¶ 1. Willie H. Jackson appeals a second-amended judgment and an order of the circuit court requiring Jackson to comply with the sex-offender reporting requirements, pursuant to Wis. Stat. § 973.048(lm) (2003-04).
BACKGROUND
¶ 2. The State filed an information charging Jackson with seven crimes, five of which allegedly occurred on November 19, 2005, and two that allegedly occurred on November 22, 2005. Pursuant to a plea agreement, Jackson pled no contest to four of the five charged offenses that allegedly occurred on November 19, including: intimidation of a witness (contrary to Wis. Stat. § 940.45(1)), false imprisonment (contrary to Wis. Stat. § 940.30), battery-domestic abuse (contrary to Wis. Stat. §§ 940.19(1), 968.075), and taking and operating a motor vehicle without the owner's consent (contrary to Wis. Stat. § 943.23(2)), all as a repeat offender. One count of robbery was dismissed and read-in for sentencing purposes. In addition, as part of the plea agreement, the two charges related to the events that occurred on November 22, 2005, were dismissed and read-in for sentencing
¶ 3. The court accepted the pleas and ordered a presentence investigation report (PSI). The PSI writer did not recommend sex-offender registration and the State did not ask the court at the sentencing hearing to order Jackson to register as a sex offender. The circuit court did not discuss whether it was appropriate to order Jackson to register as a sex offender during sentencing, and the court did not impose sex-offender registration as a condition of extended supervision. The judgment of conviction
¶ 4. After Jackson had completed the confinement portion of his sentence, the Department of Corrections, through its Division of Probation and Parole, requested that the circuit court conduct a sentence review hearing to determine whether Jackson should be required to register as a sex offender pursuant to Wis. Stat. §§ 973.048(lm) and 301.45. The circuit court granted the department's request. At the review hearing, the State argued, among other things, that the conduct underlying the convictions must be considered sexually motivated because only a few hours after
¶ 5. The court granted the State's motion. It then amended the judgment of conviction, and ordered Jackson to register as a sex offender pursuant to Wis. Stat. § 973.048(lm).
¶ 6. Jackson sought postconviction relief from the amended judgment. The circuit court denied the motion, explaining:
It was a relationship of violence between these two individuals and that the 940 offenses that took place technically on the 19th of the month and the sexual assault which was dismissed and read-in on the 22nd of the month was part of an ongoing incident.
And it was really part and parcel of the relationship that Mr. Jackson had with the victim in the case, one of violence and one of control, one of intimidation, and certainly what occurred on the 19th provided the groundwork, if you will.
And as I indicated at the time that the Court ordered that it was sexually motivated offenses, that you can't put blinders on, you can't put walls up*608 between what occurred on the 19th and what occurred on the 22nd, and it laid the groundwork for what did occur on the 22nd.
And in the Court's judgment, the intimidation of the victim, the false imprisonment of the victim was sexually motivated.
It resulted in a sexual assault that involved violence, intimidation, and aspects of false imprisonment, as well.
Jackson appeals. Additional facts, as necessary, are set forth in the discussion section.
DISCUSSION
¶ 7. The issue on appeal is whether, under the facts of this case, it was proper for the circuit court to order Jackson to register as a sex offender for the crimes for which he was convicted — false imprisonment, intimidation of a witness, and battery-domestic abuse — all of which were committed on November 19, 2005. These crimes fall within the enumerated offenses for which a court may order sex-offender registration in the exercise of its sentencing discretion. See Wis. Stat. § 973.048(lm). We review a circuit court's sentencing decision for an erroneous exercise of discretion, State v. Gallion,
¶ 8. When interpreting a statute, we begin with the statutory language. State ex rel. Kalal v. Circuit Court for Dane County,
¶ 9. We begin our analysis with Wis. Stat. § 973.048(lm)(a), which states:
Except as provided in sub. (2m), if a court imposes a sentence or places a person on probation for any violation, or for the solicitation, conspiracy, or attempt to commit any violation, under ch. 940, 944, or 948 or s. 942.08 or 942.09, or ss. 943.01 to 943.15, the court may require the person to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01(5), and that it would be in the interest of public protection to have the person report under s. 301.45.
As we see from the statutory language, subsection 973.048(lm)(a) confers discretion upon the circuit court to require sex-offender registration for "certain non-sex crimes" if: (1) "the court determines that the
¶ 10. Wisconsin Stat. § 980.01(5) defines "sexually motivated" as meaning "that one of the purposes for an act is for the actor's sexual arousal or gratification." Thus, under this statute, an act for which a defendant is sentenced or placed on probation must be for the purpose of either sexual arousal or the defendant's sexual gratification. We further see from the statutory language that the phrase "one of the purposes" indicates that there may be other motivations to commit the charged offense. "Purpose" is undefined in the statutory scheme. The common meaning of "purpose" is "[t]he object toward which one strives or for which something exists: GOAL." Webster's II New College Dictionary, 900 (1999).
Applying Wis. Stat. § 980.01(5) to the Undisputed Facts
¶ 11. On appeal, Jackson contends that the circuit court erred in requiring him to register as a sex offender because, in his view, his conduct underlying his three Wis. Stat. ch. 940 convictions, which occurred on November 19, was not sexually motivated within the meaning of Wis. Stat. § 980.01(5). In support, Jackson refers to the factual allegations set forth in the criminal complaint filed against him and argues that the complaint "contains nothing indicating that the conduct underlying the crimes committed on [November 19, 2005] was sexually motivated." He also points to statements by the victim provided in the complaint, which do not indicate Jackson engaged in any actions of a sexual nature on November 19 or that Jackson said anything to the victim with "sexual overtones." Jackson
¶ 12. In response, the State contends that the circuit court properly determined that Jackson's conduct on November 19, 2005, fell within the statutory meaning of "sexually motivated." In support, the State also relies on the factual allegations provided in the criminal complaint.
¶ 13. For the reasons that we explain below, we conclude, as a matter of law, that the facts of record concerning the circumstances related to the incident that occurred on November 19, 2005, and for which he was convicted — false imprisonment, intimidation of a witness, and battery-domestic abuse — do not indicate that Jackson's conduct was, in part, sexually motivated, within the meaning of Wis. Stat. § 980.01(5).
¶ 14. We begin by considering the circuit court's decision requiring Jackson to register as a sex offender under Wis. Stat. § 973.048(lm). In reaching its decision, the circuit court relied primarily on the PSI report and the factual allegations contained in the criminal complaint. More particularly, the court took into consideration the extent and the nature of Jackson's violent conduct toward the victim on November 19, 2005, which the criminal complaint and the PSI discuss in great detail. The court focused on these facts: after the victim returned home, Jackson kicked her in her buttocks, grabbed a broom and struck the victim in the leg, causing a large contusion; the victim reported Jackson struck her with three plastic hangers, causing one hanger to break; and Jackson struck the victim numerous times with a sword scabbard, causing multiple contusions on her legs and arms.
¶ 15. The court also considered the second-degree sexual assault charge, which occurred on November 22, 2005. As noted above, this charge was dismissed and
¶ 16. The court also considered the protection of the public purpose of the sex-offender registration statute, and concluded that requiring Jackson to register as a sex offender would serve to protect the public. Based on the above factors, the court concluded that the false imprisonment offense was sexually motivated within the meaning of Wis. Stat. § 980.01(5) and ordered Jackson to register as a sex offender.
¶ 17. Shortly thereafter, Jackson filed a postconviction motion arguing that the court erred in determining that the facts of his underlying conduct on November 19, 2005, were sexually motivated within the meaning of Wis. Stat. § 980.01(5). The court considered oral arguments on the motion at a hearing held in September 2010 and denied Jackson's motion. In denying Jackson's motion, the court relied on its rationale in granting the State's motion seeking a court order re
It was a relationship of violence between [Jackson and the victim] and . . . the 940 offenses that took place technically on the 19th of the month and the sexual assault which was dismissed and read-in on the 22nd of the month were part of an ongoing incident.
And it was really part and parcel of the relationship that Mr. Jackson had with the victim in this case, one of violence and one of control, one of intimidation, and certainly what occurred on the 19th provided the groundwork, if you will.
¶ 18. We conclude that the facts considered by the circuit court do not, as a matter of law, support the conclusion that Jackson's underlying conduct on November 19, 2005, was sexually motivated within the meaning of Wis. Stat. § 980.01(5).
¶ 19. We first consider the facts set forth in the criminal complaint. The pertinent part of the complaint states:
[The victim] stated that she has been living with Jackson at [a specified address] for approximately 2-3 months and they have been boyfriend and girlfriend for approximately 4-5 months. [She] stated that the incident started on November 19, 2005, when she came home after being gone several days after a previous verbal altercation, possibly November 15, 2005. [The victim] stated she had returned to the residence with two [male] friends .... [She] stated when they went into the residence, Jackson became upset with her and accused her of seeing another guy. [She] reported*615 Jackson asked the two males to wait in the car. [The victim] stated Jackson then began yelling at her and hit her in the face, twice in the left cheek. This caused an injury to the inside of her mouth. [She] stated that Jackson then hit her in the ribs and back, causing pain and bruising.
[The victim] stated she tried to leave, but Jackson used a yellow stereo cord to tie her hands behind her back and then to tie her ankles together. [She] reported that when someone began knocking at the door, he pushed a light blue bandana into her mouth to prevent her from screaming for help. [She] stated Jackson then left the residence to take the two males home and left [her] in the residence. [The victim] stated when Jackson left the residence, she was able to get out of the wires that were tying her wrists and ankles, tearing the wire apart in the process. [She] stated she called [a friend] to come and get her and he picked her up and took her to a friend's house.
¶ 20. We see nothing in the criminal complaint relating to the events of November 19 suggesting that Jackson's conduct was sexually motivated. There is no mention of Jackson touching or attempting to touch the victim in a sexual manner and the complaint does not reveal any statements from Jackson while the crimes were being committed suggesting that his criminal conduct was sexually motivated.
¶ 21. The State argues that the circuit court reasonably considered the facts and circumstances surrounding the read-in offenses from the November 22, 2005 incident, specifically the alleged sexual assault, in determining whether the false imprisonment and battery that occurred on November 19 were sexually motivated. The State takes the position that the alleged "brutal sexual assault" Jackson committed against the victim on November 22 supports the conclusion that
¶ 22. We conclude that the circuit court and the State misread the supreme court's holding in Martel. As we indicated, the circuit court here reasoned that Martel's holding that a read-in offense may not be relied on in requiring a defendant to register as a sex offender pursuant to Wis. Stat. § 973.048(lm) did not bar the court from considering the second-degree sexual assault read-in charge in this case. As we explained, the court distinguished the facts in Martel from this case, noting that the underlying charge in Martel was not a Wis. Stat. ch. 940 offense, but that here false imprisonment is so.
¶ 23. We do not read the supreme court in Martel, however, as relying on the fact that the defendant's conviction there was for a non-Wis. Stat. ch. 940 offense when it determined that a read-in offense cannot serve as a basis to order a defendant to register as a sex offender under Wis. Stat. § 973.048. We discuss Martel in detail below.
¶ 24. The issue in Martel was "whether a circuit court may order sex-offender registration as a condition of probation for a defendant who has not been convicted and sentenced for one of the crimes enumerated in the sex-offender registration statutes or its counterpart in the sentencing code, Wis. Stat. §§ 301.45 and 973.048 (2001-2002), respectively." Martel,
¶ 25. The supreme court then turned to the State's argument that the six counts of sexual assault of a child that were dismissed and read in were sufficient to require Martel to register as a sex offender under Wis. Stat. § 973.048. Id., ¶ 19. The court rejected the State's argument based on the following rationale.
¶ 26. The supreme court began by observing that "offenses that are dismissed and read in are admitted by the defendant for purposes of consideration at sentencing on the crime or crimes for which the defendant is convicted." Id., ¶ 21 (summarizing a quotation from State v. Austin,
¶ 27. We take two important lessons from Martel that are helpful in addressing the circuit court's and the State's rationale for considering the second-degree
¶ 28. The second and most pertinent lesson we take from Martel is that a read-in offense, including sexual assault read-ins, may not serve as a basis to order a defendant to register as a sex offender under Wis. Stat. § 973.048(lm) or (2m) because a "circuit court does not impose a sentence or place an offender on probation for offenses that are dismissed and read in." Martel,
¶ 29. Applying this second holding in Martel to this case, we conclude that the circuit court erroneously exercised its discretion by relying in part on the second-degree sexual assault read-in as a basis for ordering Jackson to register as a sex offender pursuant to Wis. Stat. § 973.048(lm). As we explained, the record is devoid of any facts that support the inference that the crimes Jackson committed on November 19, 2005, were for the purpose of sexual gratification or arousal. Thus, the only facts that could conceivably support ordering Jackson to register as a sex offender are those facts surrounding the sexual assault that occurred three days later. And since Martel holds that a read-in offense cannot serve as a basis for ordering sex-offender registration, it follows that the court erred by relying on the
¶ 30. There is an additional reason for not considering the sexual assault that occurred on November 22, 2005, in determining whether Jackson's conduct on November 19, 2005, was sexually motivated. As we indicated, the circuit court found, and the State argues on appeal, that the incidents that occurred on these two days were "a continuing or ongoing event," although "separated by three days." We find no support in the record for this finding.
¶ 31. Based on our review of the record, as we indicated, we do not discern from the facts surrounding the November 19, 2005 incident that Jackson's criminal conduct on that day was sexually motivated. So far as the record reflects, the next reported incident occurred on November 22, 2005. The flaw in the court's determination that the November 19 and November 22 crimes were "part of any ongoing incident" is that the record does not indicate that Jackson engaged in any violence directed toward the victim during the intervening three days, nor that any statement or activity of Jackson on November 22 reveals his criminal conduct on November 19 to have been sexually motivated. The record shows it is not until November 22, 2005, that Jackson engages in a sexually motivated crime. Under these facts, it is unreasonable to conclude that the crimes committed by Jackson on November 22 were a continuation of the crimes he committed against the victim on November 19 in the sense that it was all one set of crimes that were at least in part sexually motivated. Thus, it was unreasonable for the circuit court to rely on the crimes Jackson committed on November 22 in determining whether it was proper to order sex-offender registration.
¶ 33. The State next points to information provided in the sex-offender assessment report prepared by the Department of Corrections, in preparation for the sentence review hearing the department requested, as additional support for the court's decision that the November 19 crimes were sexually motivated. Specifically, the State refers to that part of the report indicating that Jackson was convicted of fourth-degree sexual assault in connection with his impregnating a twelve-year-old girl when he was eighteen years old. The State also points to information in the sex assessment report that Jackson may have sexually assaulted other juveniles while Jackson was in a juvenile correctional facility. In identifying these incidents as potential grounds for the court to order Jackson to register as a sex offender, the State merely cites to this information and fails to develop any argument as to why this information supports the court's decision. We therefore do not consider this information.
¶ 34. Finally, the State relies on the PSI as supporting the circuit court's conclusion that Jackson's conduct on November 19 was sexually motivated. Specifically, the State, in conclusory fashion, refers to
CONCLUSION
¶ 35. For the foregoing reasons, we conclude that the circuit court erred as a matter of law in concluding that Jackson's underlying conduct on November 19, 2005, for which he was convicted, false imprisonment, intimidation of a witness, and battery-domestic abuse, was in part sexually motivated.
By the Court. — Judgment and order reversed and cause remanded with directions.
Notes
All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
The original March 31, 2006 judgment of conviction was amended on May 10, 2006, to correct a clerical error only.
On appeal, the State relies on four facts taken from the criminal complaint in support of its contention that the circuit court properly concluded that Jackson's underlying conduct on November 19, 2005, was sexually motivated: (1) Jackson and the victim lived together as boyfriend and girlfriend; (2) on November 19, 2005, the victim returned to their shared residence with two male companions; (3) Jackson confronted her and accused her of "seeing another guy," beat her in various parts of her body, bound her at the hands and ankles with a stereo cord and gagged her with a bandana; and (4) the victim escaped when Jackson left their home temporarily to return the victim's two companions to their residence.
In concluding that the record in this case does not support a determination that the crimes Jackson committed on November 19, 2005, were sexually motivated, we do not intend to discount the relationship between domestic abuse and sexual abuse. Rather, as we have explained, we reach that determination based on the record before us.
Because we conclude the facts regarding Jackson's underlying conduct do not support the circuit court's conclusion that the crimes Jackson committed against the victim on November 19, 2005, were sexually motivated, we do not address whether the court properly determined that requiring Jackson to register as a sex offender is in the interest of public protection, pursuant to Wis. Stat. § 973.048(lm).