State v. E.L.C.

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.
April 5, 2022
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. 2021AP1624 Cir. Ct. No. 2016JV438

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF E.L.C., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

E.L.C.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
KASHOUA KRISTY YANG, Judge. Affirmed.

¶1 BRASH, C.J.1 E.L.C. appeals from the order requiring him to
register as a sex offender for a period of fifteen years after he was adjudicated

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. 2021AP1624

delinquent for fourth-degree sexual assault. E.L.C. argues that the court
erroneously exercised its discretion in imposing that requirement. Upon review,
we affirm.

BACKGROUND

¶2 In May 2016, police officers from the City of Milwaukee responded
to a sexual assault complaint reported by D.D., E.L.C.’s mother. D.D. stated that
her daughter and E.L.C.’s sister, D.M.D.—who was seven years old at the time—
had told her that E.L.C. had sexually assaulted her on three occasions. The
assaults were alleged to have occurred between June 2015 and May 2016, when
E.L.C. was twelve and thirteen years old. An officer interviewed E.L.C., who
admitted to having sexual contact with D.M.D. on “multiple occasions.”

¶3 A delinquency petition was filed in May 2016 charging E.L.C. with
first-degree sexual assault of a child under the age of thirteen. E.L.C.
subsequently entered into a plea agreement where the charge was amended to
fourth-degree sexual assault, with the approval of D.D. and D.M.D. At the
dispositional hearing held in August 2016, placement issues, supervision
guidelines, and treatment options for E.L.C. were discussed. Additionally, it was
agreed that the issue of sex offender reporting would be deferred until E.L.C. had
the opportunity to participate in counseling.

¶4 In October 2020, the State filed a motion to require E.L.C. to comply
with the sex offender registry reporting requirements. In support of its motion, the
State cited E.L.C.’s behavioral issues and lack of compliance with the
dispositional order during the four years he had been on supervision. Specifically,
the State asserted that E.L.C. had never consistently participated in sex offender
treatment, which could have lowered his assessed risk of reoffending.

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Furthermore, the State contended that E.L.C.’s conduct during his time on
supervision had been “poor,” in that E.L.C. had regularly failed to maintain his
court-ordered placement and was uncooperative with the treatment services he was
being provided. Additionally, E.L.C. had been arrested in Illinois while in
possession of two firearms. As a result, E.L.C. had not “been able to lower and
maintain a healthy risk level to protect the community in the future,” and therefore
the State argued that sex offender registration was warranted.

¶5 At a hearing on the State’s motion held in March 2021, the trial
court agreed that the statutory factors for sex offender registration had been met.
The trial court noted the seriousness of E.L.C.’s offense, as well as referencing the
risk assessment evaluation which discussed E.L.C.’s conduct while on supervision
and his failure to fully participate in treatment. Therefore, the court ordered
E.L.C. to register as a sex offender. This appeal follows.

DISCUSSION

¶6 Pursuant to WIS. STAT. § 938.34(15m), a juvenile who is adjudicated
delinquent for certain crimes—including fourth-degree sexual assault—may be
required to comply with the sex offender registration requirements of WIS. STAT.
§ 301.45. To impose this requirement, the trial court must determine that “the
underlying conduct was sexually motivated,” and that “it would be in the interest
of public protection to have the juvenile report[.]” See WIS. STAT.
§ 938.34(15m)(am)1.2 This determination is within the discretion of the trial

2
We note that had E.L.C. been adjudicated delinquent under the original charge against
him—sexual assault of a child under the age of thirteen—reporting under the sex offender
registry requirements would have been mandatory, unless the trial court determined that certain
exceptions applied. See WIS. STAT. §§ 938.34(15m)(bm); 301.45(1m).

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No. 2021AP1624

court. See State v. Cesar G., 2004 WI 61, ¶12, 272 Wis. 2d 22, 682 N.W.2d 1. “A
discretionary decision ‘will stand unless it can be said that no reasonable judge,
acting on the same facts and underlying law, could reach the same conclusion.’”
State v. C.G., 2021 WI App 11, ¶11, 396 Wis. 2d 105, 955 N.W.2d 443 (citation
omitted).

¶7 In this case, E.L.C. concedes that his conduct resulting in the charge
against him meets the standard for being “sexually motivated.” See WIS. STAT.
§ 980.01(5). Thus, we focus on the second prerequisite for requiring sex offender
registration—whether it was in the interest of public protection to require E.L.C.
to report. See WIS. STAT. § 938.34(15m)(am)1. To make this determination, there
are a number of statutory factors which may be considered by the trial court:

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 [§ ]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.

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

WIS. STAT. § 938.34(15m)(c). It is within the trial court’s discretion to determine
“which factors to consider and how to weigh them.” C.G., 396 Wis. 2d 105, ¶13.

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No. 2021AP1624

¶8 Here, the record indicates that the trial court considered the factors
set forth in WIS. STAT. § 938.34(15m)(c). Specifically, the court discussed the
ages of E.L.C. and D.M.D. at the time of the assaults and their familial
relationship, the first and second factors. See id. The court noted that the third
and fourth factors, which relate to any physical or mental harm to D.M.D., were
not applicable, although it did observe the serious nature of the assaults. See id.

¶9 In discussing the fifth factor—the probability that E.L.C. will
commit other violations in the future, see id.—the trial court recognized that
E.L.C. remained at a moderate risk to reoffend, referencing the risk assessment
report from the therapist who evaluated E.L.C. Specifically, this report stated
E.L.C.’s assessment level was based on factors which were under his control,
particularly his conduct while on supervision, which included his lack of
cooperation with the treatment programs offered to him; leaving his foster home
with his whereabouts unaccounted for over several days; and his arrest in Illinois
for possession of a firearm. E.L.C., on the other hand, argues that there have not
been any further allegations against him, and thus the trial court’s decision is
based on “pure speculation” that he may reoffend. However, the full scope of
E.L.C.’s conduct while he was on supervision was considered in the report
assessing his risk to reoffend, and thus it was reasonable for the trial court to
consider this information in its review of the fifth factor. See id.

¶10 In short, the trial court properly considered the statutory factors and
applied them to the facts set forth in the record in making its determination that
E.L.C. must comply with the reporting requirements for the sex offender registry
for a period of fifteen years. Therefore, this was a reasonable decision by the trial
court, and it thus did not erroneously exercise its discretion in imposing this

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requirement. See C.G., 396 Wis. 2d 105, ¶11. Accordingly, we affirm the order
requiring E.L.C.’s registration as a sex offender.

By the Court.—Order affirmed.

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

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