2.State Rests; Count 2 Dismissal Motion and Ruling

MR. FREMGEN: Judge, yes. Before we start our portion of the trial, we would move -- and I believe it's Count 2, the, uh, sexual assault offense -- we would move that the Court consider at this time, uh, dismissal of that count. The evidence thus far that's been introduced this past week, in our opinion, does not independently support the first degree sexual assault charge as to any element of that offense absent the confession of the defendant.

Now, it supports -- general rule is that, uh, one may not be convicted solely upon their uncorroborated confession. But I -- I can cite cases, Triplett v. State, is the one that I have, 65 Wis. 2d 371, I believe Holt v. State is 17 Wis. 2d 468, more of the, uh -- the primary case in Wisconsin in regards to corroborated confessions.

But in that regard, I believe it was in State v. Verhasselt, 83 Wis. 2d 647, Wisconsin Supreme Court case. Supreme Court stated that, quote, as to the need for corroborating evidence, all of the cri -- elements of the crime do not have to be proved independently of an accused's confession. Essentially, it's enough that, . quote, some corroboration, unquote, of that confession be necessary in order to sustain a conviction. That's the Supreme Court in Verhasselt.

In this case, there are three crimes. There are three distinct and separate offenses. Each has distinct and separate elements of the offenses. Now, certainly, we -- not taking issue that there has been independent evidence that supports at least an element of the other two offenses, intentional -- first degree intentional homicide and mutilation of a corpse.

In this case, there's been no independent evidence to support the confession by the defendant that first degree intentional -- or excuse me -- first degree sexual assault occurred. There's no independent evidence outside the statement -- the videotaped statement provided yesterday to the Court. No scientific evidence that ties the defendant to any sexual assault, no physical evidence that even suggests that a sexual assault occurred.

Nothing connects this defendant with Teresa Halbach in regards to any indication of a sex crime. For example, no DNA of Teresa Halbach on the leg irons or handcuffs. Items that might be indicative of a sex crime.

No indication of bodily fluids indicative of a sex crime such as semen. Nothing on -- on any bedding, on any carpeting. No body fluids at all suggestive of a sexual assault.

So we'd ask that the Court dismiss that count in regards to the uncorroborated -- uncorroborated detail of any element of that crime.

MR. FREMGEN: Just one quick response, Judge. The -- the case that I cited, and I think it's cited numerous times and -- and without -- well, somewhat ad nauseam in the case law, says the elements of the crime, not any element of any crime. I think if the Supreme Court wanted to say any element of any crime charged, they would have done that.

So in this case, there isn't any evidence suggestive of any sexual assault. And despite the fact that there might be evidence that the State suggests had been destroyed, once again, that comes from the confession of the defendant. There's nothing to corroborate that there was bedding in -- in -- in the fire, no evidence has been suggested that they found remnants of bedding in the fire.

So, once again, our -- I understand the State's position, but the case law's pretty clear there has to be something other than the confession. Not just, well, it's not fair that he can confess to something, destroy all of the evidence, and then we can't go any further with the case because we can't corroborate the confession. That's the law.