"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full. These "in brief" posts let me cover a few more. The posts lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
State v. Dominic Randall White-Andrews
Appeal 23AP1775
Filing attorney: Taylor E. Barnes-Gilbert
Trial judge: Milwaukee County Circuit Judge J.D. Watts
White-Andrews was charged with child enticement for allegedly asking a young girl if she wanted to see his "private part." He also allegedly started to pull down his pants.
The two were at a birthday party and the girl was in the bathroom to fill a squirt gun. White-Andrews joined her there and closed the door.
White-Andrews let the girl, referred to as "Arianna" in the brief, leave when she began to cry and scream.
He was charged almost seven years later and opted for a bench trial.
After Arianna, her mother, and two other witnesses testified, Barnes-Gilbert wrote, Watts called a sidebar to discuss the definition of the crime, which includes the following:
“Whoever with intent to commit any of the following acts causes or attempts to cause any child who has not attained the age of eighteen years to go into any vehicle, building, room, or excluded place is guilty of a Class B felony.”
But White-Andrews did not cause the girl to go anywhere. She was already in the bathroom.
The court announced that, in its view, “the state cannot prevail on this issue of attempting to cause or causing the victim to go into any room or excluded place because closing the door might make the room more excluded . . . but there is no causing to go anywhere.” The court went on:
So, state, I’m finding based on this record since you don’t have any other witnesses, and the eye witness you have is quite credible that you cannot satisfy element one in either causing or attempting to cause, and therefore, Count 1 is not child enticement by any definition.
Watts gave the prosecutor time to research the issue, and suggested both the state and defense to look at two statutory provisions.
One allows charges to be amended at trial "to conform to the proof where such amendment is not prejudicial to the defendant...." The other allows the judge who allows an amended charge to "direct other amendments thereby rendered necessary and may proceed with or postpone the trial."
When the trial resumed, the state told the court that it agreed with its “analysis of the child enticement statute.” The state then moved to amend Count 1 to a charge of attempted first degree sexual assault. Defense counsel did object to this attempted amendment, arguing that it was too prejudicial. The court, citing the longer period of exposure and potential for lifetime sex offender registration, denied that amendment. The court then approved the State’s other proffered charge: attempt to expose genitals to a child. Defense counsel did not object to this amendment and White-Andrews was ultimately convicted of the charge.
Watts sentenced him to nine months in the House of Correction on the charge.
The court erred when it overreached its authority when Watts told the prosecution it was failing to prove its original charge, Barnes-Gilbert wrote.
The error was fundamental, obvious, and substantial because the trial court lacked the authority to intervene in the state’s case in chief during a bench trial and give it a second chance to charge White-Andrews with a crime it could prove based on the evidence it presented. ...
Rather than waiting for the state to rest, a motion to dismiss from the defense at the close of evidence, or the conclusion of closing arguments, the court decided it would let the State know it couldn’t meet its burden and give it a chance to amend (the child enticement count - AW) to a charge that it could prove. Given that the court was the finder of fact in this trial only adds to the egregiousness of the error. It was the arbiter of whether the State met its burden. And rather than functioning as a fact finder, the court shifted into advocacy from the bench and gave the State another chance to convict White-Andrews of something. The entire situation violates due process and the burden of proof and flies in the face of principles of fairness.
The full appellate brief in the case is here.
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