COURT OF APPEALS
DECISION
DATED AND FILED
January 5, 2010
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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In the interest of Devon H., a
person under the age of 18:
State of Wisconsin,
Petitioner-Respondent,
v.
Devon H.,
Respondent-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: JANE V.
CARROLL, Judge. Affirmed and cause remanded with
directions.
¶1 FINE, J. Devon H. appeals the order
adjudicating him delinquent for committing the crime of first-degree sexual
assault of a child. See Wis. Stat. § 948.02(1). He claims that there was insufficient
evidence to support the trial court’s finding of guilt. We affirm.
I.
¶2 Devon H. was born in January of 1991. His victim, Kaela N.-B.,
was born in April of 1999. The assault,
as found by the trial court, took place on May 6, 2007, when Kaela’s family was
visiting Devon’s family, with whom they were friendly.
¶3 Kaela was just shy of nine and one-half years when she
testified at Devon’s trial. She related how Devon
got her into a bedroom closet and touched her vaginal area with his penis,
after he both first pulled her skirt to her feet and her panties to her
mid-thighs, and pulled his pants and underwear to his mid-thighs. She testified that Devon
did not penetrate her but, rather, his penis, “only touched” her vaginal
area. One of Kaela’s cousins, Eunice J.,
also nine at the time of the trial, testified that she opened the closet door
and saw Kaela on top of Devon, telling the trial court that Devon was standing
and that Kaela was “[l]ike around his waist” facing each other.
¶4 Kaela’s mother also testified, and told the trial court that
when they returned home after the gathering at Devon’s family’s house, Kaela
cried and did not seem to be her usual happy self. When Kaela’s mother asked Kaela what was
wrong, Kaela told her that Devon “had touched
her and he put his ‘pee-pee’ inside her.” Kaela’s mother examined her and “saw a little
discharge” from her daughter’s vaginal area but no redness. Kaela then got into the bathtub with her
sister, and Kaela’s mother called Devon’s
mother and asked her to come over. When Devon’s mother arrived, they got Kaela out of the tub and
examined her again. Devon’s
mother is a Licensed Professional Nurse, and she did not see any redness in or
any discharge from Kaela’s vaginal area.
¶5 Both Kaela’s mother and Devon’s mother testified that during
the gathering at Devon’s family’s house, the
adults checked the children frequently and did not notice anything out of the
ordinary.
¶6 The trial court found both Kaela and Eunice
to be “very credible as to this offense that is described as to Kaela,” and
found that the State had proven “beyond a reasonable doubt that Devon did commit the sexual assault on May 6th of 2007.” It thus adjudicated Devon
“delinquent of the first-degree sexual assault of a child.” As we have seen, Devon’s
only contention on appeal is that there was not sufficient evidence to find him
guilty beyond a reasonable doubt. See Wis.
Stat. § 938.31(1) (delinquency must be proved “beyond a reasonable
doubt”).
II.
¶7 Wisconsin Stat. §
948.02(1)(e) makes it a Class B felony for someone to have “sexual contact with
a person who has not attained the age of 13 years.” Our review of a finding of guilt is narrow
when the sole issue is whether there was sufficient evidence to support the
finding:
[I]n reviewing the sufficiency of the evidence to
support a conviction, an appellate court may not substitute its judgment for
that of the trier of fact unless the evidence, viewed most favorably to the
state and the conviction, is so lacking in probative value and force that no
trier of fact, acting reasonably, could have found guilt beyond a reasonable
doubt. If any possibility exists that
the trier of fact could have drawn the appropriate inferences from the evidence
adduced at trial to find the requisite guilt, an appellate court may not
overturn a verdict even if it believes that the trier of fact should not have
found guilt based on the evidence before it.
State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752, 757–758
(1990) (citation omitted). Further, we
defer to the fact-finder’s assessment of the credibility of the witnesses. See Wis. Stat. Rule 805.17(2) (“Findings of
fact shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility
of the witnesses.”); see also Waukesha County v. Steven H., 2000 WI 28, ¶51 n.18, 233 Wis. 2d 344,
368 n.18, 607 N.W.2d 607, 619 n.18.
¶8 Here, Kaela testified that she was assaulted, and the trial
court found her to be “very credible.”
Further, her testimony was bolstered by her mother’s assessment of her
demeanor following the assault, and was also corroborated by Eunice’s testimony that she saw Devon
and Kaela in the odd position she described.
Further, given Kaela’s testimony that Devon
“only touched” her vaginal area with his penis, it is not surprising that Devon’s mother did not see any redness or discharge,
especially since Kaela was in the bathtub before Devon’s
mother arrived at Kaela’s house that night.
Under no stretch of the imagination can it be said that
there was not sufficient evidence to support the trial court’s determination
that Devon was delinquent for having unlawful
sexual contact with Kaela on May
6, 2007. Accordingly, we affirm, but remand for correction of the
Record, as noted in footnote 2.
By the Court.—Order affirmed
and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.