COURT OF APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

August 17, 2010

A. John Voelker

Acting Clerk of Court of Appeals

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.�

Appeal No.�	2010AP9-CR	Cir. Ct. No.� 2009CF11
STATE OF WISCONSIN��			IN COURT OF APPEALS
			DISTRICT III


State of Wisconsin, �� Plaintiff-Respondent, �� v. William Webber, �� Defendant-Appellant.

�� APPEAL from a judgment of the circuit court for Douglas County:� KENNETH L. KUTZ, Judge.� Affirmed.�

�1�� BRUNNER, J.[1] William Webber appeals a judgment of conviction for two counts of fourth-degree sexual assault and one count of obstructing an officer.� He argues the circuit court erroneously exercised its sentencing discretion by considering Webber�s position as a law enforcement officer as an aggravating factor instead of a mitigating factor, by considering evidence that he surreptitiously filmed his ex-wife as she exited a shower, and by failing to consider whether a six-month jail sentence was necessary to protect the public.� We affirm.

�2�� Testimony at trial established that in September 2008, Webber, then a sheriff�s deputy, fondled Nicholas B.�s penis in a sauna at a Superior hotel.� Nicholas B., who became good friends with Webber through Webber�s son, was shocked by the encounter and asked Webber to take him home.� They returned to Nicholas B.�s home.� Webber went inside with Nicholas B., grabbed Nicholas B.�s hand, and forced him to feel Webber�s penis.� During the subsequent investigation, police discovered nude photographs of Nicholas B. on Webber�s camera, which Webber claimed he did not take.[2]� Webber was sentenced to six months in jail on the first sexual assault charge and two years� probation on each of the remaining counts, consecutive to the first sentence and concurrent to one another.� He was also required to register as a sex offender.�

�3�� It is a well-settled principle of law that a circuit court exercises discretion at sentencing.�� State v. Gallion, 2004 WI 42, �17, 270 Wis. 2d 535, 678 N.W.2d 197.� �On appeal, review is limited to determining [whether] that discretion was erroneously exercised.�� Id.� Sentencing decisions of the circuit court are generally afforded a strong presumption of reasonability because the circuit court is best suited to consider the relevant factors and demeanor of the convicted defendant.� Id., �18 (quotation omitted). ��The primary sentencing factors [that] a court must consider are the gravity of the offense, the character of the defendant, and the need to protect the public.�� State v. Ziegler, 2006 WI App 49, �23, 289 Wis. 2d 594, 712 N.W.2d 76.

�4�� At sentencing, the circuit court determined the sexual assaults, though misdemeanors, were serious offenses because of grooming behavior established at trial.� The court noted that up until the allegations, Webber was a law enforcement officer who should have been �more aware of this type of behavior and how it comes about than the average man on the street.�� Webber, in the court�s view, simply took advantage of a �vulnerable young man.� �With respect to the obstruction charge, the court noted Webber ultimately came clean, and it consequently did not view that charge �nearly as seriously� as the sexual assaults.

�5�� The circuit court also spent considerable time discussing Webber�s character.� It noted there were �a lot of extremely favorable things� to say about Webber given his thirty-year history as a law enforcement officer.� But the court expressed concern that Webber photographed the victim, and noted prior behavior in which Webber videotaped his ex-wife without her consent.

�6�� Finally, the court discussed the need to protect the public.� It acknowledged these were Webber�s first criminal charges.� However, the court determined Webber posed some risk to the public given his grooming behavior:

Had this been a situation where this had been only the first or second time that you had met the victim and had taken advantage of the situation that presented itself, I would agree wholeheartedly with your attorney that this was just a straight probation case which would not require any jail time at all.�

That�s not the case I have before me. � You took advantage of a situation where you had a position of trust with the victim, and ultimately used that trust to engage in the offenses for which you were convicted at trial.

�7�� The claimed errors have no merit.� The circuit court considered Webber�s law enforcement status both an aggravating and mitigating factor as it related to the seriousness of the offense and Webber�s character, respectively.� We find no error in the court�s ultimate conclusion that Webber seriously abused his position of trust as a friend and officer.� The circuit court also properly considered Webber�s nonconsensual videotaping of his ex-wife, as it was relevant past conduct that bore on Webber�s character.� See State v. Prineas, 2009 WI App 28, �28, 316 Wis. 2d 414, 766 N.W.2d 206 (sentencing courts are obligated to acquire full knowledge of the character and behavior patterns of the defendant).� The circuit court provided an adequate explanation for the sentence given, used relevant information regarding the character of the victim, and imposed a sentence that was much less than the maximum available, and therefore presumably neither unduly harsh nor excessive.� See Gallion, 270 Wis. 2d 535, �9.

�� By the Court.�Judgment affirmed.

�� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

[2] At trial, Nicholas B. testified the photographs were taken at the sauna without his consent.