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State v. Eric A., 2010AP1161, District 3, 3/1/11

court of appeals decision (1-judge, not for publication); for Eric A.:  pro se; case activity

Expungement – Delinquency Adjudication, § 938.355(4m)(a)

Denial of petition for expungement of repeated sexual assault of child adjudication is affirmed.

¶8        Here, the court determined that the offense was too serious, and it would be against public policy, to permit expungement.  The court’s order stated society would be harmed by granting expungement.  These determinations are supported by the record.  We cannot conclude the court erroneously exercised its discretion.

Sex Offender Registration, § 938.34(15m)(bm)

Sex offender registration is mandatory upon delinquency adjudication for repeated sexual assault of child, absent determination by court that compliance isn’t necessary under § 301.45(1m). Trial court refusal to release Eric from registration requirement is upheld. In the first instance, the record refutes his denial that the offense involved vaginal penetration.

¶13      Regardless, the circuit court reasoned Eric’s offense was too serious and public policy would not permit nonregistration.  Wisconsin Stat. § 301.45(1m)(a)3. permits a court to deny a request to be exempt from the registration requirements if the court finds nonregistration is not in society’s best interest.   Although Eric argues that the State failed to present evidence showing he was a danger to society, it was Eric, not the State, who had the burden of proving by clear and convincing evidence that society would not be harmed by his nonregistration.  See Wis. Stat. § 301.45(1m)(e).  The only evidence Eric offered was an affidavit saying he was remorseful and not a danger to society.  We cannot conclude the circuit court erroneously exercised its discretion in denying Eric’s motion.

The otherwise-mandatory registration regime has a narrow exception “for sex offenders in cases of factually consensual sexual contact between two minors who, but for the age of the younger child, would have broken no law,” ¶11, quoting State v. Parmley, 2010 WI App 79, ¶10, 325 Wis. 2d 769, 785 N.W.2d 655 (in turn quoting State v. Joseph E.G., 2001 WI App 29, ¶11, 240 Wis. 2d 481, 623 N.W.2d 137).

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