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Benson v. Richardson

United States District Court, E.D. Wisconsin

September 8, 2017

DARRYL P. BENSON, Petitioner,
v.
REED RICHARDSON, Warden, Respondent.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE.

         Following a three-day jury trial in a Wisconsin state court, Darryl Benson was convicted of three counts of first-degree sexual assault of a child. He was sentenced to three consecutive ten-year sentences, with six years of initial confinement and four years of extended supervision on each count. Before me now is Benson's petition for a writ of habeas corpus under 28 U.S.C. § 2254.

         I. BACKGROUND

         On March 4, 2009, the State of Wisconsin filed a criminal complaint against Benson. The complaint alleged that, between February 12, 2009 and February 28, 2009, Benson had sexual contact with his eleven-year-old stepdaughter, S.W. The complaint alleged one count of first-degree sexual assault of a child, in violation of Wis.Stat. § 948.02(1)(e). On March 24, 2009, the state filed an information charging Benson with this offense. See ECF No. 10-2, p. 60 of 143. The case was tried to a jury in June 2009.

         Shortly before trial, the state filed an amended information. See ECF No. 10-2 at pp. 61-62. The amended information charged Benson with four counts of first-degree sexual assault of a child. Count 1 alleged that Benson had “sexual contact” with S.W. at their home on February 12, 2009. Count 2 alleged that Benson had “sexual intercourse” with S.W. at their home on February 12, 2009. Count 3 alleged that Benson had “sexual contact” with S.W. in his car “between February 12, 2009, and March 2, 2009.” Count 4 alleged that Benson again had “sexual contact” with S.W. at their home “after February 12, 2009, but before March 2, 2009.” On the first day of trial, the court and counsel discussed the amended information. See Tr. of Jury Trial, Vol. 1, at 2. The prosecutor explained that the amended information was based on facts testified to by S.W. at the preliminary hearing, and that therefore the defendant had adequate notice of the additional charges. Id. at 3. Benson's counsel agreed that the defense had “received notice that the State, if this matter proceeded to trial, would be filing an amended information.” Id. Defense counsel therefore did not object to the amended information based on inadequate notice. However, defense counsel pointed out that Counts 3 and 4 of the amended information alleged that the sexual assaults occurred as late as March 2, 2009, yet Benson was arrested on February 28th and thus could not have committed the alleged crimes after that date. Id. at 3-4. The prosecutor responded as follows:

[Count 3 of the amended information] states the above-named defendant, between February 12th and I have March 2nd. When I read that, to me “between” means you start on February 13th and end on March 1st and that's why I took days on the outside and everything is in between.
It should be March 1st, it's between those dates, that way February 28th would be included in between. So it's probably correct to amend it from March 2nd to March 1st, 2009, and that applies to Count 4 because it states the above-named defendant after February 12th, which means we would be starting on February 13th but before March 1st, which would include February 28th, that's how I came to those time periods.

Id. at 4-5. After some additional discussion about these dates, the court stated that it would “amend Counts 3 and 4 of the amended information to indicate February 12th, 2009, but before February 28th, 2009.” Id. at 6. Both the prosecutor and defense counsel agreed to the court's oral amendment of the amended information.[1] Id. at 6-7.

         When the trial began and the jurors first entered the courtroom, the court read the amended information to the jury. When the court read Count 3, it told the jury that the count alleged that “between February 12, 2009, and February 28, 2009, ” Benson had sexual contact with S.W. in his car. Id. at 22. As to Count 4, the court stated that it alleged that “after February 12, 2009, but before February 28th, 2009, ” Benson had sexual contact with S.W. at their home. Id. at 22-23.

         During the trial, S.W. testified that Benson sexually assaulted her a number of times.[2] She testified that the first assault occurred at home at about 2:00 a.m. on February 12, 2009. Tr. Vol. 3 at 24-26. S.W. testified that, while she was in the kitchen, Benson “put his penis in [her ] butt.” Id. at 32. Follow-up questions established that by “butt, ” S.W. meant her anus. Id. at 34. She testified that “when he was done with that he put his penis in [her] mouth.” Id. at 36. She testified that Benson also touched her breast and her butt with his hands while they were in the kitchen. Id. at 40. She testified that Benson then put his penis in her butt a second time. Id. at 41. S.W. testified that after all of this she went upstairs to her bedroom, and then Benson came in and licked her vagina. Id. at 40-42.

         S.W. also testified that, on multiple occasions after February 12, 2009, Benson sexually assaulted her while they were in Benson's car. Id. at 25, 47. S.W. testified that, in the car, Benson would force her to touch his penis, and that he would touch her vagina, breast, and butt. Id. at 47, 52. She also testified that, on one occasion, Benson pulled the car over and forced her to put his penis in her mouth. Id. at 51. S.W. could not remember the specific dates on which each of these assaults in the car occurred. Id. at 48.

         S.W. next testified about additional sexual assaults that occurred in the home after February 12, 2009. Id. at 54. Initially, S.W. testified that only one assault occurred in the home after February 12, 2009, and that she could not remember the date on which it occurred. Id. at 54-55. She testified that this assault consisted of Benson's touching her butt with his penis over her clothes and also touching her breasts over her clothes. Id. at 55-57. However, later in her testimony, S.W. stated that Benson made “oral and anal contact” with her at their home six or seven times after February 12, 2009, with each contact occurring on a different day. Tr. Vol. 4 at 66-67.

         S.W.'s mother, Sonya, also testified at the trial. Sonya testified that she learned about Benson's abuse of her daughter on February 27, 2009. That night, Sonya sent Benson to pick up food from a fast-food restaurant in his car, and S.W. went with him. After Benson and S.W. left, Sonya received an apparent “pocket dial” call from Benson's cellular phone. When Sonya picked up her phone, she heard Benson telling someone that she “was going to love fucking daddy's big black dick, that she was going to love sucking daddy's big black dick because your mama ain't fucking me.” Id. at 12- 16. Sonya believed that Benson was talking to S.W. and immediately went to find them.[3] When she found them, Sonya removed S.W. from Benson's car and questioned her about what had happened. S.W. then told her mother that Benson had repeatedly sexually assaulted her. Id. at 20-22.

         Benson testified at the trial in his own defense. He denied making any form of sexual contact with S.W. He claimed that the phone call his wife received was not a pocket dial. Rather, Benson stated that he intentionally called his wife and that the sexually explicit comments she heard were directed towards her, but she was too drunk and high on marijuana to realize that he was talking to her. Benson testified that although S.W. was in the car, S.W. could not hear him make these comments to his wife because she was listening to music through headphones. Tr. Vol. 6 at 68-69.

         Before closing arguments, the court instructed the jury on the elements of the offenses.[4] Because Benson was charged in three counts with making “sexual contact” with a child and one count of having “sexual intercourse” with a child, the court defined both of these terms for the jury:

Sexual contact is an intentional touching of the breasts an[d] anus of [S.W.] by the defendant and/or the defendant intentionally caused or allowed [S.W.] to touch his penis. The touching may be of the breasts, anus, or penis directly, or it may be through the clothing. The touching may be done by any body part or by any object, but it must be an intentional touching. Sexual contact also requires that the defendant acted with the intent to become sexually aroused or gratified.
Sexual intercourse means any intrusion, however slight, by any part of a person's body or of any object into the genital or anal opening of another. Emission of semen is not required.

Tr. Vol. 6 at 92-93.

         The court also instructed the jurors on unanimity:

The defendant is charged with four counts of sexual assault. However, evidence has been introduced of more than one act, any one of which may constitute sexual contact or intercourse.
Before you may return a verdict of guilty, all twelve jurors must be satisfied beyond a reasonable doubt that the defendant committed the same acts and that the acts constituted the crime charged.

Id. at 93-94.

         Towards the beginning of his closing argument, the prosecutor provided the jury with an overview of the charges:

He's charged with four crimes, four separate crimes. And here are the crimes. Count one charges him, but the lable is first degree sexual assault. He is charged with having sexual contact with [S.W.] on February 12th of this year at their home.
Count two charges him with the same label, first degree sexual assault. But rather than contact, he's charged with having sexual intercourse, again, with [S.W.] at their home . . . .
Count three is different. Count three charges him with having sexual contact with [S.W.] in a car, after February 12th and before February 28th, a period of time.
Count four is also different. It's the same label, first degree sexual assault, but it charges him with having sexual contact with [S.W.] at their home, but not on February 12th, between the period of time after February 12th and before February 28th when he was arrested.
That's why there are four charges. Because as she says, this happening started on February 12th involving sexual contact intercourse [sic], and then there was other stuff in the car and other times at home. That's why there are four charges.

Id. at 99-100.

         After closing arguments, the court read the verdict forms to the jury. Id. at 122- 23. The court submitted eight verdict forms, consisting of one guilty verdict and one not guilty verdict for each of the four charges. The verdicts did not reference any specific acts or dates; rather, they were general verdicts that were distinguishable only by the type of sexual assault at issue (sexual contact for Counts 1, 3, and 4, and sexual intercourse for Count 2), and the count of the information. For example, on Count 1, the court submitted the following verdict forms:

We, the jury, find the defendant, Darryl Benson, guilty of first degree sexual assault of a child, sexual contact, as charged in the first count of the information.
We, the jury, find the defendant, Darryl Benson, not guilty of first degree sexual assault of a child, sexual contact, as charged in the first count of the information.

Id. After reading the verdict forms, the court instructed the jury to consider each charge separately:

It is for you to determine whether the defendant is guilty or not guilty of each of the offenses charged. You must make a finding as to each count of the information. Each count charges a separate crime, and you must consider each one separately. Your verdict for the crime charged in one count must not affect your verdict on any other count.

Id. at 123-24.

         During its deliberations, the jury sent the following written ...


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