State v. G.R.H.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1638 Cir. Ct. No. 2017JV388

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF G.R.H., A PERSON UNDER THE AGE OF 17:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT

V.

G.R.H.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Milwaukee County:
LINDSEY CANONIE GRADY and PAUL C. DEDINSKY, Judges. Affirmed.

¶1 WHITE, J.1 G.R.H. appeals the order requiring him to comply with
the sex offender registration requirement for fifteen years, as well as the order

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP1638

adjudicating him delinquent. He argues that the circuit court failed to use a
rational process to reach its conclusion with regard to the probability that G.R.H.
would commit future violations, and therefore, its order on registration was an
erroneous exercise of discretion. Because the record supports the circuit court’s
exercise of discretion to deny a permanent stay from registration, we affirm the
order requiring sex offender registration. Further, we affirm the delinquency
adjudication order.

BACKGROUND

¶2 In May 2017, the State filed a delinquency petition against G.R.H.,
then sixteen-years-old, charging him with one count of third-degree sexual assault,
contrary to WIS. STAT. § 940.225(3), and one count of fourth-degree sexual
assault, contrary to §940.225(3m). The petition was based on two incidents in
October 2016. The petition alleged that G.R.H. committed fourth-degree sexual
assault when, within his high school building, he told a female classmate to “stand
up, [he] moved close to her, and began touching her buttocks and legs over her
pants.” He continued making sexual contact even though she “kept pushing
[G.R.H.’s] hands off of her and tried pulling away from him. The petition alleged
that G.R.H. committed third-degree sexual assault when G.R.H. took a walk with
the same classmate into a nearby field and wooded area, and G.R.H. “managed to
pull down her pants and move her so that she was bent over leaning on the downed
tree” in the wooded area, and then he “inserted his erect penis into her vagina” one
time and then removed it. The classmate said “ouch” because “it hurt really
badly” and when she checked herself, she “noticed that she was bleeding from her
vagina.”

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¶3 The trial court2 conducted a trial on the State’s petition over five
days: August 29, 2017, September 8, 2017, September 15, 2017, November 10,
2017, and December 21, 2017. On December 21, 2017, The trial court adjudicated
G.R.H. delinquent of count one, “third degree sexual assault as a felony, and
[c]ount [two], fourth degree sexual assault as a misdemeanor, in the manner and
form as they are charged in the respective petition[.]” The trial court “defer[red]
sex offender registry to a later date to determine whether or not the individual is
required to register.” On January 28, 2018, the trial court entered the conditions of
G.R.H.’s dispositional order, which included requirements that he “[c]ommit no
new law violations rising to a judicial probable cause determination[,]” obey
school and programming rules, attend school “every day, every class[,]” no
alcohol, drugs, or weapons, “[n]o contact with the victim[,]” cooperate with the
terms of probation, successfully complete the individual therapy program at
A.S.A.P. which is the sex offender specific treatment program,” and put
prohibitions on pornography or sexually explicit materials. Further, G.R.H. was
required to write a letter of apology to the victim and write a one-page essay on his
future to the court. G.R.H.’s dispositional order was set to expire a day prior to his
eighteenth birthday in July 2018.

¶4 In June 2018, the trial court held two hearings on G.R.H.’s progress.
At the first hearing, the social worker informed the court that GHR had been
discharged twice from court-ordered therapy programming because of his lack of
attendance. G.R.H.’s counsel argued that the court should take into account that

2
The Honorable Lindsey Canonie Grady presided over G.R.H.’s trial; we refer to her as
the trial court. The Honorable Paul C. Dedinsky presided over the decision on G.R.H.’s sex
offender registration requirement; we refer to him as the circuit court.

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G.R.H. had to take two buses with an hour and forty-five minutes transit time to
reach his sessions. During the first seven weeks G.R.H. was enrolled, he attended
three sessions, he was twenty minutes late to two sessions due to the bus, which
resulted in the therapist cancelling his session, and the therapist cancelled two
sessions.

¶5 During the second hearing in June 2018, the trial court again
deferred the question of his sex offender registration requirement, stating that
extending the dispositional order until the day before his nineteenth birthday
would provide additional time to “appropriately get this juvenile ready to be in a
position where he’s not put on the sex offender registry for life[.]” At additional
hearings in 2018 and early 2019, the trial court was informed that G.R.H.
continued to have attendance and transportation issues for therapy; the social
worker complained that G.R.H. was not taking more responsibility to manage his
transportation to therapy; and the trial court ordered a sex offender risk assessment
from A.S.A.P. The trial court reminded all parties and attorneys that the extended
probation was designed for G.R.H. to engage in treatment to reduce his risk level
for reoffending and avoid the sex offender registry.

¶6 After the court calendar rotated from Judge Grady to Judge
Dedinsky, the circuit court conducted the hearing to determine G.R.H.’s sex
offender registration requirement over two days on July 11 and 12, 2019. G.R.H.
called an expert witness psychologist who testified about the lack of research that
makes clear the risk of reoffending for juvenile sex crimes. The defense expert
testified about evaluating G.R.H., not identifying G.R.H. as having any sexual
deviance issues, and finding him to have a low risk of reoffending.

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¶7 The State called an expert witness psychologist at the clinic that
G.R.H. was originally ordered to attend for group programming and that provided
A.S.A.P., a juvenile sex offender treatment program. The State’s expert testified
that G.R.H. interfaced with two individual therapists and two therapists in group
therapy. The State’s expert’s last risk assessment of G.R.H. had been completed
eight months before the hearing, in November 2018; in the assessment, G.R.H.
was found to be of moderate risk of reoffending. The expert concluded the risk
assessment was still accurate because of everything the expert knew about G.R.H.,
the work he did in A.S.A.P. the previous year, and sessions he completed with the
State’s expert in summer 2019.

¶8 The social worker then informed the court that G.R.H. had worked
with multiple treatment providers but had not successfully completed a sex
offender treatment program, G.R.H. had not completed a letter of apology, and
G.R.H. had not completed the court-ordered essay. The social worker stated that
G.R.H. had “never taken accountability” throughout his probation.

¶9 Before issuing its decision on G.R.H.’s sex offender registration
requirement, the circuit court reviewed the defense’s burden to prove by clear and
convincing evidence that G.R.H. satisfied the criterion to be granted a stay from
sex offender registration requirements, under the factors enumerated in WIS. STAT.
§ 301.45(1m)(e). For the first factor, the circuit court considered that G.R.H. was
sixteen years of age at the time of offense and the victim was a few months older
than G.R.H. Second, the court noted that G.R.H.’s relationship with the victim
was “at least acquaintances [and] maybe friends[.]” Third, the court stated that
force was not an element to the crime for which he was convicted, only lack of
consent; however, the victim testified that she was injured. The fourth factor was

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whether the victim suffered from mental illness or mental deficiency, which the
court determined was not relevant.

¶10 The court’s review of the fifth factor—the probability of whether
G.R.H. would commit another violation in the future—was thorough. The circuit
court stated that it had heard from “both of the clinical psychologists who testified,
talked about the different risk factors. They talked about the risk tools.” The
court acknowledged that the State’s expert concluded G.R.H. was at a moderate
risk level and the defense expert concluded that G.R.H. was below that risk level.
The court stated that “[w]hat this gets down to is an abysmal failure on your part
to cooperate with the [c]ourt’s order.” The court noted that G.R.H. had not
complied, but he had also not reoffended. Considering the probability of future
violations, the court stated:

And so when I look at this, I say, am I convinced that this
young man is not going to reoffend? I’m not. Is it clear to
me that he’s going to not reoffend in the future? I’m not.
Has he taken steps to make that more clear to me and
convince me one way or the other? No, I’m not.

¶11 The circuit court reviewed the legal standard for this decision,
considering the statutory factors and the holdings of State v. Cesar G., 2004 WI
61, 272 Wis. 2d 22, 682 N.W.2d 1. It “listened to the evidence, the case materials,
the transcripts related to the incident in this case, the reports and the judgment
roll.” The circuit court found that G.R.H. had not satisfied the burden of proof
based on all of the criterion in WIS. STAT. § 301.45(1m). The circuit court ordered
him to comply with the sex offender registration requirement for fifteen years
from the date of the trial disposition, December 21, 2017.

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¶12 G.R.H. appeals both the order requiring sex offender registration and
the order adjudicating him delinquent. Additional facts are included in the
discussion.

DISCUSSION

¶13 G.R.H. argues that the circuit court erred when it required him to
comply with the sex offender registration requirement for fifteen years. G.R.H.
contends that the circuit court failed to demonstrate a rational process to reach its
conclusion about the fifth Cesar G factor: the probability that the juvenile will
commit other violations in the future. The State argues that G.R.H. failed to prove
by clear and convincing evidence that the court should permanently stay G.R.H.
from the sex offender registration requirement. We conclude that the record
supports the circuit court’s exercise of discretion.

¶14 A juvenile adjudicated delinquent on the basis of specific sexual
assault charges, as enumerated by statute, is required to comply with the sex
offender reporting requirements under WIS. STAT. § 301.45 unless the court
determines that the juvenile is not required to comply under the statutory
exceptions for underage sexual activity. WIS. STAT. § 938.34(15m); see
§ 301.45(1m). A statutory exception is available when all of the following apply:
(1) the juvenile was adjudicated after 1993; (2) the juvenile committed a violation,
of WIS. STAT. § 940.225(3)(a); (3) at the time of the violation, the juvenile had not
attained the age of nineteen years and the victim had attained the age of fifteen
years; and (4) the court determines it is not necessary, in the interest of public
protection, to require the person to comply with the sex offender registration
requirements. § 301.45(1m)(a)2m. To prove that registration is not necessary in

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public protection, the court may consider the factors commonly known as the
Cesar G. factors, and include the following:

1. The ages, at the time of the violation, of the juvenile and
the victim of the violation;

2. The relationship between the juvenile and the victim of
the violation;

3. Whether the violation resulted in bodily harm, as defined
in [WIS. STAT. §] 939.22(4), to the victim;

4. Whether the victim suffered from a mental illness or
mental deficiency that rendered him or her temporarily or
permanently incapable of understanding or evaluating the
consequences of his or her actions;

5. The probability that the juvenile will commit other
violations in the future; and

6. Any other factor that the court determines may be
relevant to the particular case.

Cesar G., 272 Wis. 2d 22, ¶50; see §§ 301.45(1m)(e), 938.34(15m)(c). The
juvenile “has the burden of proving by clear and convincing evidence” that the
criteria are satisfied. §301.45(1m)(e). The court may then require lifetime
registration, a fifteen year term of registration, or permanently stay registration.
See § 301.45(5). Additionally, a juvenile required to register may move the court
to issue a stay. Cesar G., 272 Wis. 2d 22, ¶51.

¶15 The circuit court’s ruling on a stay of the sex offender registration
requirement is an exercise of discretion. See State v. Jeremy P., 2005 WI App 13,
¶30, 278 Wis. 2d 366, 692 N.W.2d 311. We review the circuit court’s decision to
deny a stay for an erroneous exercise of discretion. Cesar G., 272 Wis. 2d 22,
¶42. We will “affirm a circuit court’s discretionary decision as long as the circuit
court ‘examined the relevant facts, applied a proper standard of law, and, using a

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demonstrated rational process, reached a conclusion that a reasonable judge could
reach.’” Id. (citation omitted).

¶16 G.R.H. argues that the circuit court erroneously exercised its
discretion when it denied him a stay from reporting requirements. First, he
contends that the circuit court failed to engage in a rational decision making when
reaching its conclusions on the fifth Cesar G. factor: the probability that the
juvenile will commit future violations. Second, G.R.H. argues that he met his
burden to prove by clear and convincing evidence that a stay of reporting
requirements should be granted.

I. The fifth Cesar G factor: the probability that the juvenile will
commit other violations in the future

¶17 G.R.H. argues that the circuit court failed to demonstrate a rational
process when it reached its conclusions on the fifth Cesar G factor and denied a
permanent stay of the sex offender registration requirement. G.R.H. argues that
even though most of the hearing testimony focused on the fifth factor, the circuit
court based its decision on G.R.H.’s “impulsivity and his failure to comply with
the conditions of supervision.” G.R.H. argues this did not demonstrate a rational
process because (1) it focused on G.R.H.’s perceived impulsivity and behavior in
court; (2) it ignored expert testimony; and (3) it placed an undue burden on G.R.H.

¶18 First, G.R.H. objects that the circuit court’s perceptions of G.R.H.’s
impulsivity relied on the commentary of the social worker, including the fact that
he did not write the letter of apology to the victim or the court-ordered essay.
G.R.H. complains that by deferring these superficial second-hand impressions of
G.R.H.’s performance on supervision, the court was not actually examining the

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probability he would reoffend. Instead, G.R.H. contends that the circuit court
relied on factors that have no demonstrated connection to recidivism.

¶19 The record reflects that the circuit court clearly struggled with the
probability of G.R.H. committing future violations. It appears that when faced
with many unknowns and expert testimony that the risk was difficult to quantify,
the circuit court considered what information it did have about G.R.H.’s conduct
and his willingness to change it. The circuit court expressed frustration that
G.R.H., over eighteen months, had not satisfied the stated expectations to
complete sex offender treatment and to cooperate with court orders. It had
evidence of his temperament in court and from the social worker’s updates on his
lack of compliance and accountability. Under Cesar G., the circuit court has
discretion to consider “[a]ny other factor that the court determines may be relevant
to the particular case.” Id., ¶50. Here, the circuit court considered what it found
most relevant to deciding whether G.R.H. should be required to report to the sex
offender registry. G.R.H.’s assertion that he may outgrow his impulsivity and that
the social worker’s perceptions were not factors does not undermine that the
circuit court engaged in a rational decision making process.

¶20 Second, G.R.H. argues that the circuit court demonstrated its failure
to consider the great weight of expert evidence because both experts testified
about the static and dynamic risk factors that can be affected or addressed through
treatment and, in some cases, simply through aging. G.R.H. contends that the
expert testimony showed that ninety-seven to ninety-eight percent of juvenile
offenders do not offend again. G.R.H. argues that the circuit court considered its
perception of G.R.H.’s impulsivity without considering whether that factor is
likely to change with age.

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¶21 The State argues that the record shows it made sense that the circuit
court would not weigh the expert testimony more heavily: it “was the testimony
by both experts, that historically, the tools used to determine risk in juvenile sex
offenders have been minimally successful at best, and no better than a guess at
worst. Furthermore, both experts testified that determining future risk of
offending in juvenile sex offenders was extremely difficult.” Although
impulsivity may decrease with age, ultimately, G.R.H.’s reliance on expert
testimony is based on generalized low risk of future offenses by juvenile sex
offenders, not on any specific testimony about G.R.H.’s risk. Our review of the
record reflects that the circuit court considered and weighed the expert testimony
in its decision making process. On one hand, it did not rest on the State’s expert
calling G.R.H. a moderate risk and G.R.H.’s expert calling him a lower than
moderate risk. On the other hand, it did not cede decision making to a statistical
low risk of recidivism. Both are conclusions a reasonable court could make.

¶22 Third, G.R.H. contends that the circuit court placed an undue burden
on him by asking him to convince the court that he would never commit another
sexual violation in the future, rather than applying the probability framework of
Cesar G. See id., ¶51. G.R.H. argues that proving he will never reoffend is an
impossible task. The record does not support that the circuit court held G.R.H. to
an impossible standard. Instead, it is clear that the circuit court struggled with
G.R.H.’s lack of progress or cooperation during his eighteen months under the
dispositional order. His opportunity to be granted the stay was predicated on
satisfying the order’s conditions. Therefore, we conclude that the legal standard
was not a burden to prove that G.R.H. would never reoffend, but to prove that he
engaged in the court-ordered process to lower his risk to reoffend.

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¶23 We conclude that the circuit court’s analysis of the fifth Cesar G
factor considered the relevant facts, applied the proper legal standard, and used a
rational process to reach a reasonable conclusion. See id., ¶42. We conclude there
is no basis to disturb the circuit court’s decision.

II. G.R.H.’s clear and convincing evidence

¶24 G.R.H. asserts that he satisfied his burden to prove by clear and
convincing evidence that the sex offender registration requirement should be
stayed. G.R.H. argues that more factors weigh toward the stay than the circuit
court concluded. We note this court offers no opinion on the weight of the
evidence; instead our function is to review the circuit court’s exercise of discretion
when it considered the appropriate weight for the evidence and each factor. See
id.

¶25 G.R.H.’s arguments that the factors and the seriousness of the
offense weigh in favor of staying registration rely on an absence of worse
behavior. G.R.H. argues that the considerations of the factors should take into
account that he didn’t abuse someone more vulnerable than he was by age,
position, or mental condition, and that he did not employ more violence or cause
more injury to the victim than he could have. The State argues that the circuit
court reviewed each Cesar G. factor, the statutory language makes no comment
about the weight given to each factor, and it is at the court’s discretion to weigh
the factors. The record reflects that the circuit court considered each factor and
the seriousness of the offense. G.R.H. does not refute the State’s argument;
therefore, we deem it conceded. See United Co-op. v. Frontier FS Co-op., 2007
WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (noting that appellant’s
failure to respond in reply brief to an argument made in respondent's brief may be

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taken as a concession). Furthermore, even if we were to address the individual
factors, G.R.H.’s arguments are supported only by general statements and not
developed with adequate legal authority or reasoning. See State v. Pettit, 171 Wis.
2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (observing that we may decline to
review issues that are undeveloped or inadequately briefed).

CONCLUSION

¶26 Our review of the record supports that the circuit court considered all
relevant facts when it reviewed all materials including available transcripts,
conducted a two day hearing with two expert witnesses testifying, and considered
the evidence. Then the circuit court reviewed the Cesar G. factors, and, on the
record, applied the relevant facts to the factors. Therefore, the record reflects that
the circuit court’s decision to require registration was the result of a rational
process. Accordingly, we conclude that the circuit court did not erroneously
exercise its discretion when it decided against a permanent stay of the sex offender
registration requirement and required him to register as a sex offender for fifteen
years. We affirm the order requiring sex offender registration and the order
adjudicating G.R.H. delinquent.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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