State v. D.Y., 2024AP710, 12/26/24, District I (1-judge decision, ineligible for publication); case activity
“Daniel” appeals from the circuit court’s order adjudicating him as a juvenile delinquent, on the basis of a second-degree sexual assault of a child offense. (¶1). He contends that the state failed to prove the intent element, specifically, sexual gratification or arousal from the contact. (¶10). The COA concludes that there was sufficient evidence to support the court’s decision and affirms.
The meaning of sexual contact in the relevant statute is “intentional touching, whether direct or through clothing, if that intentional touching is . . . for the purpose of . . . sexually arousing or gratifying the defendant” when there is “[i]ntentional touching by the defendant . . . by the use of any body part or object, of the complainant’s intimate parts.” Wis. Stat. § 948.01(5)(a). Daniel disputed only whether the touching was intentional for the purpose of sexual arousal or gratification. (¶13).
The alleged victim, Anna, testified that she woke up because she was being touched on her buttocks and vaginal area and that she felt Daniel’s erect penis behind her. Daniel argues that the evidence showed only that his erect penis had touched Anna while he was sleeping and asserts that an erection from a sleeping juvenile male does not prove intentional touching. The COA concludes that the circuit court, as the fact finder, had a basis to make a reasonable inference that the touching was not accidental due to the specifics of Anna’s testimony. (¶15). “Intent to become sexually aroused or gratified, like other forms of intent, may be inferred from the defendant’s conduct and from the general circumstances of the case[.]” State v. Drusch, 139 Wis. 2d 312, 326, 407 N.W.2d 328 (Ct. App. 1987).
Daniel also argues that the evidence of intent in his mental state was, at most, “in equipoise,” which means that there must have been reasonable doubt. See State v. Mader, 2023 WI App 35, ¶86, 408 Wis. 2d 632, 993 N.W.2d 761. But the COA concludes that this situation is not one of equipoise, as Anna’s testimony was found credible by the circuit court, and Daniel’s only alibi is that he was a “deep sleeper” and he does not know what happened. Consequently, Anna’s testimony was not vague or conclusory and Daniel’s alibi was not compelling. (¶16).
