Robert Schweiner v. Robert Humphrey , 493 F. App'x 750 ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2011
Decided August 2, 2012
Before
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
WILLIAM M. CONLEY, District Judge*
No. 10-3499
ROBERT SCHWEINER, Appeal from the
Petitioner-Appellant, United States District Court for the
Eastern District of Wisconsin.
v.
No. 08-C-1109
BRIAN FOSTER, Warden, Kettle
Moraine Correctional Institution, William E. Callahan, Jr.,
Respondent-Appellee. Magistrate Judge.
ORDER
The Wisconsin crime of repeated sexual assault of a child requires proof of at least
three separate sexual assaults of the same victim within a specified time. WIS. STAT.
§ 948.025(1). At Robert Schweiner’s trial for this crime, Danielle D. testified that he sexually
*
The Honorable William M. Conley, Chief Judge of the United States District Court for the
Western District of Wisconsin, sitting by designation.
No. 10-3499 Page 2
assaulted her on three days during the summer of 2002, when she was 13 years old.
Regarding the first episode, she described his repeated acts of sexual contact with two of
her intimate body parts, and a supplemental jury instruction allowed the jury to consider
these as separate assaults. The jury convicted, and Schweiner’s direct appeal was
unsuccessful.
In state postconviction proceedings, Schweiner claimed that the supplemental
instruction omitted a key concept in Wisconsin law that near-simultaneous sexual contacts
with separate body parts do not count as separate sexual assaults. This omission, he
argued, allowed the jury to convict him without proof of every element of the crime, in
violation of his right to due process.2 The Wisconsin trial and appellate courts rejected this
argument, finding that the instruction adequately stated the law based on the evidence
presented at trial. Having exhausted his state remedies, Schweiner petitioned the federal
court for a writ of habeas corpus. A magistrate judge denied relief, and Schweiner
appealed.
We affirm. Schweiner’s argument casts a claimed violation of state law—not
cognizable on federal habeas review—as a federal due-process violation. Under the Due
Process Clause, the prosecution must prove every element of a crime beyond a reasonable
doubt, but the elements of the crime are defined by state law. Here, the state appellate
court held that the supplemental jury instruction was a correct statement of Wisconsin law
based on the facts of Schweiner’s case. That conclusion ends our inquiry.
I. Background
In 2002 Schweiner was in a relationship (its precise nature is unclear) with a woman
named Kim. Kim’s daughter Danielle, then 13 years old, alleged that Schweiner sexually
assaulted her several times that summer. Schweiner was arrested and charged with
repeated sexual assault of the same child. See WIS. STAT. § 948.025(1) (1999-2000). To
convict, the prosecution was required to prove that Schweiner had sexual contact with
Danielle at least three times within a given period of time. See id. If there was evidence of
more than three contacts, the jurors had to agree that at least three sexual contacts
occurred, but they were not required to agree on which particular contacts were proven.
See id. § 948.025(2).
2
Schweiner also claimed that his trial attorney’s failure to object to the instruction
constituted ineffective assistance of counsel. Because we granted a certificate of appealability solely
on the due-process issue, we will refer only to that claim.
No. 10-3499 Page 3
At Schweiner’s trial the prosecutor informed the jury in his opening statement that
he would present evidence of three instances of sexual assault. Danielle then testified that
Schweiner sexually assaulted her on three different days during the summer of 2002. On
the first day, Schweiner took her swimming at a public quarry lake. While they were in the
water, he sexually assaulted her under the pretense of playfully tossing her into the air.
Danielle testified that when Schweiner threw her up out of the water, he started “feeling up
on my bootie,” meaning her buttocks. She said his hands would then “kind of go like
towards the front . . . like towards my . . . vagina.” She said this happened repeatedly while
they were swimming.
The second episode took place during another visit to the lake. Again while they
were swimming, Schweiner removed Danielle’s swimsuit bottom, grabbed her ankle and
pulled her toward him, and inserted his fingers into her vagina. The third episode
occurred in Schweiner’s apartment, where he made Danielle masturbate him.
Schweiner took the stand in his own defense. He testified that Danielle concocted
her story out of personal spite toward him. He denied the substance of the second and
third episodes Danielle described. As to the first episode, he acknowledged tossing
Danielle out of the water but claimed it was innocent horseplay.
Based on Danielle’s testimony, the prosecutor shifted course during his closing
argument and informed the jury that there were four separate sexual assaults because
Schweiner touched two of Danielle’s intimate body parts during the first outing to the lake.
The prosecutor explained that “under the law, touching her vagina and touching her
buttocks when he’s tossing her in the air are—both of those can be distinct offenses. So you
can look at both of those things, but you’re going to have to look at them separately.” The
judge instructed the jury on the offense of repeated sexual assault of the same child and
also on the lesser-included offense of second-degree sexual assault. A verdict of guilty on
the latter crime was appropriate if the jury found that fewer than three sexual contacts
occurred.
During deliberations, the jury sent two questions to the judge. The first asked
whether “the touching of the buttocks or vagina constitute one or two separate charges
towards three sexual assaults.” The second asked, “If we all agree to three of the four
charges of the second degree form, does this constitute three sexual assaults and become
repeated acts of sexual assault of a child[?]” The judge responded with the following
supplemental instruction, to which neither party objected:
If the State proved beyond a reasonable doubt that the defendant touched the
buttocks of Danielle . . . , that is one contact. If the State proved beyond a reasonable
doubt that the defendant touched the vagina of Danielle on the first occasion . . . ,
No. 10-3499 Page 4
that is a second contact. If the State proved beyond a reasonable doubt that the
defendant touched the vagina of Danielle on the second occasion . . . , that is a third
contact. If the State proved beyond a reasonable doubt that the defendant
intentionally caused or allowed Danielle to do the touching of . . . the penis of the
defendant . . . , that is a fourth contact.
It is for you to decide if there were no contacts, as I have defined that, or one contact
or two contacts or three contacts or four contacts. If you find three or more contacts,
as I have defined them . . . , that makes up the offense of repeated acts of sexual
assault of a child.
Minutes later, the jury returned its verdict, finding Schweiner guilty of the charged crime of
repeated sexual assault of the same child. The judge sentenced him to 20 years in prison
and 20 years of extended supervision. The court of appeals affirmed, and the state
supreme court denied review.
Schweiner then sought state postconviction relief, asserting that the trial court’s
supplemental instruction permitted the jury to convict him without finding every element
of the offense. He pointed out that under Wisconsin law, simultaneous or near-
simultaneous acts of sexual contact with separate intimate body parts are not considered
separate sexual assaults. He argued that the supplemental instruction required the jury to
consider the near-simultaneous sexual contacts during the first episode at the lake as
separate sexual assaults. Because jurors did not have to indicate which sexual contacts the
prosecution had proven, it was possible that one or more of them found that he had
sexually assaulted Danielle three times but that two of the assaults were the near-
simultaneous sexual contacts during the first episode at the lake. Therefore, Schweiner
argued, the jury might have convicted him of repeated sexual assault even though the
jurors agreed only on two sexual assaults. The trial court denied the postconviction
motion, and Schweiner appealed.
The Wisconsin Court of Appeals acknowledged that simultaneous sexual contacts
could not be considered separate assaults but rejected Schweiner’s assertion that the first
episode at the lake necessarily involved allegations of simultaneous contacts:
[The] evidence indicates that even if both contacts occurred within the context of a
single toss, Schweiner engaged in two separate volitional acts, including a conscious
decision to squeeze and rub Danielle’s buttocks with his hand, and a conscious
decision to move his hand forward to touch her vagina before tossing her.
The court concluded that “[t]he trial court’s supplemental instruction therefore did not
misstate the law when it instructed the jury that it could find four separate contacts.” The
No. 10-3499 Page 5
appellate court affirmed the trial court’s denial of postconviction relief, and the Wisconsin
Supreme Court denied review.
Schweiner then petitioned the federal district court for a writ of habeas corpus. A
magistrate judge presiding by consent, see 28 U.S.C. § 636(c)(1), denied the petition. The
judge began by questioning whether the petition raised a question of federal law and
ultimately assumed without deciding that it did. The judge then concluded that habeas
relief was unwarranted because the trial court’s supplemental instruction “ma[de] clear
that the jury could, but was not required to, view the single-toss/hand-to-buttock touching
and the hand-to-vagina touching as separate sexual assaults.”
We granted a certificate of appealability on the issue of whether the instruction
violated Schweiner’s federal constitutional right to due process.
II. Discussion
A person in custody pursuant to a state-court conviction may petition for a writ of
federal habeas corpus “only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (“ ‘[F]ederal habeas corpus relief does not lie for errors of
state law.’ ” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))); Corcoran v. Wilson, 651 F.3d
611, 613 (7th Cir. 2011). As a result, state-law violations “are cognizable only if they
resulted in fundamental unfairness and consequently violate a petitioner's constitutional
rights.” McGuire, 502 U.S. at 72; Lechner v. Frank, 341 F.3d 635, 642 (7th Cir. 2003).
Schweiner conceptualizes his claim as a violation of federal due process. But such a claim
merits federal habeas relief “only if the state court committed an error so serious as to
render it likely that an innocent person was convicted.” Perruquet v. Briley, 390 F.3d 505,
510 (7th Cir. 2004).
Of course, Schweiner is correct that “the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970).
Accordingly, jury instructions that relieve the State of its burden of proof violate due
process. Carella v. California, 491 U.S. 263, 265 (1989) (per curiam). Schweiner argues that
the trial court’s supplemental instruction allowed the jury to convict him without finding
three distinct sexual contacts, as required for the crime of repeated sexual assault of the
same child. See WIS. STAT. § 948.025(1) (1999-2000).
Under Wisconsin law two near-simultaneous sexual contacts generally cannot
No. 10-3499 Page 6
constitute separate sexual assaults. See State v. Hirsch, 410 N.W.2d 638, 641 (Wis. Ct. App.
1987). In Hirsch the prosecutor charged the defendant with three counts of sexual assault
for touching the victim’s vagina, buttocks, and vagina a second time with “little, if any,
lapse of time between the alleged acts.” Id. The Wisconsin Court of Appeals held that
convicting the defendant of three separate counts of sexual assault based on the near-
simultaneous contacts violated double jeopardy. Id. The court drew on State v. Eisch,
291 N.W.2d 800, 805 (Wis. 1980), in which the Wisconsin Supreme Court held that it is
fundamentally unfair for a defendant “to be charged, tried, or convicted for offenses that
are substantially alike when they are a part of the same general transaction or episode.” See
Hirsch, 410 N.W.2d at 641.
This case is different. Here, the state appellate court held that “[t]he trial court’s
supplemental instruction . . . did not misstate the law when it instructed the jury that it
could find four separate contacts.” The court noted Danielle’s testimony that Schweiner
committed two distinct sexual acts in the process of tossing her out of the water, “including
a conscious decision to squeeze and rub Danielle’s buttocks with his hand, and a conscious
decision to move his hand forward to touch her vagina.” The court rejected Schweiner’s
comparison to Hirsch because Schweiner “had time to reflect on his conduct and commit
himself to having sexual contact with a second intimate body part of Danielle’s.”
Schweiner zeros in on the appellate court’s explanation that Danielle’s testimony
and the trial court’s supplemental instruction permitted the jury to find that the contacts
with separate body parts were independent and therefore distinct sexual assaults. Because
the instruction did not tell the jurors that simultaneous or near-simultaneous contacts could
not be separate sexual assaults, Schweiner argues that the trial court effectively removed an
issue of fact from the jury. We disagree. The appellate court held that the evidence and the
instruction permitted the jury to find that the touching of separate body parts during the
first outing at the lake constituted separate assaults, not that such a finding was required.
That is, the court held that the instruction was an accurate statement of the law in the
context of the facts of the case and did not allow the jury to convict Schweiner of repeated
sexual assault based on simultaneous sexual contacts.
The flaw in Schweiner’s argument is its premise that Danielle’s testimony about his
conduct during the first visit to the lake necessarily described a single act of sexual assault.
The trial judge emphasized in the supplemental instruction that it was the jury’s role to
decide “if there were no contacts, as I have defined that, or one contact or two contacts or
three contacts or four contacts.” The instruction, the state appellate court held, was a
correct statement of Wisconsin law in the context of the facts of the case. We are bound by
this interpretation of state law. See McCloud v. Lechner, 409 F.3d 869, 874-75 (7th Cir. 2005);
Lechner, 341 F.3d at 642 (citing Wainwright v. Goode, 464 U.S. 78, 84 (1983)).
No. 10-3499 Page 7
Schweiner’s argument resembles one we rejected in Curtis v. Montgomery, 552 F.3d
578 (7th Cir. 2009), a habeas case challenging a conviction for the Illinois crime of
aggravated stalking, which requires the prosecutor to prove that the defendant placed the
victim under surveillance on at least two occasions. Id. at 581. The defendant argued that
the prosecution failed to prove a second act of “surveillance” as that term is defined in the
Illinois stalking statute. Relying on Jackson v. Virginia, 443 U.S. 307 (1979), the defendant
insisted that an element of the crime was not proven and thus his right to due process had
been violated. Curtis, 552 F.3d at 581. We held that the defendant was really disagreeing
with the state court’s interpretation of state law—namely, that his conduct fit the Illinois
stalking statute’s definition of “surveillance.” See id. Accordingly, we rejected his claim as
“impermissibly attempting to use a petition for a writ of habeas corpus to press his
preferred interpretation of [state] law.” Id. at 582. The same is true here.
AFFIRMED.
CONLEY, District Judge, concurring. Deferring to the opinion of the Wisconsin
Court of Appeals, the majority’s opinion states that the “instruction permitted the jury to
find that the touching of separate body parts during the first outing at the lake constituted
separate assaults, not that such a finding was required.” (Maj. Op. 6 (emphasis in original).)
While concurring in the court’s decision to affirm the denial of defendant’s petition on
other grounds, I write separately because the trial court’s supplemental instruction to the
jury unconstitutionally foreclosed a finding of simultaneous contact and the majority
opinion may be erroneously cited by future litigants for the proposition that a state court
may construe away post hac defects fundamental in the government’s proof of essential
elements of the crime charged simply by casting it as a matter of state law.
As quoted more fully by the majority, the trial court instructed in relevant part:
If the State proved beyond a reasonable doubt that the defendant touched the
buttocks of Danielle and that she was under 16 and that it was done with intent to
become sexually aroused or gratified, that is one contact. If the State proved beyond a
reasonable doubt that the defendant touched the vagina of Danielle on the first
occasion [and] that she was under 16 and that it was done to become sexually
aroused or gratified, that is a second contact.
(Emphasis added.) Particularly because this supplemental instruction was given in direct
response to a specific question posed by the jury during its deliberation as to whether “the
touching of the buttocks or vagina constitute one or two separate charges towards three
sexual assaults,” this instruction could reasonably be understood by the jury to direct it to
consider a single toss or throw in the quarry as two contacts—one to the buttocks and one
to the vagina. With that framework in mind, the jury was further instructed to decide “if
No. 10-3499 Page 8
there were no contacts, as I have defined that, or one contact or two contacts or three contacts
or four contacts.” (Emphasis added.)
To my reading, while the jury certainly remained free to determine whether the
alleged contacts occurred, the trial court effectively decided whether one toss or throw
constituted one contact or two contacts as a result of this supplemental instruction.
The Wisconsin Court of Appeals concluded that the evidence supported a finding
that the “acts were different in nature and involved a separate volitional choice by
[Schweiner],” which permitted “the jury . . . [to] find that Schweiner’s decision to touch
Danielle’s buttocks, followed by his decision to touch her vagina, even within the context of
a single toss at the quarry, constituted two separate sexual assaults.” (R2:Attach.E:9.) But
the fact that the jury could have found the touches constituted two separate contacts for the
purpose of convicting Schweiner of repeated sexual assault of a child, simply does not
address the flaw in the court’s conclusion: the supplemental instruction took that finding
away from the jury.
The issue posed in Schweiner’s petition is not merely a matter of semantics.
Schweiner was convicted of engaging in three or more sexual assaults. While Wisconsin
courts may interpret what constitutes a separate sexual assault, that is not what occurred
here. On the contrary, the Wisconsin Supreme Court and the Wisconsin Court of Appeals
have already defined what constitutes separate contacts for purposes of § 948.025(1). See
State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800, 803 (1980) (holding that to constitute a
separate contact under § 948.025(1), the contact must be “either separated in time or . . . of a
significantly different nature in fact”); State v. Hirsch, 140 Wis. 2d 468, 474, 410 N.W.2d 638,
641 (Ct. App. 1987) (citing Eisch, holding that “the acts allegedly committed are not ‘so
significantly different in fact that they may be properly denominated separate crimes’”).
By directing the defendant’s touch of the buttocks and vagina constituted two separate
contacts “even within the context of a single toss,” the trial judge prevented the jury from
making the very finding it was required to make: that the touch constituted two separate
contacts as defined in Eisch and Hirsch.
“[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which
he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The right to trial by jury “includes,
of course, as its most important element, the right to have the jury, rather than the judge,
reach the requisite finding of ‘guilty.’ ” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
For this reason, the trial court’s supplemental instruction violated Schweiner’s rights
under the Fifth and Sixth Amendments, and as such the Wisconsin Court of Appeals’
decision affirming his conviction was “contrary to, or involved an unreasonable application
No. 10-3499 Page 9
of, clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).
The certificate of appealability in this case was limited to “whether the trial court’s
supplemental instructions permitted conviction without a jury finding beyond a reasonable
doubt all facts necessary for conviction in violation of Schweiner’s rights to due process.”
Since Schweiner did not object to the supplemental instruction, however, his only avenue
of relief on appeal is through an ineffective assistance of counsel claim. Here, too, I would
find for Schweiner. His defense counsel may have made a reasonable decision not to seek a
favorable instruction in the first instance on what constitutes a contact, because it might
undermine his sole “defense . . . that none of them had happened.” (App.121 (emphasis
added).) But once the jury specifically asked for guidance, there was no longer a tactical or
strategic reason for failing to urge the court to instruct the jury that they decide whether
touching involved in a single toss constituted one or two contacts.
Still, I conclude that the error was harmless. Danielle testified at trial that Schweiner
threw her repeatedly during the trip to the quarry, and that the touching of her buttocks
and vagina happened during most of those tosses. Even if the jury had been properly
instructed to determine whether a single toss or throw constituted one or two contacts and
had concluded that a toss constituted just one contact, there was ample evidence of
separate, volitional touches, including Danielle’s testimony that she was repeatedly tossed
or thrown by Schweiner, to allow for a finding of three contacts sufficient to satisfy the
elements of this claim. Indeed, it is inconceivable that the jury could have found the victim
had told the truth about multiple touches on her first toss, but lied about the many
additional tosses she described. On that alternate basis alone, I would affirm the district
court’s denial of Schweiner’s petition. See O'Neal v. McAninch, 513 U.S. 432, 437 (1995) (“[If]
the error did not influence the jury, or had but very slight effect, the verdict and the
judgment should stand.” (internal citation and quotation marks omitted)).