United States District Court, E.D. Wisconsin
DARRYL P. BENSON, Petitioner,
REED RICHARDSON, Warden, Respondent.
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
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.
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.
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. Id. at 6-7.
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.
the trial, S.W. testified that Benson sexually assaulted her
a number of times. 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.
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.
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.
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. 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.
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.
closing arguments, the court instructed the jury on the
elements of the offenses. 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
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
Tr. Vol. 6 at 92-93.
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
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.
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
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
Id. at 99-100.
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.
its deliberations, the jury sent the following written