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07/01/83 STATE WISCONSIN v. CHARLES JOSEPH LOMAGRO

July 1, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT-PETITIONER,
v.
CHARLES JOSEPH LOMAGRO, DEFENDANT-APPELLANT



Review of a decision of the Court of Appeals. Reversing Steinmetz, J. Beilfuss, C.j. (dissenting). Justices Heffernan and Abrahamson join this Dissent.

The opinion of the court was delivered by: Steinmetz

This is a review of an unpublished decision of the court of appeals which reversed both the judgment of conviction for first-degree sexual assault entered by the circuit court for Milwaukee county, the Honorable Michael D. Guolee, Judge, and the order denying the defendant's motion for a new trial entered by the Honorable Ralph Adam Fine, Judge. The issue on appeal is whether the defendant was denied his right to a unanimous jury verdict.

On November 3, 1980, the defendant, Charles Joseph Lomagro, and Chester L. Cyrus were each charged with one count of first-degree sexual assault, party to a crime, in violation of secs. 940.225(1) (c) *fn1 and 939.05, Stats. The testimony of the victim, C.G., and the defendant Lomagro at the trial as to the facts surrounding the incident was in substantial dispute.

C.G. testified that on the evening of October 31, 1980, she arrived with two friends at a bar on Milwaukee's south side at approximately 11:15 p.m. While at the bar she met the defendant and Cyrus and talked to the two men for most of the evening.

Shortly after midnight C.G. noticed that her two friends had left the bar without her. Cyrus and the defendant then offered C.G. a ride to meet her friends at the restaurant where she worked. C.G. hesitated, but accepted the ride when the owner of the bar assured her that she knew the defendant and that he would get her home safely. C.G. left the bar with the two men at approximately 12:30 or 12:45 a.m., and the three entered Cyrus's station wagon. All three sat in the front seat with C.G. in the middle between Cyrus, who was driving, and Lomagro who sat on the right passenger side.

Soon after they drove away C.G. agreed to accompany the two men to an east side bar. When she noticed that they were at the lakefront and had gone farther than their destination, she questioned the two men as to what was going on. The defendant responded by reaching down the front of C.G.'s dress and grabbing her breast. C.G. begged him to stop. The defendant told her to be quiet or he would blow her brains out with his gun. While the car proceeded along the lakefront, both men ripped the crotch area of C.G.'s jumpsuit and removed her pantyhose.

The defendant then forced C.G. to engage in an act of penis-vagina intercourse. They continued to drive and a short time later the defendant forced her to engage in another act of penis-vagina intercourse. During this second assault, C.G. attempted three times to throw open the passenger door. The defendant responded by slapping C.G.'s face, biting her nose and shoving her back in the car.

Cyrus then drove the car to an industrial area where he forced C.G. to engage in an act of penis-vagina intercourse. After leaving the area and while they were driving, Cyrus forced C.G. to perform an act of fellatio on him. Cyrus then drove the car to a gas station. While Cyrus put gas in the car, C.G. remained in the car with the defendant.

Upon leaving the gas station they proceeded to another secluded area and C.G. was forced to perform an act of fellatio on both men. The two men then agreed to release her. At about 3:00 a.m., she was taken to a friend's home.

The defendant acknowledged meeting C.G. at the south side bar and offering her a ride. His version of the subsequent events, however, was substantially different. He testified that they left the bar at approximately 1:00 a.m. and agreed to go to the east side bar. When they arrived at the bar, they decided not to stop because it appeared that the bar was emptying out. They then proceeded to take C.G. home, stopping only to get some gas. The defendant stated that they dropped C.G. off unharmed at her home between 2:00 and 2:15 a.m. He testified that neither he nor Cyrus had any sexual contact with C.G. and that neither man ever struck her.

Photographs of C.G. taken several days after the incident showed a variety of scratch marks and bruises. The jumpsuit worn by the victim was marked as an exhibit at trial and contained numerous holes with the whole crotch area ripped out. There was additional testimony by an employee of the State Crime Laboratory. He testified that there was sperm found on the victim's clothing and on her cervical and vaginal smears, but that her oral smears and swabs were negative.

Following the close of the evidence, the trial court instructed the jury on the elements of first-degree sexual assault, party to a crime. The court told the jury that both penis penetration into the vagina and fellatio constituted the element of sexual intercourse. The court gave the standard unanimity instruction as follows:

"This is a criminal, not a civil, case. Therefore, before the jury can return a verdict that can legally be received, your verdict must be reached unanimously. In a criminal case all twelve jurors must agree in order to arrive at a verdict."

The jury returned its verdict finding the defendant guilty of first-degree sexual assault. Following sentencing, the defendant filed a motion requesting a new trial on the grounds that his rights to due process and a unanimous verdict were violated. He contended that when the state presents evidence of separate crimes and charges only one count, the jury must agree as to the specific act that constituted the crime.

The trial court rejected this argument, finding that fellatio and penis-vagina intercourse were merely alternative ways of committing first-degree sexual assault and that jury unanimity was not required as to the different ways of committing a single criminal act. The court of appeals reversed, holding that the defendant's rights to due process and a unanimous verdict were violated. The court reasoned that in order to protect the defendant's right to a unanimous verdict when separate crimes are joined in one count, the jury must be instructed that it must unanimously agree that defendant committed one specific act of sexual intercourse. We granted the state's petition to review.

This review raises the issue of whether the defendant's right to a unanimous verdict was violated when he was charged with one count of first-degree sexual assault, but evidence was introduced of six different acts of nonconsensual sexual intercourse. In order to resolve this issue, we first must determine whether the state may join several distinct acts of sexual intercourse into one count. The defendant contends that because the sexual assault charged in this matter consisted of six separately chargeable offenses, combining them in one count is duplicitous. The state argues that the prosecutor has the option to charge separate or multiple offenses when the separate acts are committed by the same person at substantially the same time.

Duplicity is the joining in a single count of two or more separate offenses. State v. George, 69 Wis. 2d 92, 99, 230 N.W.2d 253 (1975); Harrell v. State, 88 Wis. 2d 546, 555, 277 N.W.2d 462 (Ct. App. 1979). The purposes of the prohibition against duplicity are: (1) to assure that the defendant is sufficiently notified of the charge; (2) to protect the defendant against double jeopardy; (3) to avoid prejudice and confusion arising from evidentiary rulings during trial; (4) to assure that the defendant is appropriately sentenced for the crime charged; and (5) to guarantee jury unanimity. United States v. Alsobrook, 620 F.2d 139, 142 (6th Cir. 1980), cert. denied 449 U.S. 843 (1980); United States v. Pavloski, 574 F.2d 933, 936 (7th Cir. 1978); United States v. Starks, 515 F.2d 112, 116-17 (3d Cir. 1975).

The first step in determining whether a criminal complaint is duplicitous is to examine its factual allegations to determine whether it states more than one offense. The complaint involved here alleged that the two co-defendants forced C.G. to engage in three acts of sexual intercourse. *fn2 The complaint characterizes the actions of the co-defendants in committing these sexual assaults as one continuous course of conduct resulting in one charge of first-degree sexual assault.

This court has consistently held that acts which alone constitute separately chargeable offenses, "when committed by the same person at substantially the same time and relating to one continued transaction, may be coupled in one count as constituting but one offense" without violating the rule against duplicity. Huotte v. State, 164 Wis. 354, 356, 160 N.W. 64 (1916); Blenski v. State, 73 Wis. 2d 685, 695, 245 N.W.2d 906 (1976). If the defendant's actions in committing the separate offenses may properly be viewed as one continuing offense, it is within the state's discretion to elect whether to charge "one continuous offense or a single offense or series of single offenses." State v. George, 69 Wis. 2d at 100. See also, State v. Copening, 103 Wis. 2d 564, 572, 309 N.W.2d 850 (Ct. App. 1981). This rule has been applied in other states to sex offenses. See e.g., Steele v. State, 523 S.W.2d 685, 686-87 (Tex. Cr. 1975).

However, this prosecutorial discretion to join separately chargeable offenses into one count is not unlimited. Rather, this discretion to join offenses is limited by the purposes of the prohibition against duplicity as discussed above. As stated by the Sixth Circuit in United States v. Alsobrook, 620 F.2d at 142-43:

"Several courts have upheld the validity of indictments that consolidate several acts into a single count when such acts represent a single, continuing scheme that occurred within a short period of time and that involved the same defendant. See United States v. Girard, 601 F.2d 69 (2nd Cir. 1979); United States v. Pavloski, 574 F.2d 933 (7th Cir. 1978); Cohen v. United States, 378 F.2d 751 (9th Cir.), cert. denied, 389 U.S. 897, 88 S. Ct. 217, 19 L. Ed. 2d 215 (1967). The determination of whether a group of acts represents a single, continuing scheme or a set of separate and distinct offenses is a difficult one that must be left at least initially to the discretion of the prosecution. This discretion, however, is not without limits. See e.g., United States v. Tanner, 471 F.2d 128 (7th Cir. 1972). Ultimately, the indictment must be measured in terms of whether it exposes the defendant to any of the inherent dangers of a duplicitous indictment. See United States v. Pavloski, supra. Those dangers include the possibility that the defendant may not be properly notified of the charges against him, that he may be subjected to double jeopardy, that ...


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