COURT OF APPEALS DECISION DATED AND RELEASED November 9, 1995 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2246-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KELLY D. SWAIN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Monroe County:
MICHAEL J. McALPINE,
Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM. Kelly D. Swain appeals from a judgment of conviction
of second-degree sexual assault, contrary to § 940.225(2)(d), Stats.
Swain argues that there was insufficient evidence from which the jury
could find that the complainant was "unconscious" when the sexual
encounter took place. For the reasons
set forth below, we affirm.
BACKGROUND
Kelly Swain rented a
house in Wilton, Wisconsin, which he shared with Wesley Jankowski. Jankowski and Betty Carlson were
romantically involved, and Carlson had recently moved in with Jankowski. Carlson slept either in Jankowski's room or
on the sofa in the living room.
In the early morning
hours of August 23, 1993, Carlson was asleep on the living room sofa, Jankowski
was asleep in his bedroom, and Swain had been out drinking. When Swain returned, he approached Carlson
on the sofa and fondled her.
Because the issue in
this appeal is whether there was sufficient evidence from which a jury could
conclude that Carlson was "unconscious" when Swain fondled her, we
set forth Carlson's entire testimony on this subject in the accompanying footnote.[1]
As stated in the
transcript, Carlson testified that she heard footsteps, felt hands on her body,
believed the hands belonged to Jankowski, and did not realize it was Swain
until she had been carried away from the sofa.
She also stated that she had awakened before being touched, was
"still in a daze" and able to say "no," but did not open
her eyes at that time.
ANALYSIS
The crime of
second-degree sexual assault has four elements. First, the defendant must have had sexual contact with the
victim; second, that contact must have been for the purpose of becoming
sexually aroused or gratified; third, the victim must have been unconscious at
the time of the sexual contact; and fourth, the defendant must have known the
victim was unconscious. Wis J I—Criminal 1215 (1994). In this appeal, defendant does not deny that
he had sexual contact for the purpose of sexual gratification. Rather, he challenges whether the victim was
unconscious at the time of the sexual contact.[2]
Standard of Review
The parties do not
directly address whether in their view, the victim's "unconsciousness"
is a matter of fact or law. However,
both parties appear to imply that the question presented is a mixed question of
law and fact: both argue case law definitions of "conscious," as well
as how to interpret the evidence presented.
We agree that unconsciousness is a mixed question of law and fact. Cf. State v. Disch 129
Wis.2d 225, 234, 385 N.W.2d 140, 144 (1986) (interplay of facts and law
discussed). See also State
v. Curtis, 144 Wis.2d 691, 696, 424 N.W.2d 719, 721 (Ct. App. 1988)
(court defines unconsciousness, jury finds facts as to whether victim was
unconscious).
Where there is a mixed
question of law and fact, the court must determine two matters: (1) what happened; and (2) whether those
facts fulfill a particular legal issue.
State v. Gollon, 115 Wis.2d 592, 600, 340 N.W.2d 912, 916
(Ct. App. 1983). The "underlying
findings of what happened" will not be overturned unless clearly
erroneous. State v. Johnson,
153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990); § 805.17(2), Stats.
We review the question of law independently, without deference to the
trial court. Johnson, 153
Wis.2d at 128, 449 N.W.2d at 848.
Legal standard of "unconsciousness"
Defendant
takes the position that "unconsciousness" means totally
unconscious. He argues that because the
victim admits having heard footsteps and having spoken and having felt hands on
her body, she was not "unconscious."
This narrow definition has been rejected in Wisconsin case law. Unconsciousness includes the loss of
awareness resulting from sleep. State
v. Curtis, 144 Wis.2d 691, 696-97, 424 N.W.2d 719, 721 (Ct. App.
1988). Thus, a person who has sex with
one asleep commits an illegal act. State
v. Pittman, 174 Wis.2d 255, 277, 496 N.W.2d 74, 83, cert. denied,
114 S. Ct. 137 (1993). However, sleep
is not the only kind of unconsciousness.
Rather, in the unconscious state, a person is "insensible,
incapable of responding to sensory stimuli, or in a state lacking conscious
awareness." Disch,
129 Wis.2d at 234-35, 140 N.W.2d at 144.
The trial judge in this
case correctly instructed the jury as to the legal standard. The jurors were told that the term
"unconscious" as used in this case "is a loss of awareness which
may be caused by sleep."
(Emphasis supplied.) This is a
correct statement under Curtis, Pittman and Disch.
Whether the facts fulfill the legal standard
The
jury determined by its guilty verdict that the victim was in a state of
"unconsciousness." This is an
"underlying finding of what happened," and we will not upset it
unless clearly erroneous. State
v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990);
§ 805.17(2), Stats. To determine whether it is clearly
erroneous, we must look to the facts and determine whether they fulfill the
legal standard. Disch,
129 Wis.2d at 234, 140 N.W.2d at 144.
("Whether the facts fulfill a statutory standard is ... a
determination of law....")
We
conclude that the jury's verdict comports with the legal definition of
unconsciousness. Specifically, because
unconsciousness includes that state of "lacking conscious awareness,"
Disch, 129 Wis.2d at 234-35, 140 N.W.2d at 144, and because the
victim testified that she was "in a daze" and did not know who was
touching her, we conclude that a jury decision based on
"unconsciousness" fulfills the legal standard. Stated otherwise, we uphold the jury
decision because it is based on facts which fulfill the legal definition of
"unconsciousness."[3]
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Q. And then what
happened?
A.
[BY BETTY CARLSON] And around two a.m.--
Q. How
do you know it was two a.m.?
A. I'm
guessing. I have no idea.
Q. Okay. Go ahead.
What happened?
A. I
heard footsteps, and then I remember him touching me.
Q. Who
-- Do you know who was touching you?
A.
Not at that time, no.
Q. Where
were you being touched?
A. Under
the nightgown, my breast and my vagina.
Q. Did
you have any clothing under that nightgown?
A. No.
Q. And
what were you being touched by?
A. Hands.
Q. And
did you give anyone permission to touch you in those ‑- you're [sic]
vagina and your breasts?
A. No.
Q. And
what did you do when you felt this touching?
A. I
suddenly woke up, still in a daze.
Q. And
was anything said to you then?
A. "Come
with me."
Q. Did
you know who was talking to you?
A. Not
-- no.
Q. Why
didn't you know who was talking to you then?
A. I
just thought -- I just assumed it was Wesley.
Q. Well,
were you awake enough to see anybody?
A. No.
Q. What
did you tell the person who said that to you?
A. I
said, "No".
Q. And
what happened then?
A. He
-- Then Kelly picked me up.
Q. Did
you know it was Kelly then?
A. No,
not at that time.
On cross examination, she further
testified:
Q. And
you have testified here that you were awakened by footsteps?
A. Yes.
Q. So
you were not awaken [sic] by someone touching you?
A. I
heard footsteps. Then after I heard
footsteps, then he touched me.
Q. And
you heard someone say, "Betty, come with me"?
A.
Yes.
Q. You
thought it was Wesley?
A. Yes,
I did.
...
Q. You
have also stated that you were awakened by the person saying, "Betty, come
with me"?
...
A. I
was -- I was awakened, yes, but I was still in a daze.
Q. You
still thought the person was Wesley?
A. Yes,
I did.
Q. And
you told the person, "No"?
A. Yes.
Q. But
you didn't open your eyes?
A. No,
I did not.
Q. And
the touching continued?
A. Yes.
Q. For
ten minutes, according to you?
A. That's
approximately, yes.
Q. And
you still didn't open your eyes?
A. My
eyes were then opened.
Q. Did
you know who was touching you if your eyes were open?
A. No,
not until we got into the kitchen.
Q. So,
if your eyes were opened, how come you couldn't tell who was touching you?
A. Because
I panicked.
Q. Why
did you panic?
A. I
was scared that something bad would happen.
Q. You
thought it was your boyfriend touching you, right?
A. Yes. At one time, yes.
Q. Well,
you didn't think it was Kelly until you got into the kitchen, correct?
A. Correct.