commit an attempted first degree sexual assault under § 940.225(1)(b). Those cases do state, however, that sexual intercourse need not be accomplished in order to sustain a conviction under §§ 944.01 and 939.32(2), Wis.Stats., so long as the defendant's acts indicate unequivocally what his intention was. Similarly, it would seem that sexual contact as defined in § 940.225(5)(b) need not be accomplished in order to sustain a conviction under §§ 940.225(1)(b) and 939.32(2), so long as the defendant's acts indicate unequivocally that he intended to have sexual contact with the victim.

The evidence introduced at the trial of this action showed that petitioner entered the house of one Deborah Johnson on the evening of December 6, 1976, by breaking a window (R. 160-161, 177-178, 237-239, 244),^* and that while he was inside the house the broken glass was hidden under a couch and piano (R. 162), the overhead light bulb in the bedroom was loosened in its socket (R. 166-167), a pillow case was removed from the bed and cut into strips (R. 170) which were tied to the four bed legs (R. 168-169, 170, 239-240), the bed was remade (R. 239), and a rock was placed at the head of...