State v. Donald P. Coughlin , 2022 WI 43 ( 2022 )

2022 WI 43SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1876-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Donald P. Coughlin,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 397 Wis. 2d 242, 959 N.W.2d 82(2021 – unpublished)
OPINION FILED: June 21, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 1, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Juneau
JUDGE: James Evenson and Stacy A. Smith
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL
BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a
dissenting opinion.
NOT PARTICIPATING:
KAROFSKY, J., did not participate.
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Winn S. Collins, assistant attorney general, with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Winn S. Collins.
For the defendant-appellant, there was a brief filed by
Phillip J. Brehm and Phillip J. Brehm Attorney at Law,
Janesville. There was an oral argument by Phillip J. Brehm.
2022 WI 43NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1876-CR
(L.C. No. 2010CF222)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v.
JUN 21, 2022
Donald P. Coughlin,
Sheila T. Reiff
Defendant-Appellant. Clerk of Supreme Court
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., ROGGENSACK, REBECCA GRASSL
BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a
dissenting opinion.
KAROFSKY, J., did not participate.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. The State of Wisconsin seeks
review of the court of appeals' unpublished decision, which
reversed Donald Coughlin's convictions on 15 counts of sexual
assault. Specifically, those counts consisted of 14 counts of
No. 2019AP1876-CR
first-degree and second-degree sexual assault of a child and one
count of repeated sexual assault of a child.1
¶2 Arguing that the convictions should be reinstated, the
State advances that there was sufficient evidence for the jury
to find Coughlin guilty on all 15 counts at issue. It also asks
this court to hold that the jury instructions control in an
evidence-sufficiency claim when there is a discrepancy between
the jury instructions and the verdict form.
¶3 In response, Coughlin contends that because the State
did not ask questions particular to the charged time periods,
there was no evidence upon which the jury could have convicted
him on these 15 counts. For purposes of this case only, he also
acknowledges that the jury instructions should guide this
court's review.
¶4 Under the facts of this case, we conclude that the
sufficiency of the evidence should be evaluated according to the
jury instructions. Further, we conclude that there was
sufficient evidence for the jury to find Coughlin guilty on all
15 counts at issue. Coughlin failed to overcome his heavy
burden to show that no reasonable jury could have concluded,
beyond a reasonable doubt, that he was guilty.
¶5 Accordingly, we reverse the decision of the court of
appeals.
State v. Coughlin, No. 2019AP1876-CR, unpublished slip op.
1
(Wis. Ct. App. Mar. 4, 2021) (affirming in part and reversing in
part judgment and order of the circuit court for Juneau County,
James Evenson and Stacy A. Smith, Judges).
2
No. 2019AP1876-CR
I
¶6 In 2009, three individuals came forward as adults,
alleging that Coughlin repeatedly sexually abused them over the
course of their childhoods. Throughout the opinion, we refer to
these individuals as Coughlin's older stepson, younger stepson,
and nephew.
¶7 Initially, the State charged Coughlin with one count
of repeated sexual assault of a child2 and 21 counts of first-
degree3 and second-degree4 sexual assault of a child for alleged
conduct that involved his nephew and two stepsons. The six
counts involving his older stepson were affirmed by the court of
appeals, and Coughlin does not contest his convictions on those
counts. Thus, they are not at issue here.
¶8 The initial complaint also charged Coughlin with child
enticement5 involving a fourth alleged victim. This count
2 Wis. Stat. § 948.025(1) (2017-18).
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3 Wis. Stat. § 948.02(1)(e).
4 Wis. Stat. § 948.02(2).
5 Wis. Stat. § 948.07.
3
No. 2019AP1876-CR
involving the fourth individual is likewise not before us. The
jury found Coughlin not guilty on that charge.6
¶9 Each count was tied to a separate, specified time
period.7 The charged time periods involving the nephew
encompassed primarily the autumn seasons of 1989, 1990, 1991,
and 1992.8 Pertaining to the younger stepson, the charged time
periods involved primarily each spring from 1990 through 1994
and each autumn from 1989 through 1994.9 The periods were
delineated in this fashion for the younger stepson because
during the school year he lived with his mother, siblings, and
6After getting divorced from the stepsons' mother, Coughlin
remarried. The individual associated with the child enticement
count was the boyfriend of Coughlin's stepdaughter from that
later marriage. For this count, the time period was on or about
and between February 1, 2008, and February 28, 2008, more than a
decade in time after the other charged offenses. The facts
alleged pursuant to this count were unconnected to the facts
pertaining to the nephew and stepsons discussed in this opinion.
7We refer to these charged time periods as the autumn and
spring months because that is generally the seasons that the
charged months cover. However, we recognize that in certain
instances, some of the charged time periods technically begin or
end outside of that named season.
8Specifically, the charged time periods involving the
nephew were September 1-November 19, 1989 (Count 7), September
1-December 31, 1990 (Count 8), September 1-December 31, 1991
(Count 9), and September 1-November 19, 1992 (Count 11).
9September 1-December 31, 1989 (Count 12), February 1-May
14, 1990 (Count 13), September 1-December 31, 1990 (Count 14),
February 1-May 14, 1991 (Count 15), September 1-November 9, 1991
(Count 16), February 1-May 14, 1992 (Count 17), September 1-
December 31, 1992 (Count 18), February 1-May 14, 1993 (Count
19), September 1-December 31, 1993 (Count 20), February 1-May
14, 1994 (Count 21), and September 1-November 9, 1994 (Count
22).
4
No. 2019AP1876-CR
Coughlin but spent summers with his uncle, at which time he
would not have had as much interaction with Coughlin.
¶10 At trial, the nephew and stepsons described an
environment of near constant physical and sexual abuse at the
hands of Coughlin. They also described Coughlin making threats
that discouraged them from reporting the abuse. Such threats
included Coughlin threatening to kill them or their mother, and
Coughlin stating that no one would believe the boys if they came
forward.
¶11 According to the nephew's and stepsons' testimony, the
abuse occurred either when one of them was alone with Coughlin
or when all or some combination of the three boys were alone
with Coughlin. The locations of the abuse included Coughlin's
truck when the boys went deer shining with him in autumn, at the
village firehouse where Coughlin was fire chief, and at the
family home where the stepsons lived with Coughlin. The nephew
lived nearby and often spent time at Coughlin's home with the
stepsons.
¶12 Specifically, the nephew testified that he started
sixth grade in 1988 at 11 years old and that the sexual abuse
started when he was in sixth grade. The first incident involved
Coughlin measuring his penis when they were at the firehouse.
The nephew explained that the sexual abuse continued the same
year as the first incident when he would go deer shining with
Coughlin and his cousins (the stepsons). He said that they went
deer shining "quite a bit," further stating that it "[c]ould be
four times a month, could be once a month, depending on the
5
No. 2019AP1876-CR
month." He confirmed that deer shining happened "more than once
a month during the late summer and fall." The nephew's
testimony also illustrated the pervasiveness of the abuse:
"[T]here was so many incidents of stuff that -- to say one time
for one thing is pretty hard to remember." He testified that
the abuse continued until he finished high school, and confirmed
that it happened at least once in the autumn months of 1989,
1990, 1991, and 1992.
¶13 The younger stepson likewise testified that Coughlin
started sexually abusing him in 1985 when he was seven years
old. He explained that Coughlin abused him when he took the
boys deer shining, which occurred "twice a week" in the autumn
of each year. Additionally, he testified that the abuse would
also occur at the home where he and the older stepson lived at
the time with their mother, Coughlin, and two sisters. When
asked how often the abuse would occur in the home, the younger
stepson responded, "Weekly." The younger stepson testified that
in the autumn of 1989, some sort of sexual activity
"[d]efinitely" occurred and that they would go deer shining with
Coughlin one to two times a week at a minimum.
¶14 With regard to the spring of 1990, the younger stepson
testified that some type of sexual activity happened "[a]t least
once a week." In response to questioning, he also confirmed
that some type of sexual activity occurred at least once in the
autumn of 1990, spring of 1991, autumn of 1991, spring of 1992,
autumn of 1992, spring of 1993, autumn of 1993, and spring of
1994. He further confirmed that Coughlin asked him to engage in
6
No. 2019AP1876-CR
sexual activity on at least three occasions in the autumn of
1994.
¶15 Even though Coughlin does not challenge his
convictions as to the six counts involving the older stepson,
the testimony regarding those convictions also displayed the
pervasiveness of the abuse experienced by all three children.
The older stepson explained that "going hunting, going shining
deer, going to cut wood, going to play at the firehouse, those
types of things where we'd be alone with him would lead up to it
almost every time." He testified that they would be "out
shining deer nonstop" in autumn, which was an occasion when the
abuse would occur "without fail." The older stepson said that
Coughlin would "pull his penis out of his pants and begin
stroking it, and asking one of us to or ask us to join in,
either masturbating ourselves or masturbate him." The older
stepson explained that at the firehouse, Coughlin would abuse
them "[b]asically every time [they] were alone with him."
¶16 Throughout trial, the nephew and stepsons often used
the term "masturbate" to describe the following scenarios: when
they would "masturbate" themselves at Coughlin's direction, when
Coughlin would "masturbate" himself in their presence, when
Coughlin would "masturbate" the boys, and when the boys would
"masturbate" Coughlin at Coughlin's direction. The State would
often refer to all four types of conduct as "sexual activity."
It also referenced both Coughlin touching the boys' penises and
Coughlin causing the boys to touch his penis in its closing
argument.
7
No. 2019AP1876-CR
¶17 In his trial testimony, Coughlin denied that he ever
abused his nephew or two stepsons or that he ever masturbated in
their presence or instructed them to masturbate. He said that
he never molested them on their deer shining trips, in the home,
or at other locations.
¶18 At the close of evidence, the circuit court instructed
the jury and also read each verdict form to the jury. As
relevant here, the definition of "sexual contact" in the jury
instructions differed from the definition in the verdict form.
The jury instructions defined "sexual contact" as "an
intentional touching of the penis" of the nephew and stepsons by
Coughlin or "an intentional touching by the victim" of
Coughlin's penis "if the defendant intentionally caused or
allowed the victim to do that touching." For there to have been
sexual contact, the defendant must have acted with the intent to
become sexually aroused or gratified.
¶19 By contrast, the verdict form defined "sexual contact"
as only "the defendant touching the victim's penis" and did not
include Coughlin intentionally causing them to touch his penis.
"Sexual contact," in either definition, did not include
instances when the nephew and stepsons masturbated themselves at
Coughlin's direction or when Coughlin masturbated himself in the
presence of the boys.
¶20 The jury found Coughlin guilty of the counts involving
the nephew and stepsons and acquitted him of the child
enticement charge involving another individual. Coughlin filed
a postconviction motion, asking the circuit court to dismiss all
8
No. 2019AP1876-CR
counts on the grounds that there was an insufficient factual
basis to support a conviction for each count. In the
alternative, Coughlin argued that he was entitled to a new trial
due to ineffective assistance of counsel or because the real
controversy had not been tried.
¶21 Reasoning that there was "more than enough evidence as
[to] each time period that there was a physical touching done by
the defendant or the defendant had them touch him," the circuit
court denied Coughlin's motion. It further stated:
[S]ince there was clearly testimony that supports the
defendant on multiple occasions, either masturbating
each victim or caused each victim to masturbate the
defendant, it must be assumed that the jury used this
testimony to support its verdict that the defendant
was guilty of each of the counts they found him guilty
of.
The circuit court also concluded that Coughlin's counsel was not
ineffective and that all of the real controversies had been
tried to the jury.
¶22 The court of appeals affirmed Coughlin's convictions
for the six counts involving the older stepson and reversed his
convictions as to the remaining counts involving the nephew and
younger stepson. State v. Coughlin, No. 2019AP1876-CR,
unpublished slip op., ¶2 (Wis. Ct. App. Mar. 4, 2021). It
measured the sufficiency of the evidence against the verdict
form and concluded that the evidence was insufficient to find
Coughlin guilty on those counts. Id., ¶¶19, 37. In reaching
its conclusion, the court of appeals reasoned that "there was no
evidence from which a jury could conclude beyond a reasonable
9
No. 2019AP1876-CR
doubt" that Coughlin touched the nephew's and younger stepson's
penises during any of the charged time periods. Id., ¶24; see
id., ¶28. The court of appeals also observed that its
conclusion on sufficiency of the evidence would have been the
same even if it had evaluated the evidence according to the jury
instructions instead of the verdict form. Id., ¶37 n.13.
¶23 Further, the court of appeals rejected Coughlin's
argument that a new trial was warranted in the interests of
justice on the six counts it affirmed.10 Id., ¶36. The State
petitioned for this court's review of the court of appeals'
reversal of the 15 counts. Coughlin did not cross-petition for
review of the court of appeals' affirmance of his convictions on
counts 1-6 involving the older stepson, and as noted, those
counts are not before us.
II
¶24 We are called upon to determine whether the evidence
at trial was sufficient to support Coughlin's convictions on the
15 counts involving the nephew and younger stepson. When a
defendant challenges a verdict based on sufficiency of the
evidence, we give deference to the jury's determination and view
the evidence in the light most favorable to the State. State v.
Long, 2009 WI 36, ¶19, 317 Wis. 2d 92, 765 N.W.2d 557. If more
than one inference can be drawn from the evidence, we must adopt
Coughlin abandoned his ineffective assistance of counsel
10
claim at the court of appeals and does not raise it here. He
likewise does not raise the argument that a new trial is
warranted in the interests of justice.
10
No. 2019AP1876-CR
the inference that supports the conviction. Id. We will not
substitute our own judgment for that of the jury unless the
evidence is so lacking in probative value and force that no
reasonable jury could have concluded, beyond a reasonable doubt,
that the defendant was guilty. Id.¶25 Thus, "a defendant challenging the sufficiency of the
evidence bears a heavy burden to show the evidence could not
reasonably have supported a finding of guilt." State v. Beamon,
2013 WI 47, ¶21, 347 Wis. 2d 559, 830 N.W.2d 681. Lastly, we
consider the totality of the evidence when conducting a
sufficiency of the evidence review. State v. Smith, 2012 WI 91,
¶36, 342 Wis. 2d 710, 817 N.W.2d 410.
III
¶26 We begin by addressing the threshold question of
whether the jury instructions or the verdict form will guide our
review of the sufficiency of the evidence in this case.
Subsequently, we evaluate the evidence to determine whether a
reasonable jury could find that Coughlin was guilty on the 15
counts at issue.
A
¶27 In this case we are asked to determine first if we are
testing the sufficiency of the evidence against the jury
instructions or the verdict form. The court of appeals assumed
without deciding that it "should compare the trial evidence with
the crime as described in the verdict form, rather than as
defined in the jury instructions." Coughlin, No. 2019AP1876-CR,
at ¶19. It further observed that its conclusions about the
11
No. 2019AP1876-CR
sufficiency of the evidence would be the same if it had instead
measured the evidence against the jury instructions. Id., ¶37
n.13.
¶28 Here the parties no longer contest this issue and
essentially agree that the jury instructions should control at
least for purposes of this case. We agree, and for the reasons
set forth below, determine that in this case the jury
instructions should govern our review. Our determination here
to evaluate the sufficiency of the evidence against the jury
instructions is based not only on the agreement of the parties,
but also on a review of our case law together with a review of
this record.
¶29 In State v. Beamon, this court addressed a situation
where the jury instructions contained an erroneous statement of
law. 347 Wis. 2d 559, ¶37. We measured the sufficiency of the
evidence against the statutory elements of the crime, not the
jury instructions, because the jury instructions did not
correctly set forth the law. Id., ¶¶24, 40. However, the court
observed that "[g]enerally, when the jury instructions conform
to the statutory requirements of that offense, we will review
the sufficiency of the evidence by comparison to those jury
instructions." Id., ¶22.
¶30 In this case, the jury instructions adhere to the
statutory elements of the offenses.11 Unlike in Beamon, the jury
Wisconsin Stat. § 948.01(5) provides in part that sexual
11
contact is defined as:
12
No. 2019AP1876-CR
instructions here did not constitute an erroneous statement of
the law. Therefore, in reaching our conclusion, we take into
account Beamon's statement regarding the trajectory of the law.
¶31 Further, a review of this record indicates that the
parties seemingly understood "sexual contact" to mean both
Coughlin touching the victims' penises and Coughlin causing the
victims to touch his penis. "[J]ury instructions may be
erroneous if they fail to instruct the jury on the theory of the
crime that was presented to the jury during trial." State v.
Williams, 2015 WI 75, ¶57, 364 Wis. 2d 126, 867 N.W.2d 736.
¶32 Here, the definition as reflected in the jury
instructions was the theory of the crime presented throughout
trial. The victims testified to both types of sexual contact,
and the State explicitly acknowledged both forms of sexual
contact in its closing argument. The record does not indicate
that the jury was led to believe only Coughlin touching the
(a) Any of the following types of intentional
touching, whether direct or through clothing, if that
intentional touching is either for the purpose of
sexually degrading or sexually humiliating the
complainant or sexually arousing or gratifying the
defendant:
1. Intentional touching by the defendant or, upon
the defendant's instruction, by another person,
by the use of any body part or object, of the
complainant's intimate parts.
2. Intentional touching by the complainant, by
the use of any body part or object, of the
defendant's intimate parts or, if done upon the
defendant's instructions, the intimate parts of
another person.
13
No. 2019AP1876-CR
boys' penises constituted sexual contact. Therefore, the jury
instructions did not fail to instruct the jury on the theory of
crime presented at trial. Under the facts of this case, we thus
evaluate the sufficiency of the evidence against the jury
instructions.
B
¶33 We address next whether a reasonable jury could have
concluded beyond a reasonable doubt that during each of the
charged time periods Coughlin engaged in "an intentional
touching of the penis" of his nephew and younger stepson or
there occurred "an intentional touching by the victim" of
Coughlin's penis "if the defendant intentionally caused or
allowed the victim to do that touching." As observed above,
when a defendant challenges a verdict based on sufficiency of
the evidence, we give deference to the jury's determination and
view the evidence in the light most favorable to the State.
Long, 317 Wis. 2d 92, ¶19. Accordingly, the defendant faces a
heavy burden. Beamon, 347 Wis. 2d 559, ¶21.
¶34 Our determination is influenced by both deference to a
jury verdict and reasonable inferences that can be drawn from
the evidence presented. We keep in mind that a juror is not
required to "ignore the larger picture so as to focus on each
piece in a vacuum and ask whether that piece standing alone
supports a finding of guilt." Smith, 342 Wis. 2d 710, ¶36.
Thus, in giving deference to the jury verdict and viewing the
evidence, together with reasonable inferences, in the light most
favorable to the State, we conclude that there was sufficient
14
No. 2019AP1876-CR
evidence for the jury to find Coughlin guilty on all 15 counts
at issue. Coughlin failed to overcome his heavy burden to show
that no reasonable jury could have concluded, beyond a
reasonable doubt, that he was guilty.
¶35 Given that Coughlin does not challenge his convictions
on counts 1-6 involving the older stepson, we begin our
examination with counts 7, 8, 9, and 11, the four counts
involving the nephew. These counts cover charges occurring
primarily during the autumn months of 1989 through 1992.12 The
State charged these time periods in autumn because that is when
Coughlin would regularly take the children deer shining. All
three individuals testified to the frequency they went deer
shining with Coughlin, and that abuse would nearly always occur
at that time.
¶36 The offense charged as count 7 was alleged to have
taken place in the autumn of 1989. For Coughlin to be found
guilty of first degree sexual assault of a child, the nephew had
to be under the age of 13. See Wis. Stat. § 948.02(1)(e). The
jury heard testimony that the abuse started in the autumn of
1989 before the nephew turned 13.
¶37 For the remaining three counts, the nephew must have
been under the age of 16 for Coughlin to be found guilty on
those counts. See Wis. Stat. § 948.02(2). Similarly, the jury
Again, those time periods were September 1-November 19,
12
1989 (Count 7), September 1-December 31, 1990 (Count 8),
September 1-December 31, 1991 (Count 9), and September 1-
November 19, 1992 (Count 11). Count 10 was dismissed pursuant
to a pretrial stipulation.
15
No. 2019AP1876-CR
heard testimony that Coughlin abused the nephew in the autumn of
1990 when he was 13, in the autumn of 1991 when he was 14, and
in the autumn of 1992 before he turned 16. As such, the jury
reasonably concluded that the nephew was the requisite age for
that element of each charged offense.
¶38 Direct and circumstantial evidence gleaned from the
testimony further supports the jury's verdict on these four
counts.13 The younger stepson testified that the nephew (his
cousin) was frequently there with Coughlin and the two other
boys when they went deer shining. The nephew explained that the
children would rotate sitting in the front seat, and that
Coughlin would touch the penis of whoever was sitting in the
front. He further testified that "there was so many incidents
of stuff that -- to say one time for one thing is pretty hard to
remember." The nephew explained that "it happened enough times
13The nephew gave the following answers in response to
questioning:
Q: But did you observe [Coughlin] masturbating
someone in the front seat?
A: Yeah.
Q: Did he ever masturbate you while you were in the
front seat?
A: Yes.
Q: And [the older stepson]?
A: Yes.
Q: And [the younger stepson]?
A: Yes.
16
No. 2019AP1876-CR
where . . . . We would play with ourselves, he might play with
somebody, might not play with somebody." As to the requisite
sexual contact, when asked if Coughlin ever masturbated him when
he was in the front seat, the nephew responded: "Yes."
¶39 The younger stepson also testified that he observed
both Coughlin masturbating the nephew and the nephew
masturbating Coughlin during deer shining. Knowing that deer
shining occurs in autumn, that the nephew frequently went deer
shining with Coughlin, and that the abuse nearly always occurred
during deer shining, the jury could have reasonably inferred
that Coughlin touched the nephew or caused the nephew to touch
him at least once each autumn from 1989 through 1992. Indeed,
the nephew confirmed some sort of abuse occurred during each
charged time period.14
¶40 Next, we address counts 12-21 involving the younger
stepson. Each of these counts require at least one instance of
When asked about specific time periods, the nephew stated
14
the following:
Q: [W]ould this have happened at least one time in
the fall of 1989 before your 13th birthday?
A: Yeah. If you're 13 when you're in sixth grade,
yeah.
Q: Would it have happened at least one time in the
fall of 1990 when you would have been 13 years old?
A: Yes.
The prosecutor then proceeded to question the nephew in
this manner for the fall of 1991 and 1992, to which the nephew
also responded, "Yes."
17
No. 2019AP1876-CR
sexual contact, and they primarily encompass the autumn months
from 1989 to 1994 and spring months from 1990 to 1994.15 The
younger stepson testified that he was seven years old when the
abuse began and that it continued "[t]hroughout the year" every
year until he moved out when he was 18.16
15September 1-December 31, 1989 (Count 12), February 1-May
14, 1990 (Count 13), September 1-December 31, 1990 (Count 14),
February 1-May 14, 1991 (Count 15), September 1-November 9, 1991
(Count 16), February 1-May 14, 1992 (Count 17), September 1-
December 31, 1992 (Count 18), February 1-May 14, 1993 (Count
19), September 1-December 31, 1993 (Count 20), and February 1-
May 14, 1994 (Count 21).
16Specifically, the younger stepson testified the following
about the relevant time periods:
Q: So that we cover it and it's clear, [i]n the fall
of 1989 prior to your 11th birthday, would there have
been at least one occasion where the defendant had you
engage in sexual activity?
A: Yes.
Q: Likely more than one?
A: Definitely.
Q: How often in the fall would you guys go shining
deer?
A: One to two times a week, minimum.
Q: In the spring of 1990 you would have been 11 years
old?
A: Yes.
Q: During that spring, would there have been at least
one occasion where the defendant had you engage in
some type of sexual activity?
A: Yes.
18
No. 2019AP1876-CR
Q: Typically how often would something happen a week
or a month?
A: At least once a week.
Q: Throughout the year?
A: Throughout the year.
Q: As long as you were there?
A: Yes.
. . .
Q: In the fall of 1990, before your 12th birthday, so
while you were still 11, happen at least one time
during that time frame as well?
A: Yes.
Q: Spring of 1991, you would have been 12 years old?
A: Yes.
Q: Can you tell us whether or not there was at least
one occasion during that spring of 1991 when the
defendant had you engage in some type of sexual
activity?
A: Yes.
Q: The fall of 1991, prior to your 13th
birthday . . . . Would there have been at least one
occasion where it happened?
A: Yes.
Q: In the spring of 1992, you would have been 13?
A: Yes.
Q: And would there have been at least one occasion
during that period of time when the defendant had you
engage in some type of sexual activity?
A: Yes.
19
No. 2019AP1876-CR
¶41 He explained how in autumn of each year he would go
deer shining with Coughlin once or twice a week at which time
abuse would occur. The younger stepson testified that not only
was it always each person masturbating himself, but "there were
times when [Coughlin] would want to masturbate us," which
Coughlin would do. As stated above, the nephew also testified
to how the children would rotate who sat in the front seat with
Coughlin, and how Coughlin would touch the penis of whoever was
sitting up front, including the younger stepson's penis.
¶42 In response to questioning, the younger stepson
confirmed that there were times Coughlin masturbated him and
times when he masturbated Coughlin.17 He explained how in
The prosecutor continued in this fashion, asking the
younger stepson if the defendant had him engage in some type of
sexual activity during the fall of 1992, the spring of 1993, the
fall of 1993, and the spring of 1994, to which the younger
stepson consistently replied, "Yes."
17 The younger stepson testified the following in response
to questioning:
Q: Was it always everybody -- each person
masturbating themselves, or did something else happen
on occasion?
A: No, there were times when [Coughlin] would want to
masturbate us.
Q: And would he do that?
A: Yes.
Q: Were there times when he masturbated you?
A: Yes.
Q: Was there anything else that would happen?
20
No. 2019AP1876-CR
addition to deer shining, that there were many occasions of
sexual activity at the family home. The following back-and-
forth ensued:
Q: And again, when the defendant would ask you to do
this, was it always him asking you to masturbate, you
would masturbate yourself, or did something else
happen on occasion?
A: He would always ask. He would always be there and
want us to masturbate, he would want to masturbate us,
and at times he did.
Q: At times did he ask one of you to masturbate him?
A: Yes.
Q: Did this happen as well at the house?
A: Yes.
Q: How often would this happen in the home?
A: Weekly.
¶43 He identified the areas of the home where the abuse
took place, including the bedrooms, basement, and living room.
The younger stepson again confirmed later in his testimony that
some kind of sexual activity occurred on a weekly basis.18 He
A: He would want us to masturbate him.
Q: Did that happen as well?
A: Yes.
Q: Were there times when you masturbated him?
A: Yes.
18 Specifically,
Q: And I believe your testimony was this type of
sexual activity happened weekly, obviously in
21
No. 2019AP1876-CR
explained the pervasiveness of the abuse and acknowledged that
it was difficult to identify an exact time that the given
conduct occurred: "Because there was a lot of sexual abuse
going on. Kind of hard to keep track of all of it."19
¶44 Additionally, the count of repeated sexual assault of
a child, count 22, required the jury to find that there were at
least three instances of sexual contact between Coughlin and the
younger stepson from September 1, 1994, to November 9, 1994, not
just one instance like every other count.20 See Wis. Stat.
different locations, not necessarily in the same spot,
correct?
A: That's correct.
Q: And -- but it was still within the home on a
weekly basis?
A: It was all over on a weekly basis.
19The State advanced that during each charged spring,
Coughlin engaged in approximately 19 sexual acts against the
younger stepson, from which the jury could have inferred that at
least one instance of sexual contact occurred. It further
argued that for the autumn time periods, Coughlin committed
approximately 30 sexual acts during the shortest charged period
and over 50 acts during the longest. From this, the State
reasoned, the jury could likewise have inferred that the defined
sexual contact occurred at least once during each charged time
period.
The younger stepson testified the following as to the
20
count of repeated sexual assault of a child:
Q: Finally, in the fall of 1994, you turned 16 in
November of that year?
A: Yes.
22
No. 2019AP1876-CR
§ 948.025(1). Again, based on the trial testimony displaying
the frequency of the abuse during this time of year, the jury
could have reasonably inferred from all of the instances of
sexual abuse that the charged conduct occurred at least three
times.21
¶45 Even though the counts involving the older stepson are
not at issue, his testimony also supports the conclusion that a
reasonable jury could have found, beyond a reasonable doubt,
that Coughlin was guilty on the counts involving the nephew and
younger stepson. The older stepson testified that in the autumn
when he was deer shining with Coughlin and the nephew or
stepson, or both, that Coughlin "without fail" would ask one of
the boys "to join in, either masturbating ourselves or
masturbate him."
¶46 Additionally, the older stepson testified as to the
frequency of the sexual abuse in the firehouse, which he said he
would go to once or twice a week with Coughlin, and often with
Q: So while you were still 15, that fall, would there
have been at least three occasions where the defendant
would have asked you to engage in sexual activity?
A: Yes.
Q: Again, you would go shining once, twice a week?
A: Yes.
The State also advanced that for the count of repeated
21
sexual assault of a child, charged from September 1, 1994, to
November 9, 1994, approximately 30 sexual acts occurred, from
which the jury could have reasonably inferred the charged
conduct took place at least three times.
23
No. 2019AP1876-CR
his brother, the younger stepson: "Basically every time we were
there alone with him and there was time, on an evening where we
were just down there playing pool it would happen. And we were
down there frequently, obviously intermingling with trips
shining deer and cutting wood." The jury could have reasonably
relied on the older stepson's testimony, in addition to the
other victims' testimony, to bolster its conclusion that the
requisite sexual contact occurred at least once during each
charged time period for the nephew and younger stepson, and at
least three times for the charge of repeated sexual assault of a
child involving the younger stepson.
¶47 More than one inference could have been drawn from the
testimony. The jury could have inferred that, during each of
the charged time periods, all or some combination of the
following acts occurred: Coughlin touched the victim's penis,
caused the victim to touch his penis, instructed the victim to
masturbate, or masturbated in front of the victim. Taking into
account the pervasiveness of the abuse and the victims'
inability to recall specific acts at specific times, it was
reasonable for the jury to infer that during each of the charged
time periods, Coughlin either touched the victim's penis or
caused the victim to touch his penis, meeting the definition of
"sexual contact."
¶48 The jury could have alternatively inferred that only
masturbating of one's self occurred during each charged time
period, which would not meet the definition of "sexual contact"
24
No. 2019AP1876-CR
here.22 However, when more than one inference can be drawn, we
must adopt the inference that supports the conviction. Long,
317 Wis. 2d 92, ¶19. We "may not substitute [our] judgment for
that of the trier of fact unless the evidence, viewed most
favorably to the state and the conviction, is so lacking in
probative value and force that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt."
State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752(1990). Accordingly, as we must, we adopt the inference that
supports the conviction and determine that the charged conduct
occurred at least once during each charged time period for the
first-degree and second-degree sexual assault charges, and at
least three times for the repeated sexual assault of a child
charge.
¶49 We recognize that individuals who were victimized as
children may not be able to pinpoint with precision the time
The dissent observes that not all of the sexual activity
22
described by the victims is criminal pursuant to the statutes
under which Coughlin was charged. See dissent, ¶¶66, 68. This
is true, but it is beside the point. We do not suggest that
acts other than Coughlin touching the victims' penises or
causing the victims to touch his penis meet the definition of
sexual contact or that the jury could have relied on testimony
about uncharged conduct to reasonably infer the charged conduct
occurred.
25
No. 2019AP1876-CR
period of their abuse.23 Children may delay reporting for a
myriad of reasons and "exactness as to the events fades in
memory. Young children cannot be held to an adult's ability to
comprehend and recall dates and other specifics." State v.
Fawcett, 145 Wis. 2d 244, 249, 426 N.W.2d 91 (Ct. App. 1988).
From the last charged time period in 1994 to the time of trial
in 2017, about 23 years elapsed since the last event in question
took place. The victims themselves indicated that it was hard
to testify with specificity due to how frequently both charged
and uncharged conduct occurred.
¶50 It is true that the State could have asked more
specific questions during trial to attempt to more explicitly
connect the defined "sexual contact" to the exact months and
years charged. Admittedly, the State also often used the
general term "sexual activity" when questioning the victims.
But the State's failure to ask the victims specifically whether
the defined sexual contact occurred during each of the charged
23 One of the detectives involved in the investigation,
Special Agent Holmes, also testified. He explained the
methodology regarding how he generally develops a timeline of
events during an investigation. For example, he described that
in interviews, "a person may not recall specific date or time"
so he uses birthdays, holidays, anniversaries, and other events
to identify when during the year certain events took place.
Special Agent Holmes determines their grade in school and their
ages during that grade. This testimony could have helped the
jury better understand the time periods at issue and the answers
the victims gave regarding their ages and grades in school at
the time of the abuse. It also could have helped the jury
understand that victims cannot always be expected to recall the
exact dates that certain conduct took place.
26
No. 2019AP1876-CR
time periods does not negate Coughlin's heavy burden to overcome
the deference we give to a jury verdict.
¶51 The jury was apprised of the ages of the victims and
the years during which the abuse took place. It could, for
example, reasonably connect deer shining to the autumn months,
and it knew that both charged and uncharged conduct took place
during deer shining. The jury could then draw the inference
that the charged conduct took place at least once during each
autumn. It could likewise draw the inference that Coughlin
engaged in the charged conduct against the younger stepson in
the spring, since the jury heard testimony about abuse occurring
"weekly" and "[t]hroughout the year" for as long as the younger
stepson lived with Coughlin. Considering the totality of the
evidence, including the pervasiveness of the abuse throughout
the boys' childhoods, the jury was not required to view each
piece of evidence in a vacuum and conclude that only uncharged
conduct took place during the charged time periods. See Smith,
342 Wis. 2d, 710, ¶36.
¶52 Additionally, we observe that the jury acquitted
Coughlin on the count involving a fourth alleged victim. This
is indicative of a jury that carefully evaluated the evidence
for each count. See State v. Leach, 124 Wis. 2d 648, 673, 370
N.W.2d 240 (1985) ("The jury was expressly instructed to
consider each count separately. The jury was also instructed
not to let the defendant's guilt or innocence on one count
affect its verdict on any other count. Only cynicism would
suggest this instruction was disregarded by the jury . . . .").
27
No. 2019AP1876-CR
When denying Coughlin's postconviction motion, the circuit court
also highlighted this acquittal as an indicator of the jury
acting reasonably. Although this observation is not
dispositive, it supports the notion that the jury considered
each count in turn and with it each charged time period.
¶53 We cannot conclude that the jury acted unreasonably
when it convicted Coughlin of all 15 counts at issue. Based on
the testimony that indicates the victims essentially lived with
this abuse in their day-to-day lives over a longer time period
that spanned the charged time periods, we cannot agree with
Coughlin that there is no evidence that the charged conduct
occurred during those specific time periods. We acknowledge
that the charged conduct was mixed in with uncharged conduct and
the State's questioning occasionally lacked specificity, but the
evidence that the charged conduct occurred at all relevant times
is not so lacking in probative value and force such that we
should substitute our judgment for that of the jury.
¶54 In sum, under the facts of this case, we conclude that
the sufficiency of the evidence should be evaluated according to
the jury instructions. Further, we conclude that there was
sufficient evidence for the jury to find Coughlin guilty on all
15 counts at issue. Coughlin failed to overcome his heavy
burden to show that no reasonable jury could have concluded,
beyond a reasonable doubt, that he was guilty.
¶55 Accordingly, we reverse the decision of the court of
appeals.
28
No. 2019AP1876-CR
By the Court.—The decision of the court of appeals is
reversed.
¶56 JILL J. KAROFSKY, J., did not participate.
29
No. 2019AP1876-CR.rfd
¶57 REBECCA FRANK DALLET, J. (dissenting). The problems
in this case are of the State's own making. The State did not
have to charge Coughlin the way it did: only with violating
Wis. Stat. § 948.02(1) and (2) by having "sexual contact" with
the victims, as defined in Wis. Stat. § 948.01(5), and only
during narrow and particular date ranges.1 Having made that
decision, however, it was the State's burden to prove beyond a
reasonable doubt both that Coughlin committed the specific
crimes he was charged with and that he did so during the date
range associated with each count. It failed to do so.
Alternatively, the State could have amended the charges at trial
to reflect the evidence presented to the jury, including
broadening the time period for each charge. It didn't do that
either. And so, given the specific charges listed in counts 7–9
and 11–22, the record contains insufficient evidence to support
the jury's guilty verdict.
¶58 The majority opinion also mistakenly evaluates the
sufficiency of the evidence against the jury instructions
instead of the verdict form. The verdict form, however, is the
only indication of what facts the jury actually found. So, at
least in this case, where the verdict form lists only one of two
1 The State also charged Coughlin with one count of repeated
sexual assault of a child under Wis. Stat. § 948.025(1)(d).
That count is premised on at least three violations of Wis.
Stat. § 948.02(1) between September 1 and November 9, 1994.
Because the State failed to meet its burden to show that any
violation of § 948.02(1) occurred during any of the charged time
periods, it necessarily also failed to meet its burden of
showing at least three such violations occurred during the
period related to the alleged violation of Wis. Stat. § 948.025.
1
No. 2019AP1876-CR.rfd
possible theories of guilt, the verdict form should guide our
review. I therefore respectfully dissent.
I
¶59 Coughlin's sufficiency-of-the-evidence challenge
presents a novel problem. Relevant to every sufficiency-of-the-
evidence challenge are the information, the jury instructions,
and the verdict form. The information lists the statute under
which the defendant was charged and includes brief factual
allegations supporting the charge. Before the jury deliberates,
the judge instructs the jury on all of the elements of the
crime, as well as on any possible defenses. The jury then
deliberates and returns a verdict form, indicating whether it
found the defendant guilty or not guilty of the crime "as
charged in the information." In a typical case, there is no
discrepancy between the information, the jury instructions, and
the verdict form; they all list the same statutory elements and
factual theory of guilt. Thus, in a typical sufficiency-of-the-
evidence challenge, it makes no difference whether the court
evaluates the evidence against the jury instructions or the
verdict form.
¶60 Here, however, there is a discrepancy between the two.
The jury was instructed that it could find Coughlin guilty if
either he touched the victims' penises or they touched his.
Those instructions mirror the factual theory the State presented
at trial, as well as the two theories of guilt listed in the
definition of "sexual contact" in Wis. Stat. § 948.01(5)(a):
2
No. 2019AP1876-CR.rfd
1. Intentional touching by the defendant or, upon the
defendant's instruction, by another person, . . . of
the complainant's intimate parts.
2. Intentional touching by the complainant . . . of
the defendant's intimate parts or, if done upon the
defendant's instructions, the intimate parts of
another person.
See also Wis. Stat. § 948.02 (requiring "sexual contact" as an
element of second-degree sexual assault). The verdict form (and
the information), however, reflected just one of those
theories: that Coughlin had touched the victims' penises. Both
the jury instructions and verdict form are accurate, but the
verdict form is under-inclusive; that is, it states just one of
the two possible theories of guilt on which the jury was
instructed. Since neither misstates the law, the question here
is which one should control our review of the sufficiency of the
evidence.
¶61 Our prior cases have dealt with related situations,
but no prior case is directly on point. In State v. Beamon,
2013 WI 47, 347 Wis. 2d 559, 830 N.W.2d 681, we held that when
the jury instructions required proof of an element of the crime
not included in the statute, then the court should test the
sufficiency of the evidence against the statutory elements.
Id., ¶¶28, 40. Two years later, we explained that the jury
instructions must include a theory of guilt consistent with both
the statutory elements of the crime and the factual theory of
guilt the State presented at trial. State v. Williams, 2015
WI 75, ¶63, 364 Wis. 2d 126, 867 N.W.2d 736. When they don't,
the court should determine whether the jury would have convicted
the defendant had it been given such proper instructions. Id.3
No. 2019AP1876-CR.rfd
¶62 Although neither Beamon nor Williams are directly on
point, our rationale in Williams supports the conclusion that
the verdict form should control in this case because it reflects
what the jury actually found.2 In Williams we explained that
when we review a jury's verdict in a sufficiency-of-the-evidence
challenge and the jury received erroneous jury instructions, our
conclusion turns on what the jury would have done absent the
erroneous instructions. 364 Wis. 2d 126, ¶63. We also
explained that not every such challenge is created equal. For
instance, when the jury instructions include an extra element
not required by statute, we can safely assume that the jury
would have convicted the defendant under the proper jury
instructions because if it found that the State proved an extra,
non-statutory element, it necessarily found that the State also
proved all of the statutory elements. Id., ¶¶61–62; see also
State v. Wulff, 207 Wis. 2d 143, 151, 557 N.W.2d 813 (1997).
The inverse, however, is not true. "[I]f an erroneous jury
instruction omits an element or instructs on a different theory,
it will often be difficult to surmise what the jury would have
done if confronted with a proper instruction," because the
jury's verdict says nothing about statutory elements or factual
theories of guilt the jury was never asked to consider.
Williams, 364 Wis. 2d 126, ¶62.
In reaching the opposite conclusion, the majority relies
2
mostly on Beamon. But Beamon dealt only with a conflict between
the statutory elements and the jury instructions. See 347
Wis. 2d 559, ¶¶24, 28. Here, neither the jury instructions nor
the verdict form conflict with the elements of Wis. Stat.
§ 948.02, so Beamon doesn't help resolve the issue.
4
No. 2019AP1876-CR.rfd
¶63 Applying that rationale to this case, the court should
test the sufficiency of the evidence against the verdict form
because that is the only evidence of what the jury actually
found.3 See id. A verdict form reflects the jury's actual
findings based on the evidence, while the jury instructions only
inform the jury about the law it must apply when making those
findings. Here, the jury was correctly instructed that, as
defined in Wis. Stat. § 948.01(5), "sexual contact" could
include either Coughlin touching one of the victim's penises or
one of the victims touching Coughlin's. The State's factual
theory at trial included both statutory theories of guilt. But
the verdict form shows that, for each count, the jury concluded
only that Coughlin had touched a victim's penis during the
relevant time periods. See Williams, 364 Wis. 2d 126, ¶62.
Accordingly, in evaluating whether there is sufficient evidence
to support the jury's verdict, we should evaluate whether,
viewing the evidence most favorably to upholding the verdict, a
reasonable jury could have found beyond a reasonable doubt that
Coughlin touched the relevant victim's penis during each
relevant time period. See id., ¶63.
II
¶64 All of that said, even if the court evaluates the
evidence against the jury instructions, it is still insufficient
to support the jury's guilty verdict. When we review a
The opposite is likely true if the verdict form includes a
3
theory of guilt that was not part of the jury instructions; that
is, the verdict form is over-inclusive. See Williams, 364
Wis. 2d 126, ¶¶60–61; Wulff, 207 Wis. 2d at 151.
5
No. 2019AP1876-CR.rfd
sufficiency-of-the-evidence challenge, we "give deference to the
jury's determination and view the evidence in the light most
favorable to the State." See, e.g., State v. Long, 2009 WI 36,
¶19, 317 Wis. 2d 92, 765 N.W.2d 557. Coughlin was charged under
Wis. Stat. § 948.02(1) and (2), for which the key element is
"sexual contact . . . with a person who has not attained the age
of 16." And consistent with the definition of "sexual contact"
in § 948.01(5), the State alleged that Coughlin intentionally
touched the victims' penises or had them touch his. It also
alleged that, for each count, such conduct occurred during
specific time periods, each comprising no more than four months.
Thus, to sustain Coughlin's convictions, the record must contain
evidence that, viewed in the light most favorable to the State,
would allow a reasonable jury to conclude beyond a reasonable
doubt that during the specific months alleged for each count,
Coughlin either intentionally touched that victim's penis or
that victim intentionally touched Coughlin's penis at his
direction. See, e.g., Long, 317 Wis. 2d 92, ¶19.
¶65 The majority wrongly concludes that just because there
is evidence that Coughlin had criminal sexual contact with the
victims at some point, the jury could infer that such contact
occurred during each specific time period. In doing so, the
majority papers over the ambiguous testimony regarding exactly
what kind of sexual activity happened when. Specificity matters
because some of the sexual activity the victims testified to
fits the charges of second-degree sexual assault, but some does
not. Likewise, it's unclear that the conduct that fits the
sexual-assault charge occurred during the charged time periods.
6
No. 2019AP1876-CR.rfd
These ambiguities are not "beside the point," see majority op.,
¶48 n.22; they are the point. The jury's guilty verdict cannot
be sustained based on the victims' testimony that "some sort of
abuse occurred during each charged time period." See id., ¶39
(emphasis added). There must be evidence on which the jury
could rely to conclude beyond a reasonable doubt that the
specific kind of abuse with which Coughlin was charged——"sexual
contact" as defined in Wis. Stat. § 948.01(5)(a)——occurred with
respect to each victim during each charged time period. See
State v. Hall, 53 Wis. 2d 719, 723, 193 N.W.2d 653 (1972)
(reversing defendant's conviction because, although there was
evidence committed some crime, the evidence was insufficient
that he committed the specific crime with which he was charged).
Because there is not, the jury could not find Coughlin guilty
beyond a reasonable doubt. See Wulff, 207 Wis. 2d at 151–54.
¶66 The evidence shows that different kinds of sexual
abuse occurred for many years, but it is unclear about exactly
what form that abuse took and when it happened. There is
certainly evidence that Coughlin engaged in sexual contact with
the victims at some point. As the majority correctly points
out, there is testimony that Coughlin touched the victims'
penises or they touched his. See majority op., ¶38 n.13. Both
victims also testified, however, that other sexual activity
occurred during each time period that does not fit the charge of
7
No. 2019AP1876-CR.rfd
second-degree sexual assault of a child.4 For instance, A.F.
testified that on some occasions he, J.C., and Coughlin
masturbated together, but he and J.C. did not touch Coughlin's
penis nor did he touch theirs. J.C. testified that sometimes
when he went deer shining with Coughlin, Coughlin would
"masturbate whoever was in the front seat, or he would try to,
and himself." The statutes under which Coughlin was charged,
Wis. Stats. § 948.02(1) and (2), criminalize neither attempted
sexual contact with children nor their self-masturbation, even
if done at the defendant's instruction.5 Other statutes do, such
as § 948.07 (sexual enticement) or § 948.10 (exposing genitals),
but the State neither charged Coughlin with those offenses nor
amended the charges at the close of the evidence. What the
court is left with then is evidence showing that sometimes
Coughlin committed second-degree sexual assault as charged and
sometimes he didn't. It fell to the State to clear up that
ambiguity and prove beyond a reasonable doubt that, during each
A third victim testified about Coughlin's conduct with
4
J.C. and A.F. His testimony, like J.C.'s and A.F.'s, identified
conduct both criminal and not criminal but was ambiguous as to
which conduct occurred when. Therefore, the jury could not
infer from this victim's testimony that Coughlin committed
second-degree sexual assault against either J.C. or A.F. during
the specific months the State alleged.
Self-masturbation
5 is covered by the definition of
"sexually explicit conduct" in Wis. Stat. § 948.01(7), but such
conduct does not constitute second-degree sexual assault unless
it also meets the definition of "sexual contact" in
§ 948.01(5)(a) or "sexual intercourse" in § 948.01(6). See Wis.
Stat. § 948.02(2). Self-masturbation is also likely covered by
§ 948.10, which makes it a felony for a person to either expose
his genitals to a child or cause a child to expose the child's
genitals. The State, however, charged Coughlin only under
§ 948.02(1) and (2).
8
No. 2019AP1876-CR.rfd
specified time period, Coughlin engaged in sexual contact as
defined by § 948.01(5)(a).
¶67 The State failed to meet that burden on all counts.
For the counts related to J.C., see majority op., ¶9 n.8, the
prosecutor's questioning regarding the particular time periods
directly followed a series of questions about whether Coughlin
had performed oral sex on J.C. or any of the other victims.
J.C. testified that Coughlin had tried but had not done so. The
prosecutor then asked whether "this" happened during the fall of
1989 (count 7), to which J.C. answered, "yes." Regarding
counts 8, 9, and 11, the prosecutor asked J.C. whether "it"
happened during each of the relevant time periods, to which J.C.
again answered, "yes." The only reasonable inference from this
series of questions is that, during each time period, Coughlin
asked to perform oral sex on the victims and they refused. That
is attempted sexual contact, evidence of which is insufficient
to support an inference that Coughlin actually engaged in sexual
contact as defined by § 948.01(5)(a) during the time frames
relevant to counts 7–9 and 11.
¶68 To be sure, J.C. testified that Coughlin engaged him
in some "sexual activity" on a regular basis during the relevant
time periods. But "sexual activity" is a broad term undefined
by statute, and it is not necessarily "sexual contact" as
defined by § 948.02(2)——a crucial distinction the majority
ignores. J.C. testified that he went deer shining with Coughlin
"a lot of times over the years," and that when he did, he and
Coughlin would "definitely usually" masturbate:
9
No. 2019AP1876-CR.rfd
State: And was it each person masturbating themselves
or would something else happen?
J.C.: [Coughlin] would either masturbate whoever was
in the front seat, or he would try to, and
himself.
State: [W]ould he ask somebody to masturbate him on
occasions?
J.C.: Yeah. He would ask, but I never saw anyone
actually do it.
State: Okay. So that never happened when you were
along?
J.C.: No.
State: But did you observe him masturbating someone in
the front seat?
J.C.: Yeah.
State: Did he ever masturbate you while you were in
the front seat?
J.C.: Yes.
State: And [the third victim]?
J.C.: Yes.
State: And [A.F.]?
J.C.: Yes.
. . .
State: Okay. And how often did you go shining with
[Coughlin] and [the third victim] and/or
[A.F.]?
J.C.: A lot of times over the years. But I couldn't
say for sure how many times per given year.
State: Okay. Was it something that happened once a
month, more than once a month, less than on[c]e
a month?
J.C.: I would say more than once a month during the
late summer and fall.
10
No. 2019AP1876-CR.rfd
State: Okay. And would it always end up with you guys
parking somewhere and having everybody
masturbate?
J.C.: Definitely usually.
This testimony, which is representative of the State's
questioning of the other victims, establishes that some of the
times that J.C. went deer shining with Coughlin, Coughlin would
masturbate J.C., which is sexual contact under § 948.01(5)(a)
and therefore second-degree sexual assault under § 948.02(2).
Other times, J.C. and Coughlin would each masturbate themselves,
which is not sexual contact and therefore is not second-degree
sexual assault. But there is no evidence from which a
reasonable jury could infer that the former occurred during the
narrow time periods associated with counts 7–9 and 11. It could
only speculate on that point, which is insufficient to sustain
the jury's verdict. See State ex rel. Kanieski v. Gagnon, 54
Wis. 2d 108, 117, 194 N.W.2d 808 (1972) ("[T]he defendant cannot
be convicted on mere suspicion or conjecture.").
¶69 The State's case on the counts regarding A.F., see
majority op., ¶9 n.9, fares no better. A.F. testified that
Coughlin assaulted him in Coughlin's car after shining deer, at
A.F.'s house, at an industrial business, and at the Lyndon
Station firehouse. He testified that the assaults during deer-
shining trips began in 1985——three years before the earliest
charged time period——and that sometimes Coughlin and A.F. would
masturbate themselves, while other times Coughlin would
masturbate A.F. As for the assaults in the house, A.F.
testified that they would happen "weekly" and that they would
"typically" involve Coughlin "watching [A.F.] masturbate,"
11
No. 2019AP1876-CR.rfd
although "at times" Coughlin would ask A.F. to masturbate him.
At the industrial business, A.F. testified that, there, Coughlin
only "asked [A.F.] to masturbate." And at the firehouse,
Coughlin "would want to masturbate" after playing pool with A.F.
¶70 Of those instances, only the times that Coughlin
masturbated A.F. after shining deer constitute sexual conduct
for the charge of second-degree sexual assault. But, per A.F.'s
testimony, that could have happened as early as 1985, and the
State never clarified whether that specific conduct occurred
during the short, specific time periods related to each count
from 1989 through 1994. The State's questioning on that point
was again ambiguous, asking A.F. whether, during the time period
associated with each count, Coughlin "had [A.F.] engage in some
type of sexual activity" (emphasis added). But again, not all
sexual activity A.F. described is criminal under § 948.02(2).
Thus, even viewing the evidence in the light most favorable to
the State, a reasonable jury could not have found beyond a
reasonable doubt that Coughlin committed second-degree sexual
assault against A.F. during the specified time periods.
III
¶71 Criminal defendants have a high bar to clear when
challenging their convictions on sufficiency-of-the-evidence
grounds. But that standard does not relieve the State of its
duty to clear the equally high bar of proving a defendant is
guilty beyond a reasonable doubt. Here, the State failed to do
so regarding the specific time periods associated with
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No. 2019AP1876-CR.rfd
counts 7-9 and 11–22. Coughlin's convictions must therefore be
reversed.
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No. 2019AP1876-CR.rfd
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