2020 WI 24

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP1977-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Alexander M. Schultz,

 Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 385 Wis. 2d 494,922 N.W.2d 866

PDC No:2019 WI App 3 - Published

OPINION FILED: March 4, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 9, 2019 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Lincoln 

JUDGE: Robert R. Russell 

JUSTICES:

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ., 

joined. HAGEDORN, J., filed a dissenting opinion, in which ANN 

WALSH BRADLEY, and DALLET, JJ., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

filed by Frederick A. Bechtold, Taylor Falls, Minnesota. There was 

an oral argument by Frederick A. Bechtold. 

For the plaintiff-respondent, there was a brief filed by Scott 

E. Rosenow, assistant attorney general; with whom on the brief was 

Joshua L. Kaul, attorney general. There was an oral argument by 

Scott E. Rosenow. 
2020 WI 24

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP1977-CR

(L.C. No. 2014CF68)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Alexander M. Schultz,

 Defendant-Appellant-Petitioner.

FILED

Mar 4, 2020

Sheila T. Reiff

Clerk of Supreme Court

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the 

Court, in which ROGGENSACK, C.J., ZIEGLER, and KELLY, JJ., joined. 

HAGEDORN, J., filed a dissenting opinion, in which ANN WALSH 

BRADLEY, and DALLET, JJ., joined.

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

 

¶1 REBECCA GRASSL BRADLEY, J. The State charged Alexander 

M. Schultz with repeated sexual assault of a child for engaging in 

sexual intercourse with the fifteen-year-old victim, M.T.,1 in 

"late summer to early fall of 2012." A jury acquitted him of this 

charge. Shortly thereafter, paternity test results revealed 

Schultz to be the father of M.T.'s child. The State then charged 

Schultz with sexual assault of a child under 16 years of age 

 

1 For privacy purposes, we do not refer to the victim in this 

case by name. See Wis. Stat. § 809.86 (2017-18).
No. 2017AP1977-CR 

2

occurring "on or about October 19, 2012," the date M.T.'s 

obstetrician determined the child was conceived. We review whether 

the State exposed Schultz to multiple prosecutions for the same 

offense in violation of the Double Jeopardy Clauses of the United 

States and Wisconsin Constitutions. Schultz asks us to consider 

whether a court may ascertain the scope of jeopardy in the first 

prosecution based upon trial testimony, as well as to determine 

who bears the burden resulting from any ambiguity in the timeframe 

of a charging document——the defendant or the State.2

¶2 We hold that a court may examine the entire record of 

the first proceeding, including the evidence admitted at trial, 

when determining the scope of jeopardy in a prior criminal 

prosecution. Because the complaint incorporated the police 

report, which documents a certain end date for the intercourse, 

and the evidence presented at Schultz's first trial did not 

encompass the same timeframe of the offense charged in his second 

prosecution, we conclude that Schultz was not twice in jeopardy 

for the same criminal offense. Specifically, the State's second 

prosecution of Schultz for sexual assault of a child under 16 "on 

or about October 19, 2012," did not include the same timeframe as

its first prosecution for repeated sexual assault of a child in 

the "late summer to early fall of 2012." We affirm the court of 

appeals.

 

2 We interpret Schultz's use of the word "burden" in the 

petition for review to ask which party should have the 

responsibility to overcome an ambiguous timeframe in a charging 

document. Due to our determination on the first question, we need 

not address the second.
No. 2017AP1977-CR 

3

I. BACKGROUND

A. Schultz's First Prosecution

¶3 In December 2012, Merrill Police Officer Matthew Waid 

interviewed then-fifteen-year-old M.T. after learning she was 

pregnant. Waid learned that M.T. had sexual intercourse with a 

male named "Dominic" in early to mid-October. M.T. also informed 

Waid that she had sexual intercourse with Schultz "approximately 

one month before she had sexual intercourse with Dominic." M.T. 

confirmed that "she had her period between the time she had sexual 

intercourse with Alex" and when she had intercourse with Dominic 

in early to mid-October. When questioned by Waid, Schultz denied 

having a sexual relationship with M.T.

¶4 In January 2013, Officer Waid conducted two follow-up 

interviews with M.T. about her sexual relationship with Schultz. 

In the first, M.T. claimed she and Schultz had sexual intercourse 

more than five times, beginning in the middle of 2012 and lasting 

for a few months. Schultz was either 19 or 20 years old when the 

intercourse began. In the second, M.T. showed Waid Facebook 

messages between her and Schultz on September 3, 2012. In these 

messages, Schultz was angry and dismissive of M.T. because he 

believed that she was telling other people things that "can put me 

in prison." Based upon these messages, the interviews with M.T., 

and interviews with multiple witnesses who suggested knowledge of 

a sexual relationship between Schultz and M.T., Waid recommended 

charges against Schultz.
No. 2017AP1977-CR 

4

¶5 In April 2013, the State filed charges against Schultz 

in Lincoln County Circuit Court3 for repeated sexual assault of a 

child, a Class C felony.4 The complaint listed the timeframe for 

the assaults as "late summer to early fall of 2012." Because 

Schultz was a repeat criminal offender with three prior 

convictions, the State also charged him with a penalty enhancer 

pursuant to Wis. Stat. § 939.62(1)(c)(2017-18).5 The complaint 

"incorporated by reference" the entirety of Officer Waid's police 

report and attached his report to the complaint. The subsequent 

Information also listed "late summer to early fall of 2012" as the 

timeframe for the crime. During a pre-trial hearing, the parties 

agreed M.T.'s pregnancy was not pertinent to Schultz's trial 

because Dominic was presumed to be the child's father.6

 

3 The Honorable Jay R. Tlusty presided.

4 See Wis. Stat. § 948.025(1)(e). For the jury to convict 

under § 948.025(1)(e), it must find the defendant engaged in three 

separate sexual assaults, in violation of Wis. Stat. § 948.02(1) 

or (2), during the charged timeframe.

5 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.

6 Before trial, Schultz's counsel moved to introduce evidence 

of M.T.'s pregnancy as well as her claim that Dominic was the 

father, because he assumed M.T.'s pregnancy "was going to be part 

of this case" and "part of the context of the case." In response 

to that motion, the State moved for a continuance in order to 

prepare its response. Both M.T. and her mother supported the 

State's request for a continuance and expressed a desire to wait 

for the paternity test results. The State regarded the results as 

irrelevant, anticipating they would confirm Dominic to be the 

father. While Schultz indicated he wanted to see the test results, 

he also wanted to proceed with the trial and withdrew his motion. 

Both parties agreed to proceed with the trial as scheduled. The 

paternity test results were not available until after the first 

trial and therefore do not inform the determination of the scope 
No. 2017AP1977-CR 

5

¶6 Schultz's trial took place on January 21-22, 2014. 

During his opening statement, the prosecutor indicated the sexual 

relationship between Schultz and M.T. began in the "late summer of 

2012." Consistent with the prosecutor's timeframe, M.T. testified 

she had sexual intercourse with Schultz starting around July or 

between July and August, and that she and Schultz broke up around 

the beginning of September 2012. On direct examination, M.T. 

confirmed she had sexual intercourse with Schultz in the month or 

so leading up to the beginning of October 2012. On crossexamination, she relayed the same information she initially told 

Officer Waid: she had sexual intercourse with Schultz 

approximately one month before she had intercourse with Dominic, 

the latter of which took place in early to mid-October. Later in 

her testimony, M.T. claimed she told a friend about her sexual 

relationship with Schultz, and that this conversation occurred 

"closer to October," after she had stopped seeing Schultz.

¶7 During his testimony, Officer Waid confirmed that in the 

course of his initial investigation, M.T. told him she had sexual 

intercourse with Schultz in the month or so prior to early October 

2012. He also read Facebook messages between M.T. and Schultz 

from September 3, 2012. These messages confirmed M.T.'s testimony 

regarding the relationship with Schultz ending by early September. 

In the messages, Schultz stated "[U]r dead to me now" and "[I] was 

gonna try to get back with you[.]" While not explicitly mentioning 

a sexual relationship, Schultz accused M.T. of breaking a promise 

 

of jeopardy in the first trial.
No. 2017AP1977-CR 

6

to him and telling people things that could send him to prison. 

M.T. responded that she "didnt tell anyone."

¶8 No evidence at trial indicated M.T. and Schultz had 

sexual intercourse in October 2012. One of Schultz's own 

witnesses, A.O., testified that she and Schultz were in a romantic 

relationship between September 2012 and the spring of 2013.

¶9 While instructing the jury, the circuit court reiterated 

that the timeframe alleged for the assaults was "late summer to 

early fall of 2012." In closing argument, the State argued the 

intercourse between Schultz and M.T. ended in September. In 

summarizing M.T.'s testimony regarding sexual intercourse with 

Schultz, the State specifically mentioned that M.T. indicated 

intercourse occurred in the month before October 2012; the assaults 

started in July and ended in September 2012; and the assaults 

happened during "September, August, and July." After 

deliberations, the jury acquitted Schultz of "repeated acts of 

sexual assault of a child as charged in the information," which 

had charged Schultz with this crime during the timeframe of "late 

summer to early fall of 2012."7

 

7 The dissent claims the court's recitation of the evidence 

"is not a fair picture." Dissent, ¶80. It is the dissent that 

relies on a slanted summary of the proceedings, ignoring 

dispositive facts in the record. In presenting its gloss on this 

case, the dissent disregards any portions of the record that 

counter its analysis, including: 

 the police report summarizing Officer Waid's 

investigation, which was attached to and incorporated 

in the initial indictment;
No. 2017AP1977-CR 

7

B. Schultz's Second Prosecution

¶10 Five days after Schultz's acquittal, Officer Waid 

learned from Lincoln County Victim Services that M.T. had received 

her paternity test results. These results indicated a 99.99998 

percent certainty that Schultz, not Dominic, was the father of 

M.T.'s baby. Although incarcerated at the time, Schultz 

participated in a phone interview with Waid about the statements 

 

 M.T.'s statements to Officer Waid regarding the 

timeline of the sexual activity with Schultz and 

Dominic;

 the Facebook messages exchanged between M.T. and 

Schultz, shedding light on the nature and timeframe of 

their relationship;

 the withdrawal of Schultz's request for an adjournment 

pending receipt of the paternity test results, based 

on the State's representation that M.T.'s pregnancy 

would not be mentioned at trial, and never was;

 Schultz's pretrial admission, in a motion to dismiss 

the first charge for selective prosecution, that "the 

complainant had sexual intercourse with at least one 

other adult during the time period involved" and "the 

other adult has admitted to sexual intercourse and has 

been determined to be the father of the complainant's 

child[]"; and

 the State's acknowledgment that "Dominic [] [has been] 

imputed the father of the victim's child, that's been 

in the reports for months as well."

The dissent can conclude the record is "unclear when the 

alleged sexual activity . . . stopped" only because it closes its 

eyes to this evidence. The dissent mistakenly asserts that the 

State went to trial knowing Schultz could be the father of M.T.'s 

child. Dissent, ¶80. In fact, M.T. told law enforcement that 

"she had her period between the time she had sexual intercourse 

with Alex" and when she had intercourse with Dominic in early to 

mid-October, rendering it unreasonable to suggest the State knew 

Schultz could be the father. Finally, the dissent points to 

nothing in the record to support its assertion that "late summer 

to early fall 2012" included "on or about October 19, 2012."
No. 2017AP1977-CR 

8

from his previous trial and his relationship with M.T. Schultz 

continued to deny having sexual intercourse with M.T. at any point 

during 2012. After receiving authorization from M.T. and her 

mother, Waid contacted M.T.'s obstetrician to obtain information 

regarding the date of conception. M.T.'s obstetrician informed 

Waid that the conception date for the baby was October 19, 2012.

¶11 In March 2014, the State filed charges against Schultz 

in Lincoln County Circuit Court.8 Count 3 charged Schultz with 

sexual assault of a child under 16 years of age, a Class C felony,

"on or about October 19, 2012."9 The State again charged Schultz 

with a penalty enhancer for being a repeat criminal offender, 

pursuant to Wis. Stat. § 939.62(1)(c). The complaint incorporated 

Officer Waid's police report detailing his investigation, which 

was attached to the complaint.

¶12 Schultz moved to dismiss Count 3, arguing it violated 

his constitutional protections against double jeopardy. Because 

"fall" started on September 22, 2012, and October 19, 2012 fell 

within the first thirty days after the September equinox, Schultz 

argued the date alleged for his second sexual assault charge——"on 

or about October 19, 2012"——fell within the timeframe alleged for 

his first charge, which included "early fall." The circuit court 

denied Schultz's motion because it found no evidence of any assault 

 

8 The Honorable Robert R. Russell presided. 

9 See Wis. Stat. § 948.02(2). The complaint included two 

other counts: Count 1 charged Schultz with perjury in violation 

of Wis. Stat. § 946.31(1)(a); Count 2 charged Schultz with 

obstructing an officer in violation of Wis. Stat. § 946.41(1).
No. 2017AP1977-CR 

9

in October in the first prosecution for repeated sexual assault of 

a child. The circuit court found, based on the testimony adduced 

in the first trial, that "late summer to early fall of 2012" meant 

July, August, and September 2012, but not October 19, 2012.

¶13 Schultz thereafter pled guilty to Counts 1 and 3——

perjury and sexual assault of a child under 16 years of age, 

respectively. The circuit court sentenced Schultz to two years of 

initial confinement plus two years of extended supervision for 

perjury, and five years of initial confinement plus five years of 

extended supervision for the sexual assault against M.T, both 

sentences to run concurrently.

¶14 Schultz moved for postconviction relief, again raising 

the double jeopardy argument he set forth in his motion to dismiss. 

Having concluded the defendant presented no new evidence for his 

argument, the circuit court denied the motion. Schultz appealed.

¶15 The court of appeals rejected Schultz's assertion that 

his second prosecution violated the constitutional proscription of 

double jeopardy and affirmed the circuit court. See State v. 

Schultz, 2019 WI App 3, ¶3, 385 Wis. 2d 494, 922 N.W.2d 866. The 

court of appeals held that the test to determine the scope of 

jeopardy in the face of an ambiguous charging document is how a 

reasonable person would understand the charging language, based on 

the evidence introduced at trial and the entire record of the 

proceeding. Id., ¶30. The court of appeals agreed with the 

circuit court's analysis of the evidence presented at Schultz's 

first trial: the sexual assaults were alleged to have occurred 

only in July, August, and September 2012, but not October. Id., 
No. 2017AP1977-CR 

10

¶¶33–34. Schultz filed a petition for review, which this court 

granted.

II. STANDARD OF REVIEW

¶16 Whether a defendant's convictions violate the Double 

Jeopardy Clauses of the Fifth Amendment and Article I, Section 8 

of the Wisconsin Constitution, are questions of law appellate 

courts review de novo. State v. Steinhardt, 2017 WI 62, ¶11, 375 

Wis. 2d 712, 896 N.W.2d 700 (citation omitted); see also State v. 

Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992) (citation 

omitted).

¶17 As part of our analysis, we interpret Wis. Stat. 

§ 971.29. Statutory interpretation is a "question[] of law that 

this court reviews de novo while benefitting from the analyses of 

the court of appeals and circuit court." State v. Ziegler, 2012 

WI 73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238 (citation omitted).

III. ANALYSIS

A. Double Jeopardy Overview 

¶18 The Fifth Amendment provides, in relevant part: "nor 

shall any person be subject for the same offence to be twice put 

in jeopardy of life or limb[.]" U.S. Const. amend. V. The 

Wisconsin Constitution likewise provides protection against double 

jeopardy, stating "no person for the same offense may be put twice 

in jeopardy of punishment[.]" Wis. Const. art. I, § 8, cl. 1. We 

view the United States and Wisconsin Double Jeopardy Clauses as 

"identical in scope and purpose." State v. Davison, 2003 WI 89, 

¶18, 263 Wis. 2d 145, 666 N.W.2d 1 (citation omitted). 

Accordingly, United States Supreme Court decisions interpreting 
No. 2017AP1977-CR 

11

the Fifth Amendment's Double Jeopardy Clause are "controlling 

interpretations" of both the federal Constitution and the 

Wisconsin Constitution. Id. (citations omitted).

¶19 In order to apply the original meaning of the Double 

Jeopardy Clause, we interpret this provision "through the 

historical ascertainment of the meaning that it would have conveyed 

to a fully informed observer at the time when the text first took 

effect." Antonin Scalia & Bryan Garner, Reading Law: The 

Interpretation of Legal Texts 435 (2012). Unlike other 

constitutional protections, the right to be free from double 

jeopardy does not have identifiable roots in a specific legal 

system or a particular point in time. Whereas the writ of habeas 

corpus traces its origin to English common law,10 and the Eighth 

Amendment's ban on cruel and unusual punishment derives directly 

from the English Bill of Rights,11 the protection against double 

jeopardy enshrined in the Constitution represents the amalgamation 

of legal principles applied throughout documented history. See

David S. Rudstein, A Brief History of the Fifth Amendment Guarantee 

against Double Jeopardy, 14 Wm. & Mary Bill Rts. J. 193, 196-202 

(2005) (stating "[t]he precise origins of the guarantee against 

 

10 See State ex rel. Fuentes v. Court of Appeals, 225 

Wis. 2d 446, 450, 593 N.W.2d 48 (1999) (stating that habeas relief 

comes from the common law).

11 See Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (Scalia, 

J., joined by Rehnquist, C.J.) (noting in discussion of the "cruel 

and unusual punishment" provision of the Eighth Amendment, 

"[t]here is no doubt that the [English] Declaration of Rights is 

the antecedent of our constitutional text.").
No. 2017AP1977-CR 

12

double jeopardy are unclear[,]" before discussing the legal 

systems upholding the doctrine). The guarantee against double 

jeopardy existed in the English common law, as evidenced by William 

Blackstone's characterization of it as a "universal maxim of the 

common law of England, that no man is to be brought into jeopardy 

of his life, more than once, for the same offence." 4 William 

Blackstone, Commentaries on the Laws of England 335 (1790). Even 

before Blackstone's recognition of the right as a "universal 

maxim," the English common law included the protection through the 

pleas of "autrefoits acquit (a former acquittal), autrefoits 

convict (a former conviction), and pardon." Rudstein, 14 Wm. & 

Mary Bill Rts. J. at 204 (footnote omitted).

¶20 Precursors to the principle against subjecting people to 

punishment multiple times for the same wrongful act predate the 

common law and are found in ancient civilizations. See, e.g., 

Bartkus v. Illinois, 359 U.S. 121, 151 (1959) (Black, J., 

dissenting) ("Fear and abhorrence of governmental power to try 

people twice for the same conduct is one of the oldest ideas found 

in western civilization. Its roots run deep into Greek and Roman 

times." (footnote omitted)); see also David S. Rudstein, Double 

Jeopardy: A Reference Guide to the United States Constitution 2–

11 (2004) (tracing double jeopardy principles from the Ancient 

Greeks in 355 B.C.E. through Roman and canon law to the English 

common law, and ultimately the Fifth Amendment). In the lengthy 

history underlying this principle, one idea has remained constant: 

a subsequent prosecution must be for the "same offense" in order 

to violate the right to be free from double jeopardy. Rudstein, 
No. 2017AP1977-CR 

13

Double Jeopardy at 2–15 ("same issue," "same offense," "same 

charge" in Ancient Greece; "same offense," or "one offense" in 

Roman law; "same thing," "same matter," or "same crime" in canon 

law; "same offense," "same crime," or "same identical crime" in 

the English common law; "one and the same crime, offence, or 

trespasse" in the Massachusetts Bay Colony, "same crime or offence" 

in the first state constitution with double jeopardy protection; 

"same offence" in the Fifth Amendment; "same offense" in the 

Wisconsin Constitution). In accord with the original meaning of 

the Double Jeopardy Clause, in Wisconsin, "'[t]he same offense' is 

the sine qua non of double jeopardy." Davison, 263 Wis. 2d 145, 

¶33 (citations omitted).

¶21 The Supreme Court identified three constitutional 

protections provided by the Double Jeopardy Clause: (1) "against 

a second prosecution for the same offense after acquittal[,]" (2) 

"against a second prosecution for the same offense after 

conviction[,]" and (3) "against multiple punishments for the same 

offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969), 

overruled on other grounds by Alabama v. Smith, 490 U.S. 794 

(1989). This case involves the first of these protections.

¶22 Over 40 years ago, we held that two prosecutions are for 

the "same offense," and therefore violate the Double Jeopardy 

Clause, when the offenses in both prosecutions are "identical in 

the law and in fact." State v. Van Meter, 72 Wis. 2d 754, 758, 

242 N.W.2d 206 (1976) (citation omitted). Offenses are not 

identical in law if each requires proof of an element that the 

other does not. See Blockburger v. United States, 284 U.S. 299, 
No. 2017AP1977-CR 

14

304 (1932) (citation omitted). Offenses are not identical in fact 

when "a conviction for each offense requires proof of an additional 

fact that conviction for the other offenses does not." State v. 

Lechner, 217 Wis. 2d 392, 414, 576 N.W.2d 912 (1998) (citing 

Sauceda, 168 Wis. 2d at 493-94 n.8; Van Meter, 72 Wis. 2d at 758). 

Offenses are also not identical in fact if they are different in 

nature or separated in time. State v. Anderson, 219 Wis. 2d 739, 

749, 580 N.W.2d 329 (1998) (citation omitted); see also State v. 

Stevens, 123 Wis. 2d 303, 323, 367 N.W.2d 788 (1985) (holding 

offenses were not the same in fact because they were separated by 

a significant period in time).

B. The Dispute

¶23 The parties agree that the offenses in Schultz's first 

and second prosecutions, repeated sexual assault of a child and 

sexual assault of a child under 16, are identical in law. The 

parties disagree as to whether the offenses are identical in fact. 

Schultz argues that both offenses are identical in fact because 

the timeframe for the offenses charged in the first prosecution, 

"late summer to early fall of 2012" encompasses the date for the 

offense charged in the second prosecution, "on or about October 

19, 2012." Schultz contends the charging language is unambiguous 

and the proper inquiry considers how a reasonable person would 

construe the indictment at the time jeopardy attaches, without 

considering later evidence introduced at the previous trial.12 

 

12 For a jury trial, jeopardy attaches when the jury is sworn. 

See Wis. Stat. § 972.07(2). Under Schultz's proposed test, the 

circuit court would determine how a reasonable person would 

construe "late summer to early fall of 2012" at the time the jury 
No. 2017AP1977-CR 

15

Schultz also asserts that even if the charging document is 

ambiguous, the State bears the burden of the ambiguity as the 

drafter of the document. In contrast, the State argues that when 

faced with ambiguous language in a charging document, courts must 

examine the entire record of the proceeding to clarify the scope 

of jeopardy.

C. Determining the Scope of Jeopardy 

¶24 Whether courts may consider the record to determine the 

scope of jeopardy is a question of first impression in Wisconsin. 

In his reply brief, Schultz argued that the record's relevance is 

limited to considering only "how a reasonable person would have 

understood the scope of jeopardy 'at the time jeopardy attached in 

the first case.'" (quoting United States v. Olmeda, 461 F.3d 271, 

282 (2d Cir. 2006)).13 At oral argument, Schultz again conceded 

 

was sworn. 

13 The dissent suggests the point at which jeopardy attaches 

delimits the scope of jeopardy. Dissent, ¶87. This is 

fundamentally wrong. The time at which jeopardy attaches does not 

lock in the scope of jeopardy. Jeopardy attaches when the jury is 

sworn in order to prevent the State from conducting a full trial 

but then dismissing the charges before judgment only to refile the 

charges and retry the defendant until it is confident the jury 

will convict. The attachment of jeopardy when the jury is sworn 

protects the "valued right" of the defendant "to have his trial 

completed by a particular tribunal." Arizona v. Washington, 434 

U.S. 497, 503 (1978) (quoted sources omitted); State v. Seefeldt, 

2003 WI 47, ¶16, 261 Wis. 2d 383, 661 N.W.2d 822 (quoted sources 

omitted). The rationale for this rule is well-established: 

The protection against double jeopardy limits the 

ability of the State to request that a trial be 

terminated and restarted. This protection is important 

because the unrestricted ability of the State to 

terminate and restart a trial increases the financial

and emotional burden on the defendant, extends the 
No. 2017AP1977-CR 

16

that the record is relevant, but only to understand the minds of 

the parties at the time jeopardy attaches: 

The court: But counsel, isn't that . . . why 

we look at the rest of the record, to try to figure 

out what does "early fall" mean?

Schultz's counsel: When . . . we look at the 

record, we're not looking at the record to 

determine whether evidence was submitted to show 

that there was sex in the month of October, what 

we're looking at is evidence of what was the common 

understanding of the parties as to what the 

timeframe was.

The court: [Y]ou mentioned that we should 

apply the test described in Olmeda,[14]. . . it 

says, a court must further determine that such a 

conclusion would be reached by an objective 

arbiter. That determination will require 

examination of the plain language of the 

 

period during which the defendant is stigmatized by an 

unresolved accusation of wrongdoing and may increase the 

risk that an innocent defendant may be convicted. 

Seefeldt, 261 Wis. 2d 383, ¶17 (citation omitted). The United 

States Supreme Court similarly expressed the reasoning underlying 

this rule: 

[A] second prosecution may be grossly unfair. It 

increases the financial and emotional burden on the 

accused, prolongs the period in which he is stigmatized 

by an unresolved accusation of wrongdoing, and may even 

enhance the risk that an innocent defendant may be 

convicted. The danger of such unfairness to the 

defendant exists whenever a trial is aborted before it 

is completed. Consequently, as a general rule, the 

prosecutor is entitled to one, and only one, opportunity 

to require an accused to stand trial.

Washington, 434 U.S. at 503-05 (internal footnotes omitted). 

The point at which jeopardy attaches has nothing to say about the 

actual scope of jeopardy.

14 United States v. Olmeda, 461 F.3d 271, 275 (2d Cir. 2006).
No. 2017AP1977-CR 

17

indictments in the two prosecutions, as well as the 

entire record of the proceedings. 

Schultz's counsel: And I agree with 

that. . . . I do acknowledge that the entire record 

is relevant but only relevant to the understanding 

at the time of jeopardy . . . .

¶25 As Schultz conceded, the entire record of the 

proceedings may be relevant in determining the scope of jeopardy. 

Contrary to Schultz's argument, however, no binding authority 

limits courts to using the record only to determine the subjective 

understanding of the parties in the first criminal proceeding at 

the time jeopardy attaches. Instead, substantial authority 

indicates courts may review the entire record of the first 

proceeding to determine the scope of jeopardy.

¶26 In Van Meter, we decided there was no double jeopardy 

violation when, after a jury trial, the trial court convicted Van 

Meter of knowingly fleeing a police officer in Wood County, after 

he was previously convicted of knowingly fleeing a police officer 

in Portage County, with both charges arising from the same high 

speed chase across county lines, in violation of the same statute. 

Van Meter, 72 Wis. 2d at 755–59. The defendant argued the Double 

Jeopardy Clause barred the second prosecution. Id. at 757. 

Acknowledging the "identity of legal elements" based on both 

prosecutions charging violations of the same statute, this court 

concluded that the requisite "identity in fact[] cannot be shown" 

because "eluding Wood county officers in Wood county" is not the 

same offense as "eluding Portage county officers in Portage 

county." Id. at 757-58. We held a double jeopardy violation 

exists when "facts alleged under either of the indictments would, 
No. 2017AP1977-CR 

18

if proved under the other, warrant a conviction under the

latter[.]" Id. (quoting State v. George, 69 Wis. 2d 92, 98, 230 

N.W.2d 253 (1975)). Applying that test, which was originally 

adopted in Anderson v. State, 221 Wis. 78, 87, 256 N.W. 210 (1936), 

this court determined "that defendant has not been put twice in 

jeopardy for the same offense because proof of facts for conviction 

for the Wood county offense would not have sustained conviction 

for the Portage county offense[.]" Van Meter, 72 Wis. 2d at 759. 

We explicitly "emphasize[d] the importance of having all of the 

facts in the record" to determine whether one fact alleged under 

an indictment would warrant a conviction under the latter. Id. at 

758. Nonetheless, because the defendant did not order any trial 

transcripts for the appeal, this court's review was "limited to 

whether the pleadings, decision, findings and conclusions sustain 

the judgment." Id. at 756, 758 (citations omitted). Accordingly, 

we assumed the evidence was sufficient to support the verdict in 

the Wood County conviction and we relied on the facts from the 

Portage County Circuit Court's decision affirming Van Meter's 

Portage County conviction. Id. at 758–59. Van Meter establishes 

the relevance of the record in determining whether a double 

jeopardy violation occurred.

¶27 All of the federal circuit courts of appeal that have 

addressed this issue have also examined the record, including 

evidentiary facts, in determining the scope of jeopardy. For 

example, in United States v. Walsh, 194 F.3d 37 (2d Cir. 1999), 

abrogated on other grounds by Kingsley v. Henrickson, 135 S. Ct. 

2466 (2015), an indictment charged a corrections officer three 
No. 2017AP1977-CR 

19

times for violating the Eighth Amendment by causing "unnecessary 

and wanton pain" to an inmate. Walsh, 194 F.3d at 40–41. The 

three counts alleged conduct occurring between January 4, 1991 and 

March 8, 1991 (Count 1); between May 26, 1992 and December 1, 1992 

(Count 2); and between May 26, 1992 and July 22, 1992 (Count 3). 

Id. Walsh challenged the timeframes for exposing him to double 

jeopardy, because each count alleged the same conduct and the 

timeframes overlapped. Id. at 41. The Second Circuit Court of 

Appeals rejected his argument that the charges violated the 

prohibition of double jeopardy because the "evidence presented at 

trial" conclusively demonstrated Counts 2 and 3 were not the same 

and the conduct alleged in Count 3 occurred after June 5, 1992. 

Id. at 46. Even though the indictment charged an offense occurring 

between May 26th and July 22nd and it therefore appeared that the 

State was charging Walsh for the same criminal act during the same 

timeframe, the evidence admitted at trial established a break in 

time between the conduct charged in each count. Id.

¶28 In United States v. Castro, 776 F.2d 1118 (3d Cir. 1985), 

multiple defendants were charged with and convicted of conspiracy 

to possess with intent to distribute more than 1,000 pounds of 

marijuana, among other offenses, based upon attempted drug 

transactions in Pennsylvania, Texas, and Florida. Id. at 1120. 

The appellate court acknowledged a variance between the indictment 

and the evidence produced at trial, with the jury finding a 

conspiracy and attempt to purchase marijuana in Pennsylvania only. 

Id. at 1123. On appeal, Castro contended this variance would 

expose him to prosecution in Texas for the same crime. Id. The 
No. 2017AP1977-CR 

20

appellate court disagreed, noting that "[t]he scope of the double 

jeopardy bar is determined by the conviction and the entire record 

supporting the conviction." Id. (citation omitted). The 

appellate court concluded "[t]he record shows clearly that the 

jury found that Castro conspired to possess the Bristol[, 

Pennsylvania] marijuana, and that the evidence supporting his 

conviction could not be sufficient to warrant a conviction based 

upon . . . transactions outside Pennsylvania." Id. at 1124.

¶29 While the Castro court framed the analysis in terms of 

the "record supporting the conviction," courts also examine the 

record in cases involving an acquittal, like Schultz's, in order 

to determine the scope of jeopardy. For example, in United States 

v. Crumpler, 636 F. Supp. 396 (N.D. Ind. 1986), the defendant was 

charged with multiple drug offenses in Florida, of which he was 

acquitted. Id. at 397-98. He was subsequently charged with 

multiple drug offenses in Indiana, in response to which he filed 

a motion to dismiss on double jeopardy grounds. Id. at 398. The 

Crumpler court resolved the motion "based solely on the record 

before it which includes all pleadings, affidavits, and the 

evidence adduced during that evidentiary hearing[]" on the motion 

to dismiss. Id. at 399. Regardless of whether the first 

prosecution resulted in an acquittal or a conviction, "[a] 

defendant claiming that he has been subjected to double jeopardy 

bears the burden of establishing that both prosecutions are for 

the same offense . . . . The defendant must show that 'the 

evidence required to support a conviction on one indictment would 

have been sufficient to warrant a conviction on the other'
No. 2017AP1977-CR 

21

indictment." Id. at 403 (citing United States v. Roman, 728 F.2d 

846 (7th Cir. 1984); United States v. West, 670 F.2d 675, 681 (7th 

Cir. 1982); United States v. Buonomo, 441 F.2d 922, 925 (7th Cir.

1971)). In Crumpler, the defendant argued that all of his drug 

smuggling activities were part of one scheme, so the court examined 

the timeframes alleged in each indictment as part of its double 

jeopardy analysis. Id. at 399, 404-05. In doing so, that court 

considered both "the face of the indictments" as well as "the 

evidence presented during the hearing" and found nothing in the 

record to establish any "overlap in the time periods charged in 

the indictment here and the one in Tampa." Id. at 405.

¶30 The other circuits are in accord with Walsh and Castro. 

See United States v. Stefanidakis, 678 F.3d 96, 100-01 (1st Cir. 

2012) (in reviewing a double jeopardy challenge, courts must see 

if the record "contains facts sufficient to supply a rational basis 

for a finding that [the prosecutions] were predicated on different 

conduct." (citations omitted)); United States v. Bonilla, 579 

F.3d 1233, 1241-44 (11th Cir. 2009) (court reviews the record to 

determine whether convictions violated double jeopardy); United 

States v. Hamilton, 992 F.2d 1126, 1130 (10th Cir. 1993) ("[F]or 

purposes of barring a future prosecution, it is the judgment and 

not the indictment alone which acts as a bar, and the entire record

may be considered in evaluating a subsequent claim of double 

jeopardy." (citation omitted)); United States v. VasquezRodriquez, 978 F.2d 867, 870-72 (5th Cir. 1992) (holding the two 

prosecutions were not for the same offense after reviewing the 

evidence admitted at trial after noting that "acts as described in 
No. 2017AP1977-CR 

22

the indictment will be examined as well as the acts admitted into 

evidence at the trials or hearings." (citations omitted)); United 

States v. Pollen, 978 F.2d 78, 84, 86-87 (3d Cir. 1992) 

("[E]xamin[ing] the record to determine if [separate counts were] 

impermissibly multiplicitous[]" under the Double Jeopardy Clause); 

United States v. Am. Waste Fibers Co., 809 F.2d 1044, 1047 (4th 

Cir. 1987) ("When a Double Jeopardy bar is claimed, the court must 

examine not just the indictment from the prior proceeding but the 

entire record." (citation omitted)); Roman, 728 F.2d 846, 853–54 

(7th Cir. 1984) ("It is the record as a whole, therefore, which 

provides the subsequent protection from double jeopardy, rather 

than just the indictment[.]"); United States v. Levine, 457 F.2d 

1186, 1189 (10th Cir. 1972) ("The entire record of the proceedings 

may be referred to in the event of a subsequent similar 

prosecution. In the case at bar the record contains adequate 

detail to protect against double jeopardy." (internal citation 

omitted)). See also 1 Charles Alan Wright, Federal Practice & 

Procedure § 125 (4th ed. 2019) ("If a defendant claims prior 

jeopardy in defense to a pending charge, the court is free to 

review the entire record of the first proceeding, not just the 

pleading." (footnote omitted)).

¶31 In addition to precedent from the federal courts, 

historical sources support examining the defendant's actual 

exposure to jeopardy in a prior prosecution. "The guarantee 

against double jeopardy became firmly entrenched in the [English] 

common law in the form of the pleas of autrefois acquit (a former 

acquittal), autrefoits convict (a former conviction), and pardon." 
No. 2017AP1977-CR 

23

Rudstein, 14 Wm. & Mary Bill Rts. J. at 204 (footnote omitted). 

If the defendant had already been acquitted, convicted, or pardoned 

of the offense, he could advance the appropriate plea, backed by 

the facts underlying the first case. The availability of these 

common law pleas in defense of a second prosecution confirms the 

historical basis for examining the record of the first prosecution 

to determine the scope of jeopardy. Each of these pleas focused 

on the actual result of the initial prosecution. A founding era

dictionary reinforces the meaning of "jeopardy" as the actual 

danger to which a person is exposed, as opposed to the danger a 

person fears, defining "jeopardy" as "[h]azard; danger; peril." 1 

Thomas Sheridan, A General Dictionary of the English Language

(1780). Near the time the Wisconsin Constitution was adopted, 

Webster's Dictionary similarly defined "jeopardy" as "[e]xposure 

to death, loss or injury; hazard; danger; peril." Jeopardy, 

Webster's Dictionary (1st ed. 1828); see also John Boag, Popular 

and Complete English Dictionary 749 (1848) (defining "jeopardy" 

with verbatim language). Similarly, the current edition of Black's 

Law Dictionary defines "jeopardy" as the exposure a defendant 

actually "faces at trial." Jeopardy, Black's Law Dictionary (11th 

ed. 2019) ("The risk of conviction and punishment that a criminal 

defendant faces at trial." (emphasis added)). None of these 

definitions bases jeopardy on the criminal defendant's fears, 

beliefs, or perceptions regarding his exposure in the first 

prosecution, as Schultz proposes.

¶32 In light of the common law interpretations of jeopardy, 

as well as its historical meaning, we apply Van Meter's holding 
No. 2017AP1977-CR 

24

and join the federal circuit courts of appeal in examining the 

entire record, including evidentiary facts adduced at trial, in 

ascertaining whether a defendant's double jeopardy rights have 

been violated by a second prosecution. Regardless of whether the 

first prosecution results in an acquittal or a conviction, it is 

the record in its entirety that reveals the scope of jeopardy and 

protects a defendant against a subsequent prosecution for the same 

crime. See Roman, 728 F.2d at 854 ("It is the record as a whole, 

therefore, which provides the subsequent protection from double 

jeopardy, rather than just the indictment[.]"); Wright, supra ¶30 

("If a defendant claims prior jeopardy in defense to a pending 

charge, the court is free to review the entire record of the first 

proceeding, not just the pleading." (footnote omitted)).

D. The Record of Schultz's Case

¶33 In this case, we apply the test originally adopted in 

Anderson v. State and reaffirmed in George and Van Meter, and 

examine the entire record of Schultz's first prosecution for 

repeated sexual assault of a child to determine whether the "facts 

alleged under either of the indictments would, if proved under the 

other, warrant a conviction under the latter."15 Van Meter, 72 

 

15 The dissent cites the test from State v. Anderson, 219 

Wis. 2d 739, 749, 580 N.W.2d 329 (1998) but fails to apply it 

correctly. In conclusory fashion, the dissent simply declares 

that "evidence of an act of sexual assault on or around October 19

would have supported a conviction for repeated sexual assault

occurring in the 'late summer to early fall[,]'" but never explains 

why. See dissent, ¶74. The dissent merely repeats its conclusory 

assertions regarding the charging language, without analysis. See

dissent, ¶¶86, 90 ("evidence of an October 19 sexual assault would 

support a conviction" during "a timeframe including 'early 

fall.'"). Tellingly, the dissent ignores a critical portion of 
No. 2017AP1977-CR 

25

Wis. 2d at 758; George, 69 Wis. 2d at 98; Anderson, 221 Wis. at 87 

(quoted source omitted). Specifically, we determine whether the 

initial charge for repeated sexual assault of a child during the 

timeframe of "late summer to early fall of 2012" includes the date 

charged in the second prosecution for sexual assault of a child 

"on or about October 19, 2012."

1. An Unambiguous Complaint

¶34 We begin our analysis with the complaint charging 

Schultz in the initial prosecution. The complaint's language of 

"early fall," viewed alone, does not answer the question because 

"early fall"——standing alone——could be ambiguous.16 However, the 

complaint in this case expressly incorporates by reference the 

attached police report of Officer Waid, which contains some detail 

elucidating the meaning of "early fall." The police report plainly 

establishes the timeframe in which Schultz was subject to jeopardy 

for repeated sexual assault of a child. The report identifies 

 

the charging document in the first prosecution——the attached and 

incorporated-by-reference police report——which defines the time 

period for the alleged assaults, thereby lending temporal 

specificity to what could otherwise be an ambiguous charge.

16 We reject Schultz's argument that fall and early fall have 

definitive meanings based on the earth's position in relation to 

the sun. Dictionaries and people define the seasons differently. 

See, e.g., Fall, Oxford Dictionary (6th ed. 2007) (defining fall 

as "the time of year when leaves fall from trees; autumn" and using 

the following example: "In early fall, towards the end of August, 

they gathered berries." (emphasis added)); Autumn, Oxford 

Dictionary (6th ed. 2007) ("The third season of the year, between 

summer and winter: in the northern hemisphere freq[uently] 

regarded as comprising September, October, and November," before 

moving to the astronomical definition Schultz advances).
No. 2017AP1977-CR 

26

Dominic——not Schultz——as the person who had intercourse with M.T. 

in "early to mid-October." Waid's report described M.T. as having 

intercourse with Schultz "approximately one month before she had 

sexual intercourse with Dominic." One month before early to midOctober is early to mid-September. The report details M.T. having 

had no "sexual intercourse with anyone between Dominic and 

[December 4, 2012]." The police report attached to the complaint 

also recounted another interview during which M.T. said she had 

sexual intercourse with Schultz "over five times," starting in 

"the middle of the year of 2012" and lasting for "a couple of 

months." When asked at oral argument what statements in the police 

report indicated intercourse with Schultz during the month of 

October, Schultz's counsel was unable to identify any. Counsel 

responded, "Well, I don't have a specific quote, but . . . she 

claims there are multiple incidents of sexual abuse."

¶35 Nothing in the police report mentions or even suggests 

sexual intercourse between Schultz and M.T. during October. The 

attached police report unambiguously identifies the latest date of 

intercourse for which Schultz was charged in the first prosecution. 

If, as the report indicates, M.T.'s sexual intercourse with Schultz 

occurred one month before her sexual intercourse with Dominic in 

early to mid-October, and she had no sexual intercourse between 

her intercourse with Dominic and December 4, 2012, then the State's 

charging language of "early fall" means the intercourse for which 

Schultz was charged concluded in early to mid-September, well 

before October 19, 2012. Coupled with the fact that the police 

report indicates M.T. had her period in between the sexual activity 
No. 2017AP1977-CR 

27

with Schultz in mid-September and the sexual activity with Dominic 

in early to mid-October, the police report attached to the 

complaint repudiates any suggestion that "early fall" in the first 

prosecution encompassed October 19.

¶36 Contrary to Schultz's assertion, none of the "five 

times" of sexual intercourse charged in the first prosecution 

occurred in October. The police report included Facebook messages 

between M.T. and Schultz on September 3, 2012 indicating the 

relationship was over on that date, offering additional 

confirmation that the first prosecution encompassed sexual 

assaults by Schultz that ended in September. The police report, 

incorporated by reference into the complaint, clearly identifies 

Schultz's scope of jeopardy in the first prosecution at the time 

jeopardy attached.

2. The Record At Trial 

¶37 Even though the incorporated and attached police report 

renders the complaint unambiguous, we also review the record of 

the first trial to see if anything suggests "early fall" extended 

past mid-September to include October 19, 2012. We do so in order 

to safeguard the defendant's constitutional right against double 

jeopardy. The facts alleged under the second complaint——a sexual 

assault "on or about October 19"——would not, if proven, support a 

conviction in the first prosecution. The complaint in the first 

prosecution alleged repeated sexual assaults during "late summer 

to early fall[,]" which the attached and incorporated police report 

clarified to have concluded in early to mid-September. Limiting 

our review to the complaint, however, would not protect the 
No. 2017AP1977-CR 

28

defendant against double jeopardy if the State introduced evidence 

of a sexual assault occurring "on or about October 19" after 

jeopardy attached. In order to ascertain whether the defendant 

was exposed to double jeopardy in the second prosecution, we 

examine the entire record of proceedings in the first case to see 

if any evidence of a sexual assault occurring "on or about October 

19" was introduced.17

¶38 The trial transcripts reveal no evidence extending the 

end date identified in the police report. M.T testified at 

Schultz's first trial that they began having intercourse in July 

or August and broke up in the beginning of September 2012. She 

also testified to having a conversation with a friend "closer to 

October," after she stopped seeing Schultz, during which she 

disclosed to her friend the previous intercourse with Schultz. A 

 

17 While the dissent repeatedly insists "the defendant's 

protection against double jeopardy must be firmly and rigidly 

guarded"——a principle this court heartily endorses——the dissent 

nevertheless restricts its double jeopardy analysis to "the 

charging period allegation[,]" ignoring the charging document as 

a whole, as well as the record. Dissent, ¶76. Although this 

opinion explains at great length that the defendant's double 

jeopardy rights cannot be fully protected without examining the 

record of trial proceedings, the dissent does not explain why it 

would circumscribe the defendant's constitutional rights by ending 

its analysis with a review of the "the charging period allegation" 

alone. Contradicting its own analysis, the dissent seems to 

recognize the import of reviewing the record when it hypothesizes 

about the consequences "if the results of the pregnancy test 

showing an estimated conception date of October 19 had been 

presented at the first trial[.]" Dissent, ¶83. Unremarkably, if 

the results of the pregnancy test had been presented at the trial, 

double jeopardy would foreclose the second prosecution, regardless 

of the charging language in the first complaint, hence the need to 

review not only the complaint but also the entire record in order 

to determine the scope of jeopardy.
No. 2017AP1977-CR 

29

witness for Schultz, A.O., testified that she and Schultz began a 

romantic relationship in September 2012, lasting until the spring 

of 2013. The State's closing argument stipulated that the 

intercourse between M.T. and Schultz ended in September 2012. In 

its rebuttal, the State identified the time period for the sexual 

assaults as "September, August, and July." The transcript of 

Schultz's first trial contains only 21 mentions of "October." 

Eight of those refer to intercourse with Dominic in early to midOctober. Of the remaining 13, seven refer to M.T. having 

intercourse in the month or so before "October 2012." Of the 

remaining six, four referenced procedural matters regarding 

motions or Schultz's prior convictions. One of the remaining two 

referred to the timing of a conversation M.T. had with a friend 

about the sexual relationship with Schultz after they had already 

broken up.

¶39 The lone remaining reference to the month of October 

came from Schultz's counsel during his opening statement, who 

mentioned a "bombshell that occurred sometime in October of 2012." 

Counsel indicated the "bombshell" was friends alerting Schultz 

that M.T. told others she and Schultz were in a sexual 

relationship. Immediately after, counsel said Schultz and M.T. 

exchanged Facebook messages in which she denied making the 

statements and "his contact with her ended shortly thereafter." 

However, as the trial evidence and police report show, the Facebook 

conversation occurred on September 3, 2012, not in October. 

Schultz's counsel offered no evidence suggesting a second 

conversation occurred in the month of October.
No. 2017AP1977-CR 

30

¶40 Based upon our review of the complaint and its attached 

police report, as well as the trial transcripts, the scope of 

jeopardy of Schultz's first prosecution for "late summer to early 

fall of 2012," ended sometime in September. We need not determine 

the exact date because the conduct charged in the second 

prosecution was "on or about October 19, 2012." It is sufficient 

to conclude the record does not support jeopardy attaching to 

Schultz for any conduct during the month of October. Because the 

scope of jeopardy in the first prosecution did not include the 

date of the assault charged in the second prosecution, the two 

prosecutions were separate in time and therefore not identical in 

fact. See Anderson, 219 Wis. 2d at 749 (holding offenses are not 

identical in fact if they are separated in time).

E. Schultz's Arguments

¶41 Schultz primarily relies on three cases to support a 

double jeopardy violation based on the State's second prosecution. 

For the reasons discussed below, none of them help his case.

¶42 First, Schultz encourages us to apply the test set forth

in George for a continuing crime. In George, we analyzed a 

complaint alleging 29 counts of sports betting, with most counts 

alleging continuing conduct over the span of a definite time 

period, such as from September 15, 1971 to January 15, 1972. 

George, 69 Wis. 2d at 95-96. In that case, we concluded that if 

one prosecution charges a continuing crime, "a conviction or 

acquittal for a crime based on a portion of that period will bar 

a prosecution covering the whole period." Id. at 98 (quoting 1 

Anderson, Wharton's Criminal Law and Procedure 351 (1957))
No. 2017AP1977-CR 

31

(emphasis added). We affirm this principle. In George, an 

acquittal for conduct on December 24, 1971, would bar the State 

from charging the defendant again for sports betting occurring on 

January 1, 1972, because it was within the time period originally 

described in the complaint. However, the holding in George

supplies no support for Schultz's double jeopardy argument because 

Schultz's case requires us to compare the period of time charged 

in each prosecution. Because the record confirms the assaults 

charged in the first prosecution were alleged to have occurred 

before the assault charged in the second prosecution, George

provides no support for Schultz's double jeopardy argument.

¶43 Schultz next contends that the double jeopardy 

principles espoused by our court of appeals in State v. Fawcett

resolve this case in his favor. In Fawcett, the State charged the 

defendant with two counts of first-degree sexual assault. State 

v. Fawcett, 145 Wis. 2d 244, 247, 426 N.W.2d 91 (Ct. App. 1988). 

The complaint alleged the sexual assaults of a child occurred in 

the "six months preceding December [] 1985." Id. The defendant 

challenged this time period as a violation of his Fifth Amendment 

right against double jeopardy. Id. at 247. The court of appeals 

applied our sufficiency-of-the-charge test set forth in Holesome 

v. State, using the second prong of the Holesome test, which asks 

whether conviction or acquittal of the complained-of-charge is a 

bar to another prosecution for the same offense. Fawcett, 145 

Wis. 2d at 251 (quoting Holesome v. State, 40 Wis. 2d 95, 102, 161 

N.W.2d 283 (1968)). In analyzing whether the six–month time period 

in the Fawcett complaint implicated double jeopardy concerns under 
No. 2017AP1977-CR 

32

the Holesome test, the court of appeals concluded that double 

jeopardy was not "a realistic threat in this case." Id. at 255. 

Noting that the defendant's "double jeopardy protection can also 

be addressed in any future prosecution growing out of this 

incident[,]" the court of appeals explained that "[i]f the state 

is to enjoy a more flexible due process analysis in a child 

victim/witness case, it should also endure a rigid double jeopardy 

analysis if a later prosecution based upon the same transaction 

during the same time frame is charged." Id. (emphasis added).

¶44 We agree with the court of appeals' statement in Fawcett

but it does not support Schultz's double jeopardy argument.

Fawcett expressly limited its "rigid double jeopardy analysis" to 

later prosecutions "based upon the same transaction during the 

same time frame[.]"18 Id. (emphasis added). In this case, 

 

18 The dissent dodges the dispositive question in this case: 

were the offenses charged in each prosecution separated in time? 

The dissent offers no answer. Instead, the dissent merely assumes 

"early fall" encompasses October 19. See dissent, ¶¶83-86. The 

dissent would impose "a blanket bar on subsequent prosecutions 

involving the same victim and the same timeframe." Dissent, ¶72. 

So would we. But as explained at length in this opinion, the two 

prosecutions against Schultz involved different timeframes. The 

police report attached to the complaint makes this clear. The 

dissent claims we "construe[] the ambiguous timeframe narrowly" 

misstating our analysis as "implicitly conclud[ing] that 'early 

fall' is ambiguous." Dissent, ¶75, 85. Read in its entirety, the 

charging document is not ambiguous and our construction of it is 

reasonable, not narrow. A "rigid double jeopardy analysis" does 

not mean the court must pretend the police report was not part of 

the complaint, as the dissent apparently does. See dissent, ¶86 

("October 19 is not clearly separate and apart from a charging 

period that runs through 'early fall.'"). A charging document 

should not be read narrowly or expansively, but reasonably and 

fully. Without authority, the dissent espouses a heretofore 

unheard of "important principle" that "the tie goes to the runner—
No. 2017AP1977-CR 

33

Schultz's prosecutions involved criminal conduct separated in 

time. Accordingly, applying Fawcett's "rigid double jeopardy 

analysis" does not affect our conclusion that Schultz's second 

prosecution, for sexual assault of a child under 16, was beyond 

the end date for the repeated sexual assaults of a child charged 

in the first prosecution. Because the sexual assaults charged in 

each prosecution were separated in time, Schultz was not twice put 

in jeopardy for the same offense.

¶45 Finally, Schultz proposes that this court adopt the test 

pronounced by the Second Circuit Court of Appeals in United States 

v. Olmeda. In Olmeda, the defendant moved to dismiss an indictment 

from June 2002, charging him with unlawful possession of ammunition 

in Manhattan. Olmeda, 461 F.3d at 275. Olmeda had previously 

pled guilty to an earlier indictment charging him with ammunition 

possession in June 2002 "within the Eastern District of North 

Carolina and elsewhere." Id. Olmeda argued the conduct alleged 

in the North Carolina indictment, specifically the use of the word 

"elsewhere," subsumed the conduct alleged in the later Manhattan 

indictment, which therefore violated constitutional protections 

against double jeopardy. See id. at 277–78. The State charged 

Olmeda under the same statute for both offenses, leaving the 

determination of whether the offenses were identical in fact the 

central issue in the double jeopardy analysis. Id. at 279, 282.

¶46 To decide whether successive prosecutions were the same 

in fact, Olmeda crafted the following test: courts must decide 

 

—in this case, the defendant." Dissent, ¶76. Even if this 

principle were valid, there is no "tie" in this case.
No. 2017AP1977-CR 

34

whether "a reasonable person familiar with the totality of the 

facts and circumstances would construe the initial indictment, at 

the time jeopardy attached in the first case, to cover the offense 

that is charged in the subsequent prosecution." Id. at 282. The 

Olmeda court went on to say that the determination "will require 

examination of the plain language of the indictments in the two 

prosecutions, as well as 'the entire record of the proceedings.'" 

Id. (quoting 1 Charles Alan Wright, Federal Practice and Procedure

§ 125 (3d ed. 1999)). Finally, Olmeda established a burdenshifting test particularized for conspiracy. Id. Under this test, 

the defendant must first make a "non-frivolous" and "colorable 

objective showing" that the two indictments charge only one 

conspiracy. Id. If the defendant does so, the burden shifts to 

the prosecution to prove, by a preponderance of the evidence, the 

existence of separate conspiracies and no double jeopardy 

violation. Id. Applying this burden-shifting analysis, the Olmeda

court held the government failed to meet its burden. Id. at 289.

¶47 We decline to adopt Olmeda's "reasonable person" test.19 

As a preliminary matter, we are not bound by Olmeda, which was 

 

19 At oral argument, the relevance of Olmeda's footnote 15 was 

in dispute. Footnote 15, in relevant part, states: 

[W]here the government constructively narrows an 

indictment after jeopardy attaches only to refile the 

dropped charge at a later date, a variation of the 

problem of increased exposure arises implicating due 

process if not double jeopardy concerns.

Olmeda, 461 F.3d 287 n.15.

This footnote is irrelevant to Schultz's case. The dissent 

misrepresents this court's "approach" as "endors[ing] the idea 
No. 2017AP1977-CR 

35

decided by the Second Circuit Court of Appeals. On federal 

constitutional issues, only United States Supreme Court decisions 

bind the Wisconsin Supreme Court. See Thompson v. Vill. of Hales 

Corners, 115 Wis. 2d 289, 306-07, 340 N.W.2d 704 (1983). Supreme 

Court decisions on the Constitution's Double Jeopardy Clause are 

also "controlling interpretations" of our own. Davison, 263 

Wis. 2d 145, ¶18. In contrast, decisions by the federal courts of 

 

that the scope of jeopardy is limited to and reduced by the 

evidence presented." Dissent, ¶87. Not so. As explained at 

length in this opinion, review of the record is necessary in order 

to protect the defendant from double jeopardy. As already made 

clear, if the first trial produced evidence of a sexual assault 

occurring "on or about October 19," then regardless of the midSeptember end date for the assaults alleged in the first 

prosecution, double jeopardy would preclude the State from 

subsequently prosecuting Schultz for a sexual assault occurring 

"on or about October 19." In the first case, the State did not 

narrow its prosecution of Schultz after jeopardy attached only to 

refile a dropped charge at a later date. There was no constructive 

amendment by the State for the purpose of pursuing a second 

prosecution for conduct within the timeframe of the first 

prosecution. The government never dropped a charge or sought to 

narrow the timeframe of the first indictment. Instead, the State 

merely learned of similar criminal activity occurring after the 

activity charged in the first proceeding ended, and charged Schultz 

for that later conduct, which was outside the timeframe of the 

first prosecution.

If the complaint charged sexual assaults occurring July 1, 

2012 through November 1, 2012, but no evidence of assaults beyond 

September was introduced at trial, double jeopardy would preclude 

the State from later filing a complaint against Schultz for 

assaults alleged to have occurred in October. Under that scenario, 

the State would indeed be attempting to "constructively narrow[] 

[the] indictment[.]" That is not what happened in this case. 

Misleadingly, the dissent clouds the distinction between 

"constructively narrow[ing] an indictment" for the purpose of 

refiling a "dropped charge" with determining what the original 

scope of jeopardy was in the first place.
No. 2017AP1977-CR 

36

appeal have only persuasive value to this court. See Thompson, 

115 Wis. 2d at 307.

¶48 Secondly, Olmeda did not identify any legal authority 

for its "reasonable person" test. The pertinent section of the 

opinion reads: 

To determine whether two offenses charged in successive 

prosecutions are the same in fact, a court must ascertain 

whether a reasonable person familiar with the totality 

of the facts and circumstances would construe the 

initial indictment, at the time jeopardy attached in the 

first case, to cover the offense that is charged in the 

subsequent prosecution. Thus, where a defendant pleads 

guilty . . . . 

Olmeda, 461 F.3d at 282. Olmeda cites no cases from the United 

States Supreme Court incorporating the "reasonable person" test 

into the Double Jeopardy Clause of the Fifth Amendment, and we 

have discovered none.

¶49 Finally, we reject Olmeda's test because the "reasonable 

person" standard is typically applied in common law areas such as 

contract and tort. See John Gardner, The Many Faces of the 

Reasonable Person, 131 L.Q. Rev. 563, 563 (2015) (referring to the 

reasonable person standard as the "common law's helpmate" and "most 

closely associated with the law of torts"). The double jeopardy 

clauses of the Fifth Amendment and Article 1, Section 8 do not 

include the word "reasonable" and it is a seminal canon of textual 

interpretation that we do not insert words into statutes or 

constitutional text. "Nothing is to be added to what the text 

states or reasonably implies (casus omissus pro omisso habendus 

est)." Scalia & Garner, Reading Law, supra ¶19, at 93 (2012). 
No. 2017AP1977-CR 

37

See generally Akhil Reed Amar, Double Jeopardy Law Made Simple, 

106 Yale L.J. 1807 (1997) (advocating a plain meaning approach to 

the Double Jeopardy Clause, under which "'[s]ame offense' means 

just that[,]" and employing the Due Process Clause as a backdrop). 

Absent direction from the text itself or the Supreme Court, we 

decline to read a "reasonable person" standard into the Fifth 

Amendment's protections against double jeopardy. Likewise, we 

will not read words into Article I, Section 8 of the Wisconsin 

Constitution. Cf. State v. Roberson, 2019 WI 102, ¶56, 389 

Wis. 2d 190, 935 N.W.2d 813 ("A state court does not have the power 

to write into its state constitution additional protection that is 

not supported by its text or historical meaning.").

¶50 Applied in this case, the Olmeda test could yield 

different results depending upon the geographic location of the 

"reasonable person" who determines what "early fall" means. The 

"reasonable person" in Hurley, Wisconsin might perceive "early 

fall" to commence in late September, coinciding with changes in 

the color of leaves on trees and dropping temperatures. In 

contrast, the "reasonable person" in Madison may associate "early 

fall" with the opening game of the University of Wisconsin Badgers 

football team. The constitutional protections against double 
No. 2017AP1977-CR 

38

jeopardy cannot be conditioned upon geographic location——or any 

other variables influencing the judge's perspective.20

F. Wisconsin Stat. § 971.29

¶51 Schultz also contends the court of appeals erred in 

relying on Wis. Stat. § 971.29 as a basis for reviewing the entire 

record. He argues doing so is improper when it prejudices the 

defendant. We agree with the court of appeals. Wisconsin Stat. 

§ 971.29(2) expressly allows post-verdict amendments to the 

pleading to conform to the proof presented at trial, with no 

consideration of prejudice to the defendant:

At the trial, the court may allow amendment of the 

complaint, indictment or information to conform to the 

proof where such amendment is not prejudicial to the 

defendant. After verdict the pleading shall be deemed 

amended to conform to the proof if no objection to the 

relevance of the evidence was timely raised upon the 

trial.

(Emphasis added.) 

¶52 Only "at the trial" must the circuit court consider 

prejudice to the defendant of allowing an amendment to the 

pleading. "After verdict the pleading shall be deemed amended to 

 

20 Although the dissent never cites Olmeda as the source, it 

essentially adopts its "reasonable person" test. The dissent says 

"the scope of jeopardy" is "as broad as the charging language may 

be fairly read." Dissent, ¶72. The dissent does not explain what 

"fairly read" means (or by whose measure we define it). The 

constitutional protection against double jeopardy cannot depend 

upon such a vague standard. This court instead follows the rule 

overwhelmingly applied by other jurisdictions and reflected in the 

common law dating back centuries, under which courts define the 

scope of jeopardy by the entire record in the case, rather than 

how a particular judge may "fairly read" a single document filed 

in the matter.
No. 2017AP1977-CR 

39

conform to the proof" unless at trial, the defendant timely 

objected to the relevance of the evidence. The portion of Wis. 

Stat. § 971.29(2) addressing such post-verdict amendments of the 

pleading contains no prejudice qualifier. We do not read words 

into the statute that the legislature did not write. "Under the 

omitted-case canon of statutory interpretation, '[n]othing is to 

be added to what the text states or reasonably implies (casus 

omissus pro omisso habendus est). That is, a matter not covered 

is to be treated as not covered.'" Lopez-Quintero v. Dittmann, 

2019 WI 58, ¶18, 387 Wis. 2d 50, 928 N.W.2d 480 (quoting Scalia & 

Garner, Reading Law, supra ¶19, at 93). "One of the maxims of 

statutory construction is that courts should not add words to a 

statute to give it a certain meaning." Fond Du Lac Cty. v. Town 

of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989)

(citation omitted); see also State v. Wiedmeyer, 2016 WI App 46, 

¶13, 370 Wis. 2d 187, 881 N.W.2d 805 ("It is not up to the courts 

to rewrite the plain words of statutes[.]"). Based on the same 

principle, we reject any contention that the statute implicitly 

excludes the amendment of dates or times in a charging document. 

See State v. Duda, 60 Wis. 2d 431, 440, 210 N.W.2d 763 (1973) 

(construing Wis. Stat. § 971.29, "[w]e are of the opinion that the 

sentence regarding amendment after verdict was intended to deal 

with technical variances in the complaint such as names and dates." 

(emphasis added)).

G. Admonition 

¶53 Our opinion should not be read to approve attempts by 

the State to use imprecise charging language in an effort to skirt 
No. 2017AP1977-CR 

40

the protections against double jeopardy. As the court of appeals 

correctly noted, defendants faced with uncertain language in a 

charging document should raise the issue to the circuit court 

through an appropriate motion. See Wis. Stat. § 971.31 (pretrial 

motions including defects in the indictment); State v. Miller, 

2002 WI App 197, ¶¶8–9, 257 Wis. 2d 124, 650 N.W.2d 850 (motion to 

dismiss based on vague or overbroad charging period and motion 

requesting a more definite and certain statement); Fawcett, 145 

Wis. 2d at 250–51 (due process challenges to the sufficiency of an 

indictment). 

¶54 Further, we reaffirm a principle already established in

cases involving child sexual assaults: the law does not require 

definitive dates in charging documents in such cases. See State 

v. Hurley, 2015 WI 35, ¶¶33–34, 361 Wis. 2d 529, 861 N.W.2d 174. 

This is because children are often incapable of remembering 

traumatic incidents by the day, week, or month, but instead might 

correlate them to other events in their lives, such as holidays, 

birthdays, or school semesters. See id.

IV. CONCLUSION

¶55 We hold that when the State charges a defendant in a 

subsequent prosecution for conduct the defendant contends overlaps

the first prosecution's timeframe, courts may examine the entire 

record of the first proceeding to determine the actual scope of 

jeopardy in the first proceeding. The test to determine whether 

the earlier timeframe included the second is not what a reasonable 

person would think the earlier timeframe includes. Instead, the 

reviewing court ascertains the parameters of the offense for which
No. 2017AP1977-CR 

41

the defendant was actually in jeopardy during the first proceeding 

by reviewing all of the evidence, testimony, and arguments of the 

parties.

¶56 The State's prosecution of Schultz for sexual assault of 

a child under 16, "on or about October 19, 2012," did not violate 

the double jeopardy provisions of the Fifth Amendment or Article 

I, Section 8. This second prosecution for sexual assault was not 

identical in fact to the first prosecution for repeated sexual 

assault of a child in "late summer to early fall of 2012." A 

court's determination of the scope of jeopardy in a prior criminal 

prosecution is based upon the entire record of the first 

proceeding, including the evidence introduced at trial. It is the 

entire record of the first proceeding that reveals the details of 

the offense for which the defendant was actually in jeopardy during 

the first prosecution. The record of Schultz's first criminal 

prosecution——including the indictments, the police report, and 

trial testimony——establish a scope of jeopardy that excludes any 

conduct occurring in the month of October. The two cases against 

Schultz did not involve the "same offence" under the Double 

Jeopardy Clause. We affirm the decision of the court of appeals.

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

affirmed.
No. 2017AP1977-CR.bh

1

¶57 BRIAN HAGEDORN, J. (dissenting). Alexander Schultz 

was charged with repeated sexual assault, a criminal offense that 

encompasses any and all sexual assaults committed within a 

specified period of time. Based on the vague witness statements 

as well as a still-outstanding paternity test, the State chose a 

broad and imprecise charging period: "late summer to early fall." 

While it could have waited until it had all the evidence——most 

notably, the results of the paternity test——the State went forward 

anyway, and the jury acquitted. When the paternity test later 

showed Schultz was the father, the State tried again, this time 

charging Schultz for committing sexual assault "on or about October 

19."

¶58 Our state and federal constitutions protect against two 

prosecutions for the same offense. When asking whether a second 

charge is based on the same facts, the test is whether the facts 

alleged under the second complaint would, if proved, support a 

conviction under the first complaint. See Anderson v. State, 221 

Wis. 78, 87, 265 N.W. 210 (1936).

¶59 Applying this test, evidence of sexual assault on 

October 19 would have supported a conviction for repeated sexual 

assault during "late summer to early fall." Because those charges 

are for the same offense, the subsequent prosecution violated 

Schultz's constitutional protection against double jeopardy and 

should have been dismissed. I respectfully dissent.
No. 2017AP1977-CR.bh

2

I

¶60 Both the United States and Wisconsin Constitutions 

protect against a second prosecution for the same offense after 

acquittal.1 The constitutional protection against double jeopardy 

features both front-end and back-end safeguards; that is, our 

double jeopardy cases examine whether the protection is secure 

both at the time an original complaint is filed and when a 

subsequent prosecution is brought.

¶61 On the front end, a defendant charged with a crime is 

entitled to be informed of "the nature and cause of the accusation 

against him." Holesome v. State, 40 Wis. 2d 95, 102, 161 

N.W.2d 283 (1968) (citing U.S. Const. amends. V, VI; Wis. Const. 

art. I, §§ 7, 8(1)). When a defendant claims these rights have 

been violated, the court reviews the allegations in the charging 

document to determine "whether it states an offense to which he is 

able to plead and prepare a defense and whether conviction or 

acquittal is a bar to another prosecution for the same offense." 

Id.

¶62 In child sexual assault cases, these due process 

protections——though still required——are viewed through a "more 

flexible" lens. State v. Hurley, 2015 WI 35, ¶34, 361 Wis. 2d 529, 

861 N.W.2d 174 (quoting State v. Fawcett, 145 Wis. 2d 244, 254, 

426 N.W.2d 91 (Ct. App. 1988)). This is so because of the unique 

nature of these offenses. In particular, the "vagaries of a 

 

1 "[N]or shall any person be subject for the same offence to 

be twice put in jeopardy of life or limb . . . ." U.S. Const. 

amend. V. "[N]o person for the same offense may be put twice in 

jeopardy of punishment . . . ." Wis. Const. art. I, § 8(1).
No. 2017AP1977-CR.bh

3

child's memory"——i.e., the difficulty for child victims to testify 

regarding specific dates and details——should not allow offenders 

to escape punishment. See id., ¶¶33-34 (quoting Fawcett, 145 

Wis. 2d at 254). Therefore, the complaint need not set forth 

precise allegations regarding the date any alleged crimes were 

committed.

¶63 Given all this, complaints alleging child sexual assault 

generally pass constitutional muster despite featuring more 

expansive and imprecise charging periods than other criminal 

offenses. For example, in Hurley, we concluded that a complaint 

charging the defendant with repeated sexual assault of the same 

child "on and between" 2000 and 2005 was constitutionally 

sufficient. Id., ¶¶10, 53; see also State v. Kempainen, 2015 

WI 32, ¶¶1, 4, 361 Wis. 2d 450, 862 N.W.2d 587 (holding sufficient 

notice provided with charging periods of "on or about August 1, 

1997 to December 1, 1997," and "on or about March 1, 2001 to June 

15, 2001").

¶64 But it is also true that this charging flexibility 

necessitates a counterbalancing assurance——that is, because the 

prosecution is held to a less-exacting standard for charging period 

precision, the defendant's protection against double jeopardy must 

be firmly and rigidly guarded.

¶65 In Fawcett, the court of appeals reviewed the 

sufficiency of two sexual assault charges alleged to have occurred 

"during the six months preceding December A.D. 1985." 145 

Wis. 2d at 247. In conducting its double jeopardy analysis, the 

court explained: 
No. 2017AP1977-CR.bh

4

[W]e do not conclude that double jeopardy is a realistic 

threat in this case. In its brief, the state concedes 

that Fawcett may not again be charged with any sexual 

assault growing out of this incident. Courts may tailor 

double jeopardy protection to reflect the time period 

charged in an earlier prosecution. Therefore, Fawcett's 

double jeopardy protection can also be addressed in any 

future prosecution growing out of this incident. If the 

state is to enjoy a more flexible due process analysis 

in a child victim/witness case, it should also endure a 

rigid double jeopardy analysis if a later prosecution 

based upon the same transaction during the same time 

frame is charged.

Id. at 255 (emphasis added) (citing State v. St. Clair, 418 

A.2d 184, 189 (Me. 1980)). In other words, as long as the State 

enjoys front-end pleading flexibility, defendants are deserving of 

equally extensive back-end protection against any threat of double 

jeopardy that could arise from such flexibility.

¶66 Other jurisdictions have recognized the same dynamic in 

cases involving broad and vague charging language, and provide 

guidance for what a "rigid double jeopardy analysis" looks like.

¶67 In State v. Martinez, the Nebraska Supreme Court 

affirmed the need for pleading flexibility in child sexual assault 

cases: "It is preferable to allow the State to conduct one 

vigorous prosecution to protect a child rather than to bar any 

prosecution at all because of a child's natural mnemonic 

shortcomings."2 550 N.W.2d 655, 658 (Neb. 1996). To compensate 

for that, however, the State must face a "blanket bar" against any 

 

2 The Nebraska Supreme Court affirmed a lower court decision 

that itself cited Fawcett for the premise that "courts may tailor 

double jeopardy protection to reflect the time period involved in 

the charge in the earlier prosecution." State v. Martinez, 541 

N.W.2d 406, 414–15 (Neb. Ct. App. 1995) (citing State v. Fawcett, 

145 Wis. 2d 244, 255, 426 N.W.2d 91 (Ct. App. 1988)).
No. 2017AP1977-CR.bh

5

further prosecutions arising from the broad timeframe alleged in 

the earlier prosecution: 

The State may allege a timeframe for its allegations of 

sexual assault of a child in its first prosecution; as 

a quid pro quo to ensure that this liberty is not abused, 

the State must survive double jeopardy scrutiny if it 

attempts a second prosecution based upon the same 

transaction during the same timeframe. Unless the 

offense charged in the second prosecution is clearly 

separate and apart from the offense charged in the first 

prosecution, the timeframe alleged in the first 

prosecution acts as a "blanket bar" for subsequent 

prosecutions. This is the only viable means of balancing 

the profound tension between the constitutional rights 

of one accused of child molestation against the State's 

interest in protecting those victims who need the most 

protection.

Id. at 658 (emphasis added). Again, the blanket bar extends to 

all subsequent offenses unless they are "clearly separate and 

apart" from the timeframe charged in the first offense.

¶68 Similarly, the Maine Supreme Court decision cited in 

Fawcett explained, "[w]hen an offense charged consists of a series 

of acts extending over a period of time, a conviction or acquittal 

for a crime based on a portion of that period will bar a prosecution 

covering the whole period." St. Clair, 418 A.2d at 189 (quoted 

source omitted). This meant that an indictment broadly alleging 

the commission of embezzlement "during and between the months of 

November, 1973, and December, 1975," would bar a prosecution across 

that whole period even though the evidence presented at trial was 

limited to a transaction occurring on November 1, 1973. Id. at 
No. 2017AP1977-CR.bh

6

188-90. These cases are not unique. This concept is a common, 

well-understood theme in sister courts around the country.3

¶69 Our repeated sexual assault statute also embodies the 

notion of a blanket bar unless the second charge is clearly 

separate and apart from the first. It expressly prohibits the 

State from charging a defendant with repeated acts of sexual 

assault (under Wis. Stat. § 948.025) and sexual assault of the 

same child (under Wis. Stat. § 948.02) "unless the other violation 

occurred outside the time period" used for the repeated acts 

charge. § 948.025(3) (2017-18) (emphasis added).4

 

3 See, e.g., State v. D.B.S., 700 P.2d 630, 633, 635 (Mont. 

1985) (explaining, in reference to charging period of "January 1, 

1983 to October 28, 1983," that less charging period specificity 

required in cases involving sexual abuse of a child but also that 

double jeopardy concerns are alleviated because "[t]he State is 

barred by [the state constitution] from retrying the defendant for 

the offense to this particular victim during the time in 

question"), overruled on other grounds by State v. Olson, 951 

P.2d 571, 577 (Mont. 1997); State v. Lakin, 517 A.2d 846, 847 (N.H. 

1986) (explaining that the broad timeframe alleged in a sexual 

assault does not implicate fear of the possibility of double 

jeopardy because "[c]ourts may tailor double jeopardy protection 

to reflect the scope of the time period charged in an earlier 

prosecution"); State v. Altgilbers, 786 P.2d 680, 695 (N.M. Ct. 

App. 1989) ("Because of the scope of the indictment in this case, 

the state would not be permitted in the future to charge defendant 

with any sexual offenses involving his two children during the 

time encompassed by the counts in the indictment."); State v. 

Wilcox, 808 P.2d 1028, 1030, 1033–34 (Utah 1991) (explaining, in 

reference to charging period of "on or between January, 1985, and 

September 4, 1987," that although less charging period specificity 

is required when young children are involved, "[o]nce a prosecutor 

chooses to prosecute on such vague allegations, a necessary quid 

pro quo under our constitutional notice provision is that to 

protect the defendant from double jeopardy, the prosecutor should 

be precluded from bringing further charges that fall within the 

general description of the charging allegations").

4 All references to the Wisconsin Statutes are to the 2017-18 

version.
No. 2017AP1977-CR.bh

7

¶70 The same front-end flexibility authorizing broad 

charging periods in child sexual assault cases also supports vague 

or imprecise charging periods. See, e.g., People v. LaPage, 53 

A.D.3d 693, 694–95 (N.Y. App. Div. 2008) (finding child sex offense 

charging period of "late summer or early fall of 2006" provided

constitutionally sufficient notice). It appears that cases 

stemming from vague charging language are rare. Even so, the same 

complementary principles should apply. When imprecise allegations 

are considered for double jeopardy purposes, any imprecision must 

be read at its broadest to ensure that the subsequent offense is 

clearly separate and apart. This guarantees that the State's 

pleading flexibility is not acting as both a sword and a shield 

against the defendant.

¶71 The Maine Supreme Judicial Court applied this principle 

in a case where a defendant challenged a sexual assault indictment 

on double jeopardy grounds because the indictment charged him with 

a "sexual act," a general statutory term that was elsewhere 

statutorily defined as any of several different forms of behavior. 

State v. Hebert, 448 A.2d 322, 326 (Me. 1982). The court rejected 

the defendant's front-end double jeopardy claim based on the 

indictment. The vague charge, the court explained, means the scope 

of jeopardy in any subsequent prosecution is commensurately vast, 

encompassing anything fairly included within the charging 

document: 

Because that statutory language may mean, under [the 

statutory definition], several different forms of 

behavior, that allegation in this indictment is 

ambiguous. It is clear, however, that when a defendant 

is placed in jeopardy under a valid indictment, he or 
No. 2017AP1977-CR.bh

8

she may not thereafter be placed in jeopardy for any 

offense of which he properly could have been convicted 

under that indictment. The scope of jeopardy created by 

an indictment is therefore as broad as that indictment 

may be fairly read. The ambit of the constitutional bar 

to subsequent prosecution is co-extensive with the scope 

of jeopardy created in the prior prosecution. Thus, if 

the allegations in one prosecution describe an offense 

which is shown to be within the scope of the charging 

allegations of a prior prosecution, then the defendant 

may successfully raise a defense of former jeopardy to 

the subsequent proceedings.

Id. at 326 (second and third emphases added) (citations omitted).

¶72 Putting this all together, a "rigid double jeopardy 

analysis" necessarily depends on the specific charging language of 

a given case. This case-specific approach recognizes that the 

State has more pleading flexibility in child sexual assault cases

because of the unique nature of such offenses. Where that relaxed 

standard leads to expansive and imprecise allegations, the State 

must be held responsible for any flexibility it exercises when 

those same allegations are considered from a double jeopardy 

perspective. This means a broad charging period must be paired

with a blanket bar on subsequent prosecutions involving the same 

victim and the same timeframe. And vague allegations should

likewise be coupled with a scope of jeopardy as broad as the 

charging language may be fairly read.

II

¶73 This common-sense approach matches the test we set forth 

84 years ago in Anderson. Where the issue is whether the charges 

are identical in fact, double jeopardy is violated if the facts 

alleged under the second complaint would, if proved, support a 

conviction under the first complaint. See Anderson, 221 Wis. at 
No. 2017AP1977-CR.bh

9

87; see also State v. George, 69 Wis. 2d 92, 98, 230 N.W.2d 253 

(1975) (applying Anderson); State v. Van Meter, 72 Wis. 2d 754, 

758, 242 N.W.2d 206 (1976) (same). The logic of this test is 

apparent. If allegations of a subsequent prosecution describe an 

offense that falls within the scope of jeopardy in an earlier 

prosecution, the defendant is twice subject to conviction and 

punishment for the same conduct. This the constitution does not 

allow.

¶74 Applying this test, the proper question is whether

evidence of an act of sexual assault on or around October 19 would 

have supported a conviction for repeated sexual assault occurring 

in the "late summer to early fall." Reading "early fall" as broad 

as it may be fairly read, with the whole record in view, the answer 

is yes.

¶75 The majority comes out the other way, its logic 

proceeding in three steps. First, although it doesn't explicitly 

say so, it implicitly concludes that "early fall" is ambiguous. 

Then, it determines that this ambiguity should be resolved by 

looking to the entire record to determine what "early fall" meant 

in the context of the original prosecution. Finally, it concludes 

that the police report attached to the complaint and evidence 

presented at trial show "early fall" meant, in effect, midSeptember.5

 

5 The majority says it is not concluding the charging language 

is ambiguous. Majority op., ¶44 n.18. We can quibble over the 

descriptor for what the majority is doing, but there would be no 

need to explore the record to define an end date not chosen by the 

State if the complaint was clear on its face.
No. 2017AP1977-CR.bh

10

¶76 I agree with the majority that the whole record may be 

consulted to determine the scope of jeopardy defined by ambiguous 

charging language.6 But the important principle the majority loses 

sight of is that the tie goes to the runner——in this case, the 

defendant. This is so because any imprecision in the phrase "early 

fall" is a product of the pleading flexibility that allows vague 

charging language like this in the first place. Looking to the 

record of the original proceeding shows that it was unclear when 

the alleged sexual activity between M.T. and Schultz stopped. This 

in turn led the State to allege a broad and imprecise end point 

for the repeated sexual assault charge consistent with the very 

lack of precision reflected in the evidence it had. Although the 

majority finds a date certain (mid-September) in the police report 

and testimony, that's not the charging period allegation. The 

 

6 As the majority aptly points out, examining the record is 

appropriate and necessary to determine the scope of jeopardy in 

certain circumstances. For instance, the entire record has been 

used to define the parameters of an underlying offense like a 

conspiracy that "seldom will be clear" from the charging document 

alone. See, e.g., United States v. Crumpler, 636 F. Supp. 396, 

403 (N.D. Ind. 1986) (quoting United States v. Castro, 629 

F.2d 456, 461 (7th Cir. 1980)). Or it may assist when the evidence 

at trial presents a variance from the language in the charging 

document. See, e.g., United States v. Hamilton, 992 F.2d 1126, 

1129-30 (10th Cir. 1993) (explaining that the whole record would 

protect against double jeopardy where a variance existed between 

charging language and the evidence produced at trial); United 

States v. Castro, 776 F.2d 1118, 1123 (3d Cir. 1985) (discussing 

a defendant's broader double jeopardy protection when the evidence 

supporting his conviction was considerably narrower than the 

language in the indictment).

The parties in this case do not disagree on whether the record 

may be consulted; they simply part ways over how such information 

can be used.
No. 2017AP1977-CR.bh

11

State instead chose an undefined seasonal end point ("early fall"), 

one that matched the temporally imprecise information that was 

shared by witnesses throughout the underlying investigation. The 

State's strategic decision to select a vague end point for the 

charging period should not be newly defined by this court to be a 

narrower date certain.

¶77 The investigation into sexual assault against fifteenyear-old M.T. began in December 2012 precisely because she was 

pregnant. The investigating officer turned his attention to 

twenty-year-old Alexander Schultz after M.T. stated in interviews 

that the two of them had sex multiple times. Schultz denied a 

sexual relationship with M.T. He stuck with that story even after 

the investigating officer informed him that M.T. was pregnant and 

"may believe that [he] is the father of the child."

¶78 Schultz was eventually charged with committing at least 

three acts of sexual assault against M.T. in the "late summer to 

early fall of 2012." As part of his defense against that charge, 

Schultz moved the court to order a paternity test. On the morning 

of trial, the results of that test were still an open question. 

M.T. wanted the trial to be continued until the father's identity 

was known. Her mother supported that plan.

¶79 Schultz previously had also hoped to postpone the trial 

in anticipation of the paternity test results. However, after 

M.T. and her mother made their desires known, Schultz reversed 

course and asked to proceed with trial that day. The court agreed, 

and a jury found Schultz not guilty. Four days later, the 

paternity test results came in, revealing that Schultz was the 
No. 2017AP1977-CR.bh

12

father of M.T.'s child, with an apparent conception date of October 

19, 2012.

¶80 As an initial matter, the conception-inducing sexual 

assault is what commenced the investigation that led to Schultz's 

original prosecution in the first place. The majority's assertion 

that everyone agreed the pregnancy was not pertinent at trial is 

not a fair picture. Majority op., ¶5. While the State seemingly 

entered trial presuming that Schultz was not the father, it was 

certainly not certain about that. Instead, the State went to trial 

with the evidence it had, knowing all the while that Schultz could 

be the father.

¶81 Moreover——and this is important——if the evidence was 

clear that no sexual activity occurred after mid-September, the 

State could have charged Schultz accordingly. As the majority 

tells it, the police report itself definitively excludes any 

conduct occurring in the month of October. Majority op., ¶34. 

Yet, instead of so charging, the State chose to use the vaguer and 

less precise language, "early fall." Why? Because that is the 

imprecise language witnesses used throughout the initial 

investigation,7 and undoubtedly the State hoped to capture the full 

array of evidence that could have emerged at trial to support a 

conviction.

 

7 For instance, M.T.'s neighbor informed the investigating 

officer that she had seen Schultz at M.T.'s residence numerous 

times "around the summer to early fall area" of 2012. Another 

friend of M.T.'s told the officer she was aware of sexual 

interactions between M.T. and Schultz that had "occurred during 

the late summer, early fall area of 2012."
No. 2017AP1977-CR.bh

13

¶82 By casting a wider net, the State was empowered to 

present evidence of any and all acts occurring during the entire 

charging period that supported its charge of repeated sexual 

assault. But it must also live with the reality that any new 

evidence of sexual assault during that time period would be 

unavailable for a second prosecution. Again, case after case after 

case explains that charging flexibility on the front end equals 

exacting double jeopardy protection on the back end.

¶83 Returning to our long-established test, charges are 

factually identical if facts alleged under the second complaint

would, if proved, support a conviction under the first complaint. 

See Anderson, 221 Wis. at 87. Applying this test, the benchmark 

that proves the point is this: if the results of the paternity 

test showing an estimated conception date of October 19 had been 

presented at the first trial, that evidence would have supported

a conviction for repeated sexual assault during the charging period 

without any need for the State to amend its complaint. The same 

would be true if M.T. testified that she and Schultz had sex 

through the middle of October——that is, testimony that merely days 

later would be proven true by way of the paternity test results.

¶84 The majority dismisses this as a hypothetical, and then 

says that if evidence of an October 19 sexual assault was 

introduced at the first trial, Schultz's second prosecution would 

be barred under double jeopardy. Majority op., ¶37 n.17. This is 

true, but misses the point being made in this dissent. If the 

majority is correct that the ambiguous phrase "early fall" meant 

nothing beyond mid-September, then an effort by the State to 
No. 2017AP1977-CR.bh

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introduce evidence of an October 19 sexual assault would have 

required amending the complaint. Why? Because that date, the 

majority concludes, was outside the original charging period.

¶85 The key difference between the majority and my own view 

is that the majority draws on the record to establish a date 

certain that the State did not delineate for what was actually a 

deliberately vague and imprecise charging period. The majority 

construes the ambiguous timeframe narrowly, whereas I believe a 

proper protection of Schultz's constitutional right to be free 

from double jeopardy requires us to construe such ambiguity against 

the State. This is the "rigid double jeopardy analysis" that the 

State must endure. Fawcett, 145 Wis. 2d at 255. While this seems 

deferential to the defendant, that is precisely the point.

¶86 Reading the charging language as broad as it may be 

fairly read, evidence of an October 19 sexual assault would support

a conviction during a timeframe including "early fall." As Schultz 

points out, October 19 is, from an astronomical perspective, early 

fall; it occurs in the first full month of the astronomical season 

of fall. While this is not conclusive, it is a fair reading of 

how early fall can be understood. October 19 is not clearly 

separate and apart from a charging period that runs through "early 

fall."8

 

8 The majority responds that a "charging document should not 

be read narrowly or expansively, but reasonably and fully." 

Majority op., ¶44 n.18. As explained above, however, a reasonable 

and full reading of vague and imprecise charging language requires 

ensuring that the defendant is given the benefit of the State's 

imprecision. While the majority may describe what it is doing as 

reasonably reading the charging language, it is in fact identifying 

a narrower date certain the State never chose.
No. 2017AP1977-CR.bh

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¶87 Problematically, the majority's approach in this case

seems to endorse the idea that the scope of jeopardy is limited to 

and reduced by the evidence presented. But jeopardy is "[t]he 

risk of conviction and punishment that a criminal defendant faces 

at trial." See Jeopardy, Black's Law Dictionary (11th ed. 2019) 

(emphasis added). Here, that jeopardy attached when the jury was 

sworn. State v. Moeck, 2005 WI 57, ¶34, 280 Wis. 2d 277, 695 

N.W.2d 783. Schultz was therefore at risk of conviction and 

punishment based not solely on the evidence presented at trial, 

but on the evidence that could have been presented under the charge 

as brought. On the other hand, if the scope of jeopardy is now 

defined simply by "the evidence, testimony, and arguments of the 

parties," nothing stops that definition from shrinking until it 

resembles only the evidence presented. Majority op., ¶55. That 

is not consistent with the protections provided by our state and 

federal constitutions.9

¶88 The Second Circuit emphasized the danger of constructive 

amendments of this kind in United States v. Olmeda, warning that 

double jeopardy is threatened when broad or imprecise charging 

language is implicitly narrowed after the fact based on the lack 

of certain evidence:

The law recognizes constructive amendment of an 

indictment to broaden a defendant's criminal exposure as 

a "serious error." In general, a constructive amendment 

 

9 Moreover, it makes little sense for our courts to determine 

whether the allegations in a charging document are sufficient to 

protect against a subsequent prosecution on the front end if the 

ensuing proceedings will effectively redefine those allegations 

based on the evidence presented. Holesome v. State, 40 Wis. 2d 95, 

102, 161 N.W.2d 283 (1968).
No. 2017AP1977-CR.bh

16

narrowing the scope of an indictment is not troublesome 

because it does not similarly increase a defendant's 

criminal exposure. But where the government 

constructively narrows an indictment after jeopardy 

attaches only to refile the dropped charge at a later 

date, a variation on the problem of increased exposure 

arises implicating due process if not double jeopardy 

concerns.

461 F.3d 271, 287 n.15 (2d Cir. 2006) (citations omitted).

¶89 The majority suggests that fear of this threat is 

misplaced because the State never sought to narrow or amend its 

first charge against Schultz. Majority op., ¶47 n.19. No formal 

amendment occurred; this is true, but it's not the danger Olmeda

flags. Olmeda's warning is aimed at exactly what the majority 

does here——not formal amendment, but constructively narrowing a 

charge based on evidence presented after jeopardy attaches.

¶90 In short, because evidence of a sexual assault on or 

about October 19 would have supported a conviction in his first 

trial without the need to amend the charging period in the 

complaint, the State's second prosecution violated Schultz's 

constitutional protection against double jeopardy. The State 

chose to charge Schultz for repeated sexual assault over a time 

period with a vague and ambiguous end point. It is inconsistent 

with a vigorous protection against double jeopardy to construe 

that ambiguity to conform to the more limited evidence presented, 

rather than to construe it broadly to encompass the very 

evidentiary indeterminacies that caused the State to pick an 

indeterminate timeframe in the first place. Reading the charging 

language as broad as it may be fairly read, evidence of an October 

19 sexual assault would support a conviction over a timeframe 
No. 2017AP1977-CR.bh

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including "early fall." Accordingly, Schultz's conviction should 

be vacated and the charge dismissed.

¶91 I am authorized to state that Justices ANN WALSH BRADLEY 

and REBECCA FRANK DALLET join this dissent.
No. 2017AP1977-CR.bh

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