COURT OF APPEALS DECISION DATED AND RELEASED November 30, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2984-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHARLES A. MONTGOMERY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Wood County:
JAMES M. MASON, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM. Charles Montgomery appeals from a judgment convicting
him of second-degree sexual assault of a child, § 948.02(2), Stats.
The issue is whether the jury heard sufficient evidence to convict
him. We conclude that the State did
introduce sufficient evidence and therefore affirm.
The State charged
Montgomery with three sexual assaults on a fifteen-year-old boy, T.J.R. This appeal concerns Montgomery's conviction
on one of them, an assault that occurred on July 21, 1990. Because T.J.R. died before the trial, and
because there were no other witnesses, the sole evidence on that charge was the
boy's preliminary hearing testimony, which was read to the jury. That testimony, in relevant part, was as
follows:
QDo you remember another date, more
specifically July 21 of 1990 when you went ... [in] your bedroom to get a pair
of shoes?
AYes.
QWhat happened on that day when you went
in your bedroom?
AI went in the bedroom to get a pair of
shoes, and Chuck had come in and also put me down on the bed and laid on top of
me; and I said: Get off. And I had pushed him off. But he wasn't humping up and down on me.
QDid he do anything prior to getting off
you, or you pushing him off on that day?
AHe gave me a kiss after that.
QAnd
where--I know this is a little hard, but were did he give you that kiss?
AOn the lips.
Section 948.02(2), Stats., prohibits sexual contact with a
person less than sixteen years old. For
purposes of this statute, "sexual contact" means, in relevant part,
"any intentional touching by the complainant or defendant, either directly
or through clothing ... of the complainant's or defendant's intimate parts if
that intentional touching is ... for the purpose of ... sexually arousing or
gratifying the defendant." Section
948.01(5), Stats. The term "intimate parts" includes
the groin and buttocks. Section
939.22(19), Stats.
Montgomery concedes that
the jury could reasonably infer that he touched T.J.R. for the purpose of
sexual arousal. However, he contends
that the testimony quoted above does not allow the inference that the touching
included sexual contact as defined in § 948.01(5), Stats. As he points
out, "T.J.R. testified only that the defendant laid on him. He described no contact with any of his or
the defendant's intimate parts. He did
not describe the manner in which the defendant laid on him...." In opposition, the State contends that even
without direct evidence of sexual contact the jury could reasonably infer that
Montgomery's groin made contact with T.J.R.'s body or vice versa. If the jury's inference is reasonable, we
must accept it. State v. Poellinger,
153 Wis.2d 493, 504, 451 N.W.2d 752, 756 (1990).
We conclude that the
jury could reasonably infer sexual contact from T.J.R.'s brief description of
the event. The jury could have first
considered the unlikelihood of one person lying on top of another without some
contact with one or the other's groin or buttocks, even if not deliberate. That possibility becomes even more remote
when adding the fact that Montgomery intended the contact for sexual arousal or
gratification. The jury could employ
its common sense to infer that one lying on top of another for the purpose of
sexual arousal would cause the contact to include intimate parts.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.