State v. Alexander M. Schultz , 2020 WI 24 ( 2020 )

2020 WI 24
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1977-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Alexander M. Schultz,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 385 Wis. 2d 494,922 N.W.2d 866
PDC No:2019 WI App 3 - Published
OPINION FILED: March 4, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Lincoln
JUDGE: Robert R. Russell
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ.,
joined. HAGEDORN, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY, and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Frederick A. Bechtold, Taylor Falls, Minnesota. There was
an oral argument by Frederick A. Bechtold.
For the plaintiff-respondent, there was a brief filed by Scott
E. Rosenow, assistant attorney general; with whom on the brief was
Joshua L. Kaul, attorney general. There was an oral argument by
Scott E. Rosenow.
2020 WI 24
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1977-CR
(L.C. No. 2014CF68)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. Mar 4, 2020
Alexander M. Schultz, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the
Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ., joined.
HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH
BRADLEY, and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. The State charged Alexander
M. Schultz with repeated sexual assault of a child for engaging in
sexual intercourse with the fifteen-year-old victim, M.T.,1 in
"late summer to early fall of 2012." A jury acquitted him of this
charge. Shortly thereafter, paternity test results revealed
Schultz to be the father of M.T.'s child. The State then charged
Schultz with sexual assault of a child under 16 years of age
1For privacy purposes, we do not refer to the victim in this
case by name. See Wis. Stat. § 809.86 (2017-18).
No. 2017AP1977-CR
occurring "on or about October 19, 2012," the date M.T.'s
obstetrician determined the child was conceived. We review whether
the State exposed Schultz to multiple prosecutions for the same
offense in violation of the Double Jeopardy Clauses of the United
States and Wisconsin Constitutions. Schultz asks us to consider
whether a court may ascertain the scope of jeopardy in the first
prosecution based upon trial testimony, as well as to determine
who bears the burden resulting from any ambiguity in the timeframe
of a charging document——the defendant or the State.2
¶2 We hold that a court may examine the entire record of
the first proceeding, including the evidence admitted at trial,
when determining the scope of jeopardy in a prior criminal
prosecution. Because the complaint incorporated the police
report, which documents a certain end date for the intercourse,
and the evidence presented at Schultz's first trial did not
encompass the same timeframe of the offense charged in his second
prosecution, we conclude that Schultz was not twice in jeopardy
for the same criminal offense. Specifically, the State's second
prosecution of Schultz for sexual assault of a child under 16 "on
or about October 19, 2012," did not include the same timeframe as
its first prosecution for repeated sexual assault of a child in
the "late summer to early fall of 2012." We affirm the court of
appeals.
We interpret Schultz's use of the word "burden" in the
2
petition for review to ask which party should have the
responsibility to overcome an ambiguous timeframe in a charging
document. Due to our determination on the first question, we need
not address the second.
2
No. 2017AP1977-CR
I. BACKGROUND
A. Schultz's First Prosecution
¶3 In December 2012, Merrill Police Officer Matthew Waid
interviewed then-fifteen-year-old M.T. after learning she was
pregnant. Waid learned that M.T. had sexual intercourse with a
male named "Dominic" in early to mid-October. M.T. also informed
Waid that she had sexual intercourse with Schultz "approximately
one month before she had sexual intercourse with Dominic." M.T.
confirmed that "she had her period between the time she had sexual
intercourse with Alex" and when she had intercourse with Dominic
in early to mid-October. When questioned by Waid, Schultz denied
having a sexual relationship with M.T.
¶4 In January 2013, Officer Waid conducted two follow-up
interviews with M.T. about her sexual relationship with Schultz.
In the first, M.T. claimed she and Schultz had sexual intercourse
more than five times, beginning in the middle of 2012 and lasting
for a few months. Schultz was either 19 or 20 years old when the
intercourse began. In the second, M.T. showed Waid Facebook
messages between her and Schultz on September 3, 2012. In these
messages, Schultz was angry and dismissive of M.T. because he
believed that she was telling other people things that "can put me
in prison." Based upon these messages, the interviews with M.T.,
and interviews with multiple witnesses who suggested knowledge of
a sexual relationship between Schultz and M.T., Waid recommended
charges against Schultz.
3
No. 2017AP1977-CR
¶5 In April 2013, the State filed charges against Schultz
in Lincoln County Circuit Court3 for repeated sexual assault of a
child, a Class C felony.4 The complaint listed the timeframe for
the assaults as "late summer to early fall of 2012." Because
Schultz was a repeat criminal offender with three prior
convictions, the State also charged him with a penalty enhancer
pursuant to Wis. Stat. § 939.62(1)(c)(2017-18).5 The complaint
"incorporated by reference" the entirety of Officer Waid's police
report and attached his report to the complaint. The subsequent
Information also listed "late summer to early fall of 2012" as the
timeframe for the crime. During a pre-trial hearing, the parties
agreed M.T.'s pregnancy was not pertinent to Schultz's trial
because Dominic was presumed to be the child's father.6
3 The Honorable Jay R. Tlusty presided.
4 See Wis. Stat. § 948.025(1)(e). For the jury to convict
under § 948.025(1)(e), it must find the defendant engaged in three
separate sexual assaults, in violation of Wis. Stat. § 948.02(1)
or (2), during the charged timeframe.
5 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
6 Before trial, Schultz's counsel moved to introduce evidence
of M.T.'s pregnancy as well as her claim that Dominic was the
father, because he assumed M.T.'s pregnancy "was going to be part
of this case" and "part of the context of the case." In response
to that motion, the State moved for a continuance in order to
prepare its response. Both M.T. and her mother supported the
State's request for a continuance and expressed a desire to wait
for the paternity test results. The State regarded the results as
irrelevant, anticipating they would confirm Dominic to be the
father. While Schultz indicated he wanted to see the test results,
he also wanted to proceed with the trial and withdrew his motion.
Both parties agreed to proceed with the trial as scheduled. The
paternity test results were not available until after the first
trial and therefore do not inform the determination of the scope
4
No. 2017AP1977-CR
¶6 Schultz's trial took place on January 21-22, 2014.
During his opening statement, the prosecutor indicated the sexual
relationship between Schultz and M.T. began in the "late summer of
2012." Consistent with the prosecutor's timeframe, M.T. testified
she had sexual intercourse with Schultz starting around July or
between July and August, and that she and Schultz broke up around
the beginning of September 2012. On direct examination, M.T.
confirmed she had sexual intercourse with Schultz in the month or
so leading up to the beginning of October 2012. On cross-
examination, she relayed the same information she initially told
Officer Waid: she had sexual intercourse with Schultz
approximately one month before she had intercourse with Dominic,
the latter of which took place in early to mid-October. Later in
her testimony, M.T. claimed she told a friend about her sexual
relationship with Schultz, and that this conversation occurred
"closer to October," after she had stopped seeing Schultz.
¶7 During his testimony, Officer Waid confirmed that in the
course of his initial investigation, M.T. told him she had sexual
intercourse with Schultz in the month or so prior to early October
2012. He also read Facebook messages between M.T. and Schultz
from September 3, 2012. These messages confirmed M.T.'s testimony
regarding the relationship with Schultz ending by early September.
In the messages, Schultz stated "[U]r dead to me now" and "[I] was
gonna try to get back with you[.]" While not explicitly mentioning
a sexual relationship, Schultz accused M.T. of breaking a promise
of jeopardy in the first trial.
5
No. 2017AP1977-CR
to him and telling people things that could send him to prison.
M.T. responded that she "didnt tell anyone."
¶8 No evidence at trial indicated M.T. and Schultz had
sexual intercourse in October 2012. One of Schultz's own
witnesses, A.O., testified that she and Schultz were in a romantic
relationship between September 2012 and the spring of 2013.
¶9 While instructing the jury, the circuit court reiterated
that the timeframe alleged for the assaults was "late summer to
early fall of 2012." In closing argument, the State argued the
intercourse between Schultz and M.T. ended in September. In
summarizing M.T.'s testimony regarding sexual intercourse with
Schultz, the State specifically mentioned that M.T. indicated
intercourse occurred in the month before October 2012; the assaults
started in July and ended in September 2012; and the assaults
happened during "September, August, and July." After
deliberations, the jury acquitted Schultz of "repeated acts of
sexual assault of a child as charged in the information," which
had charged Schultz with this crime during the timeframe of "late
summer to early fall of 2012."7
7 The dissent claims the court's recitation of the evidence
"is not a fair picture." Dissent, ¶80. It is the dissent that
relies on a slanted summary of the proceedings, ignoring
dispositive facts in the record. In presenting its gloss on this
case, the dissent disregards any portions of the record that
counter its analysis, including:
 the police report summarizing Officer Waid's
investigation, which was attached to and incorporated
in the initial indictment;
6
No. 2017AP1977-CR
B. Schultz's Second Prosecution
¶10 Five days after Schultz's acquittal, Officer Waid
learned from Lincoln County Victim Services that M.T. had received
her paternity test results. These results indicated a 99.99998
percent certainty that Schultz, not Dominic, was the father of
M.T.'s baby. Although incarcerated at the time, Schultz
participated in a phone interview with Waid about the statements
 M.T.'s statements to Officer Waid regarding the
timeline of the sexual activity with Schultz and
Dominic;
 the Facebook messages exchanged between M.T. and
Schultz, shedding light on the nature and timeframe of
their relationship;
 the withdrawal of Schultz's request for an adjournment
pending receipt of the paternity test results, based
on the State's representation that M.T.'s pregnancy
would not be mentioned at trial, and never was;
 Schultz's pretrial admission, in a motion to dismiss
the first charge for selective prosecution, that "the
complainant had sexual intercourse with at least one
other adult during the time period involved" and "the
other adult has admitted to sexual intercourse and has
been determined to be the father of the complainant's
child[]"; and
 the State's acknowledgment that "Dominic [] [has been]
imputed the father of the victim's child, that's been
in the reports for months as well."
The dissent can conclude the record is "unclear when the
alleged sexual activity . . . stopped" only because it closes its
eyes to this evidence. The dissent mistakenly asserts that the
State went to trial knowing Schultz could be the father of M.T.'s
child. Dissent, ¶80. In fact, M.T. told law enforcement that
"she had her period between the time she had sexual intercourse
with Alex" and when she had intercourse with Dominic in early to
mid-October, rendering it unreasonable to suggest the State knew
Schultz could be the father. Finally, the dissent points to
nothing in the record to support its assertion that "late summer
to early fall 2012" included "on or about October 19, 2012."
7
No. 2017AP1977-CR
from his previous trial and his relationship with M.T. Schultz
continued to deny having sexual intercourse with M.T. at any point
during 2012. After receiving authorization from M.T. and her
mother, Waid contacted M.T.'s obstetrician to obtain information
regarding the date of conception. M.T.'s obstetrician informed
Waid that the conception date for the baby was October 19, 2012.
¶11 In March 2014, the State filed charges against Schultz
in Lincoln County Circuit Court.8 Count 3 charged Schultz with
sexual assault of a child under 16 years of age, a Class C felony,
"on or about October 19, 2012."9 The State again charged Schultz
with a penalty enhancer for being a repeat criminal offender,
pursuant to Wis. Stat. § 939.62(1)(c). The complaint incorporated
Officer Waid's police report detailing his investigation, which
was attached to the complaint.
¶12 Schultz moved to dismiss Count 3, arguing it violated
his constitutional protections against double jeopardy. Because
"fall" started on September 22, 2012, and October 19, 2012 fell
within the first thirty days after the September equinox, Schultz
argued the date alleged for his second sexual assault charge——"on
or about October 19, 2012"——fell within the timeframe alleged for
his first charge, which included "early fall." The circuit court
denied Schultz's motion because it found no evidence of any assault
8 The Honorable Robert R. Russell presided.
9 See Wis. Stat. § 948.02(2). The complaint included two
other counts: Count 1 charged Schultz with perjury in violation
of Wis. Stat. § 946.31(1)(a); Count 2 charged Schultz with
obstructing an officer in violation of Wis. Stat. § 946.41(1).
8
No. 2017AP1977-CR
in October in the first prosecution for repeated sexual assault of
a child. The circuit court found, based on the testimony adduced
in the first trial, that "late summer to early fall of 2012" meant
July, August, and September 2012, but not October 19, 2012.
¶13 Schultz thereafter pled guilty to Counts 1 and 3——
perjury and sexual assault of a child under 16 years of age,
respectively. The circuit court sentenced Schultz to two years of
initial confinement plus two years of extended supervision for
perjury, and five years of initial confinement plus five years of
extended supervision for the sexual assault against M.T, both
sentences to run concurrently.
¶14 Schultz moved for postconviction relief, again raising
the double jeopardy argument he set forth in his motion to dismiss.
Having concluded the defendant presented no new evidence for his
argument, the circuit court denied the motion. Schultz appealed.
¶15 The court of appeals rejected Schultz's assertion that
his second prosecution violated the constitutional proscription of
double jeopardy and affirmed the circuit court. See State v.
Schultz, 2019 WI App 3, ¶3, 385 Wis. 2d 494, 922 N.W.2d 866. The
court of appeals held that the test to determine the scope of
jeopardy in the face of an ambiguous charging document is how a
reasonable person would understand the charging language, based on
the evidence introduced at trial and the entire record of the
proceeding. Id., ¶30. The court of appeals agreed with the
circuit court's analysis of the evidence presented at Schultz's
first trial: the sexual assaults were alleged to have occurred
only in July, August, and September 2012, but not October. Id.,
9
No. 2017AP1977-CR
¶¶33–34. Schultz filed a petition for review, which this court
granted.
II. STANDARD OF REVIEW
¶16 Whether a defendant's convictions violate the Double
Jeopardy Clauses of the Fifth Amendment and Article I, Section 8
of the Wisconsin Constitution, are questions of law appellate
courts review de novo. State v. Steinhardt, 2017 WI 62, ¶11, 375
Wis. 2d 712, 896 N.W.2d 700 (citation omitted); see also State v.
Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992) (citation
omitted).
¶17 As part of our analysis, we interpret Wis. Stat.
§ 971.29. Statutory interpretation is a "question[] of law that
this court reviews de novo while benefitting from the analyses of
the court of appeals and circuit court." State v. Ziegler, 2012
WI 73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238 (citation omitted).
III. ANALYSIS
A. Double Jeopardy Overview
¶18 The Fifth Amendment provides, in relevant part: "nor
shall any person be subject for the same offence to be twice put
in jeopardy of life or limb[.]" U.S. Const. amend. V. The
Wisconsin Constitution likewise provides protection against double
jeopardy, stating "no person for the same offense may be put twice
in jeopardy of punishment[.]" Wis. Const. art. I, § 8, cl. 1. We
view the United States and Wisconsin Double Jeopardy Clauses as
"identical in scope and purpose." State v. Davison, 2003 WI 89,
¶18, 263 Wis. 2d 145, 666 N.W.2d 1 (citation omitted).
Accordingly, United States Supreme Court decisions interpreting
10
No. 2017AP1977-CR
the Fifth Amendment's Double Jeopardy Clause are "controlling
interpretations" of both the federal Constitution and the
Wisconsin Constitution. Id. (citations omitted).
¶19 In order to apply the original meaning of the Double
Jeopardy Clause, we interpret this provision "through the
historical ascertainment of the meaning that it would have conveyed
to a fully informed observer at the time when the text first took
effect." Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 435 (2012). Unlike other
constitutional protections, the right to be free from double
jeopardy does not have identifiable roots in a specific legal
system or a particular point in time. Whereas the writ of habeas
corpus traces its origin to English common law,10 and the Eighth
Amendment's ban on cruel and unusual punishment derives directly
from the English Bill of Rights,11 the protection against double
jeopardy enshrined in the Constitution represents the amalgamation
of legal principles applied throughout documented history. See
David S. Rudstein, A Brief History of the Fifth Amendment Guarantee
against Double Jeopardy, 14 Wm. & Mary Bill Rts. J. 193, 196-202
(2005) (stating "[t]he precise origins of the guarantee against
10See State ex rel. Fuentes v. Court of Appeals, 225
Wis. 2d 446, 450, 593 N.W.2d 48 (1999) (stating that habeas relief
comes from the common law).
11See Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (Scalia,
J., joined by Rehnquist, C.J.) (noting in discussion of the "cruel
and unusual punishment" provision of the Eighth Amendment,
"[t]here is no doubt that the [English] Declaration of Rights is
the antecedent of our constitutional text.").
11
No. 2017AP1977-CR
double jeopardy are unclear[,]" before discussing the legal
systems upholding the doctrine). The guarantee against double
jeopardy existed in the English common law, as evidenced by William
Blackstone's characterization of it as a "universal maxim of the
common law of England, that no man is to be brought into jeopardy
of his life, more than once, for the same offence." 4 William
Blackstone, Commentaries on the Laws of England 335 (1790). Even
before Blackstone's recognition of the right as a "universal
maxim," the English common law included the protection through the
pleas of "autrefoits acquit (a former acquittal), autrefoits
convict (a former conviction), and pardon." Rudstein, 14 Wm. &
Mary Bill Rts. J. at 204 (footnote omitted).
¶20 Precursors to the principle against subjecting people to
punishment multiple times for the same wrongful act predate the
common law and are found in ancient civilizations. See, e.g.,
Bartkus v. Illinois, 359 U.S. 121, 151 (1959) (Black, J.,
dissenting) ("Fear and abhorrence of governmental power to try
people twice for the same conduct is one of the oldest ideas found
in western civilization. Its roots run deep into Greek and Roman
times." (footnote omitted)); see also David S. Rudstein, Double
Jeopardy: A Reference Guide to the United States Constitution 2–
11 (2004) (tracing double jeopardy principles from the Ancient
Greeks in 355 B.C.E. through Roman and canon law to the English
common law, and ultimately the Fifth Amendment). In the lengthy
history underlying this principle, one idea has remained constant:
a subsequent prosecution must be for the "same offense" in order
to violate the right to be free from double jeopardy. Rudstein,
12
No. 2017AP1977-CR
Double Jeopardy at 2–15 ("same issue," "same offense," "same
charge" in Ancient Greece; "same offense," or "one offense" in
Roman law; "same thing," "same matter," or "same crime" in canon
law; "same offense," "same crime," or "same identical crime" in
the English common law; "one and the same crime, offence, or
trespasse" in the Massachusetts Bay Colony, "same crime or offence"
in the first state constitution with double jeopardy protection;
"same offence" in the Fifth Amendment; "same offense" in the
Wisconsin Constitution). In accord with the original meaning of
the Double Jeopardy Clause, in Wisconsin, "'[t]he same offense' is
the sine qua non of double jeopardy." Davison, 263 Wis. 2d 145,
¶33 (citations omitted).
¶21 The Supreme Court identified three constitutional
protections provided by the Double Jeopardy Clause: (1) "against
a second prosecution for the same offense after acquittal[,]" (2)
"against a second prosecution for the same offense after
conviction[,]" and (3) "against multiple punishments for the same
offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969),
overruled on other grounds by Alabama v. Smith, 490 U.S. 794
(1989). This case involves the first of these protections.
¶22 Over 40 years ago, we held that two prosecutions are for
the "same offense," and therefore violate the Double Jeopardy
Clause, when the offenses in both prosecutions are "identical in
the law and in fact." State v. Van Meter, 72 Wis. 2d 754, 758,
242 N.W.2d 206 (1976) (citation omitted). Offenses are not
identical in law if each requires proof of an element that the
other does not. See Blockburger v. United States, 284 U.S. 299,
13
No. 2017AP1977-CR
304 (1932) (citation omitted). Offenses are not identical in fact
when "a conviction for each offense requires proof of an additional
fact that conviction for the other offenses does not." State v.
Lechner, 217 Wis. 2d 392, 414, 576 N.W.2d 912 (1998) (citing
Sauceda, 168 Wis. 2d at 493-94 n.8; Van Meter, 72 Wis. 2d at 758).
Offenses are also not identical in fact if they are different in
nature or separated in time. State v. Anderson, 219 Wis. 2d 739,
749, 580 N.W.2d 329 (1998) (citation omitted); see also State v.
Stevens, 123 Wis. 2d 303, 323, 367 N.W.2d 788 (1985) (holding
offenses were not the same in fact because they were separated by
a significant period in time).
B. The Dispute
¶23 The parties agree that the offenses in Schultz's first
and second prosecutions, repeated sexual assault of a child and
sexual assault of a child under 16, are identical in law. The
parties disagree as to whether the offenses are identical in fact.
Schultz argues that both offenses are identical in fact because
the timeframe for the offenses charged in the first prosecution,
"late summer to early fall of 2012" encompasses the date for the
offense charged in the second prosecution, "on or about October
19, 2012." Schultz contends the charging language is unambiguous
and the proper inquiry considers how a reasonable person would
construe the indictment at the time jeopardy attaches, without
considering later evidence introduced at the previous trial.12
12For a jury trial, jeopardy attaches when the jury is sworn.
See Wis. Stat. § 972.07(2). Under Schultz's proposed test, the
circuit court would determine how a reasonable person would
construe "late summer to early fall of 2012" at the time the jury
14
No. 2017AP1977-CR
Schultz also asserts that even if the charging document is
ambiguous, the State bears the burden of the ambiguity as the
drafter of the document. In contrast, the State argues that when
faced with ambiguous language in a charging document, courts must
examine the entire record of the proceeding to clarify the scope
of jeopardy.
C. Determining the Scope of Jeopardy
¶24 Whether courts may consider the record to determine the
scope of jeopardy is a question of first impression in Wisconsin.
In his reply brief, Schultz argued that the record's relevance is
limited to considering only "how a reasonable person would have
understood the scope of jeopardy 'at the time jeopardy attached in
the first case.'" (quoting United States v. Olmeda, 461 F.3d 271,
282 (2d Cir. 2006)).13 At oral argument, Schultz again conceded
was sworn.
13The dissent suggests the point at which jeopardy attaches
delimits the scope of jeopardy. Dissent, ¶87. This is
fundamentally wrong. The time at which jeopardy attaches does not
lock in the scope of jeopardy. Jeopardy attaches when the jury is
sworn in order to prevent the State from conducting a full trial
but then dismissing the charges before judgment only to refile the
charges and retry the defendant until it is confident the jury
will convict. The attachment of jeopardy when the jury is sworn
protects the "valued right" of the defendant "to have his trial
completed by a particular tribunal." Arizona v. Washington, 434
U.S. 497, 503 (1978) (quoted sources omitted); State v. Seefeldt,
2003 WI 47, ¶16, 261 Wis. 2d 383, 661 N.W.2d 822 (quoted sources
omitted). The rationale for this rule is well-established:
The protection against double jeopardy limits the
ability of the State to request that a trial be
terminated and restarted. This protection is important
because the unrestricted ability of the State to
terminate and restart a trial increases the financial
and emotional burden on the defendant, extends the
15
No. 2017AP1977-CR
that the record is relevant, but only to understand the minds of
the parties at the time jeopardy attaches:
The court: But counsel, isn't that . . . why
we look at the rest of the record, to try to figure
out what does "early fall" mean?
Schultz's counsel: When . . . we look at the
record, we're not looking at the record to
determine whether evidence was submitted to show
that there was sex in the month of October, what
we're looking at is evidence of what was the common
understanding of the parties as to what the
timeframe was.
The court: [Y]ou mentioned that we should
apply the test described in Olmeda,[14]. . . it
says, a court must further determine that such a
conclusion would be reached by an objective
arbiter. That determination will require
examination of the plain language of the
period during which the defendant is stigmatized by an
unresolved accusation of wrongdoing and may increase the
risk that an innocent defendant may be convicted.
Seefeldt, 261 Wis. 2d 383, ¶17 (citation omitted). The United
States Supreme Court similarly expressed the reasoning underlying
this rule:
[A] second prosecution may be grossly unfair. It
increases the financial and emotional burden on the
accused, prolongs the period in which he is stigmatized
by an unresolved accusation of wrongdoing, and may even
enhance the risk that an innocent defendant may be
convicted. The danger of such unfairness to the
defendant exists whenever a trial is aborted before it
is completed. Consequently, as a general rule, the
prosecutor is entitled to one, and only one, opportunity
to require an accused to stand trial.
Washington, 434 U.S. at 503-05 (internal footnotes omitted).
The point at which jeopardy attaches has nothing to say about the
actual scope of jeopardy.
14 United States v. Olmeda, 461 F.3d 271, 275 (2d Cir. 2006).
16
No. 2017AP1977-CR
indictments in the two prosecutions, as well as the
entire record of the proceedings.
Schultz's counsel: And I agree with
that. . . . I do acknowledge that the entire record
is relevant but only relevant to the understanding
at the time of jeopardy . . . .
¶25 As Schultz conceded, the entire record of the
proceedings may be relevant in determining the scope of jeopardy.
Contrary to Schultz's argument, however, no binding authority
limits courts to using the record only to determine the subjective
understanding of the parties in the first criminal proceeding at
the time jeopardy attaches. Instead, substantial authority
indicates courts may review the entire record of the first
proceeding to determine the scope of jeopardy.
¶26 In Van Meter, we decided there was no double jeopardy
violation when, after a jury trial, the trial court convicted Van
Meter of knowingly fleeing a police officer in Wood County, after
he was previously convicted of knowingly fleeing a police officer
in Portage County, with both charges arising from the same high
speed chase across county lines, in violation of the same statute.
Van Meter, 72 Wis. 2d at 755–59. The defendant argued the Double
Jeopardy Clause barred the second prosecution. Id. at 757.
Acknowledging the "identity of legal elements" based on both
prosecutions charging violations of the same statute, this court
concluded that the requisite "identity in fact[] cannot be shown"
because "eluding Wood county officers in Wood county" is not the
same offense as "eluding Portage county officers in Portage
county." Id. at 757-58. We held a double jeopardy violation
exists when "facts alleged under either of the indictments would,
17
No. 2017AP1977-CR
if proved under the other, warrant a conviction under the
latter[.]" Id. (quoting State v. George, 69 Wis. 2d 92, 98, 230
N.W.2d 253 (1975)). Applying that test, which was originally
adopted in Anderson v. State, 221 Wis. 78, 87, 256 N.W. 210 (1936),
this court determined "that defendant has not been put twice in
jeopardy for the same offense because proof of facts for conviction
for the Wood county offense would not have sustained conviction
for the Portage county offense[.]" Van Meter, 72 Wis. 2d at 759.
We explicitly "emphasize[d] the importance of having all of the
facts in the record" to determine whether one fact alleged under
an indictment would warrant a conviction under the latter. Id. at
758. Nonetheless, because the defendant did not order any trial
transcripts for the appeal, this court's review was "limited to
whether the pleadings, decision, findings and conclusions sustain
the judgment." Id. at 756, 758 (citations omitted). Accordingly,
we assumed the evidence was sufficient to support the verdict in
the Wood County conviction and we relied on the facts from the
Portage County Circuit Court's decision affirming Van Meter's
Portage County conviction. Id. at 758–59. Van Meter establishes
the relevance of the record in determining whether a double
jeopardy violation occurred.
¶27 All of the federal circuit courts of appeal that have
addressed this issue have also examined the record, including
evidentiary facts, in determining the scope of jeopardy. For
example, in United States v. Walsh, 194 F.3d 37 (2d Cir. 1999),
abrogated on other grounds by Kingsley v. Henrickson, 135 S. Ct.
2466 (2015), an indictment charged a corrections officer three
18
No. 2017AP1977-CR
times for violating the Eighth Amendment by causing "unnecessary
and wanton pain" to an inmate. Walsh, 194 F.3d at 40–41. The
three counts alleged conduct occurring between January 4, 1991 and
March 8, 1991 (Count 1); between May 26, 1992 and December 1, 1992
(Count 2); and between May 26, 1992 and July 22, 1992 (Count 3).
Id. Walsh challenged the timeframes for exposing him to double
jeopardy, because each count alleged the same conduct and the
timeframes overlapped. Id. at 41. The Second Circuit Court of
Appeals rejected his argument that the charges violated the
prohibition of double jeopardy because the "evidence presented at
trial" conclusively demonstrated Counts 2 and 3 were not the same
and the conduct alleged in Count 3 occurred after June 5, 1992.
Id. at 46. Even though the indictment charged an offense occurring
between May 26th and July 22nd and it therefore appeared that the
State was charging Walsh for the same criminal act during the same
timeframe, the evidence admitted at trial established a break in
time between the conduct charged in each count. Id.
¶28 In United States v. Castro, 776 F.2d 1118 (3d Cir. 1985),
multiple defendants were charged with and convicted of conspiracy
to possess with intent to distribute more than 1,000 pounds of
marijuana, among other offenses, based upon attempted drug
transactions in Pennsylvania, Texas, and Florida. Id. at 1120.
The appellate court acknowledged a variance between the indictment
and the evidence produced at trial, with the jury finding a
conspiracy and attempt to purchase marijuana in Pennsylvania only.
Id. at 1123. On appeal, Castro contended this variance would
expose him to prosecution in Texas for the same crime. Id. The
19
 No. 2017AP1977-CR
appellate court disagreed, noting that "[t]he scope of the double
jeopardy bar is determined by the conviction and the entire record
supporting the conviction." Id. (citation omitted). The
appellate court concluded "[t]he record shows clearly that the
jury found that Castro conspired to possess the Bristol[,
Pennsylvania] marijuana, and that the evidence supporting his
conviction could not be sufficient to warrant a conviction based
upon . . . transactions outside Pennsylvania." Id. at 1124.
¶29 While the Castro court framed the analysis in terms of
the "record supporting the conviction," courts also examine the
record in cases involving an acquittal, like Schultz's, in order
to determine the scope of jeopardy. For example, in United States
v. Crumpler, 636 F. Supp. 396 (N.D. Ind. 1986), the defendant was
charged with multiple drug offenses in Florida, of which he was
acquitted. Id. at 397-98. He was subsequently charged with
multiple drug offenses in Indiana, in response to which he filed
a motion to dismiss on double jeopardy grounds. Id. at 398. The
Crumpler court resolved the motion "based solely on the record
before it which includes all pleadings, affidavits, and the
evidence adduced during that evidentiary hearing[]" on the motion
to dismiss. Id. at 399. Regardless of whether the first
prosecution resulted in an acquittal or a conviction, "[a]
defendant claiming that he has been subjected to double jeopardy
bears the burden of establishing that both prosecutions are for
the same offense . . . . The defendant must show that 'the
evidence required to support a conviction on one indictment would
have been sufficient to warrant a conviction on the other'
20
No. 2017AP1977-CR
indictment." Id. at 403 (citing United States v. Roman, 728 F.2d
846 (7th Cir. 1984); United States v. West, 670 F.2d 675, 681 (7th
Cir. 1982); United States v. Buonomo, 441 F.2d 922, 925 (7th Cir.
1971)). In Crumpler, the defendant argued that all of his drug
smuggling activities were part of one scheme, so the court examined
the timeframes alleged in each indictment as part of its double
jeopardy analysis. Id. at 399, 404-05. In doing so, that court
considered both "the face of the indictments" as well as "the
evidence presented during the hearing" and found nothing in the
record to establish any "overlap in the time periods charged in
the indictment here and the one in Tampa." Id. at 405.
¶30 The other circuits are in accord with Walsh and Castro.
See United States v. Stefanidakis, 678 F.3d 96, 100-01 (1st Cir.
2012) (in reviewing a double jeopardy challenge, courts must see
if the record "contains facts sufficient to supply a rational basis
for a finding that [the prosecutions] were predicated on different
conduct." (citations omitted)); United States v. Bonilla, 579
F.3d 1233, 1241-44 (11th Cir. 2009) (court reviews the record to
determine whether convictions violated double jeopardy); United
States v. Hamilton, 992 F.2d 1126, 1130 (10th Cir. 1993) ("[F]or
purposes of barring a future prosecution, it is the judgment and
not the indictment alone which acts as a bar, and the entire record
may be considered in evaluating a subsequent claim of double
jeopardy." (citation omitted)); United States v. Vasquez-
Rodriquez, 978 F.2d 867, 870-72 (5th Cir. 1992) (holding the two
prosecutions were not for the same offense after reviewing the
evidence admitted at trial after noting that "acts as described in
21
No. 2017AP1977-CR
the indictment will be examined as well as the acts admitted into
evidence at the trials or hearings." (citations omitted)); United
States v. Pollen, 978 F.2d 78, 84, 86-87 (3d Cir. 1992)
("[E]xamin[ing] the record to determine if [separate counts were]
impermissibly multiplicitous[]" under the Double Jeopardy Clause);
United States v. Am. Waste Fibers Co., 809 F.2d 1044, 1047 (4th
Cir. 1987) ("When a Double Jeopardy bar is claimed, the court must
examine not just the indictment from the prior proceeding but the
entire record." (citation omitted)); Roman, 728 F.2d 846, 853–54
(7th Cir. 1984) ("It is the record as a whole, therefore, which
provides the subsequent protection from double jeopardy, rather
than just the indictment[.]"); United States v. Levine, 457 F.2d
1186, 1189 (10th Cir. 1972) ("The entire record of the proceedings
may be referred to in the event of a subsequent similar
prosecution. In the case at bar the record contains adequate
detail to protect against double jeopardy." (internal citation
omitted)). See also 1 Charles Alan Wright, Federal Practice &
Procedure § 125 (4th ed. 2019) ("If a defendant claims prior
jeopardy in defense to a pending charge, the court is free to
review the entire record of the first proceeding, not just the
pleading." (footnote omitted)).
¶31 In addition to precedent from the federal courts,
historical sources support examining the defendant's actual
exposure to jeopardy in a prior prosecution. "The guarantee
against double jeopardy became firmly entrenched in the [English]
common law in the form of the pleas of autrefois acquit (a former
acquittal), autrefoits convict (a former conviction), and pardon."
22
No. 2017AP1977-CR
Rudstein, 14 Wm. & Mary Bill Rts. J. at 204 (footnote omitted).
If the defendant had already been acquitted, convicted, or pardoned
of the offense, he could advance the appropriate plea, backed by
the facts underlying the first case. The availability of these
common law pleas in defense of a second prosecution confirms the
historical basis for examining the record of the first prosecution
to determine the scope of jeopardy. Each of these pleas focused
on the actual result of the initial prosecution. A founding era
dictionary reinforces the meaning of "jeopardy" as the actual
danger to which a person is exposed, as opposed to the danger a
person fears, defining "jeopardy" as "[h]azard; danger; peril." 1
Thomas Sheridan, A General Dictionary of the English Language
(1780). Near the time the Wisconsin Constitution was adopted,
Webster's Dictionary similarly defined "jeopardy" as "[e]xposure
to death, loss or injury; hazard; danger; peril." Jeopardy,
Webster's Dictionary (1st ed. 1828); see also John Boag, Popular
and Complete English Dictionary 749 (1848) (defining "jeopardy"
with verbatim language). Similarly, the current edition of Black's
Law Dictionary defines "jeopardy" as the exposure a defendant
actually "faces at trial." Jeopardy, Black's Law Dictionary (11th
ed. 2019) ("The risk of conviction and punishment that a criminal
defendant faces at trial." (emphasis added)). None of these
definitions bases jeopardy on the criminal defendant's fears,
beliefs, or perceptions regarding his exposure in the first
prosecution, as Schultz proposes.
¶32 In light of the common law interpretations of jeopardy,
as well as its historical meaning, we apply Van Meter's holding
23
No. 2017AP1977-CR
and join the federal circuit courts of appeal in examining the
entire record, including evidentiary facts adduced at trial, in
ascertaining whether a defendant's double jeopardy rights have
been violated by a second prosecution. Regardless of whether the
first prosecution results in an acquittal or a conviction, it is
the record in its entirety that reveals the scope of jeopardy and
protects a defendant against a subsequent prosecution for the same
crime. See Roman, 728 F.2d at 854 ("It is the record as a whole,
therefore, which provides the subsequent protection from double
jeopardy, rather than just the indictment[.]"); Wright, supra ¶30
("If a defendant claims prior jeopardy in defense to a pending
charge, the court is free to review the entire record of the first
proceeding, not just the pleading." (footnote omitted)).
D. The Record of Schultz's Case
¶33 In this case, we apply the test originally adopted in
Anderson v. State and reaffirmed in George and Van Meter, and
examine the entire record of Schultz's first prosecution for
repeated sexual assault of a child to determine whether the "facts
alleged under either of the indictments would, if proved under the
other, warrant a conviction under the latter."15 Van Meter, 72
15The dissent cites the test from State v. Anderson, 219
Wis. 2d 739, 749, 580 N.W.2d 329 (1998) but fails to apply it
correctly. In conclusory fashion, the dissent simply declares
that "evidence of an act of sexual assault on or around October 19
would have supported a conviction for repeated sexual assault
occurring in the 'late summer to early fall[,]'" but never explains
why. See dissent, ¶74. The dissent merely repeats its conclusory
assertions regarding the charging language, without analysis. See
dissent, ¶¶86, 90 ("evidence of an October 19 sexual assault would
support a conviction" during "a timeframe including 'early
fall.'"). Tellingly, the dissent ignores a critical portion of
24
No. 2017AP1977-CR
Wis. 2d at 758; George, 69 Wis. 2d at 98; Anderson, 221 Wis. at 87
(quoted source omitted). Specifically, we determine whether the
initial charge for repeated sexual assault of a child during the
timeframe of "late summer to early fall of 2012" includes the date
charged in the second prosecution for sexual assault of a child
"on or about October 19, 2012."
1. An Unambiguous Complaint
¶34 We begin our analysis with the complaint charging
Schultz in the initial prosecution. The complaint's language of
"early fall," viewed alone, does not answer the question because
"early fall"——standing alone——could be ambiguous.16 However, the
complaint in this case expressly incorporates by reference the
attached police report of Officer Waid, which contains some detail
elucidating the meaning of "early fall." The police report plainly
establishes the timeframe in which Schultz was subject to jeopardy
for repeated sexual assault of a child. The report identifies
the charging document in the first prosecution——the attached and
incorporated-by-reference police report——which defines the time
period for the alleged assaults, thereby lending temporal
specificity to what could otherwise be an ambiguous charge.
16 We reject Schultz's argument that fall and early fall have
definitive meanings based on the earth's position in relation to
the sun. Dictionaries and people define the seasons differently.
See, e.g., Fall, Oxford Dictionary (6th ed. 2007) (defining fall
as "the time of year when leaves fall from trees; autumn" and using
the following example: "In early fall, towards the end of August,
they gathered berries." (emphasis added)); Autumn, Oxford
Dictionary (6th ed. 2007) ("The third season of the year, between
summer and winter: in the northern hemisphere freq[uently]
regarded as comprising September, October, and November," before
moving to the astronomical definition Schultz advances).
25
No. 2017AP1977-CR
Dominic——not Schultz——as the person who had intercourse with M.T.
in "early to mid-October." Waid's report described M.T. as having
intercourse with Schultz "approximately one month before she had
sexual intercourse with Dominic." One month before early to mid-
October is early to mid-September. The report details M.T. having
had no "sexual intercourse with anyone between Dominic and
[December 4, 2012]." The police report attached to the complaint
also recounted another interview during which M.T. said she had
sexual intercourse with Schultz "over five times," starting in
"the middle of the year of 2012" and lasting for "a couple of
months." When asked at oral argument what statements in the police
report indicated intercourse with Schultz during the month of
October, Schultz's counsel was unable to identify any. Counsel
responded, "Well, I don't have a specific quote, but . . . she
claims there are multiple incidents of sexual abuse."
¶35 Nothing in the police report mentions or even suggests
sexual intercourse between Schultz and M.T. during October. The
attached police report unambiguously identifies the latest date of
intercourse for which Schultz was charged in the first prosecution.
If, as the report indicates, M.T.'s sexual intercourse with Schultz
occurred one month before her sexual intercourse with Dominic in
early to mid-October, and she had no sexual intercourse between
her intercourse with Dominic and December 4, 2012, then the State's
charging language of "early fall" means the intercourse for which
Schultz was charged concluded in early to mid-September, well
before October 19, 2012. Coupled with the fact that the police
report indicates M.T. had her period in between the sexual activity
26
No. 2017AP1977-CR
with Schultz in mid-September and the sexual activity with Dominic
in early to mid-October, the police report attached to the
complaint repudiates any suggestion that "early fall" in the first
prosecution encompassed October 19.
¶36 Contrary to Schultz's assertion, none of the "five
times" of sexual intercourse charged in the first prosecution
occurred in October. The police report included Facebook messages
between M.T. and Schultz on September 3, 2012 indicating the
relationship was over on that date, offering additional
confirmation that the first prosecution encompassed sexual
assaults by Schultz that ended in September. The police report,
incorporated by reference into the complaint, clearly identifies
Schultz's scope of jeopardy in the first prosecution at the time
jeopardy attached.
2. The Record At Trial
¶37 Even though the incorporated and attached police report
renders the complaint unambiguous, we also review the record of
the first trial to see if anything suggests "early fall" extended
past mid-September to include October 19, 2012. We do so in order
to safeguard the defendant's constitutional right against double
jeopardy. The facts alleged under the second complaint——a sexual
assault "on or about October 19"——would not, if proven, support a
conviction in the first prosecution. The complaint in the first
prosecution alleged repeated sexual assaults during "late summer
to early fall[,]" which the attached and incorporated police report
clarified to have concluded in early to mid-September. Limiting
our review to the complaint, however, would not protect the
27
No. 2017AP1977-CR
defendant against double jeopardy if the State introduced evidence
of a sexual assault occurring "on or about October 19" after
jeopardy attached. In order to ascertain whether the defendant
was exposed to double jeopardy in the second prosecution, we
examine the entire record of proceedings in the first case to see
if any evidence of a sexual assault occurring "on or about October
19" was introduced.17
¶38 The trial transcripts reveal no evidence extending the
end date identified in the police report. M.T testified at
Schultz's first trial that they began having intercourse in July
or August and broke up in the beginning of September 2012. She
also testified to having a conversation with a friend "closer to
October," after she stopped seeing Schultz, during which she
disclosed to her friend the previous intercourse with Schultz. A
17 While the dissent repeatedly insists "the defendant's
protection against double jeopardy must be firmly and rigidly
guarded"——a principle this court heartily endorses——the dissent
nevertheless restricts its double jeopardy analysis to "the
charging period allegation[,]" ignoring the charging document as
a whole, as well as the record. Dissent, ¶76. Although this
opinion explains at great length that the defendant's double
jeopardy rights cannot be fully protected without examining the
record of trial proceedings, the dissent does not explain why it
would circumscribe the defendant's constitutional rights by ending
its analysis with a review of the "the charging period allegation"
alone. Contradicting its own analysis, the dissent seems to
recognize the import of reviewing the record when it hypothesizes
about the consequences "if the results of the pregnancy test
showing an estimated conception date of October 19 had been
presented at the first trial[.]" Dissent, ¶83. Unremarkably, if
the results of the pregnancy test had been presented at the trial,
double jeopardy would foreclose the second prosecution, regardless
of the charging language in the first complaint, hence the need to
review not only the complaint but also the entire record in order
to determine the scope of jeopardy.
28
No. 2017AP1977-CR
witness for Schultz, A.O., testified that she and Schultz began a
romantic relationship in September 2012, lasting until the spring
of 2013. The State's closing argument stipulated that the
intercourse between M.T. and Schultz ended in September 2012. In
its rebuttal, the State identified the time period for the sexual
assaults as "September, August, and July." The transcript of
Schultz's first trial contains only 21 mentions of "October."
Eight of those refer to intercourse with Dominic in early to mid-
October. Of the remaining 13, seven refer to M.T. having
intercourse in the month or so before "October 2012." Of the
remaining six, four referenced procedural matters regarding
motions or Schultz's prior convictions. One of the remaining two
referred to the timing of a conversation M.T. had with a friend
about the sexual relationship with Schultz after they had already
broken up.
¶39 The lone remaining reference to the month of October
came from Schultz's counsel during his opening statement, who
mentioned a "bombshell that occurred sometime in October of 2012."
Counsel indicated the "bombshell" was friends alerting Schultz
that M.T. told others she and Schultz were in a sexual
relationship. Immediately after, counsel said Schultz and M.T.
exchanged Facebook messages in which she denied making the
statements and "his contact with her ended shortly thereafter."
However, as the trial evidence and police report show, the Facebook
conversation occurred on September 3, 2012, not in October.
Schultz's counsel offered no evidence suggesting a second
conversation occurred in the month of October.
29
No. 2017AP1977-CR
¶40 Based upon our review of the complaint and its attached
police report, as well as the trial transcripts, the scope of
jeopardy of Schultz's first prosecution for "late summer to early
fall of 2012," ended sometime in September. We need not determine
the exact date because the conduct charged in the second
prosecution was "on or about October 19, 2012." It is sufficient
to conclude the record does not support jeopardy attaching to
Schultz for any conduct during the month of October. Because the
scope of jeopardy in the first prosecution did not include the
date of the assault charged in the second prosecution, the two
prosecutions were separate in time and therefore not identical in
fact. See Anderson, 219 Wis. 2d at 749 (holding offenses are not
identical in fact if they are separated in time).
E. Schultz's Arguments
¶41 Schultz primarily relies on three cases to support a
double jeopardy violation based on the State's second prosecution.
For the reasons discussed below, none of them help his case.
¶42 First, Schultz encourages us to apply the test set forth
in George for a continuing crime. In George, we analyzed a
complaint alleging 29 counts of sports betting, with most counts
alleging continuing conduct over the span of a definite time
period, such as from September 15, 1971 to January 15, 1972.
George, 69 Wis. 2d at 95-96. In that case, we concluded that if
one prosecution charges a continuing crime, "a conviction or
acquittal for a crime based on a portion of that period will bar
a prosecution covering the whole period." Id. at 98 (quoting 1
Anderson, Wharton's Criminal Law and Procedure 351 (1957))
30
No. 2017AP1977-CR
(emphasis added). We affirm this principle. In George, an
acquittal for conduct on December 24, 1971, would bar the State
from charging the defendant again for sports betting occurring on
January 1, 1972, because it was within the time period originally
described in the complaint. However, the holding in George
supplies no support for Schultz's double jeopardy argument because
Schultz's case requires us to compare the period of time charged
in each prosecution. Because the record confirms the assaults
charged in the first prosecution were alleged to have occurred
before the assault charged in the second prosecution, George
provides no support for Schultz's double jeopardy argument.
¶43 Schultz next contends that the double jeopardy
principles espoused by our court of appeals in State v. Fawcett
resolve this case in his favor. In Fawcett, the State charged the
defendant with two counts of first-degree sexual assault. State
v. Fawcett, 145 Wis. 2d 244, 247, 426 N.W.2d 91 (Ct. App. 1988).
The complaint alleged the sexual assaults of a child occurred in
the "six months preceding December [] 1985." Id. The defendant
challenged this time period as a violation of his Fifth Amendment
right against double jeopardy. Id. at 247. The court of appeals
applied our sufficiency-of-the-charge test set forth in Holesome
v. State, using the second prong of the Holesome test, which asks
whether conviction or acquittal of the complained-of-charge is a
bar to another prosecution for the same offense. Fawcett, 145
Wis. 2d at 251 (quoting Holesome v. State, 40 Wis. 2d 95, 102, 161
N.W.2d 283 (1968)). In analyzing whether the six–month time period
in the Fawcett complaint implicated double jeopardy concerns under
31
No. 2017AP1977-CR
the Holesome test, the court of appeals concluded that double
jeopardy was not "a realistic threat in this case." Id. at 255.
Noting that the defendant's "double jeopardy protection can also
be addressed in any future prosecution growing out of this
incident[,]" the court of appeals explained that "[i]f the state
is to enjoy a more flexible due process analysis in a child
victim/witness case, it should also endure a rigid double jeopardy
analysis if a later prosecution based upon the same transaction
during the same time frame is charged." Id. (emphasis added).
¶44 We agree with the court of appeals' statement in Fawcett
but it does not support Schultz's double jeopardy argument.
Fawcett expressly limited its "rigid double jeopardy analysis" to
later prosecutions "based upon the same transaction during the
same time frame[.]"18 Id. (emphasis added). In this case,
The dissent dodges the dispositive question in this case:
18
were the offenses charged in each prosecution separated in time?
The dissent offers no answer. Instead, the dissent merely assumes
"early fall" encompasses October 19. See dissent, ¶¶83-86. The
dissent would impose "a blanket bar on subsequent prosecutions
involving the same victim and the same timeframe." Dissent, ¶72.
So would we. But as explained at length in this opinion, the two
prosecutions against Schultz involved different timeframes. The
police report attached to the complaint makes this clear. The
dissent claims we "construe[] the ambiguous timeframe narrowly"
misstating our analysis as "implicitly conclud[ing] that 'early
fall' is ambiguous." Dissent, ¶75, 85. Read in its entirety, the
charging document is not ambiguous and our construction of it is
reasonable, not narrow. A "rigid double jeopardy analysis" does
not mean the court must pretend the police report was not part of
the complaint, as the dissent apparently does. See dissent, ¶86
("October 19 is not clearly separate and apart from a charging
period that runs through 'early fall.'"). A charging document
should not be read narrowly or expansively, but reasonably and
fully. Without authority, the dissent espouses a heretofore
unheard of "important principle" that "the tie goes to the runner—
32
No. 2017AP1977-CR
Schultz's prosecutions involved criminal conduct separated in
time. Accordingly, applying Fawcett's "rigid double jeopardy
analysis" does not affect our conclusion that Schultz's second
prosecution, for sexual assault of a child under 16, was beyond
the end date for the repeated sexual assaults of a child charged
in the first prosecution. Because the sexual assaults charged in
each prosecution were separated in time, Schultz was not twice put
in jeopardy for the same offense.
¶45 Finally, Schultz proposes that this court adopt the test
pronounced by the Second Circuit Court of Appeals in United States
v. Olmeda. In Olmeda, the defendant moved to dismiss an indictment
from June 2002, charging him with unlawful possession of ammunition
in Manhattan. Olmeda, 461 F.3d at 275. Olmeda had previously
pled guilty to an earlier indictment charging him with ammunition
possession in June 2002 "within the Eastern District of North
Carolina and elsewhere." Id. Olmeda argued the conduct alleged
in the North Carolina indictment, specifically the use of the word
"elsewhere," subsumed the conduct alleged in the later Manhattan
indictment, which therefore violated constitutional protections
against double jeopardy. See id. at 277–78. The State charged
Olmeda under the same statute for both offenses, leaving the
determination of whether the offenses were identical in fact the
central issue in the double jeopardy analysis. Id. at 279, 282.
¶46 To decide whether successive prosecutions were the same
in fact, Olmeda crafted the following test: courts must decide
—in this case, the defendant." Dissent, ¶76. Even if this
principle were valid, there is no "tie" in this case.
33
No. 2017AP1977-CR
whether "a reasonable person familiar with the totality of the
facts and circumstances would construe the initial indictment, at
the time jeopardy attached in the first case, to cover the offense
that is charged in the subsequent prosecution." Id. at 282. The
Olmeda court went on to say that the determination "will require
examination of the plain language of the indictments in the two
prosecutions, as well as 'the entire record of the proceedings.'"
Id. (quoting 1 Charles Alan Wright, Federal Practice and Procedure
§ 125 (3d ed. 1999)). Finally, Olmeda established a burden-
shifting test particularized for conspiracy. Id. Under this test,
the defendant must first make a "non-frivolous" and "colorable
objective showing" that the two indictments charge only one
conspiracy. Id. If the defendant does so, the burden shifts to
the prosecution to prove, by a preponderance of the evidence, the
existence of separate conspiracies and no double jeopardy
violation. Id. Applying this burden-shifting analysis, the Olmeda
court held the government failed to meet its burden. Id. at 289.
¶47 We decline to adopt Olmeda's "reasonable person" test.19
As a preliminary matter, we are not bound by Olmeda, which was
19At oral argument, the relevance of Olmeda's footnote 15 was
in dispute. Footnote 15, in relevant part, states:
[W]here the government constructively narrows an
indictment after jeopardy attaches only to refile the
dropped charge at a later date, a variation of the
problem of increased exposure arises implicating due
process if not double jeopardy concerns.
Olmeda, 461 F.3d 287 n.15.
This footnote is irrelevant to Schultz's case. The dissent
misrepresents this court's "approach" as "endors[ing] the idea
34
No. 2017AP1977-CR
decided by the Second Circuit Court of Appeals. On federal
constitutional issues, only United States Supreme Court decisions
bind the Wisconsin Supreme Court. See Thompson v. Vill. of Hales
Corners, 115 Wis. 2d 289, 306-07, 340 N.W.2d 704 (1983). Supreme
Court decisions on the Constitution's Double Jeopardy Clause are
also "controlling interpretations" of our own. Davison, 263
Wis. 2d 145, ¶18. In contrast, decisions by the federal courts of
that the scope of jeopardy is limited to and reduced by the
evidence presented." Dissent, ¶87. Not so. As explained at
length in this opinion, review of the record is necessary in order
to protect the defendant from double jeopardy. As already made
clear, if the first trial produced evidence of a sexual assault
occurring "on or about October 19," then regardless of the mid-
September end date for the assaults alleged in the first
prosecution, double jeopardy would preclude the State from
subsequently prosecuting Schultz for a sexual assault occurring
"on or about October 19." In the first case, the State did not
narrow its prosecution of Schultz after jeopardy attached only to
refile a dropped charge at a later date. There was no constructive
amendment by the State for the purpose of pursuing a second
prosecution for conduct within the timeframe of the first
prosecution. The government never dropped a charge or sought to
narrow the timeframe of the first indictment. Instead, the State
merely learned of similar criminal activity occurring after the
activity charged in the first proceeding ended, and charged Schultz
for that later conduct, which was outside the timeframe of the
first prosecution.
If the complaint charged sexual assaults occurring July 1,
2012 through November 1, 2012, but no evidence of assaults beyond
September was introduced at trial, double jeopardy would preclude
the State from later filing a complaint against Schultz for
assaults alleged to have occurred in October. Under that scenario,
the State would indeed be attempting to "constructively narrow[]
[the] indictment[.]" That is not what happened in this case.
Misleadingly, the dissent clouds the distinction between
"constructively narrow[ing] an indictment" for the purpose of
refiling a "dropped charge" with determining what the original
scope of jeopardy was in the first place.
35
No. 2017AP1977-CR
appeal have only persuasive value to this court. See Thompson,
115 Wis. 2d at 307.
¶48 Secondly, Olmeda did not identify any legal authority
for its "reasonable person" test. The pertinent section of the
opinion reads:
To determine whether two offenses charged in successive
prosecutions are the same in fact, a court must ascertain
whether a reasonable person familiar with the totality
of the facts and circumstances would construe the
initial indictment, at the time jeopardy attached in the
first case, to cover the offense that is charged in the
subsequent prosecution. Thus, where a defendant pleads
guilty . . . .
Olmeda, 461 F.3d at 282. Olmeda cites no cases from the United
States Supreme Court incorporating the "reasonable person" test
into the Double Jeopardy Clause of the Fifth Amendment, and we
have discovered none.
¶49 Finally, we reject Olmeda's test because the "reasonable
person" standard is typically applied in common law areas such as
contract and tort. See John Gardner, The Many Faces of the
Reasonable Person, 131 L.Q. Rev. 563, 563 (2015) (referring to the
reasonable person standard as the "common law's helpmate" and "most
closely associated with the law of torts"). The double jeopardy
clauses of the Fifth Amendment and Article 1, Section 8 do not
include the word "reasonable" and it is a seminal canon of textual
interpretation that we do not insert words into statutes or
constitutional text. "Nothing is to be added to what the text
states or reasonably implies (casus omissus pro omisso habendus
est)." Scalia & Garner, Reading Law, supra ¶19, at 93 (2012).
36
No. 2017AP1977-CR
See generally Akhil Reed Amar, Double Jeopardy Law Made Simple,
106 Yale L.J. 1807 (1997) (advocating a plain meaning approach to
the Double Jeopardy Clause, under which "'[s]ame offense' means
just that[,]" and employing the Due Process Clause as a backdrop).
Absent direction from the text itself or the Supreme Court, we
decline to read a "reasonable person" standard into the Fifth
Amendment's protections against double jeopardy. Likewise, we
will not read words into Article I, Section 8 of the Wisconsin
Constitution. Cf. State v. Roberson, 2019 WI 102, ¶56, 389
Wis. 2d 190, 935 N.W.2d 813 ("A state court does not have the power
to write into its state constitution additional protection that is
not supported by its text or historical meaning.").
¶50 Applied in this case, the Olmeda test could yield
different results depending upon the geographic location of the
"reasonable person" who determines what "early fall" means. The
"reasonable person" in Hurley, Wisconsin might perceive "early
fall" to commence in late September, coinciding with changes in
the color of leaves on trees and dropping temperatures. In
contrast, the "reasonable person" in Madison may associate "early
fall" with the opening game of the University of Wisconsin Badgers
football team. The constitutional protections against double
37
No. 2017AP1977-CR
jeopardy cannot be conditioned upon geographic location——or any
other variables influencing the judge's perspective.20
F. Wisconsin Stat. § 971.29
¶51 Schultz also contends the court of appeals erred in
relying on Wis. Stat. § 971.29 as a basis for reviewing the entire
record. He argues doing so is improper when it prejudices the
defendant. We agree with the court of appeals. Wisconsin Stat.
§ 971.29(2) expressly allows post-verdict amendments to the
pleading to conform to the proof presented at trial, with no
consideration of prejudice to the defendant:
At the trial, the court may allow amendment of the
complaint, indictment or information to conform to the
proof where such amendment is not prejudicial to the
defendant. After verdict the pleading shall be deemed
amended to conform to the proof if no objection to the
relevance of the evidence was timely raised upon the
trial.
(Emphasis added.)
¶52 Only "at the trial" must the circuit court consider
prejudice to the defendant of allowing an amendment to the
pleading. "After verdict the pleading shall be deemed amended to
Although the dissent never cites Olmeda as the source, it
20
essentially adopts its "reasonable person" test. The dissent says
"the scope of jeopardy" is "as broad as the charging language may
be fairly read." Dissent, ¶72. The dissent does not explain what
"fairly read" means (or by whose measure we define it). The
constitutional protection against double jeopardy cannot depend
upon such a vague standard. This court instead follows the rule
overwhelmingly applied by other jurisdictions and reflected in the
common law dating back centuries, under which courts define the
scope of jeopardy by the entire record in the case, rather than
how a particular judge may "fairly read" a single document filed
in the matter.
38
No. 2017AP1977-CR
conform to the proof" unless at trial, the defendant timely
objected to the relevance of the evidence. The portion of Wis.
Stat. § 971.29(2) addressing such post-verdict amendments of the
pleading contains no prejudice qualifier. We do not read words
into the statute that the legislature did not write. "Under the
omitted-case canon of statutory interpretation, '[n]othing is to
be added to what the text states or reasonably implies (casus
omissus pro omisso habendus est). That is, a matter not covered
is to be treated as not covered.'" Lopez-Quintero v. Dittmann,
2019 WI 58, ¶18, 387 Wis. 2d 50, 928 N.W.2d 480 (quoting Scalia &
Garner, Reading Law, supra ¶19, at 93). "One of the maxims of
statutory construction is that courts should not add words to a
statute to give it a certain meaning." Fond Du Lac Cty. v. Town
of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)
(citation omitted); see also State v. Wiedmeyer, 2016 WI App 46,
¶13, 370 Wis. 2d 187, 881 N.W.2d 805 ("It is not up to the courts
to rewrite the plain words of statutes[.]"). Based on the same
principle, we reject any contention that the statute implicitly
excludes the amendment of dates or times in a charging document.
See State v. Duda, 60 Wis. 2d 431, 440, 210 N.W.2d 763 (1973)
(construing Wis. Stat. § 971.29, "[w]e are of the opinion that the
sentence regarding amendment after verdict was intended to deal
with technical variances in the complaint such as names and dates."
(emphasis added)).
G. Admonition
¶53 Our opinion should not be read to approve attempts by
the State to use imprecise charging language in an effort to skirt
39
No. 2017AP1977-CR
the protections against double jeopardy. As the court of appeals
correctly noted, defendants faced with uncertain language in a
charging document should raise the issue to the circuit court
through an appropriate motion. See Wis. Stat. § 971.31 (pretrial
motions including defects in the indictment); State v. Miller,
2002 WI App 197, ¶¶8–9, 257 Wis. 2d 124, 650 N.W.2d 850 (motion to
dismiss based on vague or overbroad charging period and motion
requesting a more definite and certain statement); Fawcett, 145
Wis. 2d at 250–51 (due process challenges to the sufficiency of an
indictment).
¶54 Further, we reaffirm a principle already established in
cases involving child sexual assaults: the law does not require
definitive dates in charging documents in such cases. See State
v. Hurley, 2015 WI 35, ¶¶33–34, 361 Wis. 2d 529, 861 N.W.2d 174.
This is because children are often incapable of remembering
traumatic incidents by the day, week, or month, but instead might
correlate them to other events in their lives, such as holidays,
birthdays, or school semesters. See id.
IV. CONCLUSION
¶55 We hold that when the State charges a defendant in a
subsequent prosecution for conduct the defendant contends overlaps
the first prosecution's timeframe, courts may examine the entire
record of the first proceeding to determine the actual scope of
jeopardy in the first proceeding. The test to determine whether
the earlier timeframe included the second is not what a reasonable
person would think the earlier timeframe includes. Instead, the
reviewing court ascertains the parameters of the offense for which
40
No. 2017AP1977-CR
the defendant was actually in jeopardy during the first proceeding
by reviewing all of the evidence, testimony, and arguments of the
parties.
¶56 The State's prosecution of Schultz for sexual assault of
a child under 16, "on or about October 19, 2012," did not violate
the double jeopardy provisions of the Fifth Amendment or Article
I, Section 8. This second prosecution for sexual assault was not
identical in fact to the first prosecution for repeated sexual
assault of a child in "late summer to early fall of 2012." A
court's determination of the scope of jeopardy in a prior criminal
prosecution is based upon the entire record of the first
proceeding, including the evidence introduced at trial. It is the
entire record of the first proceeding that reveals the details of
the offense for which the defendant was actually in jeopardy during
the first prosecution. The record of Schultz's first criminal
prosecution——including the indictments, the police report, and
trial testimony——establish a scope of jeopardy that excludes any
conduct occurring in the month of October. The two cases against
Schultz did not involve the "same offence" under the Double
Jeopardy Clause. We affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
41
No. 2017AP1977-CR.bh
¶57 BRIAN HAGEDORN, J. (dissenting). Alexander Schultz
was charged with repeated sexual assault, a criminal offense that
encompasses any and all sexual assaults committed within a
specified period of time. Based on the vague witness statements
as well as a still-outstanding paternity test, the State chose a
broad and imprecise charging period: "late summer to early fall."
While it could have waited until it had all the evidence——most
notably, the results of the paternity test——the State went forward
anyway, and the jury acquitted. When the paternity test later
showed Schultz was the father, the State tried again, this time
charging Schultz for committing sexual assault "on or about October
19."
¶58 Our state and federal constitutions protect against two
prosecutions for the same offense. When asking whether a second
charge is based on the same facts, the test is whether the facts
alleged under the second complaint would, if proved, support a
conviction under the first complaint. See Anderson v. State, 221
Wis. 78, 87, 265 N.W. 210 (1936).
¶59 Applying this test, evidence of sexual assault on
October 19 would have supported a conviction for repeated sexual
assault during "late summer to early fall." Because those charges
are for the same offense, the subsequent prosecution violated
Schultz's constitutional protection against double jeopardy and
should have been dismissed. I respectfully dissent.
1
No. 2017AP1977-CR.bh
I
¶60 Both the United States and Wisconsin Constitutions
protect against a second prosecution for the same offense after
acquittal.1 The constitutional protection against double jeopardy
features both front-end and back-end safeguards; that is, our
double jeopardy cases examine whether the protection is secure
both at the time an original complaint is filed and when a
subsequent prosecution is brought.
¶61 On the front end, a defendant charged with a crime is
entitled to be informed of "the nature and cause of the accusation
against him." Holesome v. State, 40 Wis. 2d 95, 102, 161
N.W.2d 283 (1968) (citing U.S. Const. amends. V, VI; Wis. Const.
art. I, §§ 7, 8(1)). When a defendant claims these rights have
been violated, the court reviews the allegations in the charging
document to determine "whether it states an offense to which he is
able to plead and prepare a defense and whether conviction or
acquittal is a bar to another prosecution for the same offense."
Id.
¶62 In child sexual assault cases, these due process
protections——though still required——are viewed through a "more
flexible" lens. State v. Hurley, 2015 WI 35, ¶34, 361 Wis. 2d 529,
861 N.W.2d 174 (quoting State v. Fawcett, 145 Wis. 2d 244, 254,
426 N.W.2d 91 (Ct. App. 1988)). This is so because of the unique
nature of these offenses. In particular, the "vagaries of a
1"[N]or shall any person be subject for the same offence to
be twice put in jeopardy of life or limb . . . ." U.S. Const.
amend. V. "[N]o person for the same offense may be put twice in
jeopardy of punishment . . . ." Wis. Const. art. I, § 8(1).
2
No. 2017AP1977-CR.bh
child's memory"——i.e., the difficulty for child victims to testify
regarding specific dates and details——should not allow offenders
to escape punishment. See id., ¶¶33-34 (quoting Fawcett, 145
Wis. 2d at 254). Therefore, the complaint need not set forth
precise allegations regarding the date any alleged crimes were
committed.
¶63 Given all this, complaints alleging child sexual assault
generally pass constitutional muster despite featuring more
expansive and imprecise charging periods than other criminal
offenses. For example, in Hurley, we concluded that a complaint
charging the defendant with repeated sexual assault of the same
child "on and between" 2000 and 2005 was constitutionally
sufficient. Id., ¶¶10, 53; see also State v. Kempainen, 2015
WI 32, ¶¶1, 4, 361 Wis. 2d 450, 862 N.W.2d 587 (holding sufficient
notice provided with charging periods of "on or about August 1,
1997 to December 1, 1997," and "on or about March 1, 2001 to June
15, 2001").
¶64 But it is also true that this charging flexibility
necessitates a counterbalancing assurance——that is, because the
prosecution is held to a less-exacting standard for charging period
precision, the defendant's protection against double jeopardy must
be firmly and rigidly guarded.
¶65 In Fawcett, the court of appeals reviewed the
sufficiency of two sexual assault charges alleged to have occurred
"during the six months preceding December A.D. 1985." 145
Wis. 2d at 247. In conducting its double jeopardy analysis, the
court explained:
3
No. 2017AP1977-CR.bh
[W]e do not conclude that double jeopardy is a realistic
threat in this case. In its brief, the state concedes
that Fawcett may not again be charged with any sexual
assault growing out of this incident. Courts may tailor
double jeopardy protection to reflect the time period
charged in an earlier prosecution. Therefore, Fawcett's
double jeopardy protection can also be addressed in any
future prosecution growing out of this incident. If the
state is to enjoy a more flexible due process analysis
in a child victim/witness case, it should also endure a
rigid double jeopardy analysis if a later prosecution
based upon the same transaction during the same time
frame is charged.
Id. at 255 (emphasis added) (citing State v. St. Clair, 418
A.2d 184, 189 (Me. 1980)). In other words, as long as the State
enjoys front-end pleading flexibility, defendants are deserving of
equally extensive back-end protection against any threat of double
jeopardy that could arise from such flexibility.
¶66 Other jurisdictions have recognized the same dynamic in
cases involving broad and vague charging language, and provide
guidance for what a "rigid double jeopardy analysis" looks like.
¶67 In State v. Martinez, the Nebraska Supreme Court
affirmed the need for pleading flexibility in child sexual assault
cases: "It is preferable to allow the State to conduct one
vigorous prosecution to protect a child rather than to bar any
prosecution at all because of a child's natural mnemonic
shortcomings."2 550 N.W.2d 655, 658 (Neb. 1996). To compensate
for that, however, the State must face a "blanket bar" against any
2 The Nebraska Supreme Court affirmed a lower court decision
that itself cited Fawcett for the premise that "courts may tailor
double jeopardy protection to reflect the time period involved in
the charge in the earlier prosecution." State v. Martinez, 541
N.W.2d 406, 414–15 (Neb. Ct. App. 1995) (citing State v. Fawcett,
145 Wis. 2d 244, 255, 426 N.W.2d 91 (Ct. App. 1988)).
4
No. 2017AP1977-CR.bh
further prosecutions arising from the broad timeframe alleged in
the earlier prosecution:
The State may allege a timeframe for its allegations of
sexual assault of a child in its first prosecution; as
a quid pro quo to ensure that this liberty is not abused,
the State must survive double jeopardy scrutiny if it
attempts a second prosecution based upon the same
transaction during the same timeframe. Unless the
offense charged in the second prosecution is clearly
separate and apart from the offense charged in the first
prosecution, the timeframe alleged in the first
prosecution acts as a "blanket bar" for subsequent
prosecutions. This is the only viable means of balancing
the profound tension between the constitutional rights
of one accused of child molestation against the State's
interest in protecting those victims who need the most
protection.
Id. at 658 (emphasis added). Again, the blanket bar extends to
all subsequent offenses unless they are "clearly separate and
apart" from the timeframe charged in the first offense.
¶68 Similarly, the Maine Supreme Court decision cited in
Fawcett explained, "[w]hen an offense charged consists of a series
of acts extending over a period of time, a conviction or acquittal
for a crime based on a portion of that period will bar a prosecution
covering the whole period." St. Clair, 418 A.2d at 189 (quoted
source omitted). This meant that an indictment broadly alleging
the commission of embezzlement "during and between the months of
November, 1973, and December, 1975," would bar a prosecution across
that whole period even though the evidence presented at trial was
limited to a transaction occurring on November 1, 1973. Id. at
5
 No. 2017AP1977-CR.bh
188-90. These cases are not unique. This concept is a common,
well-understood theme in sister courts around the country.3
¶69 Our repeated sexual assault statute also embodies the
notion of a blanket bar unless the second charge is clearly
separate and apart from the first. It expressly prohibits the
State from charging a defendant with repeated acts of sexual
assault (under Wis. Stat. § 948.025) and sexual assault of the
same child (under Wis. Stat. § 948.02) "unless the other violation
occurred outside the time period" used for the repeated acts
charge. § 948.025(3) (2017-18) (emphasis added).4
See, e.g., State v. D.B.S., 700 P.2d 630, 633, 635 (Mont.
3
1985) (explaining, in reference to charging period of "January 1,
1983 to October 28, 1983," that less charging period specificity
required in cases involving sexual abuse of a child but also that
double jeopardy concerns are alleviated because "[t]he State is
barred by [the state constitution] from retrying the defendant for
the offense to this particular victim during the time in
question"), overruled on other grounds by State v. Olson, 951
P.2d 571, 577 (Mont. 1997); State v. Lakin, 517 A.2d 846, 847 (N.H.
1986) (explaining that the broad timeframe alleged in a sexual
assault does not implicate fear of the possibility of double
jeopardy because "[c]ourts may tailor double jeopardy protection
to reflect the scope of the time period charged in an earlier
prosecution"); State v. Altgilbers, 786 P.2d 680, 695 (N.M. Ct.
App. 1989) ("Because of the scope of the indictment in this case,
the state would not be permitted in the future to charge defendant
with any sexual offenses involving his two children during the
time encompassed by the counts in the indictment."); State v.
Wilcox, 808 P.2d 1028, 1030, 1033–34 (Utah 1991) (explaining, in
reference to charging period of "on or between January, 1985, and
September 4, 1987," that although less charging period specificity
is required when young children are involved, "[o]nce a prosecutor
chooses to prosecute on such vague allegations, a necessary quid
pro quo under our constitutional notice provision is that to
protect the defendant from double jeopardy, the prosecutor should
be precluded from bringing further charges that fall within the
general description of the charging allegations").
4 All references to the Wisconsin Statutes are to the 2017-18
version.
6
No. 2017AP1977-CR.bh
¶70 The same front-end flexibility authorizing broad
charging periods in child sexual assault cases also supports vague
or imprecise charging periods. See, e.g., People v. LaPage, 53
A.D.3d 693, 694–95 (N.Y. App. Div. 2008) (finding child sex offense
charging period of "late summer or early fall of 2006" provided
constitutionally sufficient notice). It appears that cases
stemming from vague charging language are rare. Even so, the same
complementary principles should apply. When imprecise allegations
are considered for double jeopardy purposes, any imprecision must
be read at its broadest to ensure that the subsequent offense is
clearly separate and apart. This guarantees that the State's
pleading flexibility is not acting as both a sword and a shield
against the defendant.
¶71 The Maine Supreme Judicial Court applied this principle
in a case where a defendant challenged a sexual assault indictment
on double jeopardy grounds because the indictment charged him with
a "sexual act," a general statutory term that was elsewhere
statutorily defined as any of several different forms of behavior.
State v. Hebert, 448 A.2d 322, 326 (Me. 1982). The court rejected
the defendant's front-end double jeopardy claim based on the
indictment. The vague charge, the court explained, means the scope
of jeopardy in any subsequent prosecution is commensurately vast,
encompassing anything fairly included within the charging
document:
Because that statutory language may mean, under [the
statutory definition], several different forms of
behavior, that allegation in this indictment is
ambiguous. It is clear, however, that when a defendant
is placed in jeopardy under a valid indictment, he or
7
No. 2017AP1977-CR.bh
she may not thereafter be placed in jeopardy for any
offense of which he properly could have been convicted
under that indictment. The scope of jeopardy created by
an indictment is therefore as broad as that indictment
may be fairly read. The ambit of the constitutional bar
to subsequent prosecution is co-extensive with the scope
of jeopardy created in the prior prosecution. Thus, if
the allegations in one prosecution describe an offense
which is shown to be within the scope of the charging
allegations of a prior prosecution, then the defendant
may successfully raise a defense of former jeopardy to
the subsequent proceedings.
Id. at 326 (second and third emphases added) (citations omitted).
¶72 Putting this all together, a "rigid double jeopardy
analysis" necessarily depends on the specific charging language of
a given case. This case-specific approach recognizes that the
State has more pleading flexibility in child sexual assault cases
because of the unique nature of such offenses. Where that relaxed
standard leads to expansive and imprecise allegations, the State
must be held responsible for any flexibility it exercises when
those same allegations are considered from a double jeopardy
perspective. This means a broad charging period must be paired
with a blanket bar on subsequent prosecutions involving the same
victim and the same timeframe. And vague allegations should
likewise be coupled with a scope of jeopardy as broad as the
charging language may be fairly read.
II
¶73 This common-sense approach matches the test we set forth
84 years ago in Anderson. Where the issue is whether the charges
are identical in fact, double jeopardy is violated if the facts
alleged under the second complaint would, if proved, support a
conviction under the first complaint. See Anderson, 221 Wis. at
8
 No. 2017AP1977-CR.bh
87; see also State v. George, 69 Wis. 2d 92, 98, 230 N.W.2d 253
(1975) (applying Anderson); State v. Van Meter, 72 Wis. 2d 754,
758, 242 N.W.2d 206 (1976) (same). The logic of this test is
apparent. If allegations of a subsequent prosecution describe an
offense that falls within the scope of jeopardy in an earlier
prosecution, the defendant is twice subject to conviction and
punishment for the same conduct. This the constitution does not
allow.
¶74 Applying this test, the proper question is whether
evidence of an act of sexual assault on or around October 19 would
have supported a conviction for repeated sexual assault occurring
in the "late summer to early fall." Reading "early fall" as broad
as it may be fairly read, with the whole record in view, the answer
is yes.
¶75 The majority comes out the other way, its logic
proceeding in three steps. First, although it doesn't explicitly
say so, it implicitly concludes that "early fall" is ambiguous.
Then, it determines that this ambiguity should be resolved by
looking to the entire record to determine what "early fall" meant
in the context of the original prosecution. Finally, it concludes
that the police report attached to the complaint and evidence
presented at trial show "early fall" meant, in effect, mid-
September.5
5 The majority says it is not concluding the charging language
is ambiguous. Majority op., ¶44 n.18. We can quibble over the
descriptor for what the majority is doing, but there would be no
need to explore the record to define an end date not chosen by the
State if the complaint was clear on its face.
9
No. 2017AP1977-CR.bh
¶76 I agree with the majority that the whole record may be
consulted to determine the scope of jeopardy defined by ambiguous
charging language.6 But the important principle the majority loses
sight of is that the tie goes to the runner——in this case, the
defendant. This is so because any imprecision in the phrase "early
fall" is a product of the pleading flexibility that allows vague
charging language like this in the first place. Looking to the
record of the original proceeding shows that it was unclear when
the alleged sexual activity between M.T. and Schultz stopped. This
in turn led the State to allege a broad and imprecise end point
for the repeated sexual assault charge consistent with the very
lack of precision reflected in the evidence it had. Although the
majority finds a date certain (mid-September) in the police report
and testimony, that's not the charging period allegation. The
6 As the majority aptly points out, examining the record is
appropriate and necessary to determine the scope of jeopardy in
certain circumstances. For instance, the entire record has been
used to define the parameters of an underlying offense like a
conspiracy that "seldom will be clear" from the charging document
alone. See, e.g., United States v. Crumpler, 636 F. Supp. 396,
403 (N.D. Ind. 1986) (quoting United States v. Castro, 629
F.2d 456, 461 (7th Cir. 1980)). Or it may assist when the evidence
at trial presents a variance from the language in the charging
document. See, e.g., United States v. Hamilton, 992 F.2d 1126,
1129-30 (10th Cir. 1993) (explaining that the whole record would
protect against double jeopardy where a variance existed between
charging language and the evidence produced at trial); United
States v. Castro, 776 F.2d 1118, 1123 (3d Cir. 1985) (discussing
a defendant's broader double jeopardy protection when the evidence
supporting his conviction was considerably narrower than the
language in the indictment).
The parties in this case do not disagree on whether the record
may be consulted; they simply part ways over how such information
can be used.
10
No. 2017AP1977-CR.bh
State instead chose an undefined seasonal end point ("early fall"),
one that matched the temporally imprecise information that was
shared by witnesses throughout the underlying investigation. The
State's strategic decision to select a vague end point for the
charging period should not be newly defined by this court to be a
narrower date certain.
¶77 The investigation into sexual assault against fifteen-
year-old M.T. began in December 2012 precisely because she was
pregnant. The investigating officer turned his attention to
twenty-year-old Alexander Schultz after M.T. stated in interviews
that the two of them had sex multiple times. Schultz denied a
sexual relationship with M.T. He stuck with that story even after
the investigating officer informed him that M.T. was pregnant and
"may believe that [he] is the father of the child."
¶78 Schultz was eventually charged with committing at least
three acts of sexual assault against M.T. in the "late summer to
early fall of 2012." As part of his defense against that charge,
Schultz moved the court to order a paternity test. On the morning
of trial, the results of that test were still an open question.
M.T. wanted the trial to be continued until the father's identity
was known. Her mother supported that plan.
¶79 Schultz previously had also hoped to postpone the trial
in anticipation of the paternity test results. However, after
M.T. and her mother made their desires known, Schultz reversed
course and asked to proceed with trial that day. The court agreed,
and a jury found Schultz not guilty. Four days later, the
paternity test results came in, revealing that Schultz was the
11
No. 2017AP1977-CR.bh
father of M.T.'s child, with an apparent conception date of October
19, 2012.
¶80 As an initial matter, the conception-inducing sexual
assault is what commenced the investigation that led to Schultz's
original prosecution in the first place. The majority's assertion
that everyone agreed the pregnancy was not pertinent at trial is
not a fair picture. Majority op., ¶5. While the State seemingly
entered trial presuming that Schultz was not the father, it was
certainly not certain about that. Instead, the State went to trial
with the evidence it had, knowing all the while that Schultz could
be the father.
¶81 Moreover——and this is important——if the evidence was
clear that no sexual activity occurred after mid-September, the
State could have charged Schultz accordingly. As the majority
tells it, the police report itself definitively excludes any
conduct occurring in the month of October. Majority op., ¶34.
Yet, instead of so charging, the State chose to use the vaguer and
less precise language, "early fall." Why? Because that is the
imprecise language witnesses used throughout the initial
investigation,7 and undoubtedly the State hoped to capture the full
array of evidence that could have emerged at trial to support a
conviction.
7 For instance, M.T.'s neighbor informed the investigating
officer that she had seen Schultz at M.T.'s residence numerous
times "around the summer to early fall area" of 2012. Another
friend of M.T.'s told the officer she was aware of sexual
interactions between M.T. and Schultz that had "occurred during
the late summer, early fall area of 2012."
12
No. 2017AP1977-CR.bh
¶82 By casting a wider net, the State was empowered to
present evidence of any and all acts occurring during the entire
charging period that supported its charge of repeated sexual
assault. But it must also live with the reality that any new
evidence of sexual assault during that time period would be
unavailable for a second prosecution. Again, case after case after
case explains that charging flexibility on the front end equals
exacting double jeopardy protection on the back end.
¶83 Returning to our long-established test, charges are
factually identical if facts alleged under the second complaint
would, if proved, support a conviction under the first complaint.
See Anderson, 221 Wis. at 87. Applying this test, the benchmark
that proves the point is this: if the results of the paternity
test showing an estimated conception date of October 19 had been
presented at the first trial, that evidence would have supported
a conviction for repeated sexual assault during the charging period
without any need for the State to amend its complaint. The same
would be true if M.T. testified that she and Schultz had sex
through the middle of October——that is, testimony that merely days
later would be proven true by way of the paternity test results.
¶84 The majority dismisses this as a hypothetical, and then
says that if evidence of an October 19 sexual assault was
introduced at the first trial, Schultz's second prosecution would
be barred under double jeopardy. Majority op., ¶37 n.17. This is
true, but misses the point being made in this dissent. If the
majority is correct that the ambiguous phrase "early fall" meant
nothing beyond mid-September, then an effort by the State to
13
No. 2017AP1977-CR.bh
introduce evidence of an October 19 sexual assault would have
required amending the complaint. Why? Because that date, the
majority concludes, was outside the original charging period.
¶85 The key difference between the majority and my own view
is that the majority draws on the record to establish a date
certain that the State did not delineate for what was actually a
deliberately vague and imprecise charging period. The majority
construes the ambiguous timeframe narrowly, whereas I believe a
proper protection of Schultz's constitutional right to be free
from double jeopardy requires us to construe such ambiguity against
the State. This is the "rigid double jeopardy analysis" that the
State must endure. Fawcett, 145 Wis. 2d at 255. While this seems
deferential to the defendant, that is precisely the point.
¶86 Reading the charging language as broad as it may be
fairly read, evidence of an October 19 sexual assault would support
a conviction during a timeframe including "early fall." As Schultz
points out, October 19 is, from an astronomical perspective, early
fall; it occurs in the first full month of the astronomical season
of fall. While this is not conclusive, it is a fair reading of
how early fall can be understood. October 19 is not clearly
separate and apart from a charging period that runs through "early
fall."8
8 The majority responds that a "charging document should not
be read narrowly or expansively, but reasonably and fully."
Majority op., ¶44 n.18. As explained above, however, a reasonable
and full reading of vague and imprecise charging language requires
ensuring that the defendant is given the benefit of the State's
imprecision. While the majority may describe what it is doing as
reasonably reading the charging language, it is in fact identifying
a narrower date certain the State never chose.
14
No. 2017AP1977-CR.bh
¶87 Problematically, the majority's approach in this case
seems to endorse the idea that the scope of jeopardy is limited to
and reduced by the evidence presented. But jeopardy is "[t]he
risk of conviction and punishment that a criminal defendant faces
at trial." See Jeopardy, Black's Law Dictionary (11th ed. 2019)
(emphasis added). Here, that jeopardy attached when the jury was
sworn. State v. Moeck, 2005 WI 57, ¶34, 280 Wis. 2d 277, 695
N.W.2d 783. Schultz was therefore at risk of conviction and
punishment based not solely on the evidence presented at trial,
but on the evidence that could have been presented under the charge
as brought. On the other hand, if the scope of jeopardy is now
defined simply by "the evidence, testimony, and arguments of the
parties," nothing stops that definition from shrinking until it
resembles only the evidence presented. Majority op., ¶55. That
is not consistent with the protections provided by our state and
federal constitutions.9
¶88 The Second Circuit emphasized the danger of constructive
amendments of this kind in United States v. Olmeda, warning that
double jeopardy is threatened when broad or imprecise charging
language is implicitly narrowed after the fact based on the lack
of certain evidence:
The law recognizes constructive amendment of an
indictment to broaden a defendant's criminal exposure as
a "serious error." In general, a constructive amendment
9 Moreover, it makes little sense for our courts to determine
whether the allegations in a charging document are sufficient to
protect against a subsequent prosecution on the front end if the
ensuing proceedings will effectively redefine those allegations
based on the evidence presented. Holesome v. State, 40 Wis. 2d 95,
102, 161 N.W.2d 283 (1968).
15
No. 2017AP1977-CR.bh
narrowing the scope of an indictment is not troublesome
because it does not similarly increase a defendant's
criminal exposure. But where the government
constructively narrows an indictment after jeopardy
attaches only to refile the dropped charge at a later
date, a variation on the problem of increased exposure
arises implicating due process if not double jeopardy
concerns.
461 F.3d 271, 287 n.15 (2d Cir. 2006) (citations omitted).
¶89 The majority suggests that fear of this threat is
misplaced because the State never sought to narrow or amend its
first charge against Schultz. Majority op., ¶47 n.19. No formal
amendment occurred; this is true, but it's not the danger Olmeda
flags. Olmeda's warning is aimed at exactly what the majority
does here——not formal amendment, but constructively narrowing a
charge based on evidence presented after jeopardy attaches.
¶90 In short, because evidence of a sexual assault on or
about October 19 would have supported a conviction in his first
trial without the need to amend the charging period in the
complaint, the State's second prosecution violated Schultz's
constitutional protection against double jeopardy. The State
chose to charge Schultz for repeated sexual assault over a time
period with a vague and ambiguous end point. It is inconsistent
with a vigorous protection against double jeopardy to construe
that ambiguity to conform to the more limited evidence presented,
rather than to construe it broadly to encompass the very
evidentiary indeterminacies that caused the State to pick an
indeterminate timeframe in the first place. Reading the charging
language as broad as it may be fairly read, evidence of an October
19 sexual assault would support a conviction over a timeframe
16
No. 2017AP1977-CR.bh
including "early fall." Accordingly, Schultz's conviction should
be vacated and the charge dismissed.
¶91 I am authorized to state that Justices ANN WALSH BRADLEY
and REBECCA FRANK DALLET join this dissent.
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No. 2017AP1977-CR.bh
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