July 1, 2022 – The Wisconsin Supreme Court has ruled that a sexual abuse verdict was supported by reasonable jury inferences, even though the state failed to ask victims specifically whether the statutorily-defined sexual contact occurred during the time periods charged in the complaint.
In State v. Coughlin, 2022 WI 43 (June 21, 2022), the supreme court held (5-1) the state’s failure did not negate the heavy burden that the defendant had to overcome the deference traditionally accorded a jury verdict.
Justice Ann Walsh Bradley wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, Justice Rebecca Grassl Bradley, and Justice Brian Hagedorn. Justice Rebecca Dallet dissented. Justice Jill Karofsky did not participate.
In September 2010, the Juneau County District Attorney charged Donald P. Coughlin with one count of repeated sexual assault of the same child, one count of child enticement, 15 counts of second degree sexual assault of a child, and six counts of first degree sexual assault of a child.
The district attorney charged Coughlin after three men came forward in 2009 and alleged that Coughlin had sexually abused them when they were minors.
The counts were linked to separate time periods and separate victims, some involving Coughlin’s nephew covering periods during the autumns of 1989 to 1992.
The counts involving Coughlin’s younger stepson covered periods during the springs of 1990 to 1994 and the autumns of 1989 to 1994.
Abuse Was Pervasive
At trial, Coughlin’s nephew and two of his stepsons testified that Coughlin sexually abused them many times during the periods at issue, often on a weekly basis, in multiple locations.
Coughlin often abused the boys during the autumn, when he would take the boys out to shine deer. The victims testified that sometimes Coughlin touched himself in their presence. Others times, the victims testified, Coughlin touched them.
Additionally, the victims testified that sometimes Coughlin directed them to touch him, sometimes directed them to touch each other, and sometimes directed them to touch themselves.
Post-conviction Relief Denied
The jury convicted Coughlin of 15 counts of second degree sexual assault of a child (the 16th count was dismissed on a motion by the state); all six counts of first degree sexual assault of a child; and the repeated sexual assault of same child charge. The jury acquitted Coughlin of the child enticement charge.
Coughlin filed for post-conviction relief and asked the circuit court to dismiss all the counts. He argued that there wasn’t a sufficient factual basis to support a conviction on each count.
The circuit court denied Coughlin’s post-conviction motion. The court of appeals affirmed Coughlin’s convictions on six counts involving the older stepson but reversed the 15 convictions involving the younger stepson and the nephew.
The state appealed.
Defendant Bears a ‘Heavy Burden’
Justice A.W. Bradley began her opinion by explaining that when a defendant argues that a verdict lacks sufficient evidence, an appellate court must give deference to the jury’s verdict and view the evidence in the light most favorable to the state.
Where more than one inference is possible, A.W. Bradley noted, an appellate court must adopt the inference that supports the conviction.
“We will not substitute our own judgment for that of the jury unless the evidence is so lacking in probative value and force that no reasonable jury could have concluded, beyond a reasonable doubt, that the defendant was guilty,” Justice A.W. Bradley wrote.
As a result, Justice A.W. Bradley wrote, “‘a defendant challenging the sufficiency of the evidence bears a heavy burden to show the evidence could not reasonably have supported a finding of guilt.”
Direct and Circumstantial Evidence
For the four counts involving the Coughlin’s nephew, Justice A.W. Bradley explained that both circumstantial and direct evidence provided by witnesses at trial supported the jury’s verdict.
The younger stepson testified that the nephew frequently went along with Coughlin and two stepsons when they went out to shine deer. The nephew testified that Coughlin would touch whichever boy was riding in the front seat and that the boys took turns sitting in the front seat.
The nephew also testified that Coughlin abused the boys so regularly and so often that “to say one time for one thing is pretty hard to remember.”
The nephew also testified that Coughlin touched him when he rode in the front seat. The younger stepson testified that he saw the stepson touching Coughlin and Coughlin touching the nephew when they were out deer shining.
“Knowing that deer shining occurs in autumn, that the nephew frequently went deer shining with Coughlin, and that the abuse nearly always occurred during deer shining, the jury could have reasonably inferred that Coughlin touched the nephew or caused the nephew to touch him at least once each autumn from 1989 through 1992,” Justice A.W. Bradley wrote.
The supreme court engaged in a similar analysis to conclude that: 1) the ten counts involving Coughlin’s younger stepson; and 2) the count of repeated sexual assault of a child – which required the jury to find that there were at least three incidents of sexual contact between Coughlin and the younger stepson between Sep. 1, 1994 and Nov. 9, 1994 – were supported by the evidence.
Dissent: Mere Speculation
In her dissent, Justice Dallet argued that the majority was wrong to conclude that just because there was evidence that Coughlin had criminal sexual contact with the victims at some point, the jury could infer that that contact occurred during each specific time period alleged by the state.
“In doing so, the majority papers over the ambiguous testimony regarding exactly what kind of sexual activity happened when,” Dallet wrote. “Specificity matters because some of the sexual activity the victims testified to fits the charges of second-degree sexual assault but some does not.”
Additionally, Justice Dallet pointed out, it wasn’t clear that the conduct that fit the repeated sexual assault of a child occurred during the time period alleged by the state.
“What the court is left with then is evidence showing that sometimes Coughlin committed second-degree sexual assault as charged and sometimes he didn’t,” Justice Dallet wrote. “It fell to the State to clear up that ambiguity and prove beyond a reasonable doubt that, during each specified time period, Coughlin engaged in sexual contact.”
Given that ambiguity, Justice Dallet argued, the jury “could only speculate … which is insufficient to sustain the jury’s verdict.”