Background
A jury convicted Brent M. Funmaker of second-degree sexual assault for having sexual intercourse with A.B. while she was intoxicated to a degree that made her incapable of consent. After a night of drinking in La Crosse, A.B. fell asleep or passed out on a couch at the house where Funmaker lived. She later woke in Funmaker’s bed, unclothed below the waist and in pain, with no memory of events after leaving a bar earlier that night.
A sexual-assault examination documented genital injuries and bruising, and a cervical swab produced DNA consistent with Funmaker’s. The circuit court denied his motion to dismiss after the State’s case; Funmaker presented no evidence. The court sentenced him to seven years of initial confinement and six years of extended supervision.
The Court’s Holding
The Wisconsin Court of Appeals affirmed. Viewing the evidence in the light most favorable to the verdict, the court held that the jury could reasonably infer that Funmaker actually knew A.B. was incapable of consent. Witnesses described her as extremely intoxicated, including needing assistance walking, and the jury could infer that Funmaker observed her condition after she returned to the house and fell asleep on the couch.
The court rejected Funmaker’s unpreserved jury-instruction challenge, concluding there was no substantial probability of a different result if “actual knowledge” had been further defined. It also held that the sentencing court properly considered the offense’s gravity, Funmaker’s rehabilitative needs and character, and public protection; the record supported its conclusion that incarceration was required.
Key Takeaways
- Actual knowledge of a victim’s inability to consent may be proved through circumstantial evidence.
- A defendant’s limited direct interaction with an intoxicated victim does not make the evidence insufficient where the jury could infer the defendant observed the victim’s condition.
- A sentencing court need not use particular “magic words” to explain why prison, rather than probation, is appropriate.
Why It Matters
The decision underscores the substantial deference Wisconsin appellate courts give jury verdicts based on reasonable inferences from circumstantial evidence, particularly concerning a defendant’s knowledge of intoxication.
It also confirms that a sentencing explanation is sufficient when the record shows reasoned consideration of the principal sentencing factors, even without a factor-by-factor calculation of the selected term.