Jaworski v. State

246 N.W.2d 137, 74 Wis. 2d 134, 1976 Wisc. LEXIS 1314

• Court: Wisconsin Supreme Court
• Decided: October 19, 1976
• Docket: 75-330-CR
• Status: Published

Opinions

CONNOR T. HANSEN, J.

We have concluded that a new trial should be ordered in this case on the ground the trial judge abused his discretion in denying plaintiff in error’s motion for a new trial. In view of this conclusion, we do not reach the question whether the evidence, viewed in a light most favorable to the State, was sufficient to prove plaintiff in error’s guilt beyond a reasonable doubt.¹

The victim in this case was a twelve year old girl. She testified that plaintiff in error took her to the basement of an apartment building on the pretext that, they were going to an apartment to drink beer. He put a mattress on the basement floor and forced her down upon it, face up. He placed one of his legs over both of hers. She was screaming. He struck her several times in the face to make her be quiet. She was wearing a pair of red shorts and a white top with short sleeves. He pulled the top off, undid her bra, and began to suck her right breast. Next he put his hands in the waistband of her shorts, down to his thumbs. This caused her shorts to move down slightly. She asked him, “Will you kill my father?” Whereupon, he withdrew his hands from her shorts. Apparently hearing something, he got up and went to the basement door. She attempted to run away, but he caught her. He forced her back down on the mattress and began to suck her breast again. She heard a man’s voice upstairs and plaintiff in error got up and went to the door again. He came back and dragged her to another part of the basement where he made her sit on something and began to suck the breast again. At this point a police officer appeared on the scene who was joined shortly by his partner. Plaintiff in error began to fight with one of the officers. In the course of the struggle, plaintiff in error was shot.

Plaintiff in error testified that the victim had agreed to perform oral intercourse on him in exchange for $10, which he paid her. He denied putting his hands in her shorts. He denied any intention to have sexual intercourse with her. He testified that the arresting officer took the $10 payment from the victim and put it back in his wallet. Moreover, an investigating policewoman made a report of a statement taken from the victim, in the course of which it was represented that the victim stated plaintiff in error gave her $10. The policewoman testified this was a typographical error.

Prior to the commencement of the trial, and again at the close of the State’s case, the prosecutor moved to file an amended information on a reduced charge. These motions were opposed by the trial counsel for plaintiff in error, and were denied by the trial judge.

The charge in this case was attempted rape. The State was required to show that plaintiff in error had done acts toward the commission of the crime of rape which demonstrated unequivocally under all the circumstances, that he intended to perform the acts, constituting the crime and would have done so but for the intervention of another person or some other extraneous factor.² Plaintiff in error argues that the evidence does not show any overt acts on his part which demonstrate unequivocally that he intended to have sexual intercourse with the victim. The State argues that the totality of the plaintiff in error’s conduct demonstrates such an intent. The totality of the circumstances is the standard under which the conduct and acts of the plaintiff in error are to be judged. We do not, however, reach the evidentiary question as we grant a new trial on the grounds that the trial court erred in not allowing the prosecution to file an amended information on a reduced charge.

It is not necessary to move for a new trial in order to preserve errors when the trial has been held to the court sitting without a jury.³ Therefore, it was not necessary to make the new trial motion in order to preserve the claim of insufficiency of the evidence to convict. The test on review of denial of a motion for a new trial is whether the trial judge abused his discretion.⁴

We agree with the trial judge that plaintiff in error’s conduct was despicable and reprehensible. However, we are persuaded that in deciding the motion for new trial the trial judge should have given more consideration than he did to the fact that the prosecutor demonstrated his own doubts as to the evidence by moving to amend the information. Accordingly, we reverse and remand for a new trial. In this case, the State should have been permitted, if it so elected, to amend the information to a more appropriate charge.

By the Court. — Judgment vacated. Order reversed and cause remanded for further proceedings consistent with the opinion.

1 Look v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183.

2 Sec. 939.32(2), Stats.

3 Sec. 974.02(5), Stats.

4 White v. State (1970), 45 Wis.2d 672, 173 N.W.2d 649.