State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04
For Provo: William H. Gergen
Issue/Holding: “… We hold that § 948.07 requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from ‘the public,’” ¶1. That is, Provo is guilty even though he “caused the victim to go from an already private place (the home) to another private place (the bedroom).” The issue is controlled by State v. Gomez, 179 Wis. 2d 400, 507 N.W.2d 378 (Ct. App. 1993), and subsequent cases, namely State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998), State v. DeRango, 229 Wis. 2d 1, 599 N.W.2d 27 (Ct. App. 1999), and State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359 (Ct. App. 2001), don’t alter the result:
¶12 None of the cases impose a limitation on the place where the child was when the person caused him or her to go into a place out of the public view. Rather, in all three cases we merely recognized, as we did in Gomez, that the gravamen of the child enticement statute is to prevent children from being taken into places outside of the protection of the public where the commission of some illegal conduct might be facilitated. All four cases zeroed in on the fact that the place the child was taken existed outside the public view. No language says that the place from which the child was taken had to be a public place. Thus, Church, DeRango and Koenck are wholly consistent with our holding in Gomez.¶13 The child enticement statute proscribes, without qualification, “caus[ing] … any child who has not attained the age of 18 years to go into any vehicle, building, room, or secluded place” with the intent to commit any of the enumerated acts. WIS. STAT. § 948.07. As Gomez rightly observes, there is simply no requirement that the defendant separate the child from the public. Further, we find no indication in the legislative history of the act that its purpose is to prevent predators from luring children from a public place. We, therefore, reject Provo’s invitation to read into the statute a requirement that the accused have caused the minor victim to go from a public place to a secluded place. Accordingly, we conclude that the lawyer’s failure to cross-examine the victim at the preliminary hearing and to otherwise pursue the issue did not constitute ineffective assistance of counsel.
