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COURT OF APPEALS DECISION DATED AND RELEASED February 13, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2855-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES ROBERT
SCHROEDER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN A. FRANKE, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. James Robert Schroeder appeals, after a jury trial, from a
judgment of conviction for two counts of second-degree sexual assault, contrary
to § 940.225(2)(a), Stats., and
one count of false imprisonment, contrary to § 940.30, Stats. The jury
acquitted Schroeder on two other counts of second-degree sexual assault. Schroeder claims that the trial court erred
in instructing the jury, and that he should be granted a new trial on the
sexual assault convictions pursuant to § 752.35, Stats.[1] Schroeder does not seek a new trial on the
false imprisonment conviction. Because
the trial court inadequately instructed the jury, we must exercise our power of
discretionary reversal under § 752.35, Stats.
to reverse Schroeder's sexual assault convictions and remand for a new trial.
I.
Background.
In the early morning of
October 11, 1993, Schroeder gave the victim, Betty H., a ride home from a
tavern. He parked his car near her
home. What happened next was hotly
disputed. Betty H. testified that
Schroeder prevented her from leaving the car, forcibly removed her clothes, and
then sexually assaulted her.
Schroeder's version of events was that Betty H. initiated the sexual
activity, fully consented to the sexual contact, but became angry because after
the sexual activity had concluded, he refused to come up to her apartment.
Schroeder was charged
with four counts of second-degree sexual assault and one count of false
imprisonment. The case was tried to a
jury. During deliberations, the jury
sent several notes to the trial court.
The first note stated: “At what
point in sexual intercourse is consent given or considered
irrevocable/revoked?” and “At what point in sexual contact is consent given or
considered irrevocable/or revoked?” The
trial court responded to the jury's questions with a special instruction, which
provided:
The following supplemental instruction is
to be read in connection with the instruction on the bottom of page 3
concerning the meaning of the term “did not consent,” and also read together
with all of the instructions in the case:
As to Counts 1-4, the
second element requires that Betty H[.][] did not consent at the time of the
sexual intercourse or contact referred to in the first element for that
count. It is up to you to decide
whether consent did or did not exist at that time.
While you may consider
any evidence relating to consent which may have proceeded or followed the
sexual intercourse or contact, before you may find the defendant guilty you
must be satisfied beyond a reasonable doubt that, at the time of the sexual
intercourse or contact, Betty H[.][] did not consent.
(Emphasis
in original.) The jury later sent the
trial court another note, which said:
“In reference to the issue of consent, we have a question. Does the phrase consent “at the time of the
sexual intercourse or contact” mean, in the case of penis-vagina intercourse,
at any time while the penis is in the vagina?” (Underline in original.)
Prior to discussing this additional note with the parties, the trial
court sent a brief note back to the jurors stating: “You must resolve this case
based on the instructions you have received.
Please continue your deliberations.”
While the trial court and the parties were discussing what additional
response should be sent to the jury, the jury indicated that they had reached a
verdict. The trial court entered the
judgment of conviction and Schroeder now appeals.
II.
Analysis.
Generally, the trial
court possesses wide discretion in instructing the jury. State v. Amos, 153 Wis.2d 257,
278, 450 N.W.2d 503, 511 (Ct. App. 1989).
Nevertheless, under the circumstances presented in this case, we
conclude that the jury was not adequately instructed and therefore, in the
interests of justice, we must reverse and remand this case for a new trial on
the sexual assault convictions. See
§ 752.35, Stats.,[2]
and Vollmer v. Luety, 156 Wis.2d 1, 11, 456 N.W.2d 797, 802
(1990).
In reviewing the
supplemental instruction given by the trial court in this case, we conclude
that the phrase “at the time of the alleged sexual intercourse or contact” was
ambiguous and confusing to the jury.
This conclusion is based in part on the uncertainty of the phrase
itself, as well as the obvious difficulty the jury was experiencing with the
phrase, as evidenced by the subsequent note sent to the trial court. The phrase is ambiguous because it is
capable of more than one meaning. TDS
Realestate Inv. Corp. v. City of Madison, 151 Wis.2d 530, 537, 445
N.W.2d 53, 56 (Ct. App. 1989). The
phrase given could mean either at the instant prior to the contact or at any
time during the contact. The jury's
confusion was evidenced by their subsequent note sent to the trial court
addressing this precise issue. The
trial court should have instructed the jury that the consent or lack of consent
must be at the instant prior to the act. “At the time of the act” was not specific enough to guide the
jury under the circumstances in this case.
Accordingly, in the interests of justice, we reverse Schroeder's sexual
assault convictions, and remand for a new trial.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Section 752.35, Stats., provides:
Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial.