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August 10, 1993


Appeal from a judgment and an order of the circuit court for Brown county: Peter Naze, Judge.

Cane, P.j., LaRocque and Myse, JJ.

The opinion of the court was delivered by: Myse

Joseph Frey appeals his conviction of first-degree sexual assault (sexual contact) with the threat or use of a dangerous weapon, in violation of sec. 940.225(1)(b), Stats., and an order denying his post-conviction motion for a new trial. Frey contends that the trial court erroneously exercised its discretion by allowing the state to amend the charge from one involving sexual intercourse to one involving sexual contact. He further contends that the trial court erred by permitting the jury to consider whether his bare hands could constitute dangerous weapons. He argues that he was prejudiced by the amended charge because it contained different elements against which he had inadequate time and opportunity to prepare and present a defense. He also argues that Wisconsin law does not consider bare hands to be dangerous weapons. We conclude that Frey was not prejudiced by the amendment. However, because we conclude that bare hands are not "instrumentalities" within the statutory definition of "dangerous weapons," sec. 939.22(10), Stats., and because it is impossible to tell whether the jury considered the pillow or Frey's hands to be dangerous weapons, we reverse the judgment.

In January 1991, Cindi F. awakened early in the morning to find a man in her bedroom. She screamed and the man jumped on her and said, "Cindi, shut up or I am going to hurt you." The man sat on top of her and started choking her with his hands. She struggled with him and he put a pillow over her face so that she could not breathe. When Cindi stopped struggling, he tied her hands in front of her with a pair of her nylon pantyhose so tightly that her hands hurt and put a cotton gag in her mouth. The man kissed and fondled her breasts and vaginal area, inserted a finger into her vagina and licked her vaginal area. She noticed that he had a moustache and was wearing very rough gloves. At one point he punched her in the stomach so hard that she gagged and almost vomited. He also hit her leg with a large screwdriver. The man repeatedly called her a whore and a "prick teaser," and told her he had to teach her a lesson because she stepped on people at work to get what she wanted. He told her he had used the screwdriver to break into her house and that he cut off the power and telephone. Cindi could see that the man was wearing a blue zipped hooded sweatshirt, a tshirt, jeans, brown work boots and a blue beanie hat. She also noticed that he had dark circles under his eyes and a wide nose. Before he left, he agreed to turn the power back on. While he was in the basement, Cindi went into the kitchen and turned the light on. The man was very angry and yelled that he would kill her if she did not turn off the light. She turned off the light and went back into her bedroom. As he was leaving, the man told her it was 5:10 a.m. "so you can set your clocks to get up and go to work." After he left, Cindi got up and vomited in the bathroom. She then noticed that her purse was missing. Cindi's neck and wrists were badly bruised.

From a set of mug shots, Cindi identified Frey as the man who assaulted her. She later discovered that Frey's live-in girlfriend was an employe whom she supervised. A search of Frey's home and car produced a twelve-inch screwdriver that matched the pry marks around a basement window of Cindi's home, several pieces of white rope tied with slip knots, a blue hooded sweatshirt and several gold flecks similar to gold flecks found on Cindi's body after the assault. In February, Frey was arrested and charged with first-degree sexual assault (sexual intercourse), burglary and false imprisonment. That same day, Frey attempted to hang himself.

After Frey was deemed competent to stand trial, he waived his right to a preliminary hearing. Count one against Frey remained as first-degree sexual assault (sexual intercourse) in violation of sec. 940.225(1)(b), Stats., until early in the second day of the trial, after the defense presented its first witness. The state then moved the trial court to allow it to amend the information to charging first-degree sexual assault (sexual contact). The court noted that the amendment conformed to the evidence at trial and concluded that the defense would not be prejudiced by allowing the amendment.

The court instructed the jury that Frey's bare hands, the pillow, or both could be considered an instrumentality calculated or likely to cause death or serious bodily injury. During its deliberation, the jury asked the court for definitions of "instrumentality" and "device" as those words were used in the instructions. All parties agreed that the court should read the definitions from Perkins v. State, 61 Wis. 2d 341, 350, 212 N.W.2d 141, 145 (1973): "'Instrumentality' is defined as something by which an end is achieved: means. A 'device' is defined as a piece of equipment or a mechanism designed to serve a special purpose or perform a special function." (Citation omitted.) The jury subsequently found Frey guilty of first-degree sexual assault (sexual contact), false imprisonment and burglary.

Frey contends that allowing the information to be amended to charge first-degree sexual assault (sexual contact) instead of first-degree sexual assault (sexual intercourse) during the trial after the state had presented its evidence prejudiced him. *fn1 Section 971.29(2), Stats., allows amendment of the information if the defendant is not prejudiced. Whether to allow amendment of the information to conform to the proof is discretionary with the trial court. State v. Flakes, 140 Wis. 2d 411, 417, 410 N.W.2d 614, 616 (Ct. App. 1987). We will not reverse the trial court's decision to allow an amendment absent an erroneous exercise of discretion. Id. at 416, 410 N.W.2d at 616. "If the record shows that discretion was exercised and a reasonable basis exists for the trial court's ruling, we will sustain it." Id. at 417, 410 N.W.2d at 616.

It is undisputed that the amendment conformed to the proof. Cindi's testimony concerning the assault was within the definition of sexual contact in sec. 940.225(5)(b), Stats.: "'Sexual contact' means any intentional touching by the . . . defendant, either directly or through clothing by the use of any body part or object, of the complainant's . . . intimate parts if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant . . . ." Frey argues that the late amendment deprived him of notice of a sexual contact charge with its concomitant "mental state" element. *fn2 He cites State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992), in support of his argument.

In Neudorff, 170 Wis. 2d at 619, 489 N.W.2d at 694, we stated, "Notice to the defendant of the nature and cause of the accusations is a key factor in determining whether an amended charging document has prejudiced a defendant." (Citation omitted.) Neudorff was originally charged with possession of cocaine with intent to deliver. The morning of the trial, the state sought to change the charge to conspiracy to deliver cocaine. The amendment was brought about by new information from a witness who testified concerning the original charges at the preliminary examination, and covered a different time period and different cocaine. We held that because of these factors and because defense of the new charge probably would require different witnesses, Neudorff had inadequate notice of and opportunity to defend against the new charge and that allowing the amendment prejudiced him. Id. at 621, 489 N.W.2d at 693, 694-95.

In contrast, here the basis of the charge did not change. The criminal complaint detailed the conduct that formed the basis of the original information. The amended information was based on exactly the same conduct as described in the criminal complaint. Additionally, Frey's defense theory was that, while someone assaulted Cindi, it was not Frey. Frey asserts, however, that had he known that the state would be required to prove that his assault of Cindi was for the purpose of sexually degrading or sexually humiliating Cindi or for his own sexual arousal or gratification, he could have "put on a defense to show there was some other reason." He then points to testimony from the trial that he contends supports the inference he assaulted Cindi to hurt her and teach her a lesson for perceived inJustices against his girlfriend. He also points to the fact that he attempted to commit suicide several weeks after the assault as indicative of "serious mental problems which would have explained why did not have a sexual purpose in assaulting and choking Cindi . . . ." We are not persuaded.

First, evidence concerning Frey's alleged mental state after he was arrested several weeks after the assault is not highly probative of his mental state during the assault. Second, although there arguably was some evidence from which it could be inferred that Frey's purpose was to hurt Cindi in retaliation for what he perceived were inJustices perpetrated on his live-in girlfriend, the record is devoid of any evidence that Frey would have admitted the conduct and challenged only the element that the conduct was for the purpose of sexually degrading or sexually humiliating Cindi or for his own sexual arousal or gratification. Such an assertion lacks credibility in light of his primary defense of mistaken identity and the inherent difficulty of proving that inserting his finger into and licking Cindi's vagina was not done for his own sexual arousal or gratification. Because Frey's defense theory was not affected by the amendment and the record does not support his claim that he would have admitted the assault and challenged the motive, we conclude that Frey was not prejudiced by the amendment.

Frey also contends that the trial court erred by concluding that bare hands, when used to strangle someone, could be considered a dangerous weapon within the meaning of sec. 939.22(10), Stats. While Frey concedes that the pillow probably fell within the definition of a dangerous weapon, he argues that bare hands do not. Whether bare hands are a "device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm," within the meaning of sec. 939.22(10) involves the application and interpretation of a statute. This is a question of law that we review independently of the trial court's determination. State v. Sinks, 168 Wis. 2d 245, 253, 483 N.W.2d 286, 289 (Ct. App. 1992). The purpose of the rules of statutory construction is to give effect to the legislative intent. State v. Pham, 137 Wis. 2d 31, 34, 403 N.W.2d 35, 36 (1987). When determining legislative intent, we first examine the statute's language and will resort to extrinsic aids only if the language is ambiguous. In re P.A.K., 119 Wis. 2d 871, 878-79, 350 N.W.2d 677, 681-82 (1984). If a statute is ambiguous, we look to its content, subject matter, scope, history and the object to be accomplished to ascertain its reasonable meaning. Boltz v. Boltz, 133 Wis. 2d 278, 284, 395 N.W.2d 605, 607 (Ct. App. 1986). A statute is ambiguous if reasonable persons could disagree as to its meaning, and whether a statute is ambiguous is a question of law. Id.

The statute's meaning cannot be determined by examining the statutory language alone because reasonable persons could differ concerning whether bare hands are a "device or instrumentality" within the meaning of sec. 939.22(10), Stats. While, as Frey concedes, bare hands may be used in a manner that death or great bodily harm is likely to result, that fact alone does not answer the question whether the legislature intended to include bare hands or other parts of the accused's anatomy in its definition of dangerous weapons. Because the statutory language provides no clear indication of the legislature's intent, reasonable people could differ concerning whether parts of the anatomy can be considered devices or instrumentalities. Indeed, the jurisdictions that have construed similar statutes are split. These opposing Conclusions eloquently ...

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