State v. James P. Killian

2023 WI 52

• Court: Wisconsin Supreme Court
• Decided: June 21, 2023
• Docket: 2020AP002012-CR
• Status: Published

Opinion

2023 WI 52

SUPREME COURT OF WISCONSIN CASE NO.: 2020AP2012-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Appellant-Petitioner, v. James P. Killian, Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 404 Wis. 2d 451, 979 N.W.2d 569 PDC No: 2022 WI App 43 - Published

OPINION FILED: June 21, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 17, 2023

SOURCE OF APPEAL: COURT: Circuit COUNTY: Trempealeau JUDGE: Rian Radtke

JUSTICES: ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.

NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs filed by Kara L. Janson, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Kara L. Janson, assistant attorney general.

For the defendant-respondent, there was a brief filed by Todd E. Schroeder and Schroeder & Lough, S.C., La Crosse. There was an oral argument by Todd E. Schroeder. 2023 WI 52 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP2012-CR (L.C. No. 2019CF163)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant-Petitioner, FILED v. JUN 21, 2023

James P. Killian, Samuel A. Christensen Clerk of Supreme Court

Defendant-Respondent.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of

a published decision of the court of appeals, State v. Killian,

2022 WI App 43, 404 Wis. 2d 451, 979 N.W.2d 569, affirming the

Trempealeau County circuit court's1 order dismissing a criminal

complaint against James Killian as barred by double jeopardy.

We reverse.

1 The Honorable Rian Radtke presided. No. 2020AP2012-CR

¶2 Killian argues the Fifth Amendment's Double Jeopardy

Clause prohibits the State from prosecuting the present case.

According to Killian, the State previously prosecuted him for

the offenses charged in this case because "[t]he evidence the

State intended to submit in the preceding trial was sufficient

to convict [Killian] of all the charges in the current case,"

and "the State intended to amend the charges against [Killian]

during the trial to include charges for which he is again placed

in jeopardy here." Because that case ended in a mistrial

intentionally provoked by the prosecutor——a judicial

determination the parties do not contest here——Killian argues

double jeopardy bars the State's prosecuting the present case.

Killian argues in the alternative that issue preclusion, under

both the Double Jeopardy Clause and the common law, bars the

present case.

¶3 We conclude that Killian's previous trial does not bar

the State from prosecuting the present case because the scope of

Killian's jeopardy in his trial did not include the offenses with which he is now charged. The scope of jeopardy is

established by "the defendant's actual exposure to jeopardy in a

prior prosecution." State v. Schultz, 2020 WI 24, ¶31, 390

Wis. 2d 570, 939 N.W.2d 519. This requires that the defendant

faced a "risk of a determination of guilt" regarding a

particular offense. Serfass v. United States, 420 U.S. 377,

391-92 (1975). Killian was never exposed to the risk of

conviction for the offenses charged in the present case. As a result, the offenses prosecuted in Killian's trial are not 2 No. 2020AP2012-CR

identical in law and in fact to the offenses charged in this

case, so double jeopardy does not bar the present prosecution.

¶4 We also conclude that issue preclusion under the

Double Jeopardy Clause and common law issue preclusion do not

bar the present prosecution. Issue preclusion under the Double

Jeopardy Clause requires a valid judicial determination of

ultimate fact, and none exists in this case because Killian's

trial ended in a mistrial. See Ashe v. Swenson, 397 U.S. 436

(1970). Common law issue preclusion also does not bar this

prosecution. The circuit court's order dismissing with

prejudice the criminal complaint in the first case did not

decide the scope of Killian's jeopardy. Therefore, that issue

was never "actually litigated," and issue preclusion does not

bar the present prosecution. See Aldrich v. LIRC, 2012 WI 53,

¶88, 341 Wis. 2d 36, 814 N.W.2d 433.

¶5 We therefore reverse the court of appeals and remand

to the circuit court to consider Killian's unresolved argument

regarding prosecutorial vindictiveness. I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶6 This case involves Killian's alleged sexual assaults

of two minors: Britney and Ashley.2 On March 17, 2015, the

State charged Killian in Case No. 2015CF47 with one count of

first-degree sexual assault of a child under the age of 12

2 "Britney" and "Ashley" are pseudonyms used in place of the victims' names. The parties used these same pseudonyms in their briefs. See Wis. Stat. (Rule) § 809.86(4) (2021-22). All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

3 No. 2020AP2012-CR

contrary to Wis. Stat. § 948.02. The complaint alleged that,

"on or about Monday, August 18, 2014," Britney, then ten years

old, "was laying on a bed at [a] residence and [Killian] came

in, laid beside her and grabbed her buttocks." The probable

cause section further stated that during a forensic interview,

Britney reported "that Killian had squeezed her butt on five

different occasions starting when she was about eight years old"

and that Killian also "touched her 'boobies' underneath her

clothes" in 2014.

¶7 The State filed a second criminal complaint on

March 15, 2016, in Case No. 2016CF38, charging Killian with

repeated sexual assault of a child contrary to Wis. Stat.

§ 948.025. The complaint alleged, "from April 1994 through

December 1999," Killian sexually assaulted Ashley.

Additionally, the complaint's probable cause section stated

Ashley "had been sexually assaulted by [Killian], starting at

the age of six and ending at 17 years of age . . . start[ing] in

about January 1988 and end[ing] about December 1999." ¶8 The two cases were later joined for trial. On

October 5, 2016, prior to the cases being joined, the circuit

court3 held a hearing in Britney's case on the parties'

respective motions to admit or exclude other-acts evidence. The

circuit court granted the State's motion to admit evidence of

sexual assaults against Ashley that "occurred over a period of

time between January 1988 and December of 1999" to demonstrate

3 The Honorable Anna L. Becker presided.

4 No. 2020AP2012-CR

Killian's "motive, intent, preparation, absence of mistake or

accident, and plan." The court also addressed Killian's motion

to prohibit the State "from using evidence pertaining to other

crimes, wrongs, or acts." The State argued it planned to

introduce evidence of Killian's past interactions with Britney

to show Killian "groomed [Britney] by engaging in behavior that

include[d] asking her if he could be her boyfriend," "[b]uying

her gifts," and "[n]ormalizing the behavior of sleeping with her

in the bed together." Killian did not object to such evidence

of "grooming" but only to "other acts of sexual assault." The

State agreed it was "not alleging that [Killian] touched

[Britney] outside of anything that was alleged here." The State

then said it would not object, and the court granted Killian's

motion to exclude evidence of other acts of sexual assault

against Britney.

¶9 On June 15, 2017, four days before Killian's trial,

the State filed a motion for leave to amend the Information.

The proposed Amended Information included in Ashley's case one count of incest with a child contrary to Wis. Stat. § 948.06.

The proposed Amended Information also expanded the charging

period for Britney's case from "on or about Monday, August 18,

2014" to "on or between January, 2014 to August 18, 2014."

¶10 The circuit court discussed the State's motion with

the parties in the morning on the first day of trial. Due to

the State's delay, the court denied the addition of the incest

charge. The prosecutor then commented that "maybe the proof at the trial will be sufficient to convince the Court that more 5 No. 2020AP2012-CR

sexual intercourse occurred which would be a basis for this

charge." In response, the court reiterated how "the state's

lack of preparation should not prejudice the defendant" and made

clear, "I'm not going to allow [the amendment]."

¶11 As for the expanded charging period in Britney's case,

Killian's counsel expressed concern about how "the act that's

charged is a single act" and that the State was "attempting

to . . . expand the date range in the hopes that it would make

admissible evidence of other allegations that have not been

charged." Defense counsel also reminded the court of the other-

acts ruling in October and said, "So even if the date range were

widened, I would argue that at this point, it would be

inadmissible to bring in allegations of sexual contact." He

reiterated, "[W]e came here to defend an alleged sexual contact

that occurred on August 18th. And I think at the same time,

this raises concerns that are even more broad than this one

count." The prosecutor responded, "I think it's quite clear

that we do not have to prove the actual date of the allegation," and clarified, "[O]f course, [Killian is] correct. We are

charging one sole act." He further noted the possibility of

amending the Information:

Interestingly, it appears to me that if more acts are disclosed at trial, the Information could be changed. And it could, in fact, I think naturally prejudice the defendant more. But I don't think that's unusual. It happens at trial that more facts are accused and Informations are changed and juries deliberate on multiple issues.

6 No. 2020AP2012-CR

The circuit court clarified that the State was "not alleging

there were additional things that happened. . . . [I]t's the

same events or package that we've heard about all along.

Nothing new." The prosecutor confirmed but nonetheless

included, "If more facts are introduced at trial, the Court can

amend the Information and give that instruction to the jury."

¶12 The court allowed the expanded date range, but only

for purposes of establishing "when exactly [the alleged act of

grabbing Britney's buttocks] happened on the calendar." Defense

counsel sought clarification "that there can be no reference to

other alleged touching that would constitute sexual assault of

any kind," and the court agreed: "If there were intentions to

introduce those at trial, then those were required to have been

addressed and they were not addressed at all. So there's

already been a ruling on that."

¶13 The trial commenced later that same day. During the

prosecutor's opening statement, he told the jury Killian "would

rub himself on [Britney]." The prosecutor continued, describing to the jury how, on one occasion, Killian "was rubbing himself

on [Britney]. And by himself, I mean his penis. Erect.

Rubbing on her. . . . It's an unmistakable course of conduct."

With regard to Ashley, the prosecutor told the jury they would

hear testimony that Killian "started molesting her at about 6 or

7 years old [1988–89] and didn't stop until she was about 17

[1999]. So approximately 10 years."

7 No. 2020AP2012-CR

¶14 On the second day of trial, just before Britney

testified, the prosecutor argued to the court that he could

introduce other acts of sexual assault against Britney:

I re-reviewed the Criminal Complaint. What is on trial, the course of conduct, there was a motion in limine filed by the defense regarding other acts. I believe we could bring all that out. Look at the court minutes. I don't think these are other acts. I think they're a course of conduct. They're relevant. They set the stage for our allegation of sexual contact. And I think although there is one incident charged, the state doesn't have to charge every incident. The state had discretion. But in the Complaint, the course of conduct is there. The different things that she says happened. Defense counsel objected to the State's introducing other acts

of sexual assault and reminded the court of its previous

ruling: "[I]f there's an other act that would constitute sexual

conduct, I'm going to be objecting and asking for a mistrial if

that comes out at any point in this trial because that's been

thoroughly litigated and decided as of yesterday again." The

prosecutor further argued that "the way to address this is let

[Britney] speak. . . . [I]f there's more information, more charges can be brought. The [I]nformation can be changed." The

court rejected such a possibility. It reminded the prosecutor,

"[T]here was a ruling on that. . . . You're changing the game

on them. If you wanted to include that, then we should have

addressed that." The prosecutor continued, "Anything could

happen when she testifies. I don't know. But if she starts to

speak about a vagina rub or him rubbing his penis on her leg, I can't control that. And if she does that, then I guess [defense

8 No. 2020AP2012-CR

counsel's] going to move for a mistrial." The court warned the

prosecutor, "It will be a mistrial because you didn't, again,

prepare for trial adequately until the last moment." The

circuit court reminded the parties that the offense "charged in

the Complaint . . . was the butt[-grab]," and the court

thoroughly explained its ruling because it was "concerned about

a mistrial":

[T]he state can bring in anything that they would like to regarding other acts that are grooming type activities but not other sexual assaults because those should have been properly dealt with when we talked about the motions that were filed for other acts. I think these are clearly allegations that were other acts of sexual assault that go to your concerns. But that wasn't what the argument was when we had those.

So I don't think at this point, it's appropriate to allow that in. I think there are other ways that the Court has less prejudicial or the ability to make this less confusing for the jury so that they understand what the exact one is that's being accused here which is the one dating back to August 18th. ¶15 After the court reaffirmed its other-acts ruling,

Britney took the stand. She testified first about Killian's

grooming behaviors, such as engaging her in conversations about

sex. The following exchange then took place:

Q. So so far, we've talked about mostly conversations about sex, right?

A. Yes.

Q. Did you tell [your mother] something else relating to a private part of your body?

A. When I told her that one day when we were in bed he was rubbing my back and he rubbed -- he was rubbing my stomach. So he rubbed up and he rubbed on my

9 No. 2020AP2012-CR

breasts. And then when he was done, he rubbed on my private spot. It was just a swift rub. Defense counsel objected and moved for a mistrial, which the

court granted. The court later found "that the prosecutor's

actions were intentional" and "designed to create another chance

to convict, and was an act done so as to allow the State another

'kick at the cat.'" The court therefore concluded that "the

State is barred from retrial in this matter due to prosecutorial

overreaching," and it dismissed the case with prejudice. The

State did not appeal the circuit court's decision, and it does

not dispute the circuit court's finding of prosecutorial

overreach.

¶16 On October 1, 2019, the State filed a new criminal

complaint against Killian in the case now before us. The

complaint contained the following counts:

Count 1: First-degree sexual assault of a child contrary

to Wis. Stat. § 948.02(1) (1989-90) against Ashley "in or around

1990 to 1991."

Count 2: First-degree sexual assault of a child contrary to Wis. Stat. § 948.02(1) (1989-90) against Ashley "in or around

Count 3: Incest with a child contrary to Wis. Stat.

§ 948.06(1) (1989-90) against Ashley "in or around 1990 to

1991."

Count 4: First-degree sexual assault of a child contrary

to Wis. Stat. § 948.02(1) (1991-92) against Ashley "in or around 1992 to 1993."

10 No. 2020AP2012-CR

Count 5: Incest with a child contrary to Wis. Stat.

§ 948.06(1) (1991-92) against Ashley "in or around 1992 to

1993."

Count 6: Incest with a child contrary to Wis. Stat.

§ 948.06(1) (1993-94) against Ashley "in or around 1993 to

1994."

Count 7: Incest with a child contrary to Wis. Stat.

§ 948.06(1) (1993-94) against Ashley "in or around 1994 to

1995."

Count 8: Incest with a child contrary to Wis. Stat.

§ 948.06(1) (1995-96) against Ashley "in or around 1995 to

1996."

Count 9: Incest with a child contrary to Wis. Stat.

§ 948.06(1) (1995-96) against Ashley "in or around 1996 to

1997."

Count 10: Repeated acts of sexual assault of the same

child contrary to Wis. Stat. § 948.02(1) (2011-12), "namely

[Britney]," "in or around June 2012, and no later than August 17, 2014."

¶17 Killian thereafter filed a motion to dismiss the

State's new charges. He argued dismissal was required because

"this action violates Judge Becker's Order declaring that the

mistrial in Case No. 15-CF-47 was caused by prosecutorial

overreaching and that any retrial of this matter would violate

11 No. 2020AP2012-CR

the defendant's . . . right to be free from Double Jeopardy."4

In an oral ruling, the circuit court observed, "In a strict

comparison of the Complaints in 15-CF-48 (sic) and 19-CF-163 of

the charged offenses under Blockburger,[5] the time frames and

elements are different and would pass the Blockburger test."

The court nonetheless concluded the second prosecution violates

double jeopardy because "[t]he State's plan was to bring all of

the alleged acts into trial and then seek to amend the

Information after testimony to conform to the evidence." The

court also viewed the order dismissing the first prosecution as

"meant to encompass future prosecutions involving the same facts

alleged in 15-CF-47 where additional charges may be added in

future prosecutions." The circuit court therefore concluded

Killian's scope of jeopardy, "in light of the record, which

includes Judge Becker's order, includes all facts contained in

the Complaints that were later joined and amended, including

acts in the Complaints that were not specifically the basis for

the charged offenses in 15-CF-47, and also facts raised at trial."

¶18 The State appealed, and the court of appeals affirmed.

The court of appeals concluded "that the circuit court properly

considered the entire record of the first prosecution to

determine whether Killian was in jeopardy for the offenses now

4Killian also has a prosecutorial vindictiveness argument pending in the circuit court. The circuit court never ruled on that issue, and it was not raised on appeal. 5 Blockburger v. United States, 284 U.S. 299 (1932).

12 No. 2020AP2012-CR

charged," and it "agree[d] with the circuit court in this case

that Killian was, in fact, in jeopardy of being convicted of the

offenses now charged." Killian, 404 Wis. 2d 451, ¶4. The State

petitioned this court for review, which we granted.

II. STANDARD OF REVIEW

¶19 "The issue of whether a person's right to be free from

double jeopardy has been violated presents a question of law

that we review de novo." State v. Trawitzki, 2001 WI 77, ¶19,

244 Wis. 2d 523, 628 N.W.2d 801. "The application of issue

preclusion to a set of facts is a question of law, which this

court reviews without deference to the lower courts." State v.

Canon, 2001 WI 11, ¶7, 241 Wis. 2d 164, 622 N.W.2d 270.

III. ANALYSIS

¶20 We begin our review by discussing general principles

of double jeopardy and how to ascertain a defendant's scope of

jeopardy in a previous trial. We then examine Killian's scope

of jeopardy in the previous trial and conclude the present

prosecution does not place him in jeopardy for any of the same offenses. Finally, we conclude issue preclusion also does not

bar the present prosecution.

A. General Double Jeopardy Principles

¶21 Under the Fifth Amendment to the United States

Constitution, "No person shall be . . . subject for the same

offence to be twice put in jeopardy of life or limb . . . ."

U.S. Const. amend. V; see also Wis. Const. art. I, § 8, cl. 1

13 No. 2020AP2012-CR

("[N]o person for the same offense may be put twice in jeopardy

of punishment . . . .").6

¶22 "Over 40 years ago, we held that two prosecutions are

for the 'same offense,' and therefore violate the Double

Jeopardy Clause, when the offenses in both prosecutions are

'identical in the law and in fact.'" Schultz, 390 Wis. 2d 570,

¶22 (quoting State v. Van Meter, 72 Wis. 2d 754, 758, 242

N.W.2d 206 (1976)). Two offenses are not "identical in law"

where "each provision requires proof of a fact which the other

does not." Blockburger v. United States, 284 U.S. 299, 304

(1932). Further, offenses are not "identical in fact" where

"allegation of substitute facts, all of which furnish the same

legal element of the crime, . . . are either separated in time

or are of a significantly different nature in fact." State v.

Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980) (footnote

omitted).

¶23 "[A] motion by the defendant for mistrial is

ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or

judicial error." United States v. Jorn, 400 U.S. 470, 485

(1971) (footnote omitted). However, as the United States

Supreme Court has held, "Only where the governmental conduct in

question is intended to 'goad' the defendant into moving for a

mistrial may a defendant raise the bar of double jeopardy to a

6"Our tradition is to view these provisions as identical in scope and purpose." State v. Davidson, 2003 WI 89, ¶18, 263 Wis. 2d 145, 666 N.W.2d 1.

14 No. 2020AP2012-CR

second trial after having succeeded in aborting the first on his

own motion." Oregon v. Kennedy, 456 U.S. 667, 676 (1982). The

circuit court in Killian's first prosecution made a factual

finding that the prosecutor engaged in misconduct, a finding the

State did not appeal and does not dispute here. Therefore, any

offenses in the present prosecution that are identical in law

and in fact to an offense in the prior prosecution are barred by

double jeopardy.

¶24 Before we can analyze whether the offenses in this

prosecution are identical in law and in fact to any offenses in

the prior prosecution, we must first discern the scope of

Killian's jeopardy during that prior prosecution. It is a

"fundamental principle that an accused must suffer jeopardy

before he can suffer double jeopardy." Serfass, 420 U.S. at

393. "The ambit of the constitutional bar to subsequent

prosecution is coextensive with the scope of jeopardy created in

the prior prosecution." 22A C.J.S. Crim. Proc. & Rts. of

Accused § 618 (2023). If the offenses now prosecuted were not previously within the scope of Killian's jeopardy, then

prosecuting those offenses in this case could not violate double

jeopardy.

B. Determining The Scope of Jeopardy.

¶25 Related to the scope of jeopardy is the method for

determining when jeopardy attaches. See Crist v. Bretz, 437

U.S. 28, 38 (1978) (quoting Bretz v. Crist, 546 F.2d 1336, 1343

(9th Cir. 1976)) ("[T]he time when jeopardy attaches in a jury trial 'serves as the lynchpin for all double jeopardy 15 No. 2020AP2012-CR

jurisprudence.'"). "[T]he conclusion that jeopardy has attached

begins . . . the inquiry as to whether the Double Jeopardy

Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 467

(1973). "Jeopardy attaches when a person has been placed on

trial on a valid indictment or information before a court of

competent jurisdiction, has been arraigned and has pleaded, and

a jury has been impaneled and sworn, and charged with his

deliverance." State v. B——, 173 Wis. 608, 617, 182 N.W. 474

(1921). In other words, jeopardy attaches when "an accused has

been subjected to the risk of conviction." Serfass, 420 U.S. at

392. "Without risk of a determination of guilt, jeopardy does

not attach, and neither an appeal nor further prosecution

constitutes double jeopardy." Id. at 391-92. It follows that

if a defendant was never subject to the "risk of a determination

of guilt" of an offense, then jeopardy never attached for that

offense, and it is not within the scope of jeopardy.7

¶26 In Serfass, the Supreme Court addressed whether

jeopardy attached where charges for "willfully failing to report for and submit to induction into the Armed Forces" were

We recognize that our decision in State v. Schultz 7

contained a footnote stating, "The point at which jeopardy attaches has nothing to say about the actual scope of jeopardy." 2020 WI 24, ¶24 n.13, 390 Wis. 2d 570, 939 N.W.2d 519. However, that footnote merely explained that "[t]he time at which jeopardy attaches does not lock in the scope of jeopardy." Id. Though true the scope of jeopardy may change after the point in time when jeopardy initially attaches, this does not affect the method by which jeopardy must attach. Jeopardy may expand to include additional offenses the same way it initially attached: by placing the defendant at risk of a determination of guilt of an additional offense.

16 No. 2020AP2012-CR

dismissed, prior to trial, because the "local board did not

state adequate reasons for its refusal to reopen [the

defendant's Selective Service] file." Id. at 379. The Court

noted that it "has consistently adhered to the view that

jeopardy does not attach, and the constitutional prohibition can

have no application, until a defendant is 'put to trial before

the trier of facts, whether the trier be a jury or a judge.'"

Id. at 388 (quoting Jorn, 400 U.S. at 479). Because the charges

were earlier dismissed, "[t]he District Court was without power

to make any determination regarding [defendant's] guilt or

innocence." Id. at 389.

¶27 The Court also rejected the argument that dismissal

"was the 'functional equivalent of an acquittal on the merits'

and 'constructively jeopardy had attached.'" Id. at 390.

Finding this argument "divorced from the procedural context,"

the court reemphasized that jeopardy attaches when "an accused

has been subjected to the risk of conviction" by "a trier

'having jurisdiction to try the question of the guilt or innocence of the accused.'" Id. at 391-92 (quoting Kepner v.

United States, 195 U.S. 100, 133 (1904)).

¶28 The Supreme Court later doubled down on this rule in

United States v. Felix, 503 U.S. 378, 385 (1992). The criminal

defendant in Felix was first charged in the Western District of

Missouri with "attempting to manufacture [methamphetamine]

between August 26 and August 31, 1987," and the conduct

underlying the charge was the defendant's "order[ing] precursor chemicals and equipment for the manufacture of methamphetamine 17 No. 2020AP2012-CR

to be delivered to him at Joplin, Missouri." Id. at 380. At

his trial, "the Government introduced evidence that [the

defendant] had manufactured methamphetamine in Oklahoma earlier

in 1987" in order to prove his "criminal intent with respect to

the items delivered in Missouri." Id. at 381. He was convicted

and later charged a second time in the Eastern District of

Oklahoma. Id. at 381-82. The conduct underlying some of the

charges in the Oklahoma case was the same conduct the government

used as evidence of intent in the Missouri case. Id. at 382-83.

¶29 The Court found no double jeopardy violation,

rejecting the notion "that if the Government offers in evidence

in one prosecution acts of misconduct that might ultimately be

charged as criminal offenses in a second prosecution, the latter

prosecution is barred under the Double Jeopardy Clause." Id. at

386. The Court's "precedents hold that a mere overlap in proof

between two prosecutions does not establish a double jeopardy

violation" and have explicitly "disclaimed any intention of

adopting a 'same evidence' test." Id. at 386 (citing Grady v. Corbin, 495 U.S. 508, 521 & n.12 (1990); Gavieres v. United

States, 220 U.S. 338 (1911); Dowling v. United States, 493 U.S.

342 (1990)). Thus, the Court reaffirmed "the basic, yet

important, principle that the introduction of relevant evidence

of particular misconduct in a case is not the same thing as

prosecution for that conduct." Id. at 387.

¶30 Recently, we also weighed in on the question of how to

determine the scope of a defendant's jeopardy. In Schultz, 390 Wis. 2d 570, the defendant was charged in a criminal complaint 18 No. 2020AP2012-CR

with repeated sexual assault of a child during "late summer to

early fall of 2012." Id., ¶5. No evidence at trial indicated

any such acts of sexual assault occurred in October 2012, and

the prosecutor in closing argument stated "the assaults started

in July and ended in September 2012." Id., ¶¶8-9. The

defendant was acquitted but later charged again, this time with

sexual assault of a child under the age of 16 "on or about

October 19, 2012." Id., ¶11. The issue was whether the scope

of jeopardy in the trial included the offense of sexual assault

"on or about October 19, 2012."

¶31 In line with the Supreme Court's decisions in Serfass

and Felix, we focused our inquiry on "the defendant's actual

exposure to jeopardy in a prior prosecution." Schultz, 390

Wis. 2d 570, ¶31. We decided "examining the entire record,

including evidentiary facts adduced at trial," is relevant to

discerning the scope of jeopardy in a prior trial. Id., ¶32.

However, in reaching this conclusion, we also clarified that the

focus of the inquiry remains on the defendant's "actual exposure to jeopardy," not on the parties' subjective understandings

concerning the scope of jeopardy. Id., ¶¶24-25, 31.

"Jeopardy," as we explained, includes "the actual danger to

which a person is exposed, as opposed to the danger a person

fears." Id., ¶31. It is not based "on the criminal defendant's

fears, beliefs, or perceptions regarding his exposure in the

first prosecution." Id. Furthermore, we declined the

invitation to adopt the "reasonable person" test for discerning the scope of jeopardy espoused by the Second Circuit in United 19 No. 2020AP2012-CR

States v. Olmeda, 461 F.3d 271 (2d Cir. 2006). Schultz, 390

Wis. 2d 570, ¶¶45-50. The proposed test was "whether 'a

reasonable person familiar with the totality of the facts and

circumstances would construe the initial indictment, at the time

jeopardy attached in the first case, to cover the offense that

is charged in the subsequent prosecution.'" Id., ¶46 (quoting

Olmeda, 461 F.3d at 282). We rejected this test as unsupported

in the case law and contrary to the language of the Fifth

Amendment, which contemplates actual jeopardy, not perceived

jeopardy. Id., ¶¶47-49.

¶32 Killian relies heavily on the "entire-record" analysis

we used in Schultz. According to Killian, the present case

violates double jeopardy because "[t]he evidence the State

intended to submit in the preceding trial was sufficient to

convict [Killian] of all the charges in the current case." He

argues this evidence established jeopardy of conviction for "a

broad range of conduct beyond the charging document" because

"the State presented the conduct underlying the subsequent prosecution not as other act evidence in the first trial but

with the intent to include the evidence as charges in an

amendment." See Wis. Stat. § 971.29(2).

¶33 We do not read Schultz to be quite so broad. We agree

with Killian, as we stated in Schultz, that "[i]t is the record

as a whole . . . which provides the subsequent protection from

double jeopardy, rather than just the indictment." Schultz, 390

Wis. 2d 570, ¶30 (quoting United States v. Roman, 728 F.2d 846, 854 (7th Cir. 1984)). However, when ascertaining the scope of 20 No. 2020AP2012-CR

jeopardy, the analysis must nonetheless focus on the defendant's

actual jeopardy——"the actual danger" of conviction. Id., ¶31;

Serfass, 420 U.S. at 391-92.

¶34 Schultz framed the question, as applied to the facts

of that case, as "whether the initial charge for repeated sexual

assault of a child during the timeframe of 'late summer to early

fall of 2012' includes the date charged in the second

prosecution for sexual assault of a child 'on or about

October 19, 2012.'" Schultz, 390 Wis. 2d 570, ¶33. To answer

this question, "[w]e beg[a]n our analysis with the complaint

charging [the defendant] in the initial prosecution." Id., ¶34.

After analyzing the complaint's language, along with a police

report incorporated by reference, we concluded the complaint

"clearly identifie[d] [the defendant's] scope of jeopardy in the

first prosecution at the time jeopardy attached." Id., ¶36. We

then continued to examine the record at trial, but only "to see

if anything suggest[ed] 'early fall' extended past mid-September

to include October 19, 2012." Id., ¶37. The focus of the analysis was always on the defendant's actual jeopardy as

established by the language in the criminal complaint. The

trial record helped inform this analysis by providing evidence

of what exactly the complaint meant by "early fall."

¶35 Schultz never suggested that the trial record, and the

trial record alone, could expand the defendant's scope of

jeopardy beyond the jeopardy created by a fair reading of the

charging documents. After all, "[t]he defendant cannot be convicted," and the court is "without jurisdiction to convict" 21 No. 2020AP2012-CR

the defendant, "of a crime for which he is not charged." State

ex rel. Winnie v. Harris, 75 Wis. 2d 547, 553, 249 N.W.2d 791

(1977); see also Malaga v. United States, 57 F.2d 822, 825 (1st

Cir. 1932) ("Even though the evidence warranted it, the

respondent could not be convicted of an offense with which he

was not charged."); State v. Rogers, 545 P.2d 930, 932 (Ariz.

1976) ("It is basic that a person cannot be convicted of an

offense not charged against him by indictment or information.");

In re Hess, 288 P.2d 5, 7 (Cal. 1955) ("A person cannot be

convicted of an offense . . . not charged against him by

indictment or information, whether or not there was evidence at

his trial to show that he had committed that offense."). Were

we to conclude jeopardy could attach based on "[t]he evidence

the State intended to submit in the preceding trial" alone, this

would contravene the Supreme Court's holding in Felix "that a

mere overlap in proof between two prosecutions does not

establish a double jeopardy violation."8 503 U.S. at 386.

¶36 The fact that the information may be amended to conform to the evidence presented at trial does not affect our

analysis. Under Wis. Stat. § 971.29(2),

At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed

If we ascribed a broader meaning to our holding in 8

Schultz, 390 Wis. 2d 570, it would bar subsequent prosecutions based simply on evidence related to uncharged crimes. Schultz cannot be interpreted to bar a later prosecution based just on that evidence.

22 No. 2020AP2012-CR

amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial. But before the information may be amended to conform to the

evidence, such evidence must have been admitted at trial.

Evidence in a criminal trial is inadmissible unless it is

relevant to the defendant's guilt or innocence of a crime

charged at the time the evidence is introduced. See Wis. Stat.

§ 904.02 ("Evidence which is not relevant is not admissible.");

cf. State v. Alsteen, 108 Wis. 2d 723, 731, 324 N.W.2d 426 (1982) (stating evidence "must be relevant to an issue in the

case to be admissible"). If evidence is relevant and therefore

admitted, then the defendant is in jeopardy insofar as that

evidence is being used to prove the charged offense. See Felix,

503 U.S. at 379. Even if that same evidence could be relevant

to proving some other offense, jeopardy for that offense does

not attach until the defendant faces the "risk of a

determination of guilt" with regard to that offense. Serfass,

420 U.S. at 391-92. Until the Information is actually amended,

there exists no such risk, and therefore no jeopardy. ¶37 Likewise, we disagree with Killian that a prosecutor's

introducing evidence merely with intent to bring additional

charges can expand the scope of jeopardy. We similarly rejected

analyzing the parties' states of mind as a method for discerning

the scope of jeopardy in Schultz. See 390 Wis. 2d 570, ¶¶24-25,

31, 49. Just like the proposed tests in Schultz, Killian's

proposed intent-based test runs contrary to the Fifth Amendment's requirement of actual jeopardy. Regardless of the

23 No. 2020AP2012-CR

prosecutor's intentions, the Information could not be amended

without leave of the court. Wis. Stat. § 971.29(2).

¶38 We therefore hold that, where a trial ends in a

mistrial,9 the defendant's scope of jeopardy consists of those

offenses for which the defendant faced actual danger of

conviction, meaning the defendant was exposed to the "risk of a

determination of guilt" regarding those offenses.10 Serfass, 420

U.S. at 391-92. The inquiry should focus on the charging

documents, but the entire record may be examined if necessary to

confirm the scope of jeopardy as established by those charging

documents. Schultz, 390 Wis. 2d 570, ¶¶33–40. "[M]ere overlap

in proof between two prosecutions does not establish a double

jeopardy violation," Felix, 503 U.S. at 386, nor does the

prosecutor's intent. The inquiry must always focus on "the

defendant's actual exposure to jeopardy in a prior prosecution."

Schultz, 390 Wis. 2d 570, ¶31.

C. Whether Killian Was Twice Put In Jeopardy.

"[F]or purposes of barring a future prosecution, it is the 9

judgment and not the indictment alone which acts as a bar, and the entire record may be considered in evaluating a subsequent claim of double jeopardy." Schultz, 390 Wis. 2d 570, ¶30 (quoting United States v. Hamilton, 992 F.2d 1126, 1130 (10th Cir. 1993)).

This "risk" refers to the possibility that a jury might 10

find the defendant guilty of the crime charged. It does not refer to the possibility that a jury might consider conduct which could constitute an otherwise uncharged offense. The Constitution requires that there be actual as opposed to hypothetical jeopardy. Id., ¶31.

24 No. 2020AP2012-CR

¶39 We now turn to the issue of whether Killian's second

prosecution violates double jeopardy. We conclude it does not.

¶40 Killian argues he was in jeopardy with regard to

certain offenses against Britney because, "[i]n the State's

opening in the first trial, the State explained it would present

evidence regarding 'a course of conduct,' including the

defendant 'touching her inappropriately' and 'rub[bing] [his

penis] on her." Killian also points to the prosecutor's

statement to the circuit court that he could present evidence of

"a breast rub . . . alleged humping, penis rubbing . . . also a

vaginal rub." "With respect to Ashley," Killian argues he was

in jeopardy because "the State explained to the empaneled jury,

the evidence will show that [Killian] sexually assaulted Ashley

from when she was about 6 years old until she was 17," from 1988

to 1999. According to Killian, the prosecutor's attempts to

introduce this evidence, combined with his intent to amend the

Information, constituted an "active pursuit of convictions in

front of an empaneled jury [which] created the actual jeopardy." ¶41 We disagree. A review of the entire record, with a

focus on Killian's actual exposure to jeopardy, reveals a far

more limited scope of jeopardy than Killian contends. Killian

was never in jeopardy of being convicted for these offenses

because he was never exposed to a risk of a determination of

guilt regarding these offenses.

¶42 The entire record demonstrates that the only alleged

offense against Britney for which Killian faced a possible determination of guilt was the allegation that he grabbed 25 No. 2020AP2012-CR

Britney's buttocks. The Amended Information included one count

of sexually assaulting Britney "on or between January, 2014 to

August, 2014." The probable cause section of the original

complaint alleged Killian "grabbed her buttocks" in that time

period. During the October 5, 2016 motion hearing, the

prosecutor confirmed that the State was not alleging any acts of

sexual assault beyond touching Britney's buttocks, and the court

issued an order excluding evidence of other acts of sexual

assault against Britney. While discussing the Amended

Information on the first day of trial, the circuit court further

confirmed with the prosecutor that the State was "not alleging

there were additional things that happened." Any other acts of

sexual assault, the court emphasized, "were required to have

been addressed and they were not addressed at all." The court

repeated this ruling before Britney's testimony, and it granted

a mistrial when the prosecutor violated that ruling. The

circuit court made it abundantly clear that Killian was not at

risk of being convicted for any act of sexual assault against Britney other than grabbing her buttocks.

¶43 As for the alleged offenses against Ashley, Killian

was in jeopardy of being convicted for committing repeated

sexual assault "from April, 1994 through December, 1999." The

court denied the State's motion to include a count for incest,

meaning that offense was never before the jury. Though the

prosecutor in his opening statement told the jury Killian

"started molesting [Ashley] since she was about 6 or 7 years old [1988-89] and didn't stop until she was about 17 [1999]," this 26 No. 2020AP2012-CR

clearly goes beyond the date range in the Information. In

contrast with the Information in Schultz, there is no reading of

"April, 1994 through December, 1999" that also includes 1988 to

1993. The only time period the jury could consider was that

listed in the Information: "from April, 1994 through December,

1999."

¶44 Furthermore, the prosecutor's stated intention to

amend the Information and add more charges at the close of

evidence did not expand the scope of Killian's jeopardy. The

prosecutor's intent alone was insufficient to put Killian at

risk of a determination of guilt. The jury would have had no

ability find Killian guilty of any additional offenses unless

and until that amendment took place. No such amendment ever

took place, so jeopardy never attached.

¶45 Accordingly, we conclude the scope of Killian's

jeopardy in his trial included the following offenses: sexually

assaulting Britney by grabbing her buttocks "on or between

January, 2014 to August 18, 2014" contrary to Wis. Stat. § 948.02, and repeated sexual assault of Ashley "from April,

1994 through December, 1999" contrary to Wis. Stat. § 948.025.

¶46 Having ascertained the scope of Killian's jeopardy in

his first prosecution, we proceed to the question of whether

Killian's jeopardy in his second prosecution is identical in law

and in fact. To repeat, "two offenses are identical in law if

one offense does not require proof of any fact in addition to

those which must be proved for the other offense." State v. Ziegler, 2012 WI 73, ¶60, 342 Wis. 2d 256, 816 N.W.2d 238. 27 No. 2020AP2012-CR

Offenses "are not identical in fact if the acts allegedly

committed are sufficiently different in fact to demonstrate that

separate crimes have been committed." Id.

¶47 In the present prosecution, counts 3 and 5 through 9

are not identical in law to an offense in Killian's first

prosecution. Those counts allege Killian committed incest

against Ashley contrary to Wis. Stat. § 948.06. To prove

incest, the State must show the defendant "kn[ew] [the child

victim] is related, either by blood or adoption, and the child

is related in a degree of kinship closer than 2nd cousin."

§ 948.06. The crime of repeated sexual assault of a child under

Wis. Stat. § 948.025, charged in the first case, contains no

similar element. The crime of incest also requires proof that

the victim "ha[d] not attained the age of 18 years." Wis. Stat.

§ 948.01(1) (defining "child"). In contrast, repeated sexual

assault of a child requires proof that the victim "ha[d] not

attained the age of 16 years." Wis. Stat. §§ 948.025, 948.02.

The statute also requires proof of "3 or more violations." Id. Counts 3 and 5 through 9 charging Killian with committing incest

against Ashley therefore do not violate double jeopardy because

each offense "require[s] proof of a[] fact in addition to those

which must be proved for the other offense." Ziegler, 342

Wis. 2d 256, ¶60; see also State v. Swanson, No. 2015AP1521-CR,

unpublished slip op., ¶42 (Wis. Ct. App. Mar. 7, 2017)

(concluding Wis. Stat. §§ 948.06 and 948.025 are not identical

in law under the Blockburger test).

28 No. 2020AP2012-CR

¶48 Counts 1 through 5 do not violate double jeopardy

because they are not identical in fact to an offense in

Killian's first prosecution. Counts 1 through 5, which allege

offenses against Ashley, are factually different because they

cover different timeframes than the offense in Killian's first

prosecution. Whereas the timeframe in the first prosecution was

"April, 1994 through December, 1999," counts 1 through 5 allege

various offenses "in or around" 1990 to 1993. This precedes the

timeframe for the offenses against Ashley prosecuted in the

previous case, making these counts not identical in fact.

¶49 Count 10, the only count alleging an offense against

Britney, is also not identical in fact to an offense in the

previous case. The State prosecuted Killian in the first case

for grabbing Britney's buttocks "on or between January, 2014 to

August 18, 2014." Count 10 alleges Killian committed repeated

acts of sexual assault against Britney "in or around June 2012,

and no later than August 17, 2014." Though there is some

overlap in the time period and the complaint's probable cause section alleges Killian "grabbed [Britney's] butt," the

complaint also alleges other acts of sexual assault. It alleges

Killian grabbed Britney's buttocks five times and that only one

of these times was on August 18, 2014. It also alleges Killian

"touched her 'boobies,'" "hump[ed]" her, and "touched her

'private part.'" These acts "are significantly different in

nature, involving different methods of intrusion and contact."

Ziegler, 342 Wis. 2d 256, ¶73. Count 10 is therefore not identical in fact to an offense prosecuted in the previous case, 29 No. 2020AP2012-CR

and it does not violate double jeopardy to the extent it alleges

acts of sexual assault other than grabbing Britney's buttocks

"on or between January, 2014 to August 18, 2014."

¶50 Because no count in the present prosecution is

identical both in law and in fact with an offense charged in

Killian's previous prosecution, the present case is not a

prosecution for the same offense and does not violate Killian's

right against double jeopardy.

D. Issue Preclusion

¶51 Finally, Killian raises issue preclusion as a

potential bar to prosecution in this case. Specifically,

Killian argues that issue preclusion, as "ro[o]ted in the Double

Jeopardy Clause," bars the present prosecution because "the

trials would be identical, but for the State seeking to bolster

its case." He also argues that issue preclusion prevents the

State from bringing more charges because the circuit court's

order in the first case "clearly ruled that the State could not

bring these charges" and the State did not appeal that order. ¶52 Killian's first argument relies largely on the United

States Supreme Court's decision in Ashe, 397 U.S. 436. The

defendant in Ashe was charged with robbing one of six men

playing a poker game in a residential basement. Id. at 437.

"The trial judge instructed the jury that if it found that the

[defendant] was one of the participants in the armed

robbery . . . he was guilty under the law even if he had not

personally robbed [the victim]." Id. at 439. The jury found the defendant not guilty. Id. "Six weeks later the [defendant] 30 No. 2020AP2012-CR

was brought to trial again, this time for the robbery of another

participant in the poker game . . . ." Id. The Court addressed

whether issue preclusion "is a part of the Fifth Amendment's

guarantee against double jeopardy" and therefore "no longer a

matter to be left for state court determination within the broad

bounds of 'fundamental fairness.'" Id. at 442-43. The Court

described the doctrine as "mean[ing] simply that when an issue

of ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same

parties in any future lawsuit."11 Id. at 443. The Court

concluded issue preclusion barred the second prosecution because

the "jury determined by its verdict that the [defendant] was not

one of the robbers." Id. at 446.

¶53 The Supreme Court has recently described Ashe as

imposing a rigorous standard:

[Ashe's] test is a demanding one. Ashe forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant's favor in the first trial. A second trial "is not precluded simply because it is unlikely——or even very unlikely——that the original jury acquitted without finding the fact in question." To say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the Double Jeopardy Clause, we must be able to say that "it would have been irrational for the jury" in the first trial to acquit

11 Ashe used the term "collateral estoppel" to describe this doctrine. 397 U.S. 436 (1970). However, the Supreme Court "has [since] observed, 'issue preclusion' is the more descriptive term" as opposed to "collateral estoppel." Bravo-Fernandez v. United States, 580 U.S. 5, 7 n.1 (2016).

31 No. 2020AP2012-CR

without finding in the defendant's favor on a fact essential to a conviction in the second. Currier v. Virginia, 585 U.S. , 138 S. Ct. 2144, 2150 (2018)

(citations omitted); see also Bravo-Fernandez v. United States,

580 U.S. 5, 12 (2016) (describing the inquiry as "what a jury in

a previous trial necessarily decided"). We have likewise

explained that issue preclusion applies to "an issue of ultimate

fact that is determined by a valid and full judgment." State v.

Vassos, 218 Wis. 2d 330, 343, 579 N.W.2d 35 (1998); Canon, 241

Wis. 2d 164, ¶13 ("[I]ssue preclusion . . . is a doctrine to

prevent prosecutorial misconduct and give finality to judicial

determinations made in one criminal transaction . . . ."). We

therefore conclude that a valid judicial determination of

ultimate fact is necessary for issue preclusion to apply under

Ashe. Because the jury in Killian's trial did not reach a

verdict, the doctrine is inapplicable to this case.12

Killian argues this conclusion "allows a prosecutor, upon 12

believing the trial is going badly, to intentionally goad the defense into moving for a mistrial and then remain free from the perils of issue preclusion, which is exactly what happened in this case." This argument is based on an unknowable, hypothetical verdict the jury might have issued, and it assumes all charges relating to the same conduct must be brought in the same prosecution.

The collateral-estoppel effect attributed to the Double Jeopardy Clause, may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts. But this does not establish that the Government "must . . . bring its prosecutions . . . together." It is entirely free to bring them separately . . . .

United States v. Dixon, 509 U.S. 688, 705 (1993).

32 No. 2020AP2012-CR

¶54 Killian's second argument——that the circuit court's

order dismissing the first case with prejudice bars the present

prosecution——fails in a similar vein. "The [common law]

doctrine of issue preclusion . . . is designed to limit the

relitigation of issues that have been actually litigated in a

previous action." Aldrich, 341 Wis. 2d 36, ¶88. "An issue is

'actually litigated' when it is 'properly raised, by the

pleadings or otherwise, and is submitted for determination, and

is determined.'" Dostal v. Strand, 2023 WI 6, ¶24, 405

Wis. 2d 572, 984 N.W.2d 382 (quoting Randall v. Felt, 2002 WI

App 157, ¶9, 256 Wis. 2d 563, 647 N.W.2d 373).

¶55 In the circuit court's order following Killian's

trial, the court described the issue as "whether the Fifth

Amendment's protection against double jeopardy bars the retrial

of [Killian] because of prosecutorial overreaching in this

case." The court stated its findings as follows:

The Court finds that the prosecutor's actions were intentional and the record shows that he knew his actions would be prejudicial to the defendant. The Court finds also that the prosecutor's conduct was designed to create another chance to convict, and was an act done so as to allow the State another "kick at the cat" – a chance to prepare more thoroughly and with a better understanding of the issues, a chance to file different motions and obtain more favorable pretrial rulings, and a chance to add more charges and incriminating evidence into the record in the hopes of solidifying the State’s chances of conviction. The court then ordered "that the State is barred from retrial in

this matter due to prosecutorial overreaching" (emphasis added). The circuit court's order addressed the issue of prosecutorial

33 No. 2020AP2012-CR

overreach. Nowhere did the circuit court analyze the scope of

Killian's jeopardy in his trial. The one question before the

circuit court, and the court's one ruling, concerned whether the

prosecutor engaged in overreach such that double jeopardy barred

retrial "in th[at] matter." The circuit court never determined

the scope of Killian's jeopardy in his trial. Accordingly, the

issue was not actually litigated, and common law issue

preclusion does not apply.

IV. CONCLUSION

¶56 We conclude that Killian's previous trial does not bar

the State from prosecuting the present case because the scope of

Killian's jeopardy in his trial did not include the offenses

with which he is now charged. The scope of jeopardy is

established by "the defendant's actual exposure to jeopardy in a

prior prosecution." Schultz, 390 Wis. 2d 570, ¶31. This

requires that the defendant faced a "risk of a determination of

guilt" regarding a particular offense. Serfass, 420 U.S. at

391-92. Killian was never exposed to the risk of conviction for the offenses charged in the present case. As a result, the

offenses prosecuted in Killian's trial are not identical in law

and in fact to the offenses charged in this case, so double

jeopardy does not bar the present prosecution.

¶57 We also conclude that issue preclusion under the

Double Jeopardy Clause and common law issue preclusion do not

bar the present prosecution. Issue preclusion under the Double

Jeopardy Clause requires a valid judicial determination of ultimate fact, and none exists in this case because Killian's 34 No. 2020AP2012-CR

trial ended in a mistrial. See Ashe, 397 U.S. 436 (1970).

Common law issue preclusion also does not bar this prosecution.

The circuit court's order dismissing with prejudice the criminal

complaint in the first case did not decide the scope of

Killian's jeopardy. Therefore, that issue was never "actually

litigated," and issue preclusion does not bar the present

prosecution. See Aldrich, 341 Wis. 2d 36, ¶88.

¶58 We therefore reverse the court of appeals and remand

to the circuit court to consider Killian's unresolved argument

regarding prosecutorial vindictiveness.

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.

35 No. 2020AP2012-CR.awb

¶59 ANN WALSH BRADLEY, J. (dissenting). As pretrial

rulings unfolded and trial testimony was introduced, the

woefully unprepared State realized that things were looking

bleak. So instead of allowing the jury to perform its function,

the prosecutor intentionally induced a mistrial in an attempt to

later refile charges against James Killian.

¶60 Importantly, the circuit court made a finding that the

"trial was going poorly" for the prosecutor and that "[t]he

prosecutor knew that if he retried the case, he might fare

better and the defendant could face more ominous

charges . . . ." It further found that "the prosecutor's

actions were intentional" and that his "conduct was designed to

create another chance to convict, and was an act done so as to

allow the State another 'kick at the cat.'"

¶61 The circuit court could see right through the State's

gamesmanship. According to the court, the ploy was designed to

afford "a chance to prepare more thoroughly and with a better

understanding of the issues, a chance to file different motions and obtain more favorable pretrial rulings, and a chance to add

more charges and incriminating evidence into the record in the

hopes of solidifying the State's chances of conviction."

¶62 Attempting to circumvent these findings, the majority

opinion rewards the State's scheme, giving it just what it

sought through its egregious conduct. In the majority's view,

double jeopardy does not bar retrial "because the scope of

Killian's jeopardy in his trial did not include the offenses with which he is now charged." Majority op., ¶3. In effect,

1 No. 2020AP2012-CR.awb

the majority's decision sends a direct signal to prosecutors who

are losing at trial: if you want a do-over, consider throwing

the trial.

¶63 The majority errs in two primary ways. First, it

sidesteps the circuit court's detailed factual findings,

disregarding the prosecutor's clear intent. Second, by focusing

singularly on the charging documents in determining the scope of

Killian's jeopardy, rather than examining the record as a whole,

the majority employs an analysis which this court explicitly

rejected in a recent case. See State v. Schultz, 2020 WI 24,

390 Wis. 2d 570, 939 N.W.2d 519.

¶64 Under a proper application of Schultz, I conclude that

jeopardy attaches where the prosecutor's desire to amend the

information based on the evidence at trial is clearly manifest

in the record and where the prosecutor purposely induced a

mistrial with the intent to later refile charges. Any other

result would allow the State to reap a windfall from its

intentional wrongdoing. ¶65 Because I would not lend judicial imprimatur to the

State's gambit in this case, I respectfully dissent.

I

¶66 Killian was charged with sexual assaults of two

minors, referred to as Britney and Ashley.1 Majority op., ¶6.

The complaint regarding Britney charged Killian with one count

of first-degree sexual assault of a child2 and alleged a single

1"Britney" and "Ashley" are pseudonyms. See Wis. Stat. (Rule) § 809.86(4). 2 Wis. Stat. § 948.02. 2 No. 2020AP2012-CR.awb

assaultive act——that Killian "laid beside [Britney] and grabbed

her buttocks." Id.

¶67 About a year after the complaint regarding Britney was

filed, the State filed an additional complaint against Killian

concerning acts against Ashley. Id., ¶7. In this second

complaint, the State charged Killian with repeated sexual

assault of the same child,3 alleging that Killian sexually

assaulted Ashley from "April 1994 through December 1999." Id.

¶68 After the cases were joined for trial, Killian brought

a motion to exclude other-acts evidence, while the State sought

to admit such evidence. Id., ¶8. Ultimately, the circuit court

denied the State's motion to admit other-acts evidence as to

other instances of assault against Britney.4 Id.

¶69 As trial approached, the State tried to add additional

charges by amending the information. Id., ¶9. On the day of

trial, the circuit court denied this motion, describing the

addition of new charges at such a late date as prejudicial.

Id., ¶10. As the parties and the circuit court discussed this motion, the prosecutor confirmed that Killian was being charged

with "one sole act" with regard to Britney. Id., ¶11. But he

3 Wis. Stat. § 948.025. 4 The circuit court allowed the State to present evidence of "grooming" behavior, but it did not allow the State to present evidence of assaultive behavior other than Killian grabbing Britney's buttocks as alleged in the complaint. Majority op., ¶8. Additionally, the circuit court granted the State's motion to admit evidence of sexual assaults against Ashley going back to 1988 to demonstrate Killian's "motive, intent, preparation, absence of mistake or accident, and plan." Id.

3 No. 2020AP2012-CR.awb

reiterated his desire to later amend the information "if more

acts are disclosed at trial." Id.

¶70 Despite the circuit court's admonition, from his

opening statement onward, the prosecutor continually described

other instances of alleged sexual assault committed by Killian

against Britney. Id., ¶13. Prior to Britney taking the stand,

the prosecutor yet again referenced the possibility that the

information could be amended to conform with the proof offered

and stated that "[a]nything could happen when she testifies."

Id., ¶14. As part of this discussion, the circuit court made

clear that a mistrial was a distinct possibility if any excluded

other-acts evidence surfaced. Id.

¶71 Britney took the stand and the prosecutor quickly

elicited such testimony. Id., ¶15. Defense counsel objected

and moved for a mistrial, which the circuit court granted. Id.

The circuit court later determined that the prosecutor's actions

were intentional, with the object being to retry the defendant.

Id. ¶72 Consistent with that object, the State subsequently

filed a new criminal complaint, this time charging Killian with

10 counts, relying on the other-acts evidence that was excluded

from the initial trial. Id., ¶16. Nine of these counts related

to Ashley, and included three counts of first-degree sexual

assault of a child and six counts of incest with a child.5 Id.

One count related to Britney, and charged Killian with repeated

sexual assault of the same child. Id.

5 Wis. Stat. § 948.06(1).

4 No. 2020AP2012-CR.awb

¶73 Killian moved to dismiss the new complaint on double

jeopardy grounds. Id., ¶17. The circuit court agreed with

Killian, and the court of appeals affirmed. It concluded that

"the circuit court properly considered the entire record of the

first prosecution to determine whether Killian was in jeopardy

for the offenses now charged." State v. Killian, 2022 WI App

43, ¶4, 404 Wis. 2d 451, 979 N.W.2d 569. Reviewing the record,

the court of appeals concluded that "Killian was, in fact, in

jeopardy of being convicted of the offenses now charged" in the

second complaint. Id.

¶74 The State petitioned for review, and the majority now

reverses a unanimous decision of the court of appeals.

II

A

¶75 The majority concludes that "Killian was never exposed

to the risk of conviction for the offenses charged in the

present case." Majority op., ¶3. In the majority's view,

"Killian's previous trial does not bar the State from prosecuting the present case because the scope of Killian's

jeopardy in his trial did not include the offenses with which he

is now charged." Id.

¶76 The double jeopardy clause provides: "nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb." U.S. Const. amend. V. At its core,

it recognizes the State's power and serves as a check on that

power:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, 5 No. 2020AP2012-CR.awb

is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88 (1957).

¶77 This clause serves various purposes. It protects a

defendant from multiple trials and punishments for the same

offense, preserves the finality and integrity of judgments, bars the government from a second chance to supply evidence it failed

to provide in the first proceeding, and protects a defendant's

right to have the trial completed by a particular tribunal.

State v. Martin, 121 Wis. 2d 670, 675, 360 N.W.2d 43 (1985).

¶78 However, the double jeopardy bar does not apply in all

situations. When a defendant requests a mistrial, and that

request is granted, the general rule is that the double jeopardy

clause does not bar a retrial. State v. Hill, 2000 WI App 259,

¶11, 240 Wis. 2d 1, 622 N.W.2d 34 (citing State v. Copening, 100

Wis. 2d 700, 709, 303 N.W.2d 821 (1981)). In such a situation,

the defendant exercises control over the mistrial decision and

in effect chooses to be tried by a different tribunal. Id.

¶79 But this rule is not absolute. Where governmental

conduct is intended to goad the defendant into moving for a

mistrial, double jeopardy can be raised as a bar to a second

trial even after the defendant successfully ends the first.

Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982). ¶80 Here, the prosecutor plainly "goaded" the defendant

into moving for a mistrial. The circuit court made such a 6 No. 2020AP2012-CR.awb

determination, supported by 21 factual findings. It observed

that the prosecutor clearly knew that things were not going his

way:

 "The prosecutor had multiple reasons to believe the

trial was going poorly even before the trial started

(medical subpoenas, excluded expert, excluded forensic

interview, improperly crafted proposal to

settle) . . . ."

The circuit court further found unbelievable the prosecutor's

claim that he unintentionally elicited the prohibited testimony:

 "The prosecutor claimed the error was an unintentional

mishap yet the prosecutor had clearly educated himself

that the only way he would be barred from retrial if a

mistrial was declared was if there was prosecutorial

overreaching and he discussed this research with the

defense team moments before the child was called to

testify. There would be no other purpose to call in

the defense counsel over lunch other than to lay out what he intended to do if they objected to the

introduction and a mistrial was declared."

It also noted that the prosecutor was aware that another trial

may bring both additional charges and a better chance of

conviction:

 "The prosecutor knew that if he retried the case, he

might fare better and the defendant could face more

ominous charges 'because if she were to testify and

7 No. 2020AP2012-CR.awb

she goes and tells her story, Mr. Killian is facing

more charges.'"

Finally, the circuit court observed the State's failure to

prepare and the subsequent scramble to cover it up:

 "The State was not prepared for trial and realized

only the week prior to trial that there were a series

of sexual assaults alleged by the child. It then

requested leave to amend to include a date range,

hoping to get the entire set of acts included, by

sidestepping the prior ruling on [other-acts evidence]

to which it had previously failed to object."

¶81 Accordingly, the circuit court found that "the

prosecutor's actions were intentional and the record shows that

he knew his actions would be prejudicial to the defendant." It

continued: "The Court finds also that the prosecutor's conduct

was designed to create another chance to convict, and was an act

done so as to allow the State another 'kick at the cat' . . . ."

The circuit court thus determined that "the State is barred from retrial in this matter due to prosecutorial overreaching."

¶82 The majority sidesteps the circuit court's findings.

It asserts that "Killian was never exposed to the risk of

conviction for the offenses charged in the present case" and

that "the offenses prosecuted in Killian's trial are not

case." Majority op., ¶3.

¶83 This "identical in law and in fact" formulation arises from Blockburger v. United States, 284 U.S. 299 (1932). In

8 No. 2020AP2012-CR.awb

Blockburger, the United States Supreme Court determined that

"where the same act constitutes a violation of two distinct

statutory provisions, the test under the double jeopardy clause

is whether each provision requires proof of a fact which the

other does not." State v. Lechner, 217 Wis. 2d 392, 405, 576

N.W.2d 912 (1998). "Under this test, two offenses are different

in law if each statutory crime requires for conviction proof of

an element which the other does not require." Id. Offenses are

not identical in fact if a conviction for each offense requires

proof of an additional fact that conviction for the other

offenses does not, or if they are different in nature or

separated in time. Schultz, 390 Wis. 2d 570, ¶22. This test is

rather straightforward to apply, but a particular aspect of

Wisconsin law illustrates that the application of the test is

not without nuance.

¶84 In Wisconsin the State may move to amend the

information to conform to the evidence produced at trial. Wis.

Stat. § 971.29(2).6 Although the statute requires that any such amendment not prejudice the defendant, the State's ability to

amend the information is fairly broad. "When an amendment to

the charging document does not change the crime charged, and

6 Wisconsin Stat. § 971.29(2) provides:

At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.

9 No. 2020AP2012-CR.awb

when the alleged offense is the same and results from the same

transaction, there is no prejudice to the defendant." State v.

DeRango, 229 Wis. 2d 1, 26, 599 N.W.2d 27 (Ct. App. 1999). But

this does not mean that an amendment cannot vastly expand the

jeopardy to which a defendant is subject. Indeed, precedent

indicates that amendment can even result in additional counts

that increase the maximum penalty a defendant may face. State

v. Wickstrom, 118 Wis. 2d 339, 349, 348 N.W.2d 183 (Ct. App.

1984).

¶85 What this means in practical terms is that in some

cases the charge or factual circumstance that is sent to the

jury for determination may be quite different from the charge or

factual circumstance set forth in the information at the

beginning of the trial. This is a key point: the charging

document does not reflect the definitive final charge. It is

subject to amendment, meaning that the jeopardy to which a

defendant is subject cannot be defined strictly by looking at

the charging document. See Schultz, 390 Wis. 2d 570, ¶30, (citing United States v. Hamilton, 992 F.2d 1126, 1130 (10th

Cir. 1993) ("[F]or purposes of barring a future prosecution, it

is the judgment and not the indictment alone which acts as a

bar, and the entire record may be considered in evaluating a

subsequent claim of double jeopardy.").

B

¶86 In its laser-focus on the charging documents, the

majority misapplies our recent decision in State v. Schultz, 390 Wis. 2d 570. In Schultz, the question before the court was

10 No. 2020AP2012-CR.awb

whether a prosecution for a sexual assault "on or about October

19, 2012" was barred by double jeopardy when the defendant had

been previously acquitted for sexual assault in "late summer to

early fall of 2012." In framing the analysis, the Schultz court

concluded that we must examine "the entire record, including

evidentiary facts adduced at trial, in ascertaining whether a

defendant's double jeopardy rights have been violated by a

second prosecution." Id., ¶32. It emphasized that "it is the

record in its entirety that reveals the scope of jeopardy and

protects a defendant against a subsequent prosecution for the

same crime." Id.

¶87 In applying these principles to the facts before it,

the Schultz court rejected an approach that would merely compare

the charging documents to determine the scope of jeopardy. It

explained that such an approach would insufficiently protect the

defendant's double jeopardy rights and that we must examine the

record to determine whether any evidence supporting the charges

in the second case was introduced in the first:

Limiting our review to the complaint . . . would not protect the defendant against double jeopardy if the State introduced evidence of a sexual assault occurring "on or about October 19" after jeopardy attached. In order to ascertain whether the defendant was exposed to double jeopardy in the second prosecution, we examine the entire record of proceedings in the first case to see if any evidence of a sexual assault occurring "on or about October 19" was introduced. Id., ¶37.7

7 Setting forth the background that underlies this conclusion, the Schultz court wrote:

11 No. 2020AP2012-CR.awb

¶88 This passage from Schultz explicitly indicates that

review of only the complaint fails to protect the defendant's

double jeopardy rights if the State introduces evidence of a

sexual assault outside the charging period. Id. ("Limiting our

review to the complaint . . . would not protect the defendant

against double jeopardy if the State introduced evidence of a

sexual assault occurring 'on or about October 19' after jeopardy

attached."). Such a scenario is just what we have in the

present case. Accordingly, we must look to the "entire record,"

and not merely compare charging documents. Yet despite the

Schultz court's admonition, the charging document is where the

majority's singular focus lies. See majority op., ¶35.

¶89 The entire record here points in one direction——that

the prosecutor repeatedly and consistently sought to amend the

information to add additional charges. Had this clear goal of

the prosecution come to pass, Killian would have faced the

possibility of conviction on those additional charges.

Even though the incorporated and attached police report renders the complaint unambiguous, we also review the record of the first trial to see if anything suggests "early fall" extended past mid- September to include October 19, 2012. We do so in order to safeguard the defendant's constitutional right against double jeopardy. The facts alleged under the second complaint——a sexual assault "on or about October 19"——would not, if proven, support a conviction in the first prosecution. The complaint in the first prosecution alleged repeated sexual assaults during "late summer to early fall[,]" which the attached and incorporated police report clarified to have concluded in early to mid-September.

State v. Schultz, 2020 WI 24, ¶37, 390 Wis. 2d 570, 939 N.W.2d 519.

12 No. 2020AP2012-CR.awb

¶90 The majority focuses on "actual jeopardy" rather than

"perceived jeopardy." See, e.g., majority op., ¶31. But this

focus fails to recognize, as the United States Supreme Court

has, that the concept of "potential" is inherent in the double

jeopardy clause. Price v. Georgia, 398 U.S. 323, 326 (1970)

("The 'twice put in jeopardy' language of the

Constitution . . . relates to a potential, i.e., the risk that

an accused for a second time will be convicted of the 'same

offense' for which he was initially tried.").

¶91 In order to account for the State's ability to amend

the information to conform to the evidence at trial, I conclude

that in a situation as here, a straightforward application of

Schultz indicates that where the prosecutor's desire to amend

the information based on the evidence at trial is clearly

manifest in the record and where the prosecutor purposely

induced a mistrial with the intent to later refile charges,

jeopardy attaches.

¶92 The series of events with which we are confronted here is not common. It is a thankfully rare occurrence that a

prosecutor will purposely induce a mistrial with the intent to

later refile charges. But in such a situation, examination of

the entire record dictates that a determination that jeopardy

attaches is appropriate and even necessary to protect a

defendant's double jeopardy rights.

¶93 By concluding that Killian's double jeopardy rights

were not violated, the majority rewards the State's gamesmanship. The State purposely induced a mistrial with the

13 No. 2020AP2012-CR.awb

intent to get a chance to try again after preparing more

thoroughly. And it gets exactly what it wanted. This simple

fact alone should cause any fair-minded reader to pause. Unlike

the majority opinion, the application of our precedent presented

in this dissent would not countenance such an egregious

manipulation of the judicial machinery.

¶94 Contrary to the majority's assertions, Killian's first

trial placed him in jeopardy of conviction for the crimes

charged in the second complaint with regard to both Britney and

Ashley. The prosecutor was clear in his intent to seek

amendment of the information to conform with the evidence——

evidence that he hoped would contain proof of additional acts of

sexual assault against Britney and incest against Ashley. No

speculation is necessary to guess at the charges the prosecutor

would have sought.

¶95 The intention to amend the information was clear and

manifest in the record. As the circuit court found, "[t]here

were numerous Informations filed, with various charges, changing dates, and changing penalties up to and during the trial

itself." For example, several days prior to trial, the

prosecutor filed an affidavit in support of a motion to amend

the information to allege a series of sexual assaults over a

period of time. Then, on the day of trial, he again referenced

amending the information in what the circuit court termed "an

attempt to back door the prior ruling to which he failed [to]

object." And immediately before Britney testified, the prosecutor raised the possibility that "if she were to testify

14 No. 2020AP2012-CR.awb

and she goes and tells her story, Mr. Killian is facing more

charges." The prosecutor's repeated efforts and stated intent

to amend the information are manifest in this record.

¶96 Also clear from the record is the prosecutor's intent

to induce a mistrial. The circuit court found that the

prosecutor acted with specific intent to cause a mistrial and to

prejudice the defendant——findings which are supported by ample

evidence in the record. For these reasons, the entire record

indicates that jeopardy attached and double jeopardy bars

retrial.

¶97 For the foregoing reasons, I respectfully dissent.

¶98 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this dissent.

15 No. 2020AP2012-CR.awb