2023 WI 52

SUPREME COURT OF WISCONSIN

CASE NO.: 2020AP2012-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Appellant-Petitioner,

 v.

James P. Killian,

 Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 404 Wis. 2d 451, 979 N.W.2d 569

PDC No: 2022 WI App 43 - Published

OPINION FILED: June 21, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 17, 2023 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Trempealeau 

JUDGE: Rian Radtke 

JUSTICES:

ZIEGLER, C.J., delivered the majority opinion of the Court, in 

which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. 

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

REBECCA GRASSL BRADLEY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs 

filed by Kara L. Janson, assistant attorney general, with whom 

on the briefs was Joshua L. Kaul, attorney general. There was an 

oral argument by Kara L. Janson, assistant attorney general. 

For the defendant-respondent, there was a brief filed by 

Todd E. Schroeder and Schroeder & Lough, S.C., La Crosse. There 

was an oral argument by Todd E. Schroeder. 
2023 WI 52

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2020AP2012-CR

(L.C. No. 2019CF163)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Appellant-Petitioner,

 v.

James P. Killian,

 Defendant-Respondent.

FILED

JUN 21, 2023

Samuel A. Christensen

Clerk of Supreme Court

ZIEGLER, C.J., delivered the majority opinion of the Court, in 

which ROGGENSACK, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. 

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

REBECCA GRASSL BRADLEY, J., joined.

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

cause remanded. 

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of 

a published decision of the court of appeals, State v. Killian, 

2022 WI App 43, 404 Wis. 2d 451, 979 N.W.2d 569, affirming the 

Trempealeau County circuit court's1 order dismissing a criminal 

complaint against James Killian as barred by double jeopardy. 

We reverse.

 

1 The Honorable Rian Radtke presided. 
No. 2020AP2012-CR 

2

¶2 Killian argues the Fifth Amendment's Double Jeopardy 

Clause prohibits the State from prosecuting the present case. 

According to Killian, the State previously prosecuted him for 

the offenses charged in this case because "[t]he evidence the 

State intended to submit in the preceding trial was sufficient 

to convict [Killian] of all the charges in the current case," 

and "the State intended to amend the charges against [Killian] 

during the trial to include charges for which he is again placed 

in jeopardy here." Because that case ended in a mistrial 

intentionally provoked by the prosecutor——a judicial 

determination the parties do not contest here——Killian argues 

double jeopardy bars the State's prosecuting the present case. 

Killian argues in the alternative that issue preclusion, under 

both the Double Jeopardy Clause and the common law, bars the 

present case.

¶3 We conclude that Killian's previous trial does not bar 

the State from prosecuting the present case because the scope of 

Killian's jeopardy in his trial did not include the offenses 

with which he is now charged. The scope of jeopardy is 

established by "the defendant's actual exposure to jeopardy in a 

prior prosecution." State v. Schultz, 2020 WI 24, ¶31, 390 

Wis. 2d 570, 939 N.W.2d 519. This requires that the defendant 

faced a "risk of a determination of guilt" regarding a 

particular offense. Serfass v. United States, 420 U.S. 377, 

391-92 (1975). Killian was never exposed to the risk of 

conviction for the offenses charged in the present case. As a 

result, the offenses prosecuted in Killian's trial are not 
No. 2020AP2012-CR 

3

identical in law and in fact to the offenses charged in this 

case, so double jeopardy does not bar the present prosecution.

¶4 We also conclude that issue preclusion under the 

Double Jeopardy Clause and common law issue preclusion do not 

bar the present prosecution. Issue preclusion under the Double 

Jeopardy Clause requires a valid judicial determination of 

ultimate fact, and none exists in this case because Killian's 

trial ended in a mistrial. See Ashe v. Swenson, 397 U.S. 436 

(1970). Common law issue preclusion also does not bar this 

prosecution. The circuit court's order dismissing with 

prejudice the criminal complaint in the first case did not 

decide the scope of Killian's jeopardy. Therefore, that issue 

was never "actually litigated," and issue preclusion does not 

bar the present prosecution. See Aldrich v. LIRC, 2012 WI 53, 

¶88, 341 Wis. 2d 36, 814 N.W.2d 433. 

¶5 We therefore reverse the court of appeals and remand 

to the circuit court to consider Killian's unresolved argument 

regarding prosecutorial vindictiveness. 

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶6 This case involves Killian's alleged sexual assaults 

of two minors: Britney and Ashley.2 On March 17, 2015, the 

State charged Killian in Case No. 2015CF47 with one count of 

first-degree sexual assault of a child under the age of 12 

 

2 "Britney" and "Ashley" are pseudonyms used in place of the 

victims' names. The parties used these same pseudonyms in their 

briefs. See Wis. Stat. (Rule) § 809.86(4) (2021-22). All 

references to the Wisconsin Statutes are to the 2021-22 version 

unless otherwise noted. 
No. 2020AP2012-CR 

4

contrary to Wis. Stat. § 948.02. The complaint alleged that, 

"on or about Monday, August 18, 2014," Britney, then ten years 

old, "was laying on a bed at [a] residence and [Killian] came 

in, laid beside her and grabbed her buttocks." The probable 

cause section further stated that during a forensic interview, 

Britney reported "that Killian had squeezed her butt on five 

different occasions starting when she was about eight years old" 

and that Killian also "touched her 'boobies' underneath her 

clothes" in 2014. 

¶7 The State filed a second criminal complaint on 

March 15, 2016, in Case No. 2016CF38, charging Killian with 

repeated sexual assault of a child contrary to Wis. Stat. 

§ 948.025. The complaint alleged, "from April 1994 through 

December 1999," Killian sexually assaulted Ashley. 

Additionally, the complaint's probable cause section stated 

Ashley "had been sexually assaulted by [Killian], starting at 

the age of six and ending at 17 years of age . . . start[ing] in 

about January 1988 and end[ing] about December 1999." 

¶8 The two cases were later joined for trial. On 

October 5, 2016, prior to the cases being joined, the circuit 

court3 held a hearing in Britney's case on the parties' 

respective motions to admit or exclude other-acts evidence. The 

circuit court granted the State's motion to admit evidence of 

sexual assaults against Ashley that "occurred over a period of 

time between January 1988 and December of 1999" to demonstrate 

 

3 The Honorable Anna L. Becker presided. 
No. 2020AP2012-CR 

5

Killian's "motive, intent, preparation, absence of mistake or 

accident, and plan." The court also addressed Killian's motion 

to prohibit the State "from using evidence pertaining to other 

crimes, wrongs, or acts." The State argued it planned to 

introduce evidence of Killian's past interactions with Britney 

to show Killian "groomed [Britney] by engaging in behavior that 

include[d] asking her if he could be her boyfriend," "[b]uying 

her gifts," and "[n]ormalizing the behavior of sleeping with her 

in the bed together." Killian did not object to such evidence 

of "grooming" but only to "other acts of sexual assault." The 

State agreed it was "not alleging that [Killian] touched 

[Britney] outside of anything that was alleged here." The State 

then said it would not object, and the court granted Killian's 

motion to exclude evidence of other acts of sexual assault 

against Britney.

¶9 On June 15, 2017, four days before Killian's trial, 

the State filed a motion for leave to amend the Information. 

The proposed Amended Information included in Ashley's case one 

count of incest with a child contrary to Wis. Stat. § 948.06. 

The proposed Amended Information also expanded the charging 

period for Britney's case from "on or about Monday, August 18, 

2014" to "on or between January, 2014 to August 18, 2014." 

¶10 The circuit court discussed the State's motion with 

the parties in the morning on the first day of trial. Due to 

the State's delay, the court denied the addition of the incest 

charge. The prosecutor then commented that "maybe the proof at 

the trial will be sufficient to convince the Court that more 
No. 2020AP2012-CR 

6

sexual intercourse occurred which would be a basis for this 

charge." In response, the court reiterated how "the state's 

lack of preparation should not prejudice the defendant" and made 

clear, "I'm not going to allow [the amendment]." 

¶11 As for the expanded charging period in Britney's case, 

Killian's counsel expressed concern about how "the act that's 

charged is a single act" and that the State was "attempting 

to . . . expand the date range in the hopes that it would make 

admissible evidence of other allegations that have not been 

charged." Defense counsel also reminded the court of the otheracts ruling in October and said, "So even if the date range were 

widened, I would argue that at this point, it would be 

inadmissible to bring in allegations of sexual contact." He 

reiterated, "[W]e came here to defend an alleged sexual contact 

that occurred on August 18th. And I think at the same time, 

this raises concerns that are even more broad than this one 

count." The prosecutor responded, "I think it's quite clear 

that we do not have to prove the actual date of the allegation," 

and clarified, "[O]f course, [Killian is] correct. We are 

charging one sole act." He further noted the possibility of 

amending the Information: 

Interestingly, it appears to me that if more acts are 

disclosed at trial, the Information could be changed. 

And it could, in fact, I think naturally prejudice the 

defendant more. But I don't think that's unusual. It 

happens at trial that more facts are accused and 

Informations are changed and juries deliberate on 

multiple issues. 
No. 2020AP2012-CR 

7

The circuit court clarified that the State was "not alleging 

there were additional things that happened. . . . [I]t's the 

same events or package that we've heard about all along. 

Nothing new." The prosecutor confirmed but nonetheless 

included, "If more facts are introduced at trial, the Court can 

amend the Information and give that instruction to the jury." 

¶12 The court allowed the expanded date range, but only 

for purposes of establishing "when exactly [the alleged act of 

grabbing Britney's buttocks] happened on the calendar." Defense 

counsel sought clarification "that there can be no reference to 

other alleged touching that would constitute sexual assault of 

any kind," and the court agreed: "If there were intentions to 

introduce those at trial, then those were required to have been 

addressed and they were not addressed at all. So there's 

already been a ruling on that." 

¶13 The trial commenced later that same day. During the 

prosecutor's opening statement, he told the jury Killian "would 

rub himself on [Britney]." The prosecutor continued, describing 

to the jury how, on one occasion, Killian "was rubbing himself 

on [Britney]. And by himself, I mean his penis. Erect. 

Rubbing on her. . . . It's an unmistakable course of conduct." 

With regard to Ashley, the prosecutor told the jury they would 

hear testimony that Killian "started molesting her at about 6 or 

7 years old [1988–89] and didn't stop until she was about 17 

[1999]. So approximately 10 years."
No. 2020AP2012-CR 

8

¶14 On the second day of trial, just before Britney 

testified, the prosecutor argued to the court that he could 

introduce other acts of sexual assault against Britney:

I re-reviewed the Criminal Complaint. What is on 

trial, the course of conduct, there was a motion in 

limine filed by the defense regarding other acts. I 

believe we could bring all that out. Look at the 

court minutes. I don't think these are other acts. I 

think they're a course of conduct. They're relevant. 

They set the stage for our allegation of sexual 

contact. And I think although there is one incident 

charged, the state doesn't have to charge every 

incident. The state had discretion. But in the 

Complaint, the course of conduct is there. The 

different things that she says happened.

Defense counsel objected to the State's introducing other acts 

of sexual assault and reminded the court of its previous 

ruling: "[I]f there's an other act that would constitute sexual 

conduct, I'm going to be objecting and asking for a mistrial if 

that comes out at any point in this trial because that's been 

thoroughly litigated and decided as of yesterday again." The 

prosecutor further argued that "the way to address this is let 

[Britney] speak. . . . [I]f there's more information, more 

charges can be brought. The [I]nformation can be changed." The 

court rejected such a possibility. It reminded the prosecutor, 

"[T]here was a ruling on that. . . . You're changing the game 

on them. If you wanted to include that, then we should have 

addressed that." The prosecutor continued, "Anything could 

happen when she testifies. I don't know. But if she starts to 

speak about a vagina rub or him rubbing his penis on her leg, I 

can't control that. And if she does that, then I guess [defense 
No. 2020AP2012-CR 

9

counsel's] going to move for a mistrial." The court warned the 

prosecutor, "It will be a mistrial because you didn't, again, 

prepare for trial adequately until the last moment." The 

circuit court reminded the parties that the offense "charged in 

the Complaint . . . was the butt[-grab]," and the court 

thoroughly explained its ruling because it was "concerned about 

a mistrial":

[T]he state can bring in anything that they would like 

to regarding other acts that are grooming type 

activities but not other sexual assaults because those 

should have been properly dealt with when we talked 

about the motions that were filed for other acts. I 

think these are clearly allegations that were other 

acts of sexual assault that go to your concerns. But 

that wasn't what the argument was when we had those.

So I don't think at this point, it's appropriate 

to allow that in. I think there are other ways that 

the Court has less prejudicial or the ability to make 

this less confusing for the jury so that they 

understand what the exact one is that's being accused 

here which is the one dating back to August 18th.

¶15 After the court reaffirmed its other-acts ruling, 

Britney took the stand. She testified first about Killian's 

grooming behaviors, such as engaging her in conversations about 

sex. The following exchange then took place:

Q. So so far, we've talked about mostly conversations 

about sex, right?

A. Yes.

Q. Did you tell [your mother] something else relating 

to a private part of your body?

A. When I told her that one day when we were in bed 

he was rubbing my back and he rubbed -- he was rubbing 

my stomach. So he rubbed up and he rubbed on my 
No. 2020AP2012-CR 

10

breasts. And then when he was done, he rubbed on my 

private spot. It was just a swift rub.

Defense counsel objected and moved for a mistrial, which the 

court granted. The court later found "that the prosecutor's 

actions were intentional" and "designed to create another chance 

to convict, and was an act done so as to allow the State another 

'kick at the cat.'" The court therefore concluded that "the 

State is barred from retrial in this matter due to prosecutorial 

overreaching," and it dismissed the case with prejudice. The 

State did not appeal the circuit court's decision, and it does 

not dispute the circuit court's finding of prosecutorial 

overreach. 

¶16 On October 1, 2019, the State filed a new criminal 

complaint against Killian in the case now before us. The 

complaint contained the following counts:

Count 1: First-degree sexual assault of a child contrary 

to Wis. Stat. § 948.02(1) (1989-90) against Ashley "in or around 

1990 to 1991." 

Count 2: First-degree sexual assault of a child contrary 

to Wis. Stat. § 948.02(1) (1989-90) against Ashley "in or around 

1990 to 1991."

Count 3: Incest with a child contrary to Wis. Stat. 

§ 948.06(1) (1989-90) against Ashley "in or around 1990 to 

1991."

Count 4: First-degree sexual assault of a child contrary 

to Wis. Stat. § 948.02(1) (1991-92) against Ashley "in or around 

1992 to 1993."
No. 2020AP2012-CR 

11

Count 5: Incest with a child contrary to Wis. Stat. 

§ 948.06(1) (1991-92) against Ashley "in or around 1992 to 

1993."

Count 6: Incest with a child contrary to Wis. Stat. 

§ 948.06(1) (1993-94) against Ashley "in or around 1993 to 

1994."

Count 7: Incest with a child contrary to Wis. Stat. 

§ 948.06(1) (1993-94) against Ashley "in or around 1994 to 

1995." 

Count 8: Incest with a child contrary to Wis. Stat. 

§ 948.06(1) (1995-96) against Ashley "in or around 1995 to 

1996." 

Count 9: Incest with a child contrary to Wis. Stat. 

§ 948.06(1) (1995-96) against Ashley "in or around 1996 to 

1997." 

Count 10: Repeated acts of sexual assault of the same 

child contrary to Wis. Stat. § 948.02(1) (2011-12), "namely 

[Britney]," "in or around June 2012, and no later than 

August 17, 2014."

¶17 Killian thereafter filed a motion to dismiss the 

State's new charges. He argued dismissal was required because 

"this action violates Judge Becker's Order declaring that the 

mistrial in Case No. 15-CF-47 was caused by prosecutorial 

overreaching and that any retrial of this matter would violate 
No. 2020AP2012-CR 

12

the defendant's . . . right to be free from Double Jeopardy."4 

In an oral ruling, the circuit court observed, "In a strict 

comparison of the Complaints in 15-CF-48 (sic) and 19-CF-163 of 

the charged offenses under Blockburger,[5] the time frames and 

elements are different and would pass the Blockburger test." 

The court nonetheless concluded the second prosecution violates 

double jeopardy because "[t]he State's plan was to bring all of 

the alleged acts into trial and then seek to amend the 

Information after testimony to conform to the evidence." The 

court also viewed the order dismissing the first prosecution as 

"meant to encompass future prosecutions involving the same facts 

alleged in 15-CF-47 where additional charges may be added in 

future prosecutions." The circuit court therefore concluded 

Killian's scope of jeopardy, "in light of the record, which 

includes Judge Becker's order, includes all facts contained in 

the Complaints that were later joined and amended, including 

acts in the Complaints that were not specifically the basis for 

the charged offenses in 15-CF-47, and also facts raised at 

trial." 

¶18 The State appealed, and the court of appeals affirmed. 

The court of appeals concluded "that the circuit court properly 

considered the entire record of the first prosecution to 

determine whether Killian was in jeopardy for the offenses now 

 

4 Killian also has a prosecutorial vindictiveness argument 

pending in the circuit court. The circuit court never ruled on 

that issue, and it was not raised on appeal. 

5 Blockburger v. United States, 284 U.S. 299 (1932).
No. 2020AP2012-CR 

13

charged," and it "agree[d] with the circuit court in this case 

that Killian was, in fact, in jeopardy of being convicted of the 

offenses now charged." Killian, 404 Wis. 2d 451, ¶4. The State 

petitioned this court for review, which we granted. 

II. STANDARD OF REVIEW

¶19 "The issue of whether a person's right to be free from 

double jeopardy has been violated presents a question of law 

that we review de novo." State v. Trawitzki, 2001 WI 77, ¶19, 

244 Wis. 2d 523, 628 N.W.2d 801. "The application of issue 

preclusion to a set of facts is a question of law, which this 

court reviews without deference to the lower courts." State v. 

Canon, 2001 WI 11, ¶7, 241 Wis. 2d 164, 622 N.W.2d 270.

III. ANALYSIS

¶20 We begin our review by discussing general principles 

of double jeopardy and how to ascertain a defendant's scope of 

jeopardy in a previous trial. We then examine Killian's scope 

of jeopardy in the previous trial and conclude the present 

prosecution does not place him in jeopardy for any of the same 

offenses. Finally, we conclude issue preclusion also does not 

bar the present prosecution.

A. General Double Jeopardy Principles

¶21 Under the Fifth Amendment to the United States 

Constitution, "No person shall be . . . subject for the same 

offence to be twice put in jeopardy of life or limb . . . ." 

U.S. Const. amend. V; see also Wis. Const. art. I, § 8, cl. 1 
No. 2020AP2012-CR 

14

("[N]o person for the same offense may be put twice in jeopardy 

of punishment . . . .").6 

¶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.'" Schultz, 390 Wis. 2d 570, 

¶22 (quoting State v. Van Meter, 72 Wis. 2d 754, 758, 242 

N.W.2d 206 (1976)). Two offenses are not "identical in law" 

where "each provision requires proof of a fact which the other 

does not." Blockburger v. United States, 284 U.S. 299, 304 

(1932). Further, offenses are not "identical in fact" where 

"allegation of substitute facts, all of which furnish the same 

legal element of the crime, . . . are either separated in time 

or are of a significantly different nature in fact." State v. 

Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980) (footnote 

omitted). 

¶23 "[A] motion by the defendant for mistrial is 

ordinarily assumed to remove any barrier to reprosecution, even 

if the defendant's motion is necessitated by prosecutorial or 

judicial error." United States v. Jorn, 400 U.S. 470, 485 

(1971) (footnote omitted). However, as the United States 

Supreme Court has held, "Only where the governmental conduct in 

question is intended to 'goad' the defendant into moving for a 

mistrial may a defendant raise the bar of double jeopardy to a 

 

6 "Our tradition is to view these provisions as identical in 

scope and purpose." State v. Davidson, 2003 WI 89, ¶18, 263 

Wis. 2d 145, 666 N.W.2d 1.
No. 2020AP2012-CR 

15

second trial after having succeeded in aborting the first on his 

own motion." Oregon v. Kennedy, 456 U.S. 667, 676 (1982). The

circuit court in Killian's first prosecution made a factual 

finding that the prosecutor engaged in misconduct, a finding the 

State did not appeal and does not dispute here. Therefore, any 

offenses in the present prosecution that are identical in law 

and in fact to an offense in the prior prosecution are barred by 

double jeopardy.

¶24 Before we can analyze whether the offenses in this 

prosecution are identical in law and in fact to any offenses in 

the prior prosecution, we must first discern the scope of 

Killian's jeopardy during that prior prosecution. It is a 

"fundamental principle that an accused must suffer jeopardy 

before he can suffer double jeopardy." Serfass, 420 U.S. at 

393. "The ambit of the constitutional bar to subsequent 

prosecution is coextensive with the scope of jeopardy created in 

the prior prosecution." 22A C.J.S. Crim. Proc. & Rts. of 

Accused § 618 (2023). If the offenses now prosecuted were not 

previously within the scope of Killian's jeopardy, then 

prosecuting those offenses in this case could not violate double 

jeopardy. 

B. Determining The Scope of Jeopardy.

¶25 Related to the scope of jeopardy is the method for 

determining when jeopardy attaches. See Crist v. Bretz, 437 

U.S. 28, 38 (1978) (quoting Bretz v. Crist, 546 F.2d 1336, 1343 

(9th Cir. 1976)) ("[T]he time when jeopardy attaches in a jury 

trial 'serves as the lynchpin for all double jeopardy 
No. 2020AP2012-CR 

16

jurisprudence.'"). "[T]he conclusion that jeopardy has attached 

begins . . . the inquiry as to whether the Double Jeopardy 

Clause bars retrial." Illinois v. Somerville, 410 U.S. 458, 467 

(1973). "Jeopardy attaches when a person has been placed on 

trial on a valid indictment or information before a court of 

competent jurisdiction, has been arraigned and has pleaded, and 

a jury has been impaneled and sworn, and charged with his 

deliverance." State v. B——, 173 Wis. 608, 617, 182 N.W. 474 

(1921). In other words, jeopardy attaches when "an accused has 

been subjected to the risk of conviction." Serfass, 420 U.S. at 

392. "Without risk of a determination of guilt, jeopardy does 

not attach, and neither an appeal nor further prosecution 

constitutes double jeopardy." Id. at 391-92. It follows that 

if a defendant was never subject to the "risk of a determination 

of guilt" of an offense, then jeopardy never attached for that 

offense, and it is not within the scope of jeopardy.7 

¶26 In Serfass, the Supreme Court addressed whether 

jeopardy attached where charges for "willfully failing to report 

for and submit to induction into the Armed Forces" were 

 

7 We recognize that our decision in State v. Schultz

contained a footnote stating, "The point at which jeopardy 

attaches has nothing to say about the actual scope of jeopardy." 

2020 WI 24, ¶24 n.13, 390 Wis. 2d 570, 939 N.W.2d 519. 

However, that footnote merely explained that "[t]he time at 

which jeopardy attaches does not lock in the scope of jeopardy." 

Id. Though true the scope of jeopardy may change after the 

point in time when jeopardy initially attaches, this does not 

affect the method by which jeopardy must attach. Jeopardy may 

expand to include additional offenses the same way it initially 

attached: by placing the defendant at risk of a determination 

of guilt of an additional offense.
No. 2020AP2012-CR 

17

dismissed, prior to trial, because the "local board did not 

state adequate reasons for its refusal to reopen [the 

defendant's Selective Service] file." Id. at 379. The Court 

noted that it "has consistently adhered to the view that 

jeopardy does not attach, and the constitutional prohibition can 

have no application, until a defendant is 'put to trial before 

the trier of facts, whether the trier be a jury or a judge.'" 

Id. at 388 (quoting Jorn, 400 U.S. at 479). Because the charges 

were earlier dismissed, "[t]he District Court was without power 

to make any determination regarding [defendant's] guilt or 

innocence." Id. at 389.

¶27 The Court also rejected the argument that dismissal 

"was the 'functional equivalent of an acquittal on the merits' 

and 'constructively jeopardy had attached.'" Id. at 390. 

Finding this argument "divorced from the procedural context," 

the court reemphasized that jeopardy attaches when "an accused 

has been subjected to the risk of conviction" by "a trier 

'having jurisdiction to try the question of the guilt or 

innocence of the accused.'" Id. at 391-92 (quoting Kepner v. 

United States, 195 U.S. 100, 133 (1904)).

¶28 The Supreme Court later doubled down on this rule in 

United States v. Felix, 503 U.S. 378, 385 (1992). The criminal 

defendant in Felix was first charged in the Western District of 

Missouri with "attempting to manufacture [methamphetamine] 

between August 26 and August 31, 1987," and the conduct 

underlying the charge was the defendant's "order[ing] precursor 

chemicals and equipment for the manufacture of methamphetamine 
No. 2020AP2012-CR 

18

to be delivered to him at Joplin, Missouri." Id. at 380. At 

his trial, "the Government introduced evidence that [the 

defendant] had manufactured methamphetamine in Oklahoma earlier 

in 1987" in order to prove his "criminal intent with respect to 

the items delivered in Missouri." Id. at 381. He was convicted 

and later charged a second time in the Eastern District of 

Oklahoma. Id. at 381-82. The conduct underlying some of the 

charges in the Oklahoma case was the same conduct the government 

used as evidence of intent in the Missouri case. Id. at 382-83. 

¶29 The Court found no double jeopardy violation, 

rejecting the notion "that if the Government offers in evidence 

in one prosecution acts of misconduct that might ultimately be 

charged as criminal offenses in a second prosecution, the latter 

prosecution is barred under the Double Jeopardy Clause." Id. at 

386. The Court's "precedents hold that a mere overlap in proof 

between two prosecutions does not establish a double jeopardy 

violation" and have explicitly "disclaimed any intention of 

adopting a 'same evidence' test." Id. at 386 (citing Grady v. 

Corbin, 495 U.S. 508, 521 & n.12 (1990); Gavieres v. United 

States, 220 U.S. 338 (1911); Dowling v. United States, 493 U.S. 

342 (1990)). Thus, the Court reaffirmed "the basic, yet 

important, principle that the introduction of relevant evidence 

of particular misconduct in a case is not the same thing as 

prosecution for that conduct." Id. at 387. 

¶30 Recently, we also weighed in on the question of how to 

determine the scope of a defendant's jeopardy. In Schultz, 390 

Wis. 2d 570, the defendant was charged in a criminal complaint 
No. 2020AP2012-CR 

19

with repeated sexual assault of a child during "late summer to 

early fall of 2012." Id., ¶5. No evidence at trial indicated 

any such acts of sexual assault occurred in October 2012, and 

the prosecutor in closing argument stated "the assaults started 

in July and ended in September 2012." Id., ¶¶8-9. The 

defendant was acquitted but later charged again, this time with 

sexual assault of a child under the age of 16 "on or about 

October 19, 2012." Id., ¶11. The issue was whether the scope 

of jeopardy in the trial included the offense of sexual assault 

"on or about October 19, 2012." 

¶31 In line with the Supreme Court's decisions in Serfass

and Felix, we focused our inquiry on "the defendant's actual 

exposure to jeopardy in a prior prosecution." Schultz, 390 

Wis. 2d 570, ¶31. We decided "examining the entire record, 

including evidentiary facts adduced at trial," is relevant to 

discerning the scope of jeopardy in a prior trial. Id., ¶32. 

However, in reaching this conclusion, we also clarified that the 

focus of the inquiry remains on the defendant's "actual exposure 

to jeopardy," not on the parties' subjective understandings 

concerning the scope of jeopardy. Id., ¶¶24-25, 31. 

"Jeopardy," as we explained, includes "the actual danger to 

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

fears." Id., ¶31. It is not based "on the criminal defendant's 

fears, beliefs, or perceptions regarding his exposure in the 

first prosecution." Id. Furthermore, we declined the 

invitation to adopt the "reasonable person" test for discerning 

the scope of jeopardy espoused by the Second Circuit in United 
No. 2020AP2012-CR 

20

States v. Olmeda, 461 F.3d 271 (2d Cir. 2006). Schultz, 390 

Wis. 2d 570, ¶¶45-50. The proposed test was "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., ¶46 (quoting 

Olmeda, 461 F.3d at 282). We rejected this test as unsupported 

in the case law and contrary to the language of the Fifth 

Amendment, which contemplates actual jeopardy, not perceived 

jeopardy. Id., ¶¶47-49.

¶32 Killian relies heavily on the "entire-record" analysis 

we used in Schultz. According to Killian, the present case 

violates double jeopardy because "[t]he evidence the State 

intended to submit in the preceding trial was sufficient to 

convict [Killian] of all the charges in the current case." He 

argues this evidence established jeopardy of conviction for "a 

broad range of conduct beyond the charging document" because 

"the State presented the conduct underlying the subsequent

prosecution not as other act evidence in the first trial but 

with the intent to include the evidence as charges in an 

amendment." See Wis. Stat. § 971.29(2). 

¶33 We do not read Schultz to be quite so broad. We agree 

with Killian, as we stated in Schultz, that "[i]t is the record 

as a whole . . . which provides the subsequent protection from 

double jeopardy, rather than just the indictment." Schultz, 390 

Wis. 2d 570, ¶30 (quoting United States v. Roman, 728 F.2d 846, 

854 (7th Cir. 1984)). However, when ascertaining the scope of 
No. 2020AP2012-CR 

21

jeopardy, the analysis must nonetheless focus on the defendant's 

actual jeopardy——"the actual danger" of conviction. Id., ¶31; 

Serfass, 420 U.S. at 391-92.

¶34 Schultz framed the question, as applied to the facts 

of that case, as "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.'" Schultz, 390 Wis. 2d 570, ¶33. To answer 

this question, "[w]e beg[a]n our analysis with the complaint 

charging [the defendant] in the initial prosecution." Id., ¶34. 

After analyzing the complaint's language, along with a police 

report incorporated by reference, we concluded the complaint 

"clearly identifie[d] [the defendant's] scope of jeopardy in the 

first prosecution at the time jeopardy attached." Id., ¶36. We 

then continued to examine the record at trial, but only "to see 

if anything suggest[ed] 'early fall' extended past mid-September 

to include October 19, 2012." Id., ¶37. The focus of the 

analysis was always on the defendant's actual jeopardy as

established by the language in the criminal complaint. The 

trial record helped inform this analysis by providing evidence 

of what exactly the complaint meant by "early fall." 

¶35 Schultz never suggested that the trial record, and the 

trial record alone, could expand the defendant's scope of 

jeopardy beyond the jeopardy created by a fair reading of the 

charging documents. After all, "[t]he defendant cannot be 

convicted," and the court is "without jurisdiction to convict" 
No. 2020AP2012-CR 

22

the defendant, "of a crime for which he is not charged." State 

ex rel. Winnie v. Harris, 75 Wis. 2d 547, 553, 249 N.W.2d 791 

(1977); see also Malaga v. United States, 57 F.2d 822, 825 (1st 

Cir. 1932) ("Even though the evidence warranted it, the 

respondent could not be convicted of an offense with which he 

was not charged."); State v. Rogers, 545 P.2d 930, 932 (Ariz. 

1976) ("It is basic that a person cannot be convicted of an 

offense not charged against him by indictment or information."); 

In re Hess, 288 P.2d 5, 7 (Cal. 1955) ("A person cannot be 

convicted of an offense . . . not charged against him by

indictment or information, whether or not there was evidence at 

his trial to show that he had committed that offense."). Were 

we to conclude jeopardy could attach based on "[t]he evidence 

the State intended to submit in the preceding trial" alone, this 

would contravene the Supreme Court's holding in Felix "that a 

mere overlap in proof between two prosecutions does not 

establish a double jeopardy violation."8 503 U.S. at 386.

¶36 The fact that the information may be amended to 

conform to the evidence presented at trial does not affect our 

analysis. Under Wis. Stat. § 971.29(2),

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 

 

8 If we ascribed a broader meaning to our holding in 

Schultz, 390 Wis. 2d 570, it would bar subsequent prosecutions 

based simply on evidence related to uncharged crimes. Schultz

cannot be interpreted to bar a later prosecution based just on 

that evidence. 
No. 2020AP2012-CR 

23

amended to conform to the proof if no objection to the 

relevance of the evidence was timely raised upon the 

trial.

But before the information may be amended to conform to the 

evidence, such evidence must have been admitted at trial. 

Evidence in a criminal trial is inadmissible unless it is 

relevant to the defendant's guilt or innocence of a crime 

charged at the time the evidence is introduced. See Wis. Stat. 

§ 904.02 ("Evidence which is not relevant is not admissible."); 

cf. State v. Alsteen, 108 Wis. 2d 723, 731, 324 N.W.2d 426 

(1982) (stating evidence "must be relevant to an issue in the 

case to be admissible"). If evidence is relevant and therefore 

admitted, then the defendant is in jeopardy insofar as that 

evidence is being used to prove the charged offense. See Felix, 

503 U.S. at 379. Even if that same evidence could be relevant 

to proving some other offense, jeopardy for that offense does 

not attach until the defendant faces the "risk of a 

determination of guilt" with regard to that offense. Serfass, 

420 U.S. at 391-92. Until the Information is actually amended, 

there exists no such risk, and therefore no jeopardy. 

¶37 Likewise, we disagree with Killian that a prosecutor's 

introducing evidence merely with intent to bring additional 

charges can expand the scope of jeopardy. We similarly rejected 

analyzing the parties' states of mind as a method for discerning 

the scope of jeopardy in Schultz. See 390 Wis. 2d 570, ¶¶24-25, 

31, 49. Just like the proposed tests in Schultz, Killian's 

proposed intent-based test runs contrary to the Fifth 

Amendment's requirement of actual jeopardy. Regardless of the 
No. 2020AP2012-CR 

24

prosecutor's intentions, the Information could not be amended 

without leave of the court. Wis. Stat. § 971.29(2). 

¶38 We therefore hold that, where a trial ends in a 

mistrial,9 the defendant's scope of jeopardy consists of those 

offenses for which the defendant faced actual danger of 

conviction, meaning the defendant was exposed to the "risk of a 

determination of guilt" regarding those offenses.10 Serfass, 420 

U.S. at 391-92. The inquiry should focus on the charging 

documents, but the entire record may be examined if necessary to 

confirm the scope of jeopardy as established by those charging 

documents. Schultz, 390 Wis. 2d 570, ¶¶33–40. "[M]ere overlap 

in proof between two prosecutions does not establish a double 

jeopardy violation," Felix, 503 U.S. at 386, nor does the 

prosecutor's intent. The inquiry must always focus on "the 

defendant's actual exposure to jeopardy in a prior prosecution." 

Schultz, 390 Wis. 2d 570, ¶31.

C. Whether Killian Was Twice Put In Jeopardy.

 

9 "[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." Schultz, 390 Wis. 2d 570, ¶30 

(quoting United States v. Hamilton, 992 F.2d 1126, 1130 (10th 

Cir. 1993)).

10 This "risk" refers to the possibility that a jury might 

find the defendant guilty of the crime charged. It does not 

refer to the possibility that a jury might consider conduct 

which could constitute an otherwise uncharged offense. The 

Constitution requires that there be actual as opposed to 

hypothetical jeopardy. Id., ¶31.
No. 2020AP2012-CR 

25

¶39 We now turn to the issue of whether Killian's second 

prosecution violates double jeopardy. We conclude it does not.

¶40 Killian argues he was in jeopardy with regard to 

certain offenses against Britney because, "[i]n the State's 

opening in the first trial, the State explained it would present 

evidence regarding 'a course of conduct,' including the 

defendant 'touching her inappropriately' and 'rub[bing] [his 

penis] on her." Killian also points to the prosecutor's 

statement to the circuit court that he could present evidence of 

"a breast rub . . . alleged humping, penis rubbing . . . also a 

vaginal rub." "With respect to Ashley," Killian argues he was 

in jeopardy because "the State explained to the empaneled jury, 

the evidence will show that [Killian] sexually assaulted Ashley 

from when she was about 6 years old until she was 17," from 1988 

to 1999. According to Killian, the prosecutor's attempts to 

introduce this evidence, combined with his intent to amend the 

Information, constituted an "active pursuit of convictions in 

front of an empaneled jury [which] created the actual jeopardy."

¶41 We disagree. A review of the entire record, with a 

focus on Killian's actual exposure to jeopardy, reveals a far 

more limited scope of jeopardy than Killian contends. Killian 

was never in jeopardy of being convicted for these offenses 

because he was never exposed to a risk of a determination of 

guilt regarding these offenses. 

¶42 The entire record demonstrates that the only alleged 

offense against Britney for which Killian faced a possible 

determination of guilt was the allegation that he grabbed 
No. 2020AP2012-CR 

26

Britney's buttocks. The Amended Information included one count 

of sexually assaulting Britney "on or between January, 2014 to 

August, 2014." The probable cause section of the original 

complaint alleged Killian "grabbed her buttocks" in that time 

period. During the October 5, 2016 motion hearing, the 

prosecutor confirmed that the State was not alleging any acts of 

sexual assault beyond touching Britney's buttocks, and the court 

issued an order excluding evidence of other acts of sexual 

assault against Britney. While discussing the Amended 

Information on the first day of trial, the circuit court further 

confirmed with the prosecutor that the State was "not alleging 

there were additional things that happened." Any other acts of 

sexual assault, the court emphasized, "were required to have 

been addressed and they were not addressed at all." The court 

repeated this ruling before Britney's testimony, and it granted 

a mistrial when the prosecutor violated that ruling. The 

circuit court made it abundantly clear that Killian was not at 

risk of being convicted for any act of sexual assault against 

Britney other than grabbing her buttocks. 

¶43 As for the alleged offenses against Ashley, Killian 

was in jeopardy of being convicted for committing repeated 

sexual assault "from April, 1994 through December, 1999." The 

court denied the State's motion to include a count for incest, 

meaning that offense was never before the jury. Though the 

prosecutor in his opening statement told the jury Killian 

"started molesting [Ashley] since she was about 6 or 7 years old 

[1988-89] and didn't stop until she was about 17 [1999]," this 
No. 2020AP2012-CR 

27

clearly goes beyond the date range in the Information. In 

contrast with the Information in Schultz, there is no reading of 

"April, 1994 through December, 1999" that also includes 1988 to 

1993. The only time period the jury could consider was that 

listed in the Information: "from April, 1994 through December, 

1999."

¶44 Furthermore, the prosecutor's stated intention to 

amend the Information and add more charges at the close of 

evidence did not expand the scope of Killian's jeopardy. The 

prosecutor's intent alone was insufficient to put Killian at 

risk of a determination of guilt. The jury would have had no 

ability find Killian guilty of any additional offenses unless 

and until that amendment took place. No such amendment ever 

took place, so jeopardy never attached. 

¶45 Accordingly, we conclude the scope of Killian's 

jeopardy in his trial included the following offenses: sexually 

assaulting Britney by grabbing her buttocks "on or between 

January, 2014 to August 18, 2014" contrary to Wis. Stat. 

§ 948.02, and repeated sexual assault of Ashley "from April, 

1994 through December, 1999" contrary to Wis. Stat. § 948.025. 

¶46 Having ascertained the scope of Killian's jeopardy in 

his first prosecution, we proceed to the question of whether 

Killian's jeopardy in his second prosecution is identical in law 

and in fact. To repeat, "two offenses are identical in law if 

one offense does not require proof of any fact in addition to 

those which must be proved for the other offense." State v. 

Ziegler, 2012 WI 73, ¶60, 342 Wis. 2d 256, 816 N.W.2d 238. 
No. 2020AP2012-CR 

28

Offenses "are not identical in fact if the acts allegedly 

committed are sufficiently different in fact to demonstrate that 

separate crimes have been committed." Id. 

¶47 In the present prosecution, counts 3 and 5 through 9 

are not identical in law to an offense in Killian's first 

prosecution. Those counts allege Killian committed incest 

against Ashley contrary to Wis. Stat. § 948.06. To prove 

incest, the State must show the defendant "kn[ew] [the child 

victim] is related, either by blood or adoption, and the child 

is related in a degree of kinship closer than 2nd cousin." 

§ 948.06. The crime of repeated sexual assault of a child under 

Wis. Stat. § 948.025, charged in the first case, contains no 

similar element. The crime of incest also requires proof that 

the victim "ha[d] not attained the age of 18 years." Wis. Stat. 

§ 948.01(1) (defining "child"). In contrast, repeated sexual 

assault of a child requires proof that the victim "ha[d] not 

attained the age of 16 years." Wis. Stat. §§ 948.025, 948.02. 

The statute also requires proof of "3 or more violations." Id. 

Counts 3 and 5 through 9 charging Killian with committing incest 

against Ashley therefore do not violate double jeopardy because 

each offense "require[s] proof of a[] fact in addition to those 

which must be proved for the other offense." Ziegler, 342 

Wis. 2d 256, ¶60; see also State v. Swanson, No. 2015AP1521-CR, 

unpublished slip op., ¶42 (Wis. Ct. App. Mar. 7, 2017) 

(concluding Wis. Stat. §§ 948.06 and 948.025 are not identical 

in law under the Blockburger test). 
No. 2020AP2012-CR 

29

¶48 Counts 1 through 5 do not violate double jeopardy 

because they are not identical in fact to an offense in 

Killian's first prosecution. Counts 1 through 5, which allege 

offenses against Ashley, are factually different because they 

cover different timeframes than the offense in Killian's first 

prosecution. Whereas the timeframe in the first prosecution was 

"April, 1994 through December, 1999," counts 1 through 5 allege 

various offenses "in or around" 1990 to 1993. This precedes the 

timeframe for the offenses against Ashley prosecuted in the 

previous case, making these counts not identical in fact. 

¶49 Count 10, the only count alleging an offense against 

Britney, is also not identical in fact to an offense in the 

previous case. The State prosecuted Killian in the first case 

for grabbing Britney's buttocks "on or between January, 2014 to 

August 18, 2014." Count 10 alleges Killian committed repeated 

acts of sexual assault against Britney "in or around June 2012, 

and no later than August 17, 2014." Though there is some 

overlap in the time period and the complaint's probable cause 

section alleges Killian "grabbed [Britney's] butt," the 

complaint also alleges other acts of sexual assault. It alleges 

Killian grabbed Britney's buttocks five times and that only one 

of these times was on August 18, 2014. It also alleges Killian 

"touched her 'boobies,'" "hump[ed]" her, and "touched her 

'private part.'" These acts "are significantly different in 

nature, involving different methods of intrusion and contact." 

Ziegler, 342 Wis. 2d 256, ¶73. Count 10 is therefore not 

identical in fact to an offense prosecuted in the previous case, 
No. 2020AP2012-CR 

30

and it does not violate double jeopardy to the extent it alleges 

acts of sexual assault other than grabbing Britney's buttocks 

"on or between January, 2014 to August 18, 2014." 

¶50 Because no count in the present prosecution is 

identical both in law and in fact with an offense charged in 

Killian's previous prosecution, the present case is not a 

prosecution for the same offense and does not violate Killian's 

right against double jeopardy. 

D. Issue Preclusion

¶51 Finally, Killian raises issue preclusion as a 

potential bar to prosecution in this case. Specifically, 

Killian argues that issue preclusion, as "ro[o]ted in the Double 

Jeopardy Clause," bars the present prosecution because "the 

trials would be identical, but for the State seeking to bolster 

its case." He also argues that issue preclusion prevents the 

State from bringing more charges because the circuit court's 

order in the first case "clearly ruled that the State could not 

bring these charges" and the State did not appeal that order. 

¶52 Killian's first argument relies largely on the United 

States Supreme Court's decision in Ashe, 397 U.S. 436. The 

defendant in Ashe was charged with robbing one of six men 

playing a poker game in a residential basement. Id. at 437. 

"The trial judge instructed the jury that if it found that the 

[defendant] was one of the participants in the armed 

robbery . . . he was guilty under the law even if he had not 

personally robbed [the victim]." Id. at 439. The jury found 

the defendant not guilty. Id. "Six weeks later the [defendant] 
No. 2020AP2012-CR 

31

was brought to trial again, this time for the robbery of another 

participant in the poker game . . . ." Id. The Court addressed 

whether issue preclusion "is a part of the Fifth Amendment's 

guarantee against double jeopardy" and therefore "no longer a 

matter to be left for state court determination within the broad 

bounds of 'fundamental fairness.'" Id. at 442-43. The Court 

described the doctrine as "mean[ing] simply that when an issue 

of ultimate fact has once been determined by a valid and final 

judgment, that issue cannot again be litigated between the same 

parties in any future lawsuit."11 Id. at 443. The Court 

concluded issue preclusion barred the second prosecution because 

the "jury determined by its verdict that the [defendant] was not 

one of the robbers." Id. at 446. 

¶53 The Supreme Court has recently described Ashe as 

imposing a rigorous standard:

[Ashe's] test is a demanding one. Ashe forbids a 

second trial only if to secure a conviction the 

prosecution must prevail on an issue the jury 

necessarily resolved in the defendant's favor in the 

first trial. A second trial "is not precluded simply

because it is unlikely——or even very unlikely——that 

the original jury acquitted without finding the fact 

in question." To say that the second trial is 

tantamount to a trial of the same offense as the first 

and thus forbidden by the Double Jeopardy Clause, we 

must be able to say that "it would have been 

irrational for the jury" in the first trial to acquit 

 

11 Ashe used the term "collateral estoppel" to describe this 

doctrine. 397 U.S. 436 (1970). However, the Supreme Court "has 

[since] observed, 'issue preclusion' is the more descriptive 

term" as opposed to "collateral estoppel." Bravo-Fernandez v. 

United States, 580 U.S. 5, 7 n.1 (2016). 
No. 2020AP2012-CR 

32

without finding in the defendant's favor on a fact 

essential to a conviction in the second. 

Currier v. Virginia, 585 U.S. , 138 S. Ct. 2144, 2150 (2018) 

(citations omitted); see also Bravo-Fernandez v. United States, 

580 U.S. 5, 12 (2016) (describing the inquiry as "what a jury in 

a previous trial necessarily decided"). We have likewise 

explained that issue preclusion applies to "an issue of ultimate 

fact that is determined by a valid and full judgment." State v. 

Vassos, 218 Wis. 2d 330, 343, 579 N.W.2d 35 (1998); Canon, 241 

Wis. 2d 164, ¶13 ("[I]ssue preclusion . . . is a doctrine to 

prevent prosecutorial misconduct and give finality to judicial 

determinations made in one criminal transaction . . . ."). We 

therefore conclude that a valid judicial determination of 

ultimate fact is necessary for issue preclusion to apply under 

Ashe. Because the jury in Killian's trial did not reach a 

verdict, the doctrine is inapplicable to this case.12

 

12 Killian argues this conclusion "allows a prosecutor, upon 

believing the trial is going badly, to intentionally goad the 

defense into moving for a mistrial and then remain free from the 

perils of issue preclusion, which is exactly what happened in 

this case." This argument is based on an unknowable, 

hypothetical verdict the jury might have issued, and it assumes 

all charges relating to the same conduct must be brought in the 

same prosecution. 

The collateral-estoppel effect attributed to the 

Double Jeopardy Clause, may bar a later prosecution 

for a separate offense where the Government has lost

an earlier prosecution involving the same facts. But 

this does not establish that the Government 

"must . . . bring its prosecutions . . . together." 

It is entirely free to bring them separately . . . .

United States v. Dixon, 509 U.S. 688, 705 (1993).
No. 2020AP2012-CR 

33

¶54 Killian's second argument——that the circuit court's 

order dismissing the first case with prejudice bars the present 

prosecution——fails in a similar vein. "The [common law] 

doctrine of issue preclusion . . . is designed to limit the 

relitigation of issues that have been actually litigated in a 

previous action." Aldrich, 341 Wis. 2d 36, ¶88. "An issue is 

'actually litigated' when it is 'properly raised, by the 

pleadings or otherwise, and is submitted for determination, and 

is determined.'" Dostal v. Strand, 2023 WI 6, ¶24, 405 

Wis. 2d 572, 984 N.W.2d 382 (quoting Randall v. Felt, 2002 WI 

App 157, ¶9, 256 Wis. 2d 563, 647 N.W.2d 373). 

¶55 In the circuit court's order following Killian's 

trial, the court described the issue as "whether the Fifth 

Amendment's protection against double jeopardy bars the retrial 

of [Killian] because of prosecutorial overreaching in this 

case." The court stated its findings as follows:

The Court finds that the prosecutor's actions were 

intentional and the record shows that he knew his 

actions would be prejudicial to the defendant. The 

Court finds also that the prosecutor's conduct was 

designed to create another chance to convict, and was 

an act done so as to allow the State another "kick at 

the cat" – a chance to prepare more thoroughly and 

with a better understanding of the issues, a chance to 

file different motions and obtain more favorable 

pretrial rulings, and a chance to add more charges and 

incriminating evidence into the record in the hopes of 

solidifying the State’s chances of conviction.

The court then ordered "that the State is barred from retrial in 

this matter due to prosecutorial overreaching" (emphasis added). 

The circuit court's order addressed the issue of prosecutorial 
No. 2020AP2012-CR 

34

overreach. Nowhere did the circuit court analyze the scope of 

Killian's jeopardy in his trial. The one question before the 

circuit court, and the court's one ruling, concerned whether the 

prosecutor engaged in overreach such that double jeopardy barred 

retrial "in th[at] matter." The circuit court never determined 

the scope of Killian's jeopardy in his trial. Accordingly, the 

issue was not actually litigated, and common law issue 

preclusion does not apply. 

IV. CONCLUSION

¶56 We conclude that Killian's previous trial does not bar 

the State from prosecuting the present case because the scope of 

Killian's jeopardy in his trial did not include the offenses 

with which he is now charged. The scope of jeopardy is 

established by "the defendant's actual exposure to jeopardy in a 

prior prosecution." Schultz, 390 Wis. 2d 570, ¶31. This 

requires that the defendant faced a "risk of a determination of 

guilt" regarding a particular offense. Serfass, 420 U.S. at 

391-92. Killian was never exposed to the risk of conviction for 

the offenses charged in the present case. As a result, the 

offenses prosecuted in Killian's trial are not identical in law 

and in fact to the offenses charged in this case, so double 

jeopardy does not bar the present prosecution.

¶57 We also conclude that issue preclusion under the 

Double Jeopardy Clause and common law issue preclusion do not 

bar the present prosecution. Issue preclusion under the Double 

Jeopardy Clause requires a valid judicial determination of 

ultimate fact, and none exists in this case because Killian's 
No. 2020AP2012-CR 

35

trial ended in a mistrial. See Ashe, 397 U.S. 436 (1970). 

Common law issue preclusion also does not bar this prosecution. 

The circuit court's order dismissing with prejudice the criminal 

complaint in the first case did not decide the scope of 

Killian's jeopardy. Therefore, that issue was never "actually 

litigated," and issue preclusion does not bar the present 

prosecution. See Aldrich, 341 Wis. 2d 36, ¶88. 

¶58 We therefore reverse the court of appeals and remand 

to the circuit court to consider Killian's unresolved argument 

regarding prosecutorial vindictiveness. 

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

reversed, and the cause is remanded to the circuit court for 

further proceedings consistent with this opinion.
No. 2020AP2012-CR.awb

1

¶59 ANN WALSH BRADLEY, J. (dissenting). As pretrial 

rulings unfolded and trial testimony was introduced, the 

woefully unprepared State realized that things were looking 

bleak. So instead of allowing the jury to perform its function, 

the prosecutor intentionally induced a mistrial in an attempt to 

later refile charges against James Killian. 

¶60 Importantly, the circuit court made a finding that the 

"trial was going poorly" for the prosecutor and that "[t]he 

prosecutor knew that if he retried the case, he might fare 

better and the defendant could face more ominous 

charges . . . ." It further found that "the prosecutor's 

actions were intentional" and that his "conduct was designed to 

create another chance to convict, and was an act done so as to 

allow the State another 'kick at the cat.'" 

¶61 The circuit court could see right through the State's 

gamesmanship. According to the court, the ploy was designed to 

afford "a chance to prepare more thoroughly and with a better 

understanding of the issues, a chance to file different motions 

and obtain more favorable pretrial rulings, and a chance to add 

more charges and incriminating evidence into the record in the 

hopes of solidifying the State's chances of conviction."

¶62 Attempting to circumvent these findings, the majority 

opinion rewards the State's scheme, giving it just what it 

sought through its egregious conduct. In the majority's view, 

double jeopardy does not bar retrial "because the scope of 

Killian's jeopardy in his trial did not include the offenses 

with which he is now charged." Majority op., ¶3. In effect, 
No. 2020AP2012-CR.awb

2

the majority's decision sends a direct signal to prosecutors who 

are losing at trial: if you want a do-over, consider throwing 

the trial.

¶63 The majority errs in two primary ways. First, it 

sidesteps the circuit court's detailed factual findings, 

disregarding the prosecutor's clear intent. Second, by focusing 

singularly on the charging documents in determining the scope of 

Killian's jeopardy, rather than examining the record as a whole, 

the majority employs an analysis which this court explicitly 

rejected in a recent case. See State v. Schultz, 2020 WI 24, 

390 Wis. 2d 570, 939 N.W.2d 519. 

¶64 Under a proper application of Schultz, I conclude that 

jeopardy attaches where the prosecutor's desire to amend the 

information based on the evidence at trial is clearly manifest 

in the record and where the prosecutor purposely induced a 

mistrial with the intent to later refile charges. Any other 

result would allow the State to reap a windfall from its 

intentional wrongdoing. 

¶65 Because I would not lend judicial imprimatur to the 

State's gambit in this case, I respectfully dissent.

I

¶66 Killian was charged with sexual assaults of two 

minors, referred to as Britney and Ashley.1 Majority op., ¶6. 

The complaint regarding Britney charged Killian with one count 

of first-degree sexual assault of a child2 and alleged a single 

 

1 "Britney" and "Ashley" are pseudonyms. See Wis. Stat. 

(Rule) § 809.86(4).

2 Wis. Stat. § 948.02.
No. 2020AP2012-CR.awb

3

assaultive act——that Killian "laid beside [Britney] and grabbed 

her buttocks." Id. 

¶67 About a year after the complaint regarding Britney was 

filed, the State filed an additional complaint against Killian 

concerning acts against Ashley. Id., ¶7. In this second 

complaint, the State charged Killian with repeated sexual 

assault of the same child,3 alleging that Killian sexually 

assaulted Ashley from "April 1994 through December 1999." Id.

¶68 After the cases were joined for trial, Killian brought 

a motion to exclude other-acts evidence, while the State sought 

to admit such evidence. Id., ¶8. Ultimately, the circuit court 

denied the State's motion to admit other-acts evidence as to 

other instances of assault against Britney.4 Id.

¶69 As trial approached, the State tried to add additional

charges by amending the information. Id., ¶9. On the day of 

trial, the circuit court denied this motion, describing the 

addition of new charges at such a late date as prejudicial. 

Id., ¶10. As the parties and the circuit court discussed this 

motion, the prosecutor confirmed that Killian was being charged 

with "one sole act" with regard to Britney. Id., ¶11. But he 

 

3 Wis. Stat. § 948.025.

4 The circuit court allowed the State to present evidence of 

"grooming" behavior, but it did not allow the State to present 

evidence of assaultive behavior other than Killian grabbing 

Britney's buttocks as alleged in the complaint. Majority op., 

¶8. Additionally, the circuit court granted the State's motion 

to admit evidence of sexual assaults against Ashley going back 

to 1988 to demonstrate Killian's "motive, intent, preparation, 

absence of mistake or accident, and plan." Id.
No. 2020AP2012-CR.awb

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reiterated his desire to later amend the information "if more 

acts are disclosed at trial." Id.

¶70 Despite the circuit court's admonition, from his 

opening statement onward, the prosecutor continually described 

other instances of alleged sexual assault committed by Killian 

against Britney. Id., ¶13. Prior to Britney taking the stand, 

the prosecutor yet again referenced the possibility that the 

information could be amended to conform with the proof offered 

and stated that "[a]nything could happen when she testifies." 

Id., ¶14. As part of this discussion, the circuit court made 

clear that a mistrial was a distinct possibility if any excluded 

other-acts evidence surfaced. Id.

¶71 Britney took the stand and the prosecutor quickly 

elicited such testimony. Id., ¶15. Defense counsel objected 

and moved for a mistrial, which the circuit court granted. Id. 

The circuit court later determined that the prosecutor's actions 

were intentional, with the object being to retry the defendant. 

Id.

¶72 Consistent with that object, the State subsequently 

filed a new criminal complaint, this time charging Killian with 

10 counts, relying on the other-acts evidence that was excluded 

from the initial trial. Id., ¶16. Nine of these counts related 

to Ashley, and included three counts of first-degree sexual 

assault of a child and six counts of incest with a child.5 Id. 

One count related to Britney, and charged Killian with repeated 

sexual assault of the same child. Id.

 

5 Wis. Stat. § 948.06(1).
No. 2020AP2012-CR.awb

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¶73 Killian moved to dismiss the new complaint on double 

jeopardy grounds. Id., ¶17. The circuit court agreed with 

Killian, and the court of appeals affirmed. It concluded that 

"the circuit court properly considered the entire record of the 

first prosecution to determine whether Killian was in jeopardy 

for the offenses now charged." State v. Killian, 2022 WI App 

43, ¶4, 404 Wis. 2d 451, 979 N.W.2d 569. Reviewing the record, 

the court of appeals concluded that "Killian was, in fact, in 

jeopardy of being convicted of the offenses now charged" in the 

second complaint. Id.

¶74 The State petitioned for review, and the majority now 

reverses a unanimous decision of the court of appeals. 

II

A

¶75 The majority concludes that "Killian was never exposed 

to the risk of conviction for the offenses charged in the 

present case." Majority op., ¶3. In the majority's view, 

"Killian's previous trial does not bar the State from 

prosecuting the present case because the scope of Killian's 

jeopardy in his trial did not include the offenses with which he 

is now charged." Id.

¶76 The double jeopardy clause provides: "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. At its core, 

it recognizes the State's power and serves as a check on that 

power:

The underlying idea, one that is deeply ingrained in 

at least the Anglo-American system of jurisprudence, 
No. 2020AP2012-CR.awb

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is that the State with all its resources and power 

should not be allowed to make repeated attempts to 

convict an individual for an alleged offense, thereby 

subjecting him to embarrassment, expense and ordeal 

and compelling him to live in a continuing state of 

anxiety and insecurity, as well as enhancing the 

possibility that even though innocent he may be found 

guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957).

¶77 This clause serves various purposes. It protects a 

defendant from multiple trials and punishments for the same 

offense, preserves the finality and integrity of judgments, bars 

the government from a second chance to supply evidence it failed 

to provide in the first proceeding, and protects a defendant's 

right to have the trial completed by a particular tribunal. 

State v. Martin, 121 Wis. 2d 670, 675, 360 N.W.2d 43 (1985). 

¶78 However, the double jeopardy bar does not apply in all 

situations. When a defendant requests a mistrial, and that 

request is granted, the general rule is that the double jeopardy 

clause does not bar a retrial. State v. Hill, 2000 WI App 259, 

¶11, 240 Wis. 2d 1, 622 N.W.2d 34 (citing State v. Copening, 100 

Wis. 2d 700, 709, 303 N.W.2d 821 (1981)). In such a situation, 

the defendant exercises control over the mistrial decision and 

in effect chooses to be tried by a different tribunal. Id.

¶79 But this rule is not absolute. Where governmental 

conduct is intended to goad the defendant into moving for a 

mistrial, double jeopardy can be raised as a bar to a second 

trial even after the defendant successfully ends the first. 

Oregon v. Kennedy, 456 U.S. 667, 675-76 (1982).

¶80 Here, the prosecutor plainly "goaded" the defendant 

into moving for a mistrial. The circuit court made such a 
No. 2020AP2012-CR.awb

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determination, supported by 21 factual findings. It observed 

that the prosecutor clearly knew that things were not going his 

way:

 "The prosecutor had multiple reasons to believe the 

trial was going poorly even before the trial started 

(medical subpoenas, excluded expert, excluded forensic 

interview, improperly crafted proposal to 

settle) . . . ."

The circuit court further found unbelievable the prosecutor's 

claim that he unintentionally elicited the prohibited testimony:

 "The prosecutor claimed the error was an unintentional 

mishap yet the prosecutor had clearly educated himself 

that the only way he would be barred from retrial if a 

mistrial was declared was if there was prosecutorial 

overreaching and he discussed this research with the 

defense team moments before the child was called to 

testify. There would be no other purpose to call in 

the defense counsel over lunch other than to lay out 

what he intended to do if they objected to the 

introduction and a mistrial was declared."

It also noted that the prosecutor was aware that another trial 

may bring both additional charges and a better chance of 

conviction:

 "The prosecutor knew that if he retried the case, he 

might fare better and the defendant could face more 

ominous charges 'because if she were to testify and 
No. 2020AP2012-CR.awb

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she goes and tells her story, Mr. Killian is facing 

more charges.'"

Finally, the circuit court observed the State's failure to 

prepare and the subsequent scramble to cover it up:

 "The State was not prepared for trial and realized 

only the week prior to trial that there were a series 

of sexual assaults alleged by the child. It then 

requested leave to amend to include a date range, 

hoping to get the entire set of acts included, by 

sidestepping the prior ruling on [other-acts evidence] 

to which it had previously failed to object."

¶81 Accordingly, the circuit court found that "the 

prosecutor's actions were intentional and the record shows that 

he knew his actions would be prejudicial to the defendant." It 

continued: "The Court finds also that the prosecutor's conduct 

was designed to create another chance to convict, and was an act 

done so as to allow the State another 'kick at the cat' . . . ." 

The circuit court thus determined that "the State is barred from 

retrial in this matter due to prosecutorial overreaching."

¶82 The majority sidesteps the circuit court's findings. 

It asserts that "Killian was never exposed to the risk of 

conviction for the offenses charged in the present case" and 

that "the offenses prosecuted in Killian's trial are not 

identical in law and in fact to the offenses charged in this 

case." Majority op., ¶3.

¶83 This "identical in law and in fact" formulation arises 

from Blockburger v. United States, 284 U.S. 299 (1932). In 
No. 2020AP2012-CR.awb

9

Blockburger, the United States Supreme Court determined that 

"where the same act constitutes a violation of two distinct 

statutory provisions, the test under the double jeopardy clause 

is whether each provision requires proof of a fact which the 

other does not." State v. Lechner, 217 Wis. 2d 392, 405, 576 

N.W.2d 912 (1998). "Under this test, two offenses are different 

in law if each statutory crime requires for conviction proof of 

an element which the other does not require." Id. Offenses are 

not identical in fact if a conviction for each offense requires 

proof of an additional fact that conviction for the other 

offenses does not, or if they are different in nature or 

separated in time. Schultz, 390 Wis. 2d 570, ¶22. This test is 

rather straightforward to apply, but a particular aspect of 

Wisconsin law illustrates that the application of the test is 

not without nuance.

¶84 In Wisconsin the State may move to amend the 

information to conform to the evidence produced at trial. Wis. 

Stat. § 971.29(2).6 Although the statute requires that any such 

amendment not prejudice the defendant, the State's ability to 

amend the information is fairly broad. "When an amendment to 

the charging document does not change the crime charged, and 

 

6 Wisconsin Stat. § 971.29(2) provides: 

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.
No. 2020AP2012-CR.awb

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when the alleged offense is the same and results from the same 

transaction, there is no prejudice to the defendant." State v. 

DeRango, 229 Wis. 2d 1, 26, 599 N.W.2d 27 (Ct. App. 1999). But 

this does not mean that an amendment cannot vastly expand the 

jeopardy to which a defendant is subject. Indeed, precedent 

indicates that amendment can even result in additional counts 

that increase the maximum penalty a defendant may face. State 

v. Wickstrom, 118 Wis. 2d 339, 349, 348 N.W.2d 183 (Ct. App. 

1984). 

¶85 What this means in practical terms is that in some 

cases the charge or factual circumstance that is sent to the 

jury for determination may be quite different from the charge or 

factual circumstance set forth in the information at the 

beginning of the trial. This is a key point: the charging 

document does not reflect the definitive final charge. It is 

subject to amendment, meaning that the jeopardy to which a 

defendant is subject cannot be defined strictly by looking at 

the charging document. See Schultz, 390 Wis. 2d 570, ¶30, 

(citing 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.").

B

¶86 In its laser-focus on the charging documents, the 

majority misapplies our recent decision in State v. Schultz, 390 

Wis. 2d 570. In Schultz, the question before the court was 
No. 2020AP2012-CR.awb

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whether a prosecution for a sexual assault "on or about October 

19, 2012" was barred by double jeopardy when the defendant had 

been previously acquitted for sexual assault in "late summer to 

early fall of 2012." In framing the analysis, the Schultz court 

concluded that we must examine "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." Id., ¶32. It emphasized that "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." Id. 

¶87 In applying these principles to the facts before it, 

the Schultz court rejected an approach that would merely compare 

the charging documents to determine the scope of jeopardy. It 

explained that such an approach would insufficiently protect the 

defendant's double jeopardy rights and that we must examine the 

record to determine whether any evidence supporting the charges 

in the second case was introduced in the first:

Limiting our review to the complaint . . . would not 

protect the 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.

Id., ¶37.7

 

7 Setting forth the background that underlies this 

conclusion, the Schultz court wrote:
No. 2020AP2012-CR.awb

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¶88 This passage from Schultz explicitly indicates that 

review of only the complaint fails to protect the defendant's 

double jeopardy rights if the State introduces evidence of a 

sexual assault outside the charging period. Id. ("Limiting our 

review to the complaint . . . would not protect the defendant 

against double jeopardy if the State introduced evidence of a 

sexual assault occurring 'on or about October 19' after jeopardy 

attached."). Such a scenario is just what we have in the 

present case. Accordingly, we must look to the "entire record," 

and not merely compare charging documents. Yet despite the 

Schultz court's admonition, the charging document is where the 

majority's singular focus lies. See majority op., ¶35.

¶89 The entire record here points in one direction——that 

the prosecutor repeatedly and consistently sought to amend the 

information to add additional charges. Had this clear goal of 

the prosecution come to pass, Killian would have faced the 

possibility of conviction on those additional charges. 

 

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 midSeptember 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. 

State v. Schultz, 2020 WI 24, ¶37, 390 Wis. 2d 570, 939 

N.W.2d 519. 
No. 2020AP2012-CR.awb

13

¶90 The majority focuses on "actual jeopardy" rather than 

"perceived jeopardy." See, e.g., majority op., ¶31. But this 

focus fails to recognize, as the United States Supreme Court 

has, that the concept of "potential" is inherent in the double 

jeopardy clause. Price v. Georgia, 398 U.S. 323, 326 (1970) 

("The 'twice put in jeopardy' language of the 

Constitution . . . relates to a potential, i.e., the risk that 

an accused for a second time will be convicted of the 'same 

offense' for which he was initially tried.").

¶91 In order to account for the State's ability to amend 

the information to conform to the evidence at trial, I conclude 

that in a situation as here, a straightforward application of 

Schultz indicates that where the prosecutor's desire to amend 

the information based on the evidence at trial is clearly 

manifest in the record and where the prosecutor purposely

induced a mistrial with the intent to later refile charges, 

jeopardy attaches.

¶92 The series of events with which we are confronted here 

is not common. It is a thankfully rare occurrence that a 

prosecutor will purposely induce a mistrial with the intent to 

later refile charges. But in such a situation, examination of 

the entire record dictates that a determination that jeopardy 

attaches is appropriate and even necessary to protect a 

defendant's double jeopardy rights.

¶93 By concluding that Killian's double jeopardy rights 

were not violated, the majority rewards the State's 

gamesmanship. The State purposely induced a mistrial with the 
No. 2020AP2012-CR.awb

14

intent to get a chance to try again after preparing more 

thoroughly. And it gets exactly what it wanted. This simple 

fact alone should cause any fair-minded reader to pause. Unlike 

the majority opinion, the application of our precedent presented 

in this dissent would not countenance such an egregious 

manipulation of the judicial machinery.

¶94 Contrary to the majority's assertions, Killian's first 

trial placed him in jeopardy of conviction for the crimes 

charged in the second complaint with regard to both Britney and 

Ashley. The prosecutor was clear in his intent to seek 

amendment of the information to conform with the evidence——

evidence that he hoped would contain proof of additional acts of 

sexual assault against Britney and incest against Ashley. No 

speculation is necessary to guess at the charges the prosecutor 

would have sought. 

¶95 The intention to amend the information was clear and 

manifest in the record. As the circuit court found, "[t]here 

were numerous Informations filed, with various charges, changing 

dates, and changing penalties up to and during the trial 

itself." For example, several days prior to trial, the 

prosecutor filed an affidavit in support of a motion to amend 

the information to allege a series of sexual assaults over a 

period of time. Then, on the day of trial, he again referenced 

amending the information in what the circuit court termed "an 

attempt to back door the prior ruling to which he failed [to] 

object." And immediately before Britney testified, the 

prosecutor raised the possibility that "if she were to testify 
No. 2020AP2012-CR.awb

15

and she goes and tells her story, Mr. Killian is facing more 

charges." The prosecutor's repeated efforts and stated intent 

to amend the information are manifest in this record.

¶96 Also clear from the record is the prosecutor's intent 

to induce a mistrial. The circuit court found that the 

prosecutor acted with specific intent to cause a mistrial and to 

prejudice the defendant——findings which are supported by ample 

evidence in the record. For these reasons, the entire record 

indicates that jeopardy attached and double jeopardy bars 

retrial.

¶97 For the foregoing reasons, I respectfully dissent.

¶98 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this dissent.
No. 2020AP2012-CR.awb

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