Appeal from the United States District Court for the Western District of Wisconsin, No. 87 C 663-John C. Shabaz, Judge.
Bauer, Chief Judge, Cummings, and Easterbrook, Circuit Judges.
This case is on appeal from the district court's order denying petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we affirm.
The petitioner, Roger Lange, was convicted of two counts of attempted enticement pursuant to Wis. Stat. § 944.12 (1982), and one count each of murder, kidnapping, first-degree sexual assault, and enticement of Paula McCormick, pursuant to Wis. Stat. §§ 940.01, 940.31(1)(b), 940.225(1)(d), and 944.12 (1982), respectively.
Two days after she disappeared, the body of Paula McCormick, who was not yet twelve years old, was found in a storage locker rented by Roger Lange. The police discovered Paula McCormick's body in a Zenith television box inside two plastic bags. Both of her hands were tied behind her back and her knees were tied up underneath her chin. Her blue jeans and underwear were pulled down. Two cords were tied around her neck and a washcloth was stuffed down her throat.
At trial, the government presented overwhelming evidence connecting the disappearance and death of the young girl to Lange. On the day she died, Paula told friends that she was going to make a dollar by babysitting after school for five minutes. In the weeks previous to Paula's death, Lange had made similar offers to two other young girls. After being questioned by the police, Lange admitted that Paula had been in his apartment the afternoon she died. He also brought the police to the storage locker and indicated that they would find Paula's body in the locker inside a Zenith box.
A two-tiered trial was held to determine Lange's guilt. After the first trial, the jury found him guilty of the crimes charged. Because he had pleaded not guilty by reason of mental disease or defect, a second trial was held to determine Lange's sanity. The jury found that Lange did not have a mental disease when he killed Paula McCormick. Lange was then sentenced to life imprisonment. The Wisconsin Court of Appeals affirmed his conviction and the Wisconsin Supreme Court denied his subsequent petition for review.
Lange then brought this petition for habeas corpus review. He contends that his convictions for sexual assault and kidnapping violated his due process rights because there was insufficient evidence to support those convictions. Second, he argues that his constitutional right to present critical opinion evidence was violated by the trial court's evidentiary rulings. Third, Lange claims that his constitutional right to counsel was violated because the prosecution called as its witness a psychiatrist that defense counsel had originally retained. The district court rejected each of petitioner's arguments and denied his petition. Lange then brought this appeal.
Lange's first contention on appeal is that the government failed to present sufficient evidence to support his convictions for sexual assault and kidnapping. When the asserted entitlement to habeas corpus relief is based upon a claim of insufficient evidence, the proper inquiry for this court is to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Based upon this standard of review, we find that there was sufficient evidence to support Lange's convictions.
To support a conviction for sexual assault, the state must prove Lange touched an intimate part of Paula McCormick while she was alive. The physical evidence showed that Lange had anal intercourse with Paula after she died. Because there is no physical evidence of injury or penetration before she died, Lange contends that his conviction should be reversed. However, neither injury nor penetration is a required element of sexual assault. Contact with an intimate part is the only element required by law. Further, this contact need not be proven through direct physical evidence; circumstantial evidence is sufficient. See Rowan v. Owens, 752 F.2d 1186 (7th Cir. 1984), cert. denied, 476 U.S. 1140, 90 L. Ed. 2d 691, 106 S. Ct. 2245(1986) (direct physical ...