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COURT OF APPEALS DECISION DATED AND RELEASED May 16, 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. 95-1134-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT J. KONZE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Monroe County:
MICHAEL J. ROSBOROUGH, Judge. Affirmed
and cause remanded with directions.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Scott J. Konze appeals from a judgment convicting him
on two counts of sexual assault. The
State charged Konze with first-degree sexual assault, second-degree sexual
assault, second-degree sexual assault as a party to the crime, and misdemeanor
battery. The jury convicted Konze on
the first and third charges and acquitted him on the other two. He contends that the trial court should have
set aside the verdict on the first-degree sexual assault charge because it is
inconsistent with an acquittal on the battery charge, as the foundation for
both was the same act of violence. He
also contends that the trial court erred when it allowed the State to amend the
first charge from second-degree to first-degree sexual assault. We reject his arguments and affirm.[1]
Inconsistency in a
verdict is not per se grounds for reversal of a conviction. State v. Johnson, 184 Wis.2d
324, 347-48, 516 N.W.2d 463, 471 (Ct. App. 1994). As long as sufficient evidence supports the guilty verdict, we
will affirm. Id. at 348,
516 N.W.2d at 471. Here, the jury heard
testimony that the victim was pummeled into a dazed state of submission by the
violent and forceful acts of Konze and his accomplice. If believed, that evidence reasonably
allowed the jury to find guilt beyond a reasonable doubt. Whether to believe it was the jury's
prerogative. State v. Poellinger,
153 Wis.2d 493, 503, 451 N.W.2d 752, 756 (1990).
The trial court properly
allowed the State to amend the information.
Konze argues that the evidence presented at the preliminary hearing did
not support the first-degree sexual assault charge. We disagree. The charge that
he violated, § 940.225(1)(c), Stats.,
required evidence that he had nonconsensual sexual contact or intercourse with
another person by using force or violence or threatening force or violence
while aided or abetted by another person.
The victim testified at the preliminary hearing that Konze had sexual
intercourse with her without her consent, after he and his co-defendant
pummeled her into a dazed, submissive state.
That evidence established probable cause to charge Konze with
first-degree sexual assault. It is
therefore unnecessary to determine the issue raised by the State as to whether
the charge need only be not wholly unrelated to the preliminary hearing
evidence.
By the Court.—Judgment
affirmed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.