State v. Molitor
In State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248, 250 (Wis. App. 1997), the Wisconsin Court of Appeals applied the continuing course of conduct exception after a defendant engaged in sexual intercourse with a fifteen-year-old girl "on more than three occasions" during a two-month period of time. 565 N.W.2d at 250.
The victim testified at a preliminary hearing that she had an ongoing sexual relationship with the defendant, and that she had intercourse with him almost daily during the period in question. Id.
On appeal, the defendant attacked the constitutionality of the state statute under which he was convicted, which states that "the jury must unanimously agree that at least 3 violations occurred within the time period . . . but need not agree on which acts constitute the requisite number." Id. at 251.
The court rejected the defendant's claim, and concluded that when the charged behavior constitutes "one continuous course of conduct," the requirement of jury unanimity is satisfied regardless of whether there is agreement among jurors as to "which act" constituted the crime charged. Id. at 251.
The court stated that while the course of conduct exception often applies to "short continuous incidents that cannot be factually separated," id. the duration of the course of conduct is not "legally significant." Id.
Rather, the unanimity requirement is met where multiple acts constitute "one continuous, unlawful event." Id.
The Court held that the act proscribed by Wis. Stat. 948.025 is a single element consisting of a series of assaults on the same victim, occurring over time and resulting in cumulative injury. See Molitor, 210 Wis. 2d at 421-22.
The Court decided that because there is only one element, the jury must unanimously decide that the child was assaulted at least three times, but need not agree on which specific assaults were committed. See Molitor, 210 Wis. 2d at 423.