State v. De'Andrus N.

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COURT OF APPEALS DECISION DATED AND FILED November 11, 2003 Cornelia G. Clark Clerk of Court of Appeals Appeal No. NOTICE This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62. Cir. Ct. No. 01JV001866 03-1687 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I IN THE INTEREST OF DE ANDRUS N., A PERSON UNDER THE AGE OF 17: STATE OF WISCONSIN, PETITIONER-RESPONDENT, V. DE ANDRUS N., RESPONDENT-APPELLANT. APPEAL from an order of the circuit court for Milwaukee County: KEVIN E. MARTENS, Judge. Reversed. ¶1 FINE, J. De Andrus N. appeals from an adjudication of delinquency, finding him guilty of two counts of attempted first-degree sexual assault of a child, see WIS. STAT. §§ 948.02(1) and 939.32, and from the circuit court s resulting dispositional order. We reverse. No. 03-1687 ¶2 The material facts underlying this appeal are not disputed. The circuit court found that De Andrus told Nakyra W. to suck the penis of Antwan G. while they were all at a daycare facility. Nakyra refused to comply with De Andrus s request, and the children were interrupted. De Andrus was approximately eleven years old at the time; Antwan was approximately eight years old, and Nakyra was five years old. The only issue presented by this appeal is whether on these facts De Andrus is guilty of attempting to violate WIS. STAT. § 948.02(1). We hold that he is not. ¶3 WISCONSIN STAT. § 948.02(1) provides: Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony. Sexual contact is defined as: Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant s or defendant s intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant. WIS. STAT. § 948.01(5)(a). Sexual intercourse includes fellatio irrespective of whether there is emission of semen. WIS. STAT. § 948.01(6). Both the State and the circuit court focused on the touching aspect of the statute, and the circuit court held that De Andrus s attempted touching of each of the children was through the instrumentality of the other child; the State did not argue and the circuit court did not consider whether the sexual intercourse definition applied. ¶4 This case requires that we apply WIS. STAT. §§ 948.02(1) and 948.01(5)(a). Our review is de novo. State v. Setagord, 211 Wis. 2d 397, 405 406, 565 N.W.2d 506, 509 (1997). If the language of a statute is clear on its face, we need not look beyond that language to determine the statute s meaning. See 2 No. 03-1687 Bruno v. Milwaukee County, 2003 WI 28, ¶20, 260 Wis. 2d 633, 645, 660 N.W.2d 656, 662. Section 948.01(5)(a) is clear: it requires either that the victim have touched the defendant, or that the defendant have touched the victim. Although § 948.01(5)(a) encompasses touching ... by the use of any body part or object, the contact must result in some tactile sensation to the defendant, either directly or through an object before there can be a touching ; mere direction to a third person to touch the victim, or to victims to touch each other, is insufficient. See WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY 2415 2416 (1993). Under the facts found by the circuit court, De Andrus neither touched nor was touched by either of the victims. Accordingly, we reverse.1 By the Court. Order reversed. This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4. 1 The State argues that De Andrus N. could be guilty of first-degree sexual assault as party to a crime under WIS. STAT. § 939.05, and, indeed, one of the counts lodged against De Andrus charged him with first-degree sexual assault as party to a crime (in connection with the count alleging that Nakyra W. was the victim). As we have seen, however, WIS. STAT. § 948.01(5)(a) requires that the touching be either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant. The circuit court never found that either Antwan or Nakyra was acting with the requisite intent to humiliate or become sexually aroused or gratified. For children so young, such a finding needs to be explicit. See State v. Stephen T., 2002 WI App 3, ¶¶13, 20 22, 250 Wis. 2d 26, 37, 40 42, 643 N.W.2d 151, 155, 156 157 (Ct. App. 2001). Thus, there is no evidence that would support a conclusion that Antwan and Nakyra were potential reciprocal violators of WIS. STAT. § 948.02(1) so as to make De Andrus the attempting aider or abettor under § 939.05. 3

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