Feb. 3, 2014 – The Wisconsin Supreme Court has upheld the conviction of Darryl Badzinski for sexual assaulting a child, despite Badzinski’s argument that the jury was allowed to speculate beyond the evidence and violated his due process rights.

Badzinski was accused of sexually assaulting his niece at a family gathering. However, the jury could not agree on the exact location of the assault. The jury asked the trial judge if they needed to agree on location, and the judge said no.

Badzinski appealed his conviction, and the appeals court reversed. The appeals court ruled that the circuit court misled the jury and allowed it to speculate beyond the evidence. It ordered a new trial. Recently, the Wisconsin Supreme Court reversed.

In State v. Badzinski, 2014 WI 6 (Jan. 29, 2014), the unanimous court ruled that “jury unanimity is required only on the essential elements of the crime” and the location of the assault was not an element. Thus, the jury was not required to agree on that point.

The complaint alleged that the assault happened on one of six dates between 1995 and 1998. The victim did not disclose details of the alleged assault until 2009.

The victim had said the assault took place in a laundry room at her grandparent’s home. Other family members testified and suggested that it could not have happened there.

But the supreme court ruled that location did not matter.

“Regardless of whether the assault occurred in the laundry room or some other room, the exact location was not a fact necessary to prove that the sexual contact occurred,” wrote Justice Ann Walsh Bradley, noting that the jury could have chosen to disbelieve the victim if her story did not add up, to make a judgment on credibility.

The court also ruled the Badzinski’s due process rights were not violated when the judge instructed the jury on the location issue.

“[W]e conclude that Badzinski has not shown that the instruction was ambiguous, or that it was reasonably likely to cause the jury to ignore the victim’s credibility and rely on speculation in violation of his due process rights,” Justice Bradley explained.