State justices get to heart of the matter

 Jean DiMotto, The Daily Record Newswire

In a child sexual assault case that divided the Court of Appeals, the state Supreme Court properly kept the focus on the elements of the crime and a jury’s function.

In 2006, a sheriff’s deputy did an emergency detention evaluation on 15-year-old A.R.B. Noticing numerous cuts on her body, he asked her if she had ever been abused or assaulted. She answered, “yes” but only would divulge that the abuser was a male family member.

Three years later, after a family gathering, A.R.B. confided in her mother that her uncle, Darryl Badzinski, had molested her at a holiday family gathering when she was between the ages of four and six. Two months later A.R.B. reported the abuse to the police.

State v. Badzinski commenced in October 2009. An amended complaint alleged that Badzinski had sexual contact with his niece on either Christmas 1995, 1996 or 1997; or Easter 1996, 1997 or 1998.

Trial court

During the jury trial before Milwaukee County Circuit Judge Dennis Cimpl, A.R.B. testified that when she was between the ages of four and six, she came into the basement laundry room at her grandparents’ home at either Christmas or Easter, probably looking for a place to hide while playing hide-and-seek. She saw her uncle masturbating when she entered.

He got up, closed the door, had her sit next to him, told her his penis was a toy and tried to make her touch it. At one point he took her hand and placed it on his penis. She couldn’t recall how the incident ended or how long it lasted.

Dr. Liz Ghilardi was called as an expert witness on child sexual abuse victims. She testified that such victims commonly remember the “core details” — what happened to their bodies or what they were made to do — but may not be able to recall “peripheral details” — what was going on around them, what they were wearing — because it’s the core details that “really stood out in their minds.”

She also testified that delayed reporting was quite common for child victims and that they might manifest their distress from not reporting by such things as drug or alcohol abuse or bodily cutting.

Badzinski denied his niece’s allegations. He called 11 family members to testify; their stories were largely consistent. They related that the holiday family gatherings attended by 20 to 25 people were held at the grandparents’ home in the finished basement where the laundry room was. Guests regularly would go into the laundry room to get ice or frosted beer mugs from the freezer. They would pass the laundry room to use the bathroom next to it. None of these witnesses believed an assault could have taken place in the laundry room.

The jury was appropriately instructed. During deliberations the jury asked Cimpl whether it had to agree on where the assault occurred. Cimpl answered that they must agree it took place at the grandparents’ address. The jury then asked if it needed to agree that the assault happened in the laundry room. Over Badzinski’s objection, Cimpl answered, “no.” The jury found Badzinski guilty.

Court of Appeals

On appeal, Badzinski raised four issues, including that the real controversy had not been tried and that he was denied his right to a unanimous verdict by Cimpl’s answer to the second jury question.

Badzinski argued that whether the assault occurred in the laundry room was crucial to the case because the state did not present any evidence that it occurred elsewhere and because the lynchpin of his defense was showing that A.R.B.’s testimony about it occurring in the laundry room was not credible.

The state responded that the jury did not have to agree on the room since it was not one of the two elements of the crime (that Badzinski had sexual contact with A.R.B. on one of the six dates and that she was under 13 years at the time). The state also asserted that the defense argument hinged on speculation about the jury’s motive for asking the question.

District I Court of Appeals Judge Kitty Brennan authored the lead opinion of the court, which denied two of the four claims. On the remaining two issues, she concluded that the real controversy had indeed been tried, and that since the room was not an essential element of the crime, Badzinski was not deprived of a unanimous verdict.

Judge Ralph Adam Fine wrote a brief concurring opinion joined by Judge Patricia Curley (thus making it the majority opinion on these two issues). They believed it was an error for Cimpl to tell the jury it did not have to agree on the precise room where the assault occurred because “if the jurors believed Badzinski’s niece, the assault did not happen anywhere other than in the laundry room.” They remanded for a new trial because “verdicts must be based on evidence, not ‘conjecture and speculation.’”

State Supreme Court

At the state’s high court, Justice Ann Walsh Bradley wrote the opinion. First addressing the unanimity requirement, she cited the constitutional standard: “In criminal cases, the right to a jury trial implies the right to a unanimous verdict on the ultimate issue of guilt or innocence … [but not] with respect to alternate means or ways in which the crime can be committed.”

She then gave an example from U. S. Supreme Court jurisprudence where a jury disagreed on whether a knife or a gun was displayed in an armed robbery but agreed on an element of the crime that threat of force was used. She also noted Dr. Ghilardi’s testimony about core and peripheral details.

Bradley countered Fine’s opinion that there was no evidence of an assault anywhere but the laundry room by pointing to testimony from Badzinski’s sister that the children would play hide-and-seek upstairs, and testimony from a brother-in-law that someone could masturbate in an upstairs room without anyone noticing. Thus the jury could infer from the evidence that the assault occurred, but not in the laundry room.

In all events, establishing the exact location of the assault was not necessary to prove the elements of the crime.


This is a wise decision from the state Supreme Court. It steers through the storm by focusing on the basics: the elements of the crime. Moreover, it distinguishes between speculation and the core jury function of resolving conflicts in testimony and making reasonable inferences from the evidence as it does so.


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