State v. Harland C. H. Swenson, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 7, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP980-CR Cir. Ct. No. 2015CF33

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

HARLAND C. H. SWENSON, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Monroe County: MARK L. GOODMAN, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP980-CR

¶1 PER CURIAM. Harland Swenson appeals a judgment of conviction
and an order denying his motion for postconviction relief. The issue on appeal is
whether his trial counsel was ineffective by not objecting to jury instructions that
Swenson asserts failed to protect his right to a unanimous jury. We conclude that
the law was not settled on this point, and therefore counsel’s performance was not
deficient. We affirm.

¶2 After a jury trial, Swenson was convicted of three counts of first-
degree sexual assault of a child under WIS. STAT. § 948.02.1 He filed a
postconviction motion alleging that his trial counsel was ineffective. The circuit
court denied the motion after an evidentiary hearing.

¶3 To establish ineffective assistance of counsel a defendant must show
that counsel’s performance was deficient and that such performance prejudiced the
defendant’s defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
need not address both components of the analysis if a defendant makes an
inadequate showing on one. Id. at 697. We affirm the circuit court’s findings of
fact unless they are clearly erroneous, but the determination of deficient
performance and prejudice are questions of law that we review without deference
to the circuit court. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711
(1985).

¶4 We understand Swenson’s argument to be that his trial counsel
should have objected to the substantive instructions on child sexual assault
because they allowed for conviction for more than one type of act, and the victim

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP980-CR

testified to all of the various acts that were covered by the instructions. Swenson
argues that this violated his right to jury unanimity because the instructions did not
require the jury to agree on which specific act Swenson committed in order to
convict him on any particular count.

¶5 More specifically, Swenson notes that the instruction for count two,
which alleged sexual contact, defined sexual contact as including both “intentional
touching of the anus or buttocks” and “intentional penile ejaculation of ejaculate
or intentional emission of urine or feces” on the victim. Similarly, the instruction
for count three defined sexual contact as both “intentional touching of the groin,
vagina, or pubic mound” and “intentional penile ejaculation of ejaculate or
intentional emission of urine or feces” on the victim. Finally, as to count one, the
instruction defined sexual intercourse as including both cunnilingus and anal
intrusion.

¶6 Swenson argues that because the victim testified to all of these acts,
and all three counts alleged the same six-month time period, the effect of the
above instructions was that, as to each count, some jurors may have believed only
that he committed one of the acts listed, while other jurors may have believed only
that he committed the other act listed. This, he asserts, violated his right to
unanimity because the instructions did not require the jury to be unanimous about
which of those acts he committed.

¶7 We conclude that trial counsel’s performance was not deficient
because the law in this area was unsettled. “When the law is unsettled, the failure
to raise an issue is objectively reasonable and therefore not deficient
performance.” State v. Jackson, 2011 WI App 63, ¶10, 333 Wis. 2d 665, 799
N.W.2d 461.

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No. 2018AP980-CR

¶8 Swenson does not point to any case law that clearly answers whether
jury unanimity is required in this situation. Our supreme court has previously
held, when reviewing a conviction for first-degree sexual assault (not of a child),
that unanimity was not required in that case on the various acts of non-consensual
sexual intercourse that were testified to. State v. Lomagro, 113 Wis. 2d 582, 598,
335 N.W.2d 583 (1983). The court reached that conclusion because those acts are
alternative means of committing that crime; the acts are conceptually similar; and
the two-hour assault was “one continuous, unlawful event.” Id. at 592-94.

¶9 Later, this court reviewed an ineffective assistance claim similar to
the one made by Swenson in this case, and we ultimately concluded that the law
was too unsettled to hold counsel’s performance deficient. State v. McMahon,
186 Wis. 2d 68, 84-85, 519 N.W.2d 621 (Ct. App. 1994).

¶10 In McMahon, in reviewing a conviction for incestuous sexual
intercourse, we followed Lomagro to conclude that there were multiple means of
committing that crime, and they were conceptually similar. Id. at 81-82. As to the
time span involved, we concluded that, while McMahon’s case might require
unanimity because it was a longer time span of one and one-half months, rather
than two hours as in Lomagro, it would also be reasonable to extend the holding in
Lomagro to conclude that unanimity was not required because a series of acts over
one and one-half months was a continuous event. Id. at 83-84. Accordingly,
based on those alternative readings of Lomagro that we considered reasonable, we
concluded that the law was unsettled about whether counsel should have objected
so as to protect the defendant’s right to unanimity. Id. at 84-85.

¶11 After the above-noted opinions were issued, our supreme court
adopted a new test for unanimity claims. See State v. Derango, 2000 WI 89, 236

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No. 2018AP980-CR

Wis. 2d 721, 613 N.W.2d 833. That test begins, as before, with consideration of
whether the statute creates a single offense with multiple means of commission, or
multiple offenses. Id., ¶¶14-21. However, rather than considering next whether
the alternate modes are conceptually similar, courts are now to evaluate “the
fundamental fairness and rationality of the legislature’s choice to provide for a
single offense with alternate modes of commission.” Id., ¶22. Neither the State
nor Swenson has cited cases that apply this unanimity claims test to the statute at
issue here, WIS. STAT. § 948.02.

¶12 For these reasons, we conclude that the law regarding a potential
unanimity objection to the instructions in Swenson’s case was too unsettled to
hold trial counsel’s performance deficient for not requesting a different
instruction.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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