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State v. Hilgers

Court of Appeals of Wisconsin, District IV

January 26, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Jeff C. Hilgers, Defendant-Appellant.

         Recommended for publication in the official reports.

         APPEAL from a judgment of the circuit court for Dane County, No. 2014CF1512 JOHN W. MARKSON, Judge. Affirmed.

          Before Kloppenburg, P. J., Lundsten and Sherman, JJ.

          SHERMAN, J.

         ¶1 Jeff Hilgers appeals a conviction, following a jury trial, for second-degree sexual assault by corrections staff, contrary to WIS. STAT. § 940.225(2)(h) (2011-12).[1] Hilgers contends that instructions to the jury misstated a requirement in § 940.225(2)(h) and that when the evidence is measured against a correct interpretation of the statute, the evidence was insufficient to support his conviction. For the reasons discussed below, we affirm.

         BACKGROUND

         ¶2 In 2012, A.C., an adult female, was sentenced to probation with six months of jail time as a condition of her probation. In October 2012, A.C. was confined in the William H. Ferris Center, one of Dane County's three jail locations. While A.C. was confined at the William H. Ferris Center, she met Hilgers, a Dane County Sheriff's Department correctional officer.

         ¶3 In December 2012, A.C. was placed in the home detention program pursuant to Wis. STAT. § 302.425(2), and detained at her personal residence, where her movements were restricted and monitored. While A.C. was detained at her personal residence, she and Hilgers began a consensual sexual relationship. Hilgers did not have supervisory authority over A.C. while she was in home detention.

         ¶4 Hilgers was charged with second-degree sexual assault, contrary to WIS. STAT. § 940.225(2)(h), which makes it a criminal offense for a correctional officer to have "sexual contact or sexual intercourse with an individual who is confined in a correctional institution." Hilgers moved to dismiss the case, arguing that his sexual activity with A.C. at her residence did not satisfy the statute's requirement that such activity occur while the convicted person is "confined in a correctional institution." The circuit court denied Hilgers' motion, concluding, as a matter of law, that an individual participating in the home detention program is "confined in a correctional institution."

         ¶5 Thereafter, the case was tried to a jury. At the jury instruction conference, the circuit court proposed that the jury be instructed that "participation in a jail home detention program constitutes confinement in a correctional institution." Hilgers objected, arguing that the court's proposed language was "inappropriate" because a person participating in a home detention program is not confined in a correctional institution. The court overruled Hilgers' objection and the jury was instructed: "[A.C.] ... was confined in a correctional institution. Participation in a jail home detention program constitutes confinement in a correctional institution."

         ¶6 The jury found Hilgers guilty of the charged offense. Hilgers appeals.

         DISCUSSION

         ¶7 WISCONSIN Stat. § 940.225(2)(h) makes it second-degree sexual assault for a correctional staff member to have "sexual contact or sexual intercourse with an individual who is confined in a correctional institution.'" (Emphasis added.) Hilgers contends that an individual who is detained in his or her residence while participating in the home detention program is not "confined in a correctional institution" at that time, but is instead confined in his or her residence. Hilgers argues that because a party detained in his or her home while participating in the program is not "confined in a correctional institution, " the circuit court erred in instructing the jury that A.C. was, as a matter of law, "confined in a correctional institutional." According to Hilgers, the evidence was insufficient under a correct view of the law and, therefore, the evidence was insufficient to support his conviction.

         ¶8 We question whether the sufficiency of the evidence in the circumstances here is measured against the instruction actually given or instead, as Hilgers seemingly assumes, is measured directly against the underlying statute. However, we need not address this topic ...


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