                                                                  2014 WI 6

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2011AP2905-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Darryl J. Badzinski,
                                  Defendant-Appellant.



                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 345 Wis. 2d 398, 824 N.W.2d 928
                                   (Ct. App. 2012 – Unpublished)

OPINION FILED:          January 29, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 22, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Dennis Cimpl

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For    the       plaintiff-respondent-petitioner,   the   cause   was
argued by Jeffrey J. Kassel, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.




       For the defendant-appellant, there was a brief by Basil M.
Loeb and Schmidlkofer, Toth, & Loeb, LLC, Wauwatosa, and oral
argument by Basil M. Loeb.
                                                                            2014 WI 6
                                                                   NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2011AP2905-CR
(L.C. No.   2009CF4756)

STATE OF WISCONSIN                             :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent-Petitioner,
                                                                      FILED
      v.                                                         JAN 29, 2014

Darryl J. Badzinski,                                                Diane M. Fremgen
                                                                 Clerk of Supreme Court

            Defendant-Appellant.




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



      ¶1    ANN WALSH BRADLEY, J.           The State of Wisconsin seeks

review of an unpublished decision of the court of appeals that

reversed both a judgment of conviction and a circuit court order
denying post-conviction relief.1

      ¶2    The   defendant,       Darryl   Badzinski,       was     charged      with

sexually     assaulting      his   niece,   A.R.B.          At     trial,      A.R.B.

testified that the assault occurred in the laundry room at a

family gathering.         During jury deliberations, the jury asked the

circuit court if it needed to agree on the location of the

      1
       State v. Badzinski, No. 2011AP2905-CR, unpublished slip
op. (Wis. Ct. App. Nov. 27, 2012) reversing a judgment and order
of the circuit court for Milwaukee County, Dennis R. Cimpl,
Judge.
      No.    2011AP2905-CR



assault.       The    court    responded        "no."        The     court   of    appeals

determined, however, that this permitted the jury to speculate

beyond the evidence and remanded the case for a new trial.

      ¶3     The State argues that the court of appeals erred in

reversing the circuit court.            It contends that the jury did not

have to unanimously agree on the location because it is not an

essential     element     of   the   crime      charged.           The   State     further

asserts that the court's response of "no" did not mislead the

jury into speculating beyond the evidence.

      ¶4     In reply, Badzinski maintains that the circuit court's

response     of   "no"    deprived    him       of    a    unanimous     verdict.        He

further      argues     that   the    circuit         court's      response       of   "no"

violated his due process rights in that it impermissibly misled

the   jury     into   believing      that       the       victim's    credibility       was

irrelevant and that it could speculate beyond the evidence.

      ¶5     We conclude that the circuit court's response of "no"

did   not     deprive     Badzinski    of       a     unanimous       verdict.         Jury

unanimity is required only on the essential elements of the
crime.      Here, the location of the crime was not one of those

elements.      Thus, it was not something that the jurors needed to

agree upon unanimously.

      ¶6     We further conclude that Badzinski failed to show that

the court's response of "no" was ambiguous or reasonably likely

to cause the jury to apply the jury instructions in a manner

which violates due process.             Given the evidence presented, the

parties' closing arguments, and the court's other instructions,
the response was unlikely to mislead the jury into believing
                                            2
      No.   2011AP2905-CR



that the victim's credibility was irrelevant and that it could

speculate beyond the evidence.

      ¶7      Accordingly, we reverse the court of appeals.

                                          I

      ¶8      In 2006, Badzinski's then 15-year-old niece, A.R.B.,

told a sheriff's deputy that she had a history of sexual abuse

but declined to provide any details.               Three years later, A.R.B.

revealed to her mother that Badzinski molested her when she was

five or six years old. She said that it happened at a holiday

gathering held at her grandparents' house.

      ¶9      After A.R.B. and her mother reported the incident to

the police, the State charged Badzinski with first-degree sexual

assault of a child.          The complaint and information alleged that

the assault occurred either at Christmas or Easter time between

October 2, 1995, and April 30, 1998.               After Badzinski objected,

the State filed an amended information limiting its case to the

six   dates    between      1995   and    1998   when       A.R.B.'s   grandparents

hosted Easter and Christmas gatherings.
      ¶10     In   support    of    the    charges,         the   State   had    four

witnesses testify at trial: A.R.B., Dr. Liz Ghilardi, Deputy

Steven Schmitt, and A.R.B.'s mother.

      ¶11     A.R.B.   testified    that      during    a    Christmas    or    Easter

gathering, when she was four to six years old, she stumbled upon

Badzinski in the laundry room in her grandparents' basement.

A.R.B. did not recall why she entered the laundry room, but

guessed she may have been playing hide-and-seek.                    She remembered
that she was looking for a place to hide.                    She stated that when
                                          3
      No.   2011AP2905-CR



she     entered,    Badzinski     was        sitting    against    the     freezer

masturbating.       Badzinski then closed the door to the room, 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 did not recall how long the incident lasted

or how it ended.

      ¶12   Dr. Ghilardi testified as an expert witness on child

sexual abuse victims.          When discussing their ability to recall

events, she explained that it is not uncommon for victims to

have trouble remembering peripheral details outside the fact of

the assault itself:

      It is quite common they will remember the core details
      of the assault itself and what happened to their
      bodies or what they were made to do, whatever the case
      may be. But they may not be able to remember all of
      what we call peripheral details, the things going on
      around them, the party, who was there, what they were
      wearing, what the perpetrator was wearing, where the
      dog was, those kind of things.     Those memories may
      fall off more quickly for them than the core event,
      because that is something that really stood out in
      their mind.
Dr. Ghilardi further explained that it was quite common for

child victims to delay reporting the abuse.                  She also testified

that children who have not disclosed the abuse might manifest

their distress in other ways, such as abusing drugs or alcohol

or engaging in other self-harming behavior like cutting.

      ¶13   Deputy Schmitt testified that in April 2006 he was

dispatched     to   the     Children's       Hospital   to    do   an    emergency

detention evaluation of A.R.B., who was 15 years old at the
time.    After noticing numerous cuts on her body, he asked her if

                                         4
       No.    2011AP2905-CR



she was an abuse or assault victim.                  A.R.B. responded "yes," but

refused to talk about it.                The only detail Deputy Schmitt was

able to get was that the abuser was a male family member.

       ¶14     Likewise,      A.R.B.'s     mother      testified      that   she   was

unable to get any information about the incident from A.R.B. at

that       time.     It   was   not    until        2009,    after    another   family

gathering, that A.R.B. told her mother that Badzinski had been

the perpetrator.

       ¶15     Badzinski had 11 family members testify on his behalf.

Their stories were largely consistent.                      The family got together

for    Christmas      and     Easter     at       A.R.B.'s    grandparents'     house.

Approximately 20 to 25 people would attend.                          The house was a

one-story ranch home with a finished basement and three bedrooms

upstairs.2         The gatherings mainly took place in the basement.

The laundry room was in the basement and it contained a freezer.

Guests would regularly go to the laundry room to get ice from

the freezer and frosted beer mugs.                   They would also pass by the

laundry room when going to the bathroom, which was located next
to it.       The witnesses agreed that the door to the laundry room

was usually kept open.           None of the witnesses saw the assault or

believed it could have occurred in the laundry room.

       ¶16     Some of the witnesses also indicated that they were

not always in the basement during these gatherings.                      Some of the

witnesses testified that on Easter, if the weather was nice, the


       2
       The witnesses used the term "upstairs" to refer to the
first floor.

                                              5
       No.    2011AP2905-CR



family would go outside on the deck. Badzinski's sister stated

that the children would play games like hide-and-seek upstairs

during the events.             His brother-in-law agreed that there were

other rooms in the house, such as the upstairs bedrooms, where

someone could masturbate unnoticed.

       ¶17    After    the     close     of    evidence,       the    court      read     the

instructions to the jury.                These included the instruction that

the jury must follow all the jury instructions and "consider

only    the    evidence       received     during      this    trial."           The    court

informed the jury that the State must prove: "One, that this

defendant had sexual contact with [A.R.B.].                         Two, that [A.R.B.]

was under the age of 13 years at the time of alleged sexual

contact."        It stated that "[t]he burden of establishing every

fact   necessary      to      constitute      guilt    is    upon    the    State."        It

further       instructed       "[d]raw     your       own     conclusions        from     the

evidence and decide upon your verdict according to the evidence,

under the instructions given to you by the court."

       ¶18    The   jury      instructions        also      addressed      the    issue    of
credibility.        The court told the jurors that they "are the sole

judges of credibility." It suggested numerous factors that the

jurors could consider in determining credibility, in addition to

"all other facts and circumstances during the trial which tend

to support or discredit testimony."                      The court concluded that

instruction by stating, "[i]n every day life you determine for

yourselves the reliability of the things people say to you.                               You

should do the same here."


                                              6
       No.    2011AP2905-CR



       ¶19    After closing arguments the court reminded the jurors

that "it is a violation of the juror's oath . . . [to] rely on

any information outside the evidence."                    It then indicated that

if the jury had any questions during deliberations, it should

send a note and the court would respond either orally or in

writing.

       ¶20    During deliberations the jury asked the judge if it

must       agree    where     the   assault       occurred.      With    the     parties'

consent, the judge responded that the jury must agree that the

assault took place at the address of the gathering.3                             The jury

subsequently        asked     if    it   needed    to    agree    that     the    assault

occurred in the laundry room.               Over the defendant's objections,

the judge responded, "no."

       ¶21    The jury found Badzinski guilty.                    Badzinski filed a

motion for post-conviction relief, arguing that the long delay

in reporting by the victim and the non-precise nature of the

allegations prevented him from being able to properly prove a

defense.       He further argued that no rational trier of fact would
have believed the victim and that the real controversy had not

been tried.

       ¶22    The    State     responded      that      the   time      period    of   the

alleged assault was sufficiently specific.                       It further asserted

that the verdict was supported by the evidence, as the jury


       3
       At oral argument, the State maintained that this initial
response was error, but that the error was harmless. It stated
that the judge "gave a wrong answer, with the consent of both
parties, and the error inured to Mr. Badzinski's benefit."

                                            7
      No.    2011AP2905-CR



could have chosen to believe A.R.B.                       In addition, the State

averred that the real controversy was fully tried because the

jury did not have to agree on the location of the assault, only

that the elements of the offense were met.                      The State advanced

that a juror may be convinced that the crime occurred while

maintaining a question about a non-essential or peripheral fact.

Further, the jury was not required to believe all of A.R.B.'s

testimony.         The    circuit      court      denied      Badzinski's        motion,

adopting the the arguments in the State's brief.

      ¶23    On    appeal,   Badzinski          argued    that:     (1)   the    amended

information       was   unconstitutionally            vague   because     it    gave   six

possible dates over three years on which the allegation could

have occurred, (2) there was insufficient evidence to support

the conviction, (3) the real controversy was not fully tried,

and (4) he was denied his right to an unanimous verdict when the

trial court told the jurors that they did not need to agree on

whether the sexual assault occurred in the laundry room.                            State

v. Badzinski, No. 2011AP2905-CR, unpublished slip op., ¶8 (Wis.
Ct. App. Nov. 27, 2012).

      ¶24    Although the judges on the court of appeals were in

agreement on the conclusion that the amended information was

sufficiently       clear,    they    were       split    on   the   other      arguments

before them. Id., ¶32.              Two of the three judges departed from

the   lead    opinion4    and   joined      in    a     "concurring"      opinion      that

ordered a new trial.         Id., ¶37.

      4
       The court of appeals refers to the opinion written by
Judge Brennan as "the Lead Opinion." Badzinski, No. 2011AP2905-
                                            8
    No.    2011AP2905-CR



    ¶25    The "concurrence" determined that the circuit court's

response to the questions from the deliberating jury permitted

the jury to speculate beyond the evidence:

    [t]he only evidence that Badzinski assaulted his
    niece, more than a decade before the 2009 trial, was
    that the assault happened in a room where, if jurors
    believed Badzinski's witnesses, that was not possible
    . . . [I]f the jurors believed Badzinski's niece, the
    assault did not happen anywhere other than in the
    basement laundry room.   The trial court, in effect,
    told the jury to ignore this, and let the jurors pick
    any room in the house.
Id., ¶35 (emphasis in original).              It reasoned that a guilty

verdict cannot rest on matters beyond the evidence.               Id., ¶36.

Accordingly, the court reversed the circuit court and concluded

it was error to tell the jury that it did not have to agree on

the room where the incident occurred. Id., ¶34.

                                      II

    ¶26    This    case    presents   two     questions   for   our   review.

First, we must determine whether the circuit court's response of

"no" to the jury's question deprived Badzinski of a unanimous

verdict.    Whether jury unanimity requires jurors to agree on a

particular fact is a question of law.              State v. Giwosky, 109

Wis. 2d 446, 452, 326 N.W.2d 232 (1982).            We review questions of

law independently of the determinations rendered by the circuit

court and the court of appeals.            State v. West, 2011 WI 83, ¶21,

336 Wis. 2d 578, 800 N.W.2d 929.




CR at ¶33.   The "concurring" opinion written by Judge Fine and
joined by Judge Curley is the opinion of the majority.
                                      9
      No.    2011AP2905-CR



      ¶27     Second,     we      must     determine        whether     the     response

violated Badzinski's due process rights by misleading the jurors

into believing that the victim's credibility was irrelevant and

that they could speculate beyond the evidence.                         Whether a jury

instruction given by the circuit court violates a defendant's

due   process      rights    is    a     question     of   law,   which   this       court

reviews      independently        of    the    determinations        rendered    by    the

circuit court and the court of appeals.                        State v. Kuntz, 160

Wis. 2d 722, 735, 467 N.W.2d 531 (1991); State v. Zelenka, 130

Wis. 2d 34, 43, 387 N.W.2d 55 (1986).

                                              III

      ¶28      We begin our analysis by turning first to the issue

of unanimity.        "In criminal cases, the right to a jury trial

implies the right to a unanimous verdict on the ultimate issue

of guilt or innocence."                State v. Tulley, 2001 WI App 236, ¶14,

248   Wis.    2d   505,     635   N.W.2d       807.       However,    "[u]nanimity      is

required      only   with      respect        to    the    ultimate    issue    of     the

defendant's guilt or innocence of the crime charged, [it] is not
required with respect to the alternative means or ways in which

the crime can be committed."                  State v. Holland, 91 Wis. 2d 134,

143, 280 N.W.2d 288 (1979); State v. Derango, 2000 WI 89, ¶14,

236 Wis. 2d 721, 613 N.W.2d 833 (quoting Holland, 91 Wis. 2d at

143); Giwosky, 109 Wis. 2d at 453-54 (quoting Holland, 91 Wis.

2d at 143).5

      5
       Our cases have suggested that where a statute creates one
crime with alternative modes of commission, unanimity may be
required if the alternative modes are conceptually distinct.
State v. Derango, 2000 WI 89, ¶22, 236 Wis. 2d 721, 613 N.W.2d
                                              10
      No.    2011AP2905-CR



      ¶29     The United States Supreme Court illustrated this rule

using a hypothetical where the element to be proven was threat

of force, and the jurors disagreed on whether the defendant used

a knife or a gun to make that threat.                    Richardson v. United

States,      526   U.S.      813,   817    (1999)    (citing   McKoy       v.     North

Carolina, 494 U.S. 433, 449 (1990)).                 The Court explained "that

disagreement -- a disagreement about means -- would not matter

as    long    as   all      12   jurors    unanimously    concluded        that      the

Government had proved the necessary related element, namely that

the   defendant       had    threatened    force."      Id.    As    such,      it    is

ultimately      the    elements     of    the   crime   charged     that    must     be

accepted by a unanimous jury and not the peripheral details.

      ¶30     The crime charged in this case was sexual assault of a

child.       Pursuant to Wis. Stat. § 948.02(1)(e)6, "[w]hoever has

sexual contact with a person who has not attained the age of 13


833; State v. Lomagro, 113 Wis. 2d 582, 592, 355 N.W.2d 583
(1983). For example, in Manson v. State, 101 Wis. 2d 412, 304
N.W.2d 729 (1981), this court looked at whether Wis. Stat. §
943.32, which made robbery by force or by threat of force a
crime, created a unanimity problem.         It determined that
unanimity was not an issue because force and the threat of force
were conceptually similar.   Id. at 429-30.   More recently, the
court has reframed the analysis to look at whether a statute's
definition of a crime including multiple modes of commission
represents fundamentally unfair or irrational policy choices.
State v. Norman, 2003 WI 72, ¶¶62-63, 262 Wis. 2d 506, 664
N.W.2d 97.

     This is not the type of issue we address in this case.
Here only one mode of commission of the crime is alleged: that
Badzinski placed A.R.B.'s hand on his penis.
     6
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                          11
       No.    2011AP2905-CR



years is guilty of a Class B felony."                      Thus, the elements of the

offense are: (1) that the defendant had sexual contact with

A.R.B. and (2) that A.R.B. was under the age of 13 years at the

time of the alleged sexual contact.                         Wis JI——Criminal 2102E

(2008).        It is these elements that the jury must have agreed

upon unanimously.

       ¶31     Badzinski argues that the jury could not unanimously

agree that the sexual contact occurred unless there was also

agreement that it occurred in the laundry room.                        He asserts that

because the only evidence of the crime was A.R.B.'s testimony,

and    that    A.R.B.      testified    that         the   assault    occurred    in   the

laundry      room,    it   is   a    fact   necessary        to   prove   an    essential

element of the crime.

        ¶32     We disagree.         The location of the room is not a fact

necessary to prove either of the essential elements in this

case.     A.R.B. testified that Badzinski's actions occurred in the

laundry room.         The contrary evidence regarding the location of

the assault was relevant to A.R.B.'s credibility. See Kohlhoff
v. State, 85 Wis. 2d 148, 154, 270 N.W.2d 63 (1978).                           However, a

jury    does    not   need      to   accept      a    witness's      testimony    in   its

entirety.       State v. Balistreri, 106 Wis. 2d 741, 762, 317 N.W.2d

493 (1982); State v. Kimbrough, 2001 WI App 138, ¶29, 246 Wis.

2d 648, 630 N.W.2d 752.               The jury could have believed A.R.B.'s

testimony about the sexual contact itself without believing that

it occurred in the laundry room.                 Indeed, Dr. Ghilardi testified

that child victims do not always remember the peripheral details
of the assault.
                                            12
       No.    2011AP2905-CR



       ¶33     Furthermore, contrary to Badzinski's assertion, there

was    evidence       in    the      record    from    which   the    jury       could      have

concluded      that    the      assault       occurred     elsewhere       in    the   house.

A.R.B. indicated that the assault occurred when she was playing

hide-and-seek.             Badzinski's sister testified that the children

would play games such as hide-and-seek upstairs.                                His brother-

in-law       testified      that       it    would    be   possible    for       someone         to

masturbate       in    one      of     the    upstairs     bedrooms        without     anyone

noticing.        The jury could have reasonably inferred from this

evidence that the assault occurred somewhere other than in the

laundry room.

       ¶34     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.

Accordingly, we conclude that the circuit court's response of

"no" did not deprive Badzinski of a unanimous jury.

                                                IV

       ¶35     We turn next to whether the circuit court's statement
to the jury that it did not have to agree that the assault

happened in the laundry room violated Badzinski's due process

rights.       We start with the premise that if there is a reasonable

likelihood that the jury applied an instruction in a manner that

violates the constitution, a defendant is entitled to a new

trial.       State v. Burris, 2011 WI 32, ¶45, 333 Wis. 2d 87, 797

N.W.2d 430.        "A jury is unconstitutionally misled if there is a

reasonable       likelihood          that     the    instruction     was    applied         in    a
manner that denied the defendant 'a meaningful opportunity for
                                                13
       No.    2011AP2905-CR



consideration by the jury of his defense. . . . to the detriment

of a defendant's due process rights.'" Id., ¶50 (quoting State

v. Lohmeier, 205 Wis. 2d 183, 192, 556 N.W.2d 90 (1996)). Such is

the   case      if    the    jury     believes        an   instruction         precludes    the

consideration of constitutionally relevant evidence.                                 Id., ¶50

(citing Boyde v. California, 494 U.S. 370, 380 (1990)).

       ¶36     Badzinski          claims    that      is   what    occurred        here.     He

asserts that by telling the jury it did not have to agree on the

location of the assault, the court impermissibly misled the jury

to    believe        that    it    did     not   have      to    consider      the    victim's

credibility.           According to Badzinski, the court's instruction

allowed       the     jury    to     disregard        A.R.B.'s         testimony     that   the

assault occurred in the laundry room.                           Therefore, he concludes,

the jury was allowed to speculate beyond the evidence,7 denying

him   a      meaningful      opportunity         to    have      the    jury   consider     his

defense that the assault did not happen because it could not

have happened in the laundry room.

       ¶37     To     prevail        on     an     argument       that      the      jury   was
unconstitutionally            misled       in    violation       of     a   defendant's     due

process rights, a defendant must show: (1) "that the instruction

was ambiguous" and (2) "that there was a reasonable likelihood

that the jury applied the instruction in a way that relieved the

State of its burden of proving every element of the crime beyond


       7
       Although Badzinski's brief focused on the speculation
aspect of his argument, at oral argument he spent a substantial
amount of time discussing credibility. To the extent that both
arguments relate to whether the court's instruction deprived him
of due process, we address them together here.
                                                 14
       No.   2011AP2905-CR



a    reasonable     doubt."          Burris,      333   Wis.    2d    87,    ¶48     (quoting

Waddington v. Sarausad, 555 U.S. 179, 190 (2009)).

       ¶38    In     evaluating        these        factors,         we     consider        the

instruction "in light of the proceedings as a whole, instead of

viewing       a     single      instruction         in        artificial       isolation."

Lohmeier, 205 Wis. 2d at 193.                 For example, in Burris, the court

determined that it was not reasonably likely that a potentially

confusing         instruction        led    the     jury       to    apply     it     in     an

unconstitutional manner.               333 Wis. 2d 87, ¶23.                 Burris argued

that the judge's instruction regarding "utter disregard" misled

the jury into minimizing the weight of the defendant's post-

shooting behavior.           Id., ¶43.         The court concluded that Burris

did not prove the instruction led to a misapplication in light

of the "extensive evidence of Burris's after-the-fact conduct

presented at trial, counsel's focus on this evidence in closing

statements, and language in both the pattern and supplemental

jury instructions indicating that it could consider this conduct

in    its    determination."           Id.,    ¶63.        Thus,     there     was    no    due
process violation.

       ¶39    Similarly,        in    Lohmeier,         the     court     found      that    a

potentially confusing instruction on contributory negligence did

not lead the jury to believe that it could not consider evidence

of an affirmative defense.                  Lohmeier, 205 Wis. 2d at 187.                    In

that case, most of the evidence presented at trial related to

the    affirmative      defense,       as     did   the    defendant's         opening      and

closing arguments.           Id. at 197.            The State also addressed the
affirmative        defense    in      its     rebuttal     and       closing    statement.
                                              15
    No.    2011AP2905-CR



Additionally, the court instructed the jury to consider all of

the instructions as a whole, twice instructing the jury on the

affirmative defense.           Id.      On this record, the court concluded

that a single instruction did not negate the emphasis on the

evidence     throughout        the    proceedings.          Id.        Therefore     the

instruction did not violate the defendant's due process rights.

Id. at 200.

    ¶40     Following      the       examples   in   Burris    and     Lohmeier,     our

analysis here considers the evidence presented at trial, the

parties' closing statements, the initial jury instructions, the

jury's question, and the court's response.                    Burris, 333 Wis. 2d

87, ¶51.        Looking at the challenged language in light of the

rest of the proceedings, we 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.

    ¶41     The State's main evidence in this case was A.R.B.'s
testimony.      She testified that during a family gathering at her

grandparents' house Badzinski took her hand and placed it on his

penis.     According to A.R.B. this occurred in the laundry room,

which she probably entered while playing hide-and-seek.                              The

State's expert witness further testified that a child victim

would remember the assault, but not necessarily the peripheral

details.

    ¶42     Badzinski's defense focused on his assertion that an
assault could not have occurred in the laundry room.                           Multiple
                                           16
      No.    2011AP2905-CR



family      members     testified      on    his    behalf      that    the     gatherings

mainly took place near the laundry room, that the door was kept

open, and that the family members would regularly go into the

laundry room to get ice and frosted beer mugs.

      ¶43       The     State's      closing      argument      focused    on     A.R.B.'s

testimony      and    why     the    jury    should      find    her     credible.        It

stressed that the core event was Badzinski placing A.R.B.'s hand

on his penis, and that was not something she was likely to

forget.      Badzinski's closing argument also focused on A.R.B.'s

credibility.          He    sought    to    undermine      it    with    the    fact    that

according to his witnesses, the assault could not have occurred

in the laundry room.

      ¶44     In giving the jury instructions, the court stressed

that the jurors could consider only the evidence presented at

trial.      It gave the elements of sexual assault and stated that

it   was    the   State's      burden       to    prove    each       element    beyond    a

reasonable doubt.            The jury instructions also spoke at length

about credibility and stressed that it was an issue for the
jurors.       The court later reiterated that the jury was not to

rely on evidence outside of the record.

      ¶45     During deliberations, the jury asked if it must agree

where the assault occurred.                  The court responded that it must

agree    that     the      assault    took       place    at    the    location    of   the

gathering.        The jury subsequently asked if it must agree that

the assault occurred in the laundry room.                         The court responded

"no."


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       ¶46    In this context, the circuit court's instructions were

not ambiguous.            It told the jury what elements the State needed

to   prove,        that    it    could    rely      only   on    the     evidence,       that

credibility was for the jury to decide, and that it did not have

to agree on the room where the assault occurred.                            The court's

instructions were accurate.                   As long as the jury followed the

instructions literally, it would be prevented from speculating

beyond the evidence and would not be required to ignore evidence

that may discredit A.R.B.

       ¶47    Even if the instructions were potentially ambiguous,

considering the proceeding as a whole, it is not reasonably

likely that the jury believed it could not consider the victim's

credibility and could reach conclusions based on speculation.

The focus of the trial was on credibility and the room in which

the assault occurred.              Further, the jury instructions informed

the jurors that credibility was an issue for them to decide, and

required them to base their decisions on evidence and not rely

on evidence outside the record.                       Under the instructions, the
jury    was     free      to    consider      and    weigh    all    of    the    evidence

presented       at    trial,      including         A.R.B's     credibility.         It    is

unlikely      that     a    single     word     answer     from     the    court    during

deliberations would negate everything that preceded it.

       ¶48    Contrary to Badzinski's assertions, the jury's guilty

verdict does not show that it speculated beyond the evidence.

Juries are allowed to draw reasonable inferences based on the

evidence.          See State v. Poellinger, 153 Wis. 2d 493, 506, 451
N.W.2d       752     (1990)     ("It     is   the     function      of    the    trier    of
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fact . . .        to fairly resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts."); Johnson v. State, 55 Wis. 2d 144,

147, 197 N.W.2d 760 (1972) ("Reasonable inferences drawn from

the evidence can support a finding of fact.").

    ¶49        Here, there was evidence from which the jurors could

have inferred that the assault occurred somewhere else in the

house and found Badzinski guilty.                  A.R.B. testified that the

assault       occurred    at    one   of    the    family      gatherings    in     her

grandparents' house.            She indicated that it may have occurred

while she was playing hide-and-seek.                  There was evidence that

the children played hide-and-seek upstairs at the gathering and

that an individual could have masturbated in one of the upstairs

bedrooms.        From this evidence, the jury could infer that the

assault occurred upstairs.

    ¶50        Because we conclude that the circuit court's response

of "no" to the jury was not ambiguous and was not reasonably

likely    to    cause    the   jury   to   misapply      the   instruction     in    an
unconstitutional manner, Badzinski has not met his burden.                          In

light    of    the   facts     of   this   case,    we   reverse    the     court   of

appeals' determination that the instruction unconstitutionally

misled the jury.

                                           V

    ¶51        In sum, we conclude that the circuit court's response

of "no" did not deprive Badzinski of a unanimous verdict.                         Jury

unanimity is required only on the essential elements of the
crime.        Here, the location of the crime was not one of those
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elements.     Thus, it was not something that the jurors needed to

agree upon unanimously.

    ¶52     We further conclude that Badzinski failed to show that

the court's response of "no" was ambiguous or reasonably likely

to cause the jury to apply the jury instructions in a manner

which violates due process.        Given the evidence presented, the

parties' closing arguments, and the court's other instructions,

the response was unlikely to mislead the jury into believing

that the victim's credibility was irrelevant and that it could

speculate beyond the evidence.

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

reversed.




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