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Enhancers — Persistent Offender — §§ 939.62(2m)(a)1m, (b)2 and (c) — Comparable Prior, Since-Repealed Statute: Child Sexual Assault, § 940.225(1)(d) (1977-78)

State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03
For Wield: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: In determining whether a prior conviction under a since-repealed statute is a serious child sex offense comparable to § 948.02(1) so as to invoke the persistent repeater law, the “elements only” test of Blockburger v. United States, 284 U.S. 299 (1932) doesn’t apply: “Thus, we are entitled to consider whether Wield’s conduct which produced the prior convictions would be a ‘serious child sex offense’ if performed under the current statute. If Wield’s conduct would have been a serious child sex offense under the current statute, ‘then the court need not even consider the elements of the crime’ under the former statute governing the prior conviction.” ¶18. Analysis for foreign convictions, State v. Collins, 2002 WI App 177, ¶23, 256 Wis. 2d 697, 649 N.W.2d 325 adopted. Conviction for child sexual assault, § 940.225(1)(d) (1977-78), satisfies the test:

¶19. Looking to the facts of Wield’s prior convictions, it is readily apparent that the conduct underlying those convictions would constitute a “serious child sex offense” under the current statute. The 1977 offense was based on a complaint that Wield had “fondled and squeezed the testicles and penis of the male juvenile through his underwear.” The 1978 offense was based on a complaint that Wield had “sucked on and fondled” the genitals of an eight-year-old boy. Pursuant to Wis. Stat. § 939.62(2m)(d), the trial court expressly found beyond a reasonable doubt that, if committed today, Wield’s prior conduct in 1978 would fall under the current definition of “sexual contact” in Wis. Stat. § 948.01(5)(a) (“Intentional touching by the … defendant, either directly or through clothing by the use of any body part … of the complainant’s … intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.”). The correctness of the trial court’s holding is beyond dispute, and it follows that the two statutes in question are comparable as required by § 939.62(2m)(a)1m.b. As such, the trial court properly applied the “persistent repeater” provision pursuant to § 939.62(2m)(c).

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