State v. Dominic Randall White-Andrews

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.
March 4, 2025
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. 2023AP1775-CR Cir. Ct. No. 2020CF198

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DOMINIC RANDALL WHITE-ANDREWS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: J.D. WATTS, Judge. Modified and, as modified, affirmed.

Before White, C.J., Geenen and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1775-CR

¶1 PER CURIAM. Dominic Randall White-Andrews appeals from a
judgment of conviction for one count of attempt to expose his genitals to a child
and one count of child enticement. For the reasons set forth below, we affirm.1

BACKGROUND

¶2 The State charged White-Andrews with one count of child
enticement, a Class D felony contrary to WIS. STAT. § 948.07(3), for an incident
from September 2014 during a child’s birthday party.2 As alleged in the criminal
complaint, Arianna3 was in the bathroom filling a squirt gun at the sink when
White-Andrews came in, closed the door, and asked if Arianna would tell. White-
Andrews began to unbutton his pants, and Arianna screamed, began to cry, and ran

1
The judgment of conviction reflects that White-Andrews was convicted of the
completed crime of exposing his genitals to a child, contrary to WIS. STAT. § 948.10(1) (2023-
24), as a Class I felony. However, the record clearly reflects that the conviction should be one for
attempt to expose his genitals to a child as a Class A misdemeanor, see WIS. STAT.
§ 939.32(1)(bm), and the judgment of conviction reflecting a Class I felony is in error. Therefore,
upon remand, this court directs that the judgment of conviction be amended to reflect the
conviction of attempt to expose his genitals to a child as a Class A misdemeanor contrary to
§§ 948.10(1) and 939.32(1)(bm). See State v. Prihoda, 2000 WI 123, ¶17, 239 Wis. 2d 244, 618
N.W.2d 857; see also State v. Schwind, 2019 WI 48, ¶30 n.5, 386 Wis. 2d 526, 926 N.W.2d 742
(“Correcting a clerical error in a judgment does not constitute a modification of that judgment;
rather, it is simply a correction of the record to reflect the judgment the circuit court actually
rendered.”).

All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted. We recognize that the events underlying the charge occurred in 2014 while a prior version
of the statutes was in effect. However, we discern no relevant changes to the pertinent statutes.
2
In the same criminal complaint, the State charged White-Andrews with a second count
of child enticement for an incident in 2019 involving a second child victim. White-Andrews was
jointly tried and convicted of this count of child enticement. He has not raised any argument on
appeal regarding the conviction for this count, and therefore, we do not discuss it further. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
3
Consistent with the briefing, this court employs the pseudonym Arianna in reference to
the child victim in this matter. See WIS. STAT. RULE 809.86.

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No. 2023AP1775-CR

out of the bathroom. The case proceeded to a bench trial where the State
presented testimony from Arianna, her mother, and others who were in attendance
at the birthday party.

¶3 During the testimony from one of the State’s witnesses, the trial
court interrupted to hold a sidebar. Following the sidebar, the witness was
excused, and the trial court stated for the record that it had raised an issue during
the sidebar and was “going to take a moment because [it] had a lot to say.” The
trial court continued:

I understand that this is in the middle of the case
and perhaps should wait until the end. However, it’s
causing a concern that the [c]ourt has that we’re not using
our time well, and based on [the] fact that the [c]ourt is
both the factfinder and the law it creates this dynamic
tension, but as the [j]udge who is in charge of the law, I
cannot avoid this issue, and the issue is one of law.

The trial court emphasized that a charge of child enticement required that the
defendant caused the child to go into a room or excluded place, and the trial
court’s “concern [was] this causation and whether it’s completed causation or
attempted causation.” The trial court analyzed the statute, jury instruction, and
case law on the element of causing a child to go into a room or excluded place and
stated:

So the [c]ourt’s heard a bit of testimony, and I think
the most important testimony was that of the victim, and
the adults certainly have corroborated many aspects of the
event, but in this [c]ourt’s view the State cannot prevail on
this issue of attempting to cause or causing the victim to go
into any room or excluded place because closing the door
might make the room more excluded or doesn’t change the
aspect, but there is no causing to go anywhere.

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No. 2023AP1775-CR

Thus, the trial court allowed for a recess for the State and the defense to conduct
research on the charge and the ability of the trial court to amend the charge
pursuant to WIS. STAT. § 971.29(2).

¶4 When the parties returned, the State moved to amend the charge to
attempted first-degree sexual assault of a child, a Class B felony contrary to WIS.
STAT. § 948.02. The defense objected to the amendment and stated that, while the
defense would still argue against it, “[w]hat would be more appropriate in my
opinion would be an attempt of … exposing genitals, pubic hair, or intimate
parts.” The trial court ultimately rejected the State’s request to amend the charge
to attempted first-degree sexual assault of a child because of the resulting
prejudice, and the trial court accepted an amendment to the charge of attempt to
expose his genitals to a child, a Class A misdemeanor contrary to WIS. STAT.
§§ 948.10(1), 939.32(1)(bm).

¶5 Following the amendment, the trial continued with additional
witnesses for the State. White-Andrews did not testify and presented no
witnesses.

¶6 The trial court found White-Andrews guilty of attempt to expose his
genitals to a child, and he was sentenced to nine months in the House of
Correction.4 White-Andrews now appeals.

4
White-Andrews’ sentence is consecutive to the sentence imposed for his conviction on
count two for child enticement, for which he received fifteen years of imprisonment bifurcated as
ten years of initial confinement and five years of extended supervision.

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No. 2023AP1775-CR

DISCUSSION

¶7 On appeal, White-Andrews argues that his conviction should be
vacated because the trial court committed plain error when it interjected during the
bench trial and offered the State a chance to amend the charge. We disagree, and
we conclude that, assuming the existence of an error, any error was harmless.

¶8 As a threshold matter, the State argues that we must consider
whether White-Andrews forfeited his plain error argument that he raises on appeal
by failing to raise the argument below and by failing to file a postconviction
motion. Arguments must generally be raised before the trial court, and a
postconviction motion is ordinarily a prerequisite to appellate review, unless the
issue raised is one of sufficiency of the evidence or an issue previously raised
before the trial court. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486,
611 N.W.2d 727; State v. Walker, 2006 WI 82, ¶31, 292 Wis. 2d 326, 716 N.W.2d
498; see also WIS. STAT. RULE 809.30(2)(h); WIS. STAT. § 974.02(2). However,
we overlook the failure here in the interest of judicial efficiency and because the
issue of plain error is fully briefed. Thus, we return to the plain error argument
that White-Andrews raises on appeal.

¶9 The plain error doctrine “allows appellate courts to review errors
that were otherwise waived by a party’s failure to object.” State v. Jorgensen,
2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. Plain error is “error so
fundamental that a new trial or other relief must be granted even though the action
was not objected to at the time.” Id. (citation omitted). The error must also be
“obvious and substantial.” Id. (citation omitted). “If the defendant shows that the
unobjected to error is fundamental, obvious, and substantial, the burden then shifts
to the State to show the error was harmless.” Id., ¶23. In determining whether the

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No. 2023AP1775-CR

error was harmless, we ask “whether the State can prove ‘beyond a reasonable
doubt that a rational jury would have found the defendant guilty absent the error.’”
Id. (citation omitted).

¶10 In this case, we conclude that any assumed error was harmless
because the offense of attempt to expose genitals, pubic area, or intimate parts to a
child, contrary to WIS. STAT. §§ 948.10, 939.32(1)(bm), is a lesser-included
offense to the original charge of child enticement, contrary to WIS. STAT.
§ 948.07.

¶11 We use the elements-only test codified in WIS. STAT. § 939.66(1) to
determine whether WIS. STAT. § 948.10(1) is a lesser-included offense of WIS.
STAT. § 948.07(3). The elements-only test found in § 939.66(1) states that “[a]
crime which does not require proof of any fact in addition to those which must be
proved for the crime charged” is an included crime for which the defendant may
be convicted.

¶12 Pursuant to White-Andrews’ original charge of child enticement
contrary to WIS. STAT. § 948.07(3), the State was required to prove that White-
Andrews, with intent to expose his genitals, pubic area, or intimate parts to a child
in violation of WIS. STAT. § 948.10, caused Arianna, a child who had not attained
the age of eighteen years, to go into any room or secluded place. See § 948.07(3);
WIS JI—CRIMINAL 2134. In comparison, the amended charge of attempt to
expose genitals, pubic area, or intimate parts to a child required the State to prove
that White-Andrews attempted to expose his genitals, pubic area, or intimate parts
to Arianna, a child who had not attained the age of eighteen years, for the purpose
of sexual arousal or sexual gratification. See §§ 948.10, 939.32(1)(bm); WIS JI—
CRIMINAL 2140.

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No. 2023AP1775-CR

¶13 The offense of child enticement required the State to prove all the
elements of WIS. STAT. § 948.10 given that exposure of genitals, pubic area, or
intimate parts for child enticement is defined in reference to a violation of WIS.
STAT. § 948.10. See WIS. STAT. § 948.07(3) (defining exposure of one’s genitals,
pubic area, or intimate parts as “in violation of [§] 948.10”). However, child
enticement required proof of one additional element—namely, proof of the
additional element that White-Andrews caused Arianna to go into a room or other
secluded place. See WIS. STAT. § 939.66(1). Thus, we consider the amended
charge of attempt to expose genitals, pubic area, or intimate parts to a child in
violation of § 948.10(1) to be a lesser-included offense of the original charge of
child enticement in violation of § 948.07(3).5

¶14 “When a defendant is charged with a crime he is automatically put
on notice that he is subject to an alternative conviction of any lesser[-]included
crime; the whole contains all its parts.” Dunn v. State, 55 Wis. 2d 192, 197, 197
N.W.2d 749 (1972). The doctrine of lesser-included offenses provides the
factfinder with “an option to convicting or acquitting the defendant of the greater
offense, when the evidence shows that the defendant may be guilty of a crime
similar to but not necessarily the same as the one charged; a conviction may thus
conform more accurately to the offense committed.” State v. Carrington, 134
Wis. 2d 260, 263, 397 N.W.2d 484 (1986). Moreover, if there is a reasonable
doubt “as to some particular element included in the higher degree of crime,” the
lesser-included offense may be submitted. State v. Foster, 191 Wis. 2d 14, 23,

5
Additionally, pursuant to WIS. STAT. § 939.66(4), attempt is a lesser-included offense
of any completed crime. Therefore, an attempt to commit a violation of WIS. STAT. § 948.10(1)
is automatically a lesser-included offense to the completed crime.

7
No. 2023AP1775-CR

528 N.W.2d 22 (Ct. App. 1995). The trial court also has the authority to sua
sponte offer instructions to a jury on a lesser-included offense when the trial court
deems appropriate. See State v. Felton, 110 Wis. 2d 485, 513, 329 N.W.2d 161
(1983); Neuenfeldt v. State, 29 Wis. 2d 20, 31-32, 138 N.W.2d 252 (1965).

¶15 Thus, had the trial court not interrupted the trial and offered the State
the chance to amend the charge, the trial court could nonetheless still have found
White-Andrews guilty of the lesser-included offense of attempted exposure to a
child. The record reflects that the trial court had doubts as to the causation
element of child enticement, and even if it had not interrupted during the trial and
raised its concern, the trial court, as the factfinder, had the ability to consider the
lesser-included offense of attempted exposure. In other words, the amendment to
the lesser-included offense of attempted exposure was harmless as it was an
offense that ultimately could have been considered by the trial court as a lesser-
included offense that conformed to the evidence presented at trial.

¶16 Consequently, we reject White-Andrews’ argument and affirm the
judgment.

By the Court.—Judgment modified and, as modified, affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

8