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Guilty Pleas – Factual Basis – Particular Instances: Using Computer to Facilitate Child Sex-Crime

State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein

Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:

¶11      Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT. § 948.075, the defendant must have done an act to accomplish, execute, or carry out the defendant’s intent to have sexual contact with the individual with whom the defendant communicated. [6] More significant for purposes of this decision, the statute requires that the act be something other than “us[ing] a computerized communication system to communicate with the individual.” With this understanding of the statute in mind, we turn to address Olson’s conduct.

¶12      Olson argues that his use of the webcam to transmit live video of himself shirtless from the top of the chest up does not fit the “act” requirement because it was not an act other than “us[ing] a computerized communication system to communicate with” nora13queen. Wis. Stat. § 948.075(3). We agree.

¶16      We conclude that Olson’s use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with nora13queen. Consequently, we disagree with the circuit court and the State that Olson engaged in the type of act required under Wis. Stat. § 948.075(3) by transmitting that video. At the same time, we stress here and below in this opinion that it may be possible to use a communication function of a computer to engage in an “act” within the meaning of the statute.

State v. Dennis Charles Schulpius, 2006 WI App 263, distinguished, ¶¶22-23: Schulpius drove through a neighborhood looking for the supposed girl.

¶24      Olson next argues that the circuit court erred when it concluded that his previous sexual encounters with other women he met chatting on-line satisfied the “act” requirement. The State does not defend the circuit court’s decision on this ground. Rather, the State notes the circuit court’s conclusion and says only that “it is unclear whether that evidence is sufficient to constitute an act to ‘effect’ [Olson’s] intent to have sex with ‘nora13queen.’” We agree with Olson that the circuit court’s conclusion on this topic is in error.¶25      Olson’s admission of previous sexual encounters arising from internet chats might be relevant evidence. For example, it might, depending on other evidence, be used as admissible other acts evidence. But Olson’s admission does not involve an act to accomplish, execute, or carry out his intent in this case. Accordingly, those encounters could not constitute the required act with respect to nora13queen under Wis. Stat. § 948.075(3).

Because the given facts don’t establish a factual basis for the crime, Olson is entitled to withdraw his plea, ¶¶6, 26.

 

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