State v. D. Y.

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.
December 26, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP710 Cir. Ct. No. 2022JV846

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF D.Y., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

D.Y.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
KRISTELA L. CERVERA, Judge. Affirmed.
No. 2024AP710

¶1 WHITE, C.J.1 Daniel appeals from the order of the circuit court
adjudicating him as a juvenile delinquent, on the basis of a second-degree sexual
assault of a child offense.2 Daniel argues that a required element of the offense
was not proven beyond a reasonable doubt. We conclude that there was sufficient
evidence to support the court’s decision. Accordingly, we affirm.

BACKGROUND

¶2 The State filed a delinquency petition against Daniel upon
allegations that, in August 2022, he had sexual contact with Anna, a child under
the age of sixteen, contrary to WIS. STAT. § 948.02(2). The petition alleged that
Milwaukee police responded to a complaint from Anna that Daniel had sexual
contact with her during an overnight at a hotel with their extended family.

¶3 The case proceeded to a bench trial in April 2023. Anna’s mother,
Susan, testified that Anna stayed with Tonya, who is Daniel’s mother and Susan’s
aunt; Daniel; and more extended family at a hotel in Milwaukee for one night.
Susan and Anna who are residents of Las Vegas, Nevada, were in Milwaukee for
her mother’s wedding.3

¶4 Anna testified that she stayed at the hotel with her extended family
including her sister, Daniel, Tonya, and other cousins. There were two beds and a

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
We refer to the parties by pseudonyms to maintain confidentiality in juvenile cases and
to protect the privacy and dignity of the crime victims and families. See WIS. STAT.
RULES 809.19(1)(g); 809.86.
3
Susan testified that she and Daniel are cousins and that Daniel’s mother, Tonya, and
Susan’s mother are sisters.

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No. 2024AP710

pull-out sofa. For sleeping arrangements, Tonya was in one bed, Anna’s sister and
a female cousin were in the other bed, and Anna was on the pull-out sofa with her
younger male cousin, Charles. Anna stated she told Daniel to sleep with his
mother, Tonya. Anna woke up to the feeling of being touched on her buttock and
vaginal area, over her clothes; she was wearing a zip-up jacket and basketball
shorts. Anna initially stayed still after she woke up, but when she felt more
touching she got up and went to the bathroom—she saw Charles in front of where
she had been sleeping and Daniel behind where she had been sleeping. Anna
testified that she felt Daniel’s erect penis against her buttocks when they had been
lying down. Anna testified that Daniel’s eyes were closed when she passed him
going to the bathroom.

¶5 Anna testified that after getting off the pull-out sofa, she texted her
friend from the bathroom, and then went down to the lobby from about 3 a.m. to
11 a.m. because she did not feel comfortable being in the hotel room. Around
11 a.m., Tonya came to the lobby and Anna told her about Daniel touching her.
Anna and the extended family then checked out of the hotel and went to her
grandmother’s house. Two days later, Susan called Anna and Anna told her about
the incident.

¶6 Daniel testified in his own defense, stating that when he went to bed
and when he woke up in the morning, the only person in bed with him was his
nephew, Charles. Daniel stated he went to bed early, around 10 or 11 p.m. While
he could identify where the other people in the room slept, he did not know where
Anna slept. He stated that if a video was produced showing him awake at 1 a.m.,
the video was not true or the time was wrong. Daniel testified that he was a deep
sleeper.

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No. 2024AP710

¶7 The circuit court issued an oral ruling at the end of the two day trial.
The court stated, that “at this time, based on the facts that have been presented, [it
found] the testimony of [Anna] to be credible.” The court found “that the
elements are satisfied as to the count that is charged.” The court adjudicated
Daniel “to be delinquent of the sole count in this case. The specific statute being
948.02(2) of the Wisconsin statutes.”

¶8 In August 2023, the court entered the dispositional order, which
provided for twelve months of supervision in an in-home placement with this
mother.4 He was ordered to complete ASAP programming as sex offender
treatment for juveniles. He was ordered to participate in individual therapy.

¶9 This appeal follows.

DISCUSSION

¶10 Daniel argues that the State failed to prove the intent element of
sexual contact by presenting insufficient evidence of sexual gratification or arousal
from the contact with Anna. He asserts that any evidence of touching is not
evidence of consciously and affirmatively touching Anna for sexual gratification
or arousal.

¶11 Daniel challenges the sufficiency of the evidence supporting the
circuit court’s adjudication of juvenile delinquency for second-degree sexual
assault of a child. When determining whether the evidence was sufficient to
support the adjudication of a juvenile as delinquent an appellate court “may not

4
The record reflects that after the dispositional order was entered, the State moved for
sanctions for violations of the order multiple times.

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No. 2024AP710

substitute its judgment for that of the trier of fact unless the evidence, viewed most
favorably to the [S]tate and the conviction, is so lacking in probative value and
force that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752
(1990). An allegation of juvenile delinquency, like an alleged offense in a
criminal complaint, must be supported by evidence beyond a reasonable doubt.
See WIS. STAT. § 938.31(1). “The test is not whether this court … [is] convinced
beyond reasonable doubt, but whether this court can conclude the trier of facts
could, acting reasonably, be so convinced by evidence it had a right to believe and
accept as true.” Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971).

¶12 The circuit court’s “[f]indings of fact shall not be set aside unless
clearly erroneous[.]” WIS. STAT. § 805.17(2). “It is the function of the trier of
fact, and not of an appellate court, to fairly resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Poellinger, 153 Wis. 2d at 506. If more than one reasonable inference can
be drawn from the evidence, this court must adopt the inference that supports the
verdict. See id. at 506-07.

¶13 To prove that Daniel committed second-degree sexual assault of a
child as alleged in the delinquency petition, the State had to prove that Daniel had
sexual contact with Anna, “who ha[d] not attained the age of [sixteen] years.”
WIS. STAT. § 948.02(2). The relevant meaning of sexual contact in this chapter is
“intentional touching, whether direct or through clothing, if that intentional
touching is … for the purpose of … sexually arousing or gratifying the defendant”
when there is “[i]ntentional touching by the defendant … by the use of any body
part or object, of the complainant’s intimate parts.” WIS. STAT. § 948.01(5)(a).
There is no dispute that Anna was under the age of sixteen at the time of the

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No. 2024AP710

incident and the touching involved her intimate parts. The dispute arises out of
whether the State proved the touching was intentional for the purpose of sexual
arousal or gratification.

¶14 The record reflects that Anna testified about the beginning of the
incident as follows:

[THE STATE:] Why did you wake up?

[ANNA:] I woke up from the feeling of being touched.

[THE STATE:] And where were you being touched?

[ANNA:] On my butt and my private areas.

[THE STATE:] When you say private area, are you
referring to your vaginal area?

[ANNA:] Yes.

Anna further testified that after feeling the touching she did not move, and “a
minute after I stayed still, it happened again.” Anna also testified that she felt the
person behind her “pressing up” her, which she clarified mean she felt his erect
penis against her buttocks. Anna identified Daniel as the person “pressing up”
behind her after she exited the bed and looked at who had been behind her.

¶15 Daniel argues that the evidence showed only that his erect penis had
touched Anna while he was sleeping. Daniel asserts that an erection from a

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No. 2024AP710

sleeping juvenile male does not prove intentional touching.5 We disagree. “Intent
to become sexually aroused or gratified, like other forms of intent, may be inferred
from the defendant’s conduct and from the general circumstances of the case[.]”
State v. Drusch, 139 Wis. 2d 312, 326, 407 N.W.2d 328 (Ct. App. 1987). Here,
Anna’s testimony established she felt touching over her buttocks and vaginal area
two times, about a minute apart. While she recognized Daniel’s erect penis
pressing behind her, she also testified she felt touching over her vaginal area.
Here, the evidence of intent may be circumstantial; nevertheless, “a finding of
guilt may rest upon evidence that is entirely circumstantial.” Poellinger, 153
Wis. 2d at 501. We conclude that the circuit court, as the fact finder, had a basis
to make a reasonable inference that the touching was not accidental, as it occurred
twice in a short time, and that the touching was not only made by Daniel’s erection
because it also included touching her vaginal area.

¶16 Daniel also contends that the evidence of intent in Daniel’s mental
state was, at most, “in equipoise,” which means that there must have been
reasonable doubt. See State v. Mader, 2023 WI App 35, ¶86, 408 Wis. 2d 632,
993 N.W.2d 761 (explaining that evidence “in equipoise” might be “where a
victim offers a vague or conclusory account of sexual assault or the defendant
presents a compelling alibi or other defense”). This situation is not one of
equipoise. Anna’s testimony was found credible by the circuit court, and Daniel

5
Daniel’s support for this proposition referred to “sexual-contact-with-a-child cases
where the contact was initiated by the child,” which required the State to prove the defendant
“consciously and affirmatively” allowed the touching. State v. Olson, 2000 WI App 158, ¶12,
238 Wis. 2d 74, 616 N.W.2d 144. A juvenile male having an erection in his sleep does not
appear to be the same situation. There is no allegation that Anna touched Daniel. Even if we
accept Daniel’s proposition that an erection is not necessarily a conscious and affirmative act,
Anna’s credible testimony about feeling touching over her vaginal area would contradict touch
only arising from a sleeping erection behind her.

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No. 2024AP710

does not dispute the court’s finding. Daniel’s only alibi is that he was a “deep
sleeper” and he does not know what happened. Our examination of the record
supports that Anna’s testimony was not vague or conclusory and that Daniel’s
alibi was not compelling. Further, even if there are multiple reasonable inferences
that could be drawn from this evidence, this court must adopt the inference drawn
by the circuit court. Poellinger, 153 Wis. 2d at 506-07.

¶17 There is ample evidence to support the circuit court’s finding that all
elements of the second-degree sexual assault of a child offense were proven,
including that the sexual contact consisted of Daniel intentionally touching Anna
with a purpose of sexual arousal or gratification. Viewing the evidence most
favorably to the conviction, the evidence is not “so lacking in probative value and
force that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt.” Id. at 507. We conclude that Daniel’s sufficiency of the
evidence challenge fails.

CONCLUSION

¶18 For the reasons stated above, we conclude that there was sufficient
evidence for the circuit court to have found all elements of the second-degree
sexual assault offense and to adjudicate Daniel a juvenile delinquent on that basis.

By the Court.—Order affirmed.

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

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