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Credible victim supports adjudication on one count, but trial court’s mistake of law invalidates adjudication on second count

State v. Arron A.-R., 2014AP142, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity

Arron delinquency adjudication for one count of first degree sexual assault is supported by the testimony of the victim, S.F., but the adjudication for a second count is reversed because the trial court erred in believing that the charge required only sexual contact, not sexual intercourse.

Arron was charged with two counts of violating § 948.02(1)(c) based on S.F.’s allegations that Arron: 1) forced her to perform fellatio; and 2) came up behind S.F. after she had broken away from him, pulled down her shorts and panties, and assaulted her again. (¶2). Despite the lack of physical evidence and reasons to question S.F.’s credibility (¶7), the trial court accepted S.F.’s testimony and her testimony, if believed, is sufficient to satisfy the elements of the offense with respect to the first count. (¶11).

But on the second count, the trial court found S.F. was “unable to provide any details of that” and the court therefore “doubt[ed] that there was penetration at all under these circumstances”; the court nonetheless found the allegation proven because “all that’s required is sexual contact.” (¶2). Not so: § 948.02(1)(c) requires sexual intercourse. Therefore, the evidence does not support the disposition on the second count. (¶12).

The court of appeals bats down the state’s request to amend the dispositional order to second-degree sexual assault under § 948.02(2) or attempted first-degree sexual assault under §§ 939.32 and 948.02(1)(c). The state based its request on State v. Moua, 215 Wis. 2d 511, 573 N.W.2d 202 (Ct. App. 1997), which found that second-degree sexual assault was a lesser-included offense of first-degree sexual assault.

¶15      This case is different from Moua. In this case, there was no discussion of whether the evidence supported a lesser charge before the verdict was rendered. The trial ended. The case is on appeal. It is not the role of this court to make findings. It is the function of the circuit court to sift through all the evidence and determine the weight it should be given. See Harwick v. Black, 217 Wis. 2d 691, 703, 580 N.W.2d 354 (Ct. App. 1998) (court of appeals is not a fact-finding court). In order to comply with the State’s request, this court would have to make a finding that Arron’s conduct constituted either an “attempt” or a second-degree sexual assault. This court declines to do either. The time to have asked the court to amend the charge was at the conclusion of the trial or by a post conviction motion. It is too late now.

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