What's Up in the 8th
As Wojciech Buzanowski can tell you, when you ask a girl how old she is and she tells you she's "old enough to party," that's not good enough.
Buzanowski's legal odyssey, as recounted by the 8th District's decision last week in State v. Buzanowski, began just two days before Christmas in 2009, when he invited a 17-year-old acquaintance, Megan, to come over to his house and hang out. (Buzanowski was 23.) Megan brought over two of her friends, Allison and Heather, both of whom were 15. (The opinion gives the initials; I made up the names.) Heather would later testify that she told Buzanowski her age, but the other three, and Buzanowski's friend Banic, who was also there, testified that Heather used the "old enough to party" line.
One thing led to another, the one thing being Heather downing three shots of vodka, the another being a make-out session with Buzanowski which culminated with the two in his bedroom doing the horizontal mamba. Heather's version of what happened afterward again differed markedly from everyone else; she claimed that when she came out of the bedroom she told Allison she'd just been raped, which everybody including Allison denied, and the others testified that while Heather seemed to be drunk, she was not so impaired that she didn't know what was going on.
So that's how Buzanowski wound up being charged with two counts of rape, two of sexual battery, one each of kidnapping, gross sexual imposition, and unlawful sexual conduct with a minor, and three of contributing to the delinquency of a minor. The jury convicted Buzanowski of one count of contributing, hung on the GSI and the unlawful conduct, and acquitted him of everything else. At the retrial, the jury convicted him of the two remaining counts, GSI and unlawful conduct.
And that's where things get interesting.
Remember Buzanowski's conviction of contributing in his first trial? The panel tackles that first. (Buzanowski had to wait until the retrial on the other charges to appeal the conviction in the first trial.) Simple issue: the judge didn't tell the jury that the mens rea requirement for conviction was recklessness. That wasn't objected to, which takes us into plain error territory, and what's more, failure to instruct on an element of a crime isn't automatically reversible. Here it is, though; the testimony of Megan that Heather looked 19 or 20, plus the dispute about whether Heather told Buzanowski her real age, meant that the failure to instruct on recklessness created a manifest injustice.
So the contributing conviction goes away. And so does the GSI, for a different reason.
The Double Jeopardy Clause bars a defendant from being retried for the same offense, but also from being retried if the second prosecution requires a relitigation of factual issues resolved by the first trial. That's the concept of collateral estoppel, carried over from civil law; basically, if the jury decided a critical issue of ultimate fact in favor of the defendant, he's protected from further prosecution for any charge for which that fact was an essential element. And that gets Buzanowski off the hook here. The rape, sexual battery, and gross sexual imposition charges were based on different conduct, but all had the common element of substantial incapacity. By acquitting Buzanowski of the rapes and sexual batteries, the jury obviously found against the State on that issue, which foreclosed conviction for gross sexual imposition.
From there, though, it's pretty much downhill. Buzanowski claims that the judge erred in allowing the SANE nurse to read the entire statement that Heather gave when she came to the hospital. That came in under EvidR 803(4), which allows hearsay statements made for purposes of medical treatment or diagnosis. As the court notes, that limits it to "statements made by the patient which are reasonably pertinent to an accurate diagnosis and should not be a conduit through which matters of no medical significance would be admitted." The narrative here had no medical significance; it was simply a recounting of the events leading up to the incident, and didn't even mention any sexual conduct.
Because the statement is basically the same thing the victim testified to at trial, there's a tendency to shrug any error off as harmless. That's not necessarily the case; knowing that the alleged victim told essentially the same story to the nurse as she's telling the jury enhances her credibility. The court does find the error harmless, but to its credit expands upon the reasons for that. In this case, the statement was in fact damaging to Heather; not only did she not make any mention of sexual conduct, the statement was inconsistent with much of her testimony at trial.
Finally, by a 2-1 vote, the panel rejects Buzanowski's claim that the GSI and unlawful conduct convictions were against the manifest weight of the evidence. That's a 2-1 vote in his favor; unfortunately for him, a reversal on manifest weight requires the concurrence of all three judges.
So the upshot is that Buzanowski's conviction for unlawful sexual conduct stands, his gross sexual imposition conviction is vacated and he can't be tried for that again, and his unruliness conviction is reversed, and the State can retry him for that, if it wants to bother. (I'm guessing not.) He was sentenced to two years of community control sanctions, but as a condition of that he's got to do six months in the county jail. And on top of that, of course, he's got to spend the next quarter century registering as a sex offender.
A pretty heavy price to pay for partying.