State v. C. G. (In re Interest of C. G.)
Citation | 2021 WI App 11,955 N.W.2d 443,396 Wis.2d 105 |
Decision Date | 20 January 2021 |
Docket Number | Appeal No. 2018AP2205 |
Parties | In the INTEREST OF C. G., a person under the age of 18: State of Wisconsin, Petitioner-Respondent, v. C. G., Respondent-Appellant. |
Court | Court of Appeals of Wisconsin |
On behalf of the respondent-appellant, the cause was submitted on the briefs of Kelsey Loshaw and Cary Bloodworth, assistant state public defenders, Madison.
On behalf of the petitioner-respondent, the cause was submitted on the briefs of Scott E. Rosenow, assistant attorney general, and Joshua L. Kaul, attorney general.
Before Stark, P.J., Hruz and Seidl, JJ.1
¶1 C.G. ("Ella") appeals an order denying her postdispositional motion to stay her juvenile sex offender registration under WIS. STAT. § 301.45. WISCONSIN STAT. § 301.45(2)(a) mandates that the Department of Corrections (DOC) maintain a registry of all persons required to register as sex offenders. For each offender, the registry must include "[t]he person's name, including any aliases used by the person." Sec. 301.45(2)(a)1. WISCONSIN STAT . § 301.47(2)(a)-(b), in turn, provides that a registered sex offender may not "[c]hange his or her name" or "[i]dentify himself or herself by a name unless the name is one by which the person is identified with the [DOC]."
¶2 Ella contends the circuit court erroneously exercised its discretion by denying the stay. In addition, Ella contends that, as applied to her, requiring her to register as a sex offender violates her First Amendment rights because the statute's prohibition against legally changing her name restricts her right to self-expression as being a female. She further contends that because the prohibition is a content-based restriction, we must apply strict scrutiny. By applying strict scrutiny, Ella asserts that her right to self-expression outweighs any government interest in limiting her use of another legal name. Finally, Ella contends that requiring her to register as a sex offender constitutes cruel and unusual punishment, thereby violating her Eighth Amendment rights.
¶3 We conclude that the circuit court did not erroneously exercise its discretion when it denied Ella's motion to stay the sex offender registration requirement. The sex offender registry statute's prohibition against Ella changing her legal name does not restrict her right to self-expression and, thus, does not implicate the First Amendment. Even if we were to determine that the First Amendment is implicated, we conclude the statute is content neutral, requiring the application of intermediate scrutiny. Applying that level of scrutiny, we conclude the registry restriction on Ella's changing her name is constitutional as it furthers an important government interest in an incidentally restrictive manner. We further determine that we are bound by our supreme court's decision in State v. Bollig , 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, that no Eighth Amendment violation occurs based upon the registry's prohibition against name changes. We therefore affirm.
¶4 On May 10, 2016, the Shawano Police Department received a complaint that a fifteen-year-old male with disabilities, Alan, had been held down by Ella and Mandy2 while at Mandy's house, so that Ella could perform oral sex on him. At the time of her appeal, Ella was nineteen years old, but she was fifteen at the time of the incident. Ella sat on Alan's legs while Mandy held down his arms. Alan was five feet, ten inches tall and weighed 110 pounds. A face sheet from the DOC stated that Ella was six feet, five inches tall and weighed 345 pounds. Alan is on the autism
spectrum and is blind in his left eye. When Alan tried to yell for help from Mandy's parents, Mandy placed one of her hands over Alan's mouth. When Ella stopped the assault, Alan pulled up his underwear and pants and then left Mandy's house. Alan did not report the incident to anyone because he was embarrassed and Ella and Mandy had told him not to say anything. Alan's parents later learned of the incident after they searched his cell phone and discovered Facebook messages indicating that Alan had been held down while a person performed oral sex on him.
¶5 After a police investigation, the State filed a delinquency petition against Ella, alleging one count of sexual assault of a child under sixteen years of age, as a party to a crime, contrary to WIS. STAT. § 948.02(2), and one count of disorderly conduct, as a party to a crime, contrary to WIS. STAT. § 947.01(1). Ella pled no contest to the sexual assault count of the petition, and the disorderly conduct count was dismissed and read in. Ella was adjudicated delinquent, and the circuit court entered a dispositional order placing her at Lincoln Hills School for six to ten months. The court's dispositional order described Ella's act as a "forceful delinquent act to a child" and stated that "[Ella] needs to have intensive treatment to help h[er] develop a better thought process to where [s]he can improve h[er] decision making skills and reduce h[er] impulsive behaviors."
¶6 Ella's attorney moved to stay the sex offender registry requirement under WIS. STAT. § 301.45. Following a hearing on Ella's motion, the circuit court denied the requested stay. The court found that: (1) there was a ten-month age difference between Alan and Ella; (2) Alan and Ella's relationship was that of friendship, not romance; (3) there was no indication that Alan suffered physical bodily harm; (4) Alan was on the autism
spectrum and was evaluated to be functioning at a sixth-grade level as a freshman in high school; (5) it was a forcible situation; (6) the act was terrifying; and (7) Ella was at a "high risk" to reoffend.3 The latter finding was made despite Ella presenting expert testimony by a psychotherapist, Dr. Mark Reich, opining that Ella would be in a "low risk category of reoffense."
¶7 Ella subsequently filed a motion to change placement claiming that Lincoln Hills was an unsafe placement for her and that she exhibited good behavior and progress in treatment. Ella stated that another youth had punched her in the head. Lincoln Hills’ staff suggested that Ella was partly to blame for that incident because she told other youths that they were cute, which "could get other youth kind of worked up a little bit." Additionally, a room search revealed that Ella had written a number of letters inappropriately referencing teachers. Ella nonetheless successfully completed Lincoln Hills’ juvenile cognitive intervention program. The circuit court denied Ella's motion for a change of placement, finding that her placement at Lincoln Hills remained appropriate.
¶8 Ella was also the victim of a second unprovoked assault by another youth at Lincoln Hills causing a significant head wound requiring hospital treatment. Following this assault, the DOC transferred Ella from Lincoln Hills to the Mendota Juvenile Treatment Center (MJTC) in order to better serve Ella's mental health needs and for her safety. Ella was sent to MJTC, in part, because she was transitioning as a transgender youth from a male to a female identity, and she was a target for aggression from other youths at Lincoln Hills.
¶9 Ella adjusted well at MJTC, although she was sanctioned twice for making disrespectful comments to staff during her first week. She obtained near perfect scores in the behavioral program and maintained the highest privilege level throughout most of her stay. To determine if a special purpose evaluation was warranted, Dr. Michael Caldwell, an MJTC psychologist, conducted a WIS. STAT. ch. 980 evaluation, which revealed Ella to be in a relatively low-risk category for reoffense.
¶10 Ella's dispositional order terminated, and she filed a postdispositional motion seeking to stay her sex offender registration, and to have the circuit court declare Wisconsin's juvenile sex offender registry provisions unconstitutional. Ella also filed a supplemental postdispositional motion, attaching a psychosexual evaluation completed by Dr. Nick Yackovich, Jr., a psychologist who specializes in sex offender treatment. Yackovich conducted a risk assessment, opining thereafter that Ella's predicate offense likely was the result of "immature decision-making and poor boundary setting, but does not evidence criminogenic factors or a deviant sexual interest." He also opined that the public would not be protected by Ella's registration as a sex offender and that there was a possibility that registration would harm Ella. The circuit court issued a written decision denying Ella's motions. This appeal follows.
¶11 Ella first argues that the circuit court erroneously exercised its discretion by refusing to stay the disposition requiring her to register as a sex offender. See State v. Cesar G. , 2004 WI 61, ¶40, 272 Wis. 2d 22, 682 N.W.2d 1 . We review a circuit court's order denying such a stay for an erroneous exercise of discretion. Id. , ¶42. 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. Jeske , 197 Wis. 2d 905, 913, 541 N.W.2d 225 (Ct. App. 1995).
¶12 A reviewing court may not substitute its discretion for that of the circuit court. State v. Rhodes , 2011 WI 73, ¶26, 336 Wis. 2d 64, 799 N.W.2d 850. When the circuit court sets forth inadequate reasons for its decision, however, we will independently review the record to determine whether the court properly exercised its discretion and whether the facts provide support for its decision. Miller v. Hanover Ins. Co. , 2010 WI 75, ¶30, 326 Wis. 2d 640, 785 N.W.2d 493.
¶13 In considering whether to stay the sex offender registration requirement...
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