### COURT OF APPEALS DECISION DATED AND FILED March 4, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP1876

- CR Cir. Ct. No. 2010CF222 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
D ONALD P. C OUGHLIN ,
D EFENDANT - A PPELLANT .

APPEAL from a judgment and an order of the circuit court for
Juneau County: JAMES EVENSON and STACY A. SMITH , Judge s

. Affirmed in
part ; reversed in part and cause remanded with directions

.

Before Blanchard, Graham, and Nashold, JJ.No. 2019AP1876

- CR

2 ¶ 1 GRAHAM, J. Donald P. Coughlin was convicted of twenty counts
of first and second degree sexual assault of a child 1 and one count of repeated
sexual assault of a child 2 based on events that allegedly occurred between
S eptember 1, 1989 , and November 9, 1994. These counts pertain to three victims , refer red to in the amended information as John Doe 1, John Doe 2, and John
Doe 3. On appeal, Coughlin argues that the evidence at trial was insufficient for the jury to conclude beyond a reasonable doubt that he had sexual contact with any of the victim s during the time per iods charged in the amended information

. In the alternative, if we determine that the evidence was sufficient with r eg ard to any of the charges , Coughlin asks us to grant a new trial in the interest of justice

. ¶ 2 We conclude that the re was sufficient evidence to convict Coughlin
of the six counts pertaining to Doe 1 , and we decline to exercise our powe r of discretionary reversal to order a new trial on these counts

. However, we conclude
that the e vidence was insufficient to convict Coughlin of the remaining counts

. Therefore , we affirm Coughlin’s conviction of Counts 1

- 6, reverse his conviction

1 See W IS

. S TAT

. § 948. 02(1)(e) (2017

- 18) (defining first degree sexual assault as sexual contact or intercourse with a person who has not attained the age of 13); § 948.02(2) (defining second degree sexual assault as sexual contact or intercourse with a person who has not attai ned the age of 16). The ages of the victims were undisputed at trial, and we discuss the distinction between first degree and second degree sexual assault no further. We recognize that Coughlin was convicted based on conduct that occurred between 1989 and 1994; however, apart from renumbering, the substantive provisions of the statutes criminalizing sexual contact with persons who have not attained the age of 13 or 16 remain the same. Therefore, we cite to the current version of the Wisconsin Statutes for convenience, except where there have been substantive changes to the law. Unless otherwise noted, subsequent references to the Wisconsin Statutes are to the 2017

- 18 version

.

2 See W IS

. S TAT

. § 948.025(1) (providing additional penalties for persons who c ommit three or more violations of W IS

. S TAT

. § 948.01(1) or (2) within a specified period of time involving the same child). This statute was enacted by the legislature as 1993 Wis. Act. 227, and the pertinent provisions have remained unchanged.No. 2019AP1876

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3 of Cou nts 7

- 9 and 11

- 22 , and remand for amendment of the judgment and for resentencing in light of this decision

.
BACKGROUND

¶ 3 Doe 1, Doe 2, and Doe 3 allege that Coughlin sexually abused the m for years , starting as early as 1983 and lasting until 1994. They did not report the

assau lts at the time and eventually c a me forward with allegations against Coughlin
in 2010.

¶ 4 The State charged Coughlin with twenty separate c ounts of sexual

as sault of a child and one count of repeated sexual assault of a child , all allegedly occurring in Juneau County

. According to the amended information, each sexual assault count was based on an allegation that Coughlin touched the penis of Doe 1, Doe 2, or Doe 3 during a specified time period. 3 W e ref e r to the time periods set forth in the amended information as the “charged time periods.” 4

3 The St ate also charged one count pertaining to an additional alleged vict im, John Doe 4, but the jury found Coughlin not guilty of that count. As a result, w e discuss the allegations pertaining to Doe 4 no further.

4 The charged time periods pertaining to Doe 1 are as follows: September 1

– December 31, 1989 (Count 1); February 1

– May 14, 1990 (Count 2); September 1

– December 31, 1990 (Count 3); February 1

– May 14, 1991 (Count 4); September 1

– December 31, 1991 (Count 5); Febr uary 1

– May 14, 1992 (Count 6). The charg ed time periods pertaining to Doe 2 are as follows: September 1

– November 19, 1989 (Count 7); September 1

– December 31, 1990 (Count 8); September 1

– December 31, 1991 (Count 8); September 1

– November 19, 1992 (Count 11). (The State also charged Coughlin wit h Count 10, which was an additional count pertaining to Doe 2, but the parties reached a pre

- trial stipulation to dismiss that count .)
(continued)No. 2019AP1876

- CR

4 ¶ 5 Each of the victims testified at trial. 5 We recount their testimony in general t erms here , and then in greater detail in the discussion section below.

¶ 6 Doe 1 was born in 1976, and he testified that Coughlin started to
sexual ly abuse him when he was seven years old

. This would have been in or
around 1983. D uring the first such incident, Coughlin instructed Doe 1 to rub baby powder on Coughlin’s back and penis and told Doe 1 not to tell anyone about
the incident

. Coughlin also showed Doe 1 how to masturbate, and then, starting
when Doe 1 was eight or nine years old, Coughlin b eg an performing oral sex on
him approximately once a month.

¶ 7 Doe 2 is approximately the same age as Doe 1

. He testified that Coughlin started sexu ally abusing him in or around 1987 when he was twelve or thirteen years old

. ¶ 8 Doe 3 was born in 1978

. He testified that Coughlin started sexua lly abusing him in or around 1985 when he was seven years old

. ¶ 9 The victims testified that Coughlin would take them out hunting or shining for deer , sometimes individually and other times as a group . D uring these

Finally, the charged time periods pertaining to Doe 3 are as follows: September 1

– November 19, 1989 (Count 12); February 1

– May 14, 1990 (Count 13); September 1

– December 31, 1990 (Count 14); February 1

– May 14, 1991 (Count 15); September 1

– December 31, 1991 (Count 16); February 1

– May 14, 1992 (Count 17); September 1

– December 31, 1992 (Count 18); February 1

– May 14, 1993 (Coun t 19); September 1

– December 31, 1993 (Count 20); February 1

– May 14, 1994 (Count 21). The final count, Count 22, charged Coughlin with repeated sexual assault of a child between September 1 and November 9, 1994.

5 The Honorable John Pier Roemer presided a t trial. The Honorable James Evenson presided at sentencing and entered the judgment of conviction. The Honorable Stacy A. Smith entered the order denying the motion for postconviction relief.No. 2019AP1876

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5 outings , Coughlin would pull his truck into a secluded location and would tip back his seat. Coughlin would then instruc t the victim s to masturbate, would watch the
victim s masturbate, and would hims elf masturbate. At times , Coughlin would also “masturbate” whichever victim was sitting in th e front seat, and other times Coughlin would ask the victim in the front seat to “masturbate” him

. 6 The victim s testified that these same activities also happene d at the village firehouse where Coughlin had an office, and in various rooms of the Coughlin family home.

¶ 10 Coughlin also testified at trial. Among other things, he categorically denied that he ever assaulted Doe 1, Doe 2 , or Doe 3 . He also denied that he masturbated in their presence, or that he instructed them to masturbate in his
presence

. ¶ 11 The circuit court instructed the jury o n the elements of the charged
crimes , and the jury foun d Coughlin guilty of each count

. We discuss a discrepanc y between the amended information , the jury instruction s , and the verdict form in greater detail in the discussion section below.

DISCUSSION

¶ 12 On appeal, Coughlin’s primary argument is that the evidence was
insufficient to convict him of any of the counts of sexual assault. He also argues

6 We recognize that the term “masturbate” generally refers to the manual manipulation of one’s own genitals , and th e term was often used in that sense at trial. At other times, the prosecutor and victims used the term to refer to the manual manipulation of another per son’s genitals. The distinction between these two different acts is important in this case. As we explain below, the touching o f another person’s genitals can constitute sexual assault . Ho wever, the circuit court declined to instruct the jury that Coughlin could be found guilty of assault for watching the victim s touch their own ge nitals at Coughlin’s direction.No. 2019AP1876

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6 that he is entitled to a new trial in the interest of justice. 7 We address each argument in turn.

I. Sufficiency of the Evidence

¶ 13 When reviewing the sufficiency of the e vidence to support a conviction , we will not substitute our judgment for that of the jury unless the
evidence , “viewed most favorably to the s tate and the conviction , is so lacking in probative value and force that

... no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.” State v. Poellinger , 153 Wis. 2d 493,
501 , 451 N.W.2d 752 (1990). We “examine the record to find facts that support the jury’ s decision to convict,” State v. Hayes , 2004 WI 80, ¶ 5 7, 273 Wis. 2d 1, 681 N.W.2d 203, and we “adopt all reasonable inferences which support the jury’ s verdict, ” State v. Banks , 2010 WI App 107, ¶46, 328 Wis. 2d 766, 790 N.W.2d
526

. However, a jury “may not indulge in inferences wholly unsupported by any
evidence. ” State ex rel. Kanieski v. Gagnon , 54 Wis. 2d 108, 117, 194 N.W.2d 808 (1972). The inferences drawn by the jury must be supported by facts in the record, and a defendant “ cannot be convicted on mere suspicion or conjecture .” Id.

¶ 14 “Sexual contact” is an element of the sexual assault charges in this
case. At the time of the alleged assault , “sexual contact ” was defined to mean

7 In his opening appellate brief, Coughlin also argued that his trial counsel was constitutionally ineffective for failing to make certain arguments about the insufficiency of the evidence during his closing argument at trial

. In its response, the State pointed to the fact that Coughlin’s trial counsel is now deceased, and it argue d that Coughlin would have to present corroborating evidence tha t counsel’s performance was deficient

. See State v. Lukasik , 115 Wis. 2d 134, 340 N.W.2d 62 (Ct. App. 1983). Coughlin expressly abandoned his ineffectiveness claim in his reply , and we addre ss that claim no further.No. 2019AP1876

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7 “any intentional touching by the compl ainant or defendant ... of the complainant’s or defendant’s intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.” W IS

. S TAT

. § 9 48.01(5) (19 93

- 9 4 ). Coughlin does not dispute that, if believed, the trial evidence was sufficient to prove that he had “sexual contact ” with Doe 1, Doe 2, and Doe 3 on unspecified occasions between
1983 and 1994 . However, he argues that t he evidence did not permit the j ury to find beyond a reasonable doubt that he had sexual contact with any of the victim s during a ny of the charged time periods

. ¶ 15 Coughlin’s argument proceeds as follows. Each of the victim s testified that Coughlin engaged him in various “ sexual activities ” over many years. These “sexual activities ” included : the charged conduct ( Coughlin touching the
victim ’ s penis); conduct that falls within the definition of “sexual contact” but was not charged ( the victim touch ing Coughlin’s penis at Coug h lin’s direction) ; and
other conduct such as Coughlin watching the victim masturbate and masturbating
in the victim ’s presence that , although sexual in nature, was not charged and do es
not constitute sexual assault

. 8 Then, when the prosecutor el icited testimony from
the victim s that was specific to each of the charged time periods, he inquired

8 During the jury instruction conference, the prosecutor argued that Coughlin could be convicted of sexual assault based on the testimony that he watched the victim s masturbate. The prosecutor argued that “the intenti onal touchi ng by [Does 1, 2, and 3] of their own penises” fell within the definition of “se xual contact” and was properly charged as sexual assault if the act occurred “at the request or at the insistence of the defendant.” The circuit court rejected the prosecutor’ s proposed instruction and declined to instruct the jury on this theory of sexual assault

. Then, during the postconviction proceeding, the State argued that Coug h lin was properly convicted of sexual assault for “caus[ing] a minor to masturbate themselves for [ Coughlin’s ] sexual arousal or gratification,” but the postconviction court declined to evaluate the evidence on that basis. T he State does not advance this argument on appeal, and we address this theory of sexual assault no further.No. 2019AP1876

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8 broadly about whether “it happened” or whether “ this type of sexual activity [took] place

. ” As a result , the testimony elicited by this questioning failed to dist inguish between the charged “sexual contact” and other activities that were not charged

. In other words, al though the victim s confirmed th at “sexual activities” took place during each of the charged time period s , the activity that took place in the charged time periods may have been limited to conduct that was not charged or
that the circuit court had ruled could not form the basis for a sexual assault
conviction

. Thus , Coughlin argues , the jury was left to speculate about ho w often and when the charged conduct occurred , a nd it was not possible to determine
b eyond a reasonable doubt that Coughlin assaulted any of the victim s during an y of the charged time periods.

¶ 16 Before turning to th e evidence that specifi cally pertains to each

count , we briefly address a threshold legal questi on implicated by Coughlin ’ s arguments

. The question presented is whether we should measure the sufficiency of the evidence against the elements of the crime as the jury instructions define
them , or whether we should instead measure the sufficiency of the evidence against the crime as described by the verdict form. 9

¶ 17 This question arises because the jury instructions and the verdict
form used in th is case were inconsistent in how they describe d “sexual contact

. ”
The verdict form described just one kind of sexual contact : “the defendant

9 The circuit co urt reads jury instructions to jurors before deliberation in order to explain the elements of a crime and the substantive legal issues to be decided when the jury complet es the verdict form. A verdict form asks the jurors to record their answers to specif ic factual questions

—

in a criminal case, whether the jury finds the defendant guilty or not guilty of the charged crime. Thus, the jury instructions and the verdict form should be consistent in describing the alleged offenses

.No. 2019AP1876

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9 touching the victim’s penis .” The verdict form was consistent with the amended information, which charged Coughl in with “touching the vi ctim’s penis” during specified time periods. However, the instructions that the court read to the jury
define d “ sexual contact ” more broadly to includ e two distinct kinds of sexual

contact : “an intentional touching of the penis of [the victim s ] by Donald P. Coughlin” and “an intentional touchin g by the victim of the penis of Donald P. Coughlin if the defendant intentionally caused or allowed the victim to do that touching.” The court read this two

- part definition when instructing the jury about the meaning of sexual contact for purposes of the twenty counts of first and second degree sexual assault and the one count of repeated sexual assault of a child

. 10 Coughlin’s trial counsel did not object to this instruction , nor did he poin t out the inconsistency between the jury instruction s and verdict.

¶ 18 Normally, an appellate court reviews the suff iciency of the evidence to support a criminal conviction by comparing the evidence to the jury
instructions. State v. Beamo n , 2013 WI 47, ¶22, 347 Wis. 2d 559, 830 N.W.2d 681 (“ when the jury instructions conform to the statutory requirements of that offense, we will review the sufficiency of the evidence by comparison to those jury instructions ”). However, it is not normal for the jury instructions and verdict

10 We are concerned that t he State’s brief ing on this point disserves this court and opposing counsel . Although it acknowledges that the circuit court gave the jury the two

- part definition of sexual contact discussed above, the State implies that the court only gave that instruction with regard to the count of repeated sexual assault of Doe 3. As for the counts of first and second degree sexual assault, the State’s brief create s the inaccurate impression that the court instructed the jury to convict Coughlin only if it found that Co ughlin had touched the victim s’ penises during the char ged time periods. The effect of the State’s argument is to paper over the inconsistency discussed above . It should go without saying that we expect counsel to display candor in his advocacy and to ap ply the level of care and diligence necessary to avoid misinforming the court.No. 2019AP1876

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10 to describe the elements of a crime inconsistently , especially under circumstances

w here the differences between the two could make a difference in the jury’s
ultimate determination of guilt

. And the parties ha ve not provided us with a ny authority that could guide our decision on how to proceed in this unusual
circumstance. 11

¶ 19 Coughlin argues that we should compare the ev idence with the crime
as described in the verdict form . That is, accor ding to Co ughlin, we should affirm only if there is evidence t hat Coughlin touched the victim s ’ penises during the charged time periods, and we should disregard any evidence that the victim s touched Coughlin’s penis during those time periods at his request

. One mig ht expect the State to argue that our review should be guided by the broader definition of “sexual contact” as set forth in the jury inst ructions

. However, the
State make s no such argument , and it instead acts as though the inconsistency did
not exist

. See supra n. 1 0

. Therefore, in this unusual situation, we assume without deciding that Coughlin is correct that we should compare the trial evidence with
the crime as de scribed in the verdict form, rather than as defined in the jury
instructions

. Consiste nt with our standard of review, we will “ examine the record
to find facts ” supporting a determination that Coughlin touched the victims’ penises during the charged time periods. Hayes , 273 Wis. 2d 1, ¶ 5 7.

11 Our own research has not identified any binding authority that is directly on point

. Some of the cases we found that addressed inconsistencies in jury instructions and verdi ct were civil, and therefore do not implicate the double jeopardy issues raised by insufficient evidence in a criminal case. In the criminal cases we found, the defendant did not challeng e the sufficiency of the evidence, but instead argu ed that an incons istency between the jury instructions and the verdict form would have improperly confused the jury.No. 2019AP1876

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11 A

. John Doe 1

¶ 20 John Doe 1 was the oldest of the three victim s, and he provided the
most detailed testim ony at trial. On appeal, Coughlin does not contest that, if t he jury credited Doe 1’s testimony , there was am ple evidence from which it could conclude that Coughlin co mmitted sexual assault by touching Doe 1’s penis on multiple occasions.

¶ 21 There was also evidence from which a jury could determine beyond
a reasonabl e doubt that Coughlin touched Doe 1 ’s penis during each of the charged time periods. Sp ecifically, Doe 1 testified that Coughlin performed oral sex on him at least once a month, starting when he was seven years old

. Doe 1
also testified that the sexual assaults d id not stop until he graduated high school
and left Juneau County. This testim ony , if believed, permits a reasonable
inference that Coughlin touc hed Doe 1’s penis on at least one occasion between September 1 and December 31, 1989 (Count 1); on at least one occasion between February 1 and May 14, 1990 (Count 2); on at least one occas ion between September 1 and December 31, 1990 (Count 3); on at least one occasion between February 1 and May 14, 1991 (Count 4); on at least one occasion between September 1 and December 31 , 1991 (Count 5); and on at least one occasion
between February 1 and May 14, 1992 (Count 6). See Banks , 328 Wis. 2d 766, ¶46 ( providing that we should “adopt all reasonable inferences which support the jury’ s verdict ” ).

¶ 22 Coughlin asserts that Doe 1’s testimony about oral contact does not

c ontribute to the sufficiency of the evidence because Coughlin “was not charged with performing oral sex on John Doe 1.” This argument is not persuasive . To be

sure, Doe 1’s allegations of oral contact could have been charged as “sexualNo. 2019AP1876

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12 intercourse” as we ll as “sexual contact. ” See W IS

. S TAT

. § 948.02(2) (providing that whoever “has sexual contact or sexual intercourse with a person who has not attained the age of 16 years” is guilty of second degree sexual assault); W IS

. S TAT

. § 948.01(6) (defining “sexual intercourse” to include fellatio). However, Coughlin does not identify any authority for the proposition s that the terms “sexual conduct” and “sexual intercourse” are mutually exclusive, or that oral

contact cannot be charged as “sexual contact .” Doe 1’s testimony about monthly
oral contact readily meets the description of “sexual contact” in the amended
information and verdict form

. For these reasons, we conclude that the evidence

wa s sufficient as to Counts 1

- 6.

B. John D oe 2

¶ 23 We now turn to the eviden ce pertaining to John Doe 2. Again, Coughlin does not dispute that there was evidence from w hich the jury could

con clude that Coughlin committe d sexual as sault by touching Doe 2’s penis

. Specifically, Doe 2 test ified about the “sexual activity ” that Coughlin had him engage in when he was growing up, which included instances in which Coughlin
would watch Doe 2 masturbate as well as incidents in which Coughlin would “masturbate” Doe 2

. ¶ 24 However, in contrast to Doe 1 , there was no evidence from which a jury could conclude beyond a reasonabl e d oubt that Coughlin touched Doe 2’s penis during any of the charged time periods. T he majority of the incidents
describe d by Doe 2 involve d Coughlin masturbating in Doe 2’s pr esence and Coughlin making Doe 2 masturbate in Coughlin’ s presence . Doe 2 testified that “[w]e would play with ourselves, [Coughlin] might play with somebody, might not play with somebody. But [Coughlin] would always masturbate and ejaculate.”No. 2019AP1876

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13 Doe 2 was asked about the frequency with which “sexual activity” occurred, but
he was never asked about the frequency with which Coughlin touched his penis

. W hen the prosecutor turned to each of the charged time period s , the prosecutor

as ked Doe 2 whether “it” or “this” happened during those time periods

. As a
result , although Doe 2 conf irmed that something of a sexual nature occurred in

e ach of the charged time periods, the jury would have had to speculate about whether Coughlin touched Doe 2’ s penis on any of those occasions

. ¶ 25 To bridge this gap in the trial record, t he State capitalizes on potential ambiguities created by the dual meaning that the prosecutor and

w itnesses gave to the term “masturbate” throughout the trial. See supra n. 6

. The State points to the fact that Doe 2 used the word “masturbate” to describe an
incident in which Coughlin touched Doe 2’s penis. It also points to Doe 2’s testimony that “ masturbation ” occurred “a lot of times,” f rom about once a month to up to four times a month. We recognize that we are to view the evidence in the light most favorable to the State. Poellinger , 153 Wis. 2d at 501 . However, n o such favorable light could turn Doe 2’ s testimony that he “ masturbated with ” Coughlin at least once a month into a reasonable inference that Coughlin touched
Doe 2’ s penis with that frequency

. See Kanieski , 54 Wis. 2d at 117 ( a defendant “cannot be convicted on mere suspicion and conjecture” ).

¶ 26 Ba sed on the reasonable inferences derived from the evidence, a jury could not conclude beyond a reasonable doubt that Coughlin touched Doe 2’s penis on at least one occasion between September 1 and November 19, 1989 (Count 7); on at least one occasion be tween September 1 and December 31, 1990 (Count 8); on at least one occasion between September 1 and December 31, 1991 (Count 8); or on at least one occasion between September 1 and November 19,No. 2019AP1876

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14 1992 (Count 11). For these reasons, we conclude that the evid ence was not sufficient as to Counts 7

- 9 and 11.

¶ 27 We recogni ze that in cases like this, when witnesses are asked to testify about their memories of events that occurred when they were children, it is not unusual that they are unable to identify the dates of events with any precision. We also recognize that, even beyond difficulties with memory , the detail s of child sexual assaults are sensitive and it can often be difficult for witnesses to testify about such events with clarity, which adds to the prosecution’s challenges in a case of this nature. But those are among the challenges that the State necessar ily assumes in prosecuting such a case. Here, the jury was instructed that “it is not necessary for the State to prove that the offense was committed on a specific date,” as long as “the evidence shows beyond a reasonable doubt that the offense
was commit ted during the time per iod alleged in the information,” and t he insufficiency of the evi dence is not the result of the witness ’s inability to recall specific dates. Instead, it is the result of the State’s failure to elicit testimony about the frequency w ith which the specific sexual contact described in the verdict form occurred, as distinguished from other conduct that, while sexual in nature, was not the conduct for which Cough lin was charged and convicted.

C. John Doe 3

¶ 28 Turning to Doe 3 , Coughlin does not challenge that there was ample
evidence that he sexual ly assaul ted Doe 3 by touching his penis on more than one
occasion

. However , based on our review of the record, there was no evidence tying th e se assaults to an y of the charged time periods.

¶ 29 As with Doe 2, the majority of the incidents Doe 3 described appeared to involve Coughlin masturbating in Doe 3’s presence and instructingNo. 2019AP1876

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15 Doe 2 to masturbate in Coughlin’s presence . Doe 3 also testified that “there were times when [Coughlin] would want to masturbate us,” and that there “ were times when [Coughlin] masturbated [Doe 3].” Doe 3 testified that “something happened” at least once a week throughout the year. However, Doe 3 was never asked about the frequency w ith which Coughlin touched his penis. And w hen the prosecutor asked Doe 3 about each of the charged time periods, the prosecu tor asked whether “some type of sexual activity” occurred during that period

. As a
result , although Doe 3 conf irmed that “sexual activity ” occurred in each of the time periods, the jury would have had to speculate about whether Coughlin touched his penis during an y of the charged time periods.

¶ 30 Once ag ain, the St ate capitalizes on the way the term “masturbate”

was used throughout the trial. See supra n. 6 . The State points to Doe 3 ’s testimony that some type of sexual activity was a “weekly” occurrence, and that Coughlin had the victim s “ masturbate ” “every time” they went shining for deer.
However , as we determin ed above, n o amount of viewing the evidence in a light
most favorable to the State can transform Doe 2’s testimony that he “ masturbated ” with Coughlin “weekly” into an assertion that Coughlin touched D oe 3 ’ s penis every week.

¶ 31 Accordingly, b ased on the reasonable infe rences derived from
Doe 3’s testimony , a jury could not conclude beyond a reasonable doubt that Coughlin touched Doe 3 ’s penis on at least one occasion betw een September 1 and November 19, 1989 (Count 12); on at lea st one occasion between February 1 and May 14, 1990 (Count 13); on at least one occasion between September 1 and December 31, 1990 (Count 14); on at least one occasion between February 1 and May 14, 1991 (Count 15); on at least one occasion between Septemb er 1 and
December 31 , 1991 (Count 16); on at least one occasion between February 1 andNo. 2019AP1876

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16 May 14, 1992 (Count 17); on at least one occasion between September 1 and
December 31 , 1992 (Count 18); on at least one occasion between February 1 and May 14, 1993 (Cou nt 19); on at least one occasion between September 1 and December 31, 1993 (Count 20); or on at least one occasion between February 1 and May 14, 1994 (Count 21).

¶ 32 Additionally, a jury could not conclude beyond a reasonable doubt
that Co ughlin had sexual contact with Doe 3 on at least three occasions between September 1 and November 9, 1994 (Count 22). Unlike the other charges, the amended information and verdict form did not limit Count 22 to any particular form of sexual contact during this time period. Even so, because the prosecutor merely asked Doe 3 to confirm that there were “at least three occasions where [Coughlin] asked [Doe 3] to engage in sexual activity” during the fall of 1994, rather than eliciting testimony describing “se xual contact” under W IS

. S TAT

. § 948.01(5), the evidence is insufficient to prove the cha rge beyond a reasonable
doubt.

¶ 33 For all of these reasons, we conclude that the evidence was not
sufficient as to Counts 12

- 22.

¶ 34 B efore turning to Coughlin’s final argument, we pause to emphasize that, in reversing the convictions pertaining to Doe 2 and Doe 3, we do not mean to suggest that the conduct they described is not criminal in nature. As discussed above, testimony that Cou ghlin touched the victim s’ genitals and caused the
victim s to touch his genitals could satisfy the elements of sexual assault of a child. Additionally, the testimony that Coughlin directed the victim s to masturbate andNo. 2019AP1876

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17 took sexual gratification from watching them do so may, in fact, satisfy the
elements of a different criminal act. 12 However, for the reasons we have explained, the testimony was insufficient to satisfy the elements of the specific
crimes that were char ged in the amended complaint and described in the verdict
form

.

II. New Trial in the Interest of Justice

¶ 35 Finally, as to Counts 1

- 6, Coughlin contends that we should grant discretionary reversal and order a new trial on the ground that the real controversy was not fully tried. See W IS

. S TAT

. § 752. 35 . This argument is not well developed , and much of it rehashes the same arguments Coughlin advances regarding the sufficiency of the evidence

. Specifically, h e again arg ues that the
State con flated the term “sexual contact” with “sexual activity

. ” He notes the inconsistency between the instr uctions and the verdict forms with regard to the descript ion of the charged conduct. Finally, h e asserts that there is reason to doubt the reliability of the verdict because the evidence “was truly ambiguous and incomplete as to whether defendant actually committed each [of] th e offenses charged.”

¶ 36 To the extent Coughlin’s argument is based on an assertion that the
evidence was in sufficien t , we have already addressed the State’s failure to prove some of the charged counts, and we have reversed the convictions that were not based on sufficient evidence . Putting aside the portion of Coughlin’s argument

12 See, e.g. , W IS

. S TAT

. § 948.07(3) (identifying the elements of one form of child enticement as “[e]xposing genitals, pubic area, or intimate parts to the child or causing the child to expose genitals, pubic area, or intimate parts in violation of [W IS

. S TAT .] s. 948.10”).No. 2019AP1876

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18 that addresses whether the evi dence was sufficient , it is not clear what remains. Coughlin suggests that the jury may have been misled by certain aspects o f the
trial ; however, he does not develop the argument by explaining exactly how the jury’s verdict might have been affected. It is apparent that the jury credited the
victim s’ accounts of Coughlin’s conduct and discredited Coughlin’s denials, and the six remaining counts were supported by legally sufficient evidence

. W e are not persuaded that discretionary reversal is appropriate under these circumstances

. See State v. Jackson, 2011 WI App 63, ¶37, 333 Wis. 2d 665, 799 N.W.2d 461 (“We are reluctant to grant new trials in the interests of justice and exercise our
discretion to do so ‘only in exceptional cases.’ ” ( citation omitted))

.
CONCLUSION

¶ 37 In sum, we conclude that there was sufficient evidence to convict Coughlin of the six counts pertaining to Doe 1, and we decline to exercise our power of discretionary reversal to order a new trial on these counts. W e fu r ther conclude that the evidence was insufficient to find Coughlin guilty beyond a reasonable doubt of the remaining counts. 13 Accordingly, we affirm Coughlin’s
conviction of Counts 1

- 6, reverse his conviction of Counts 7

- 9 and 11

- 22, and

13 We note that our ultimate conclusions about the sufficiency of the evidence would be the same if we measured the sufficiency o f the evidence against the jury instructions. This is because there is no evidence from which a jury could reasonably determine that Coughlin “intentionally caused or al lowed” any of the victim s to touch Coughlin’s penis during the charged time periods, b ut not that Coughlin intentionally touched that victim ’s penis. The sole exception relates to a series of events that occurred in or around 1983. Doe 1 testified that during this time period, Coughlin asked Doe 1 to touch Coughlin’s penis, but the eviden ce is inconclusive about whether Coughlin touched Doe 1’s penis during the same time period. However, the State did not charge Coughlin for any conduct that occurred prior to 1989, and these incidents are not the basis of any of the charged counts of sexu al assault.No. 2019AP1876

- CR

19 remand for amendme nt of the judgment and for resentenc ing in light of this
decision.
By the Court.

— Judgment and order affirmed in part; reversed in part
and cause remanded with directions

.

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