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Circuit court’s order for juvenile to register as sex offender was proper exercise of discretion

State v. K.B.W., 2021AP47, District 1, 12/21/21 (one-judge decision; ineligible for publication); case activity

K.B.W. argues the circuit court erroneously exercised its discretion when it ordered him to register as a sex offender because it didn’t determine K.B.W.’s conduct was “sexually motivated,”  as required by § 938.34(15m)(am)1. Though the circuit court didn’t make an express finding on that point, the record shows the issue was addressed and that the circuit court therefore properly exercised its discretion.

K.B.W. was adjudicated delinquent for fourth degree sexual assault based on conduct that involved K.B.W. putting his hand down the shirts of three female students at his school and touching their breasts. (¶2). The circuit court initially deferred a decision on whether K.B.W. should have to register as a sex offender, but ultimately imposed the requirement after K.B.W. violated various conditions of supervision, including compliance with sex offender treatment. (¶¶8-14).

K.B.W. points out that fourth degree sexual assault can be committed by engaging in conduct that dos not necessarily involve sexual motivation. (¶18). Further, the circuit court didn’t state on the record that it was finding K.B.W.’s crime was sexually motivated. (¶19). But a reviewing court looks at the entire record for reasons to sustain a circuit court’s exercise of discretion. State v. Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120, 921 N.W.2d 730. In this case the plea colloquy included a specific discussion that sexual motivation was part of the factual basis for his plea and that being required to register as a sex offender could be a specific consequence of the adjudication (¶¶6, 20-21). Further:

¶21   …. K.B.W. was informed repeatedly from the adjudication in September 2017 through the February 2020 hearing that he faced possible juvenile sex offender registration requirements if he could not make progress in therapy to show that he was at a low risk to re-offend. If the underlying charge were not “sexually motivated,” then a decision of registration would not have been necessary at all, much less needed to be repeatedly discussed and deferred for almost two and one-half years. Because the adjudication clearly established by K.B.W.’s admission that the assault was “sexually motivated,” we can reasonably infer that finding was implicit in the

The record also shows the circuit court considered all the relevant facts, addressed whether requiring K.B.W. to register was in the interest of public protection, and demonstrated rational decision making when it concluded that it was necessary to require K.B.W. to register. Thus, the court’s decision was a proper exercise of discretion. (¶22).

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