09/01/2011
By Russell Plummer
The Fond du Lac County District Attorney's Office is appealing a judge's decision to throw out a case involving a 17-year-old Fond du Lac boy allegedly giving a 13-year-old girl a "hickey" on her chest.
Circuit Court Judge Gary Sharpe on Aug. 19 did not find probable cause in the case of second-degree sexual assault of a child after listening to testimony from the girl.
Upon conviction, the Class C felony carries a potential maximum sentence of 25 years in prison, 15 years extended supervision and lifetime registry as a sex offender.
Capt. Steve Klein confirmed the Police Department referred the Class C felony to the DA's Office. Detective Pat Primising investigated the alleged assault.
When making his ruling at the preliminary hearing, Sharpe said, "To say this case is overcharged is an understatement," according to a transcript.
Appeal request
District Attorney Dan Kaminsky said his office has submitted the matter to the Attorney General's Office, requesting the AG's Office file an appeal.
According to the one-page criminal complaint:
On June 18, the sister of the 13-year-old girl called the boy to bring over a soccer ball to play with. The boy then asked the 13-year-old girl to come into his car with him.
Inside the vehicle, the two kissed. The boy gave the girl a hickey on her right breast, and the girl gave the boy a hickey on his neck.
The boy then asked to receive oral sex. The 13-year-old told him no and stated she did not want to have sex with him.
Primising interviewed the teen at his Fond du Lac home. The teen did not allow the detective to take a swab from his mouth to compare DNA.
The teen also allegedly admitted to dating a 14-year-old girl.
The boy's attorney, Michael O'Rourke, said his client denies the contact with the 13-year-old.
"The issue I find much more disturbing is that they (the DA's Office) charged this case in this manner. I mean, a 40-year felony for two teenagers giving hickeys to each other? I understand she is 13," O'Rourke said. "But he is only 17. There is a four-year age difference.
"Even if he did give her a hickey on her breast and that might technically equal second-degree sexual assault of a child, should we be charging that? That's where I find it disturbing."
O'Rourke said if the state is serious about the charge, the DA's Office wants a conviction that would place his client on the sex offender registry, an outcome that would ban the boy from certain jobs and from living in parts of communities.
O'Rourke suggested that the case could have been charged as fourth-degree sexual assault or disorderly conduct. The teen has no criminal history, he said.
Citing Supreme Court rules, Kaminsky declined to discuss why Assistant District Attorney Devra Ayala pursued the charge suggested by the Police Department.
"Unlike my counterpart (O'Rourke), I will not violate the Supreme Court rules by discussing issues on this case in public at this stage," Kaminsky wrote in an email. "It is unethical to attempt to sway public opinion to gain advantage in litigation. Perhaps you (The Reporter) should do a story on attorneys who actively seek publicity in violation of this rule and perhaps without client consent in violation of rules 20:1.4 and 20:1.6."
At the preliminary hearing, Ayala told Sharpe, "it is the court's duty to decide whether the elements have been met," then alluded to plea deals and the 17-year-old's history.
"This is a case which we can flush out and decide how to resolve later, but there are concerns with (the 17-year-old's) past history which aren't necessarily relevant for this hearing and his behavior with other young females, other 13- and 14-year-old girls, so that is why the state chose to resolve this this way," said Ayala, according to the transcript. "How we resolve it is to be seen down the road."
Overcharged?
O'Rourke said Ayala's statement implies the DA's Office overcharged the case on purpose in order to negotiate.
"That is kind of a damning statement in my opinion," O'Rourke said. "He is facing a 40-year felony. That's pretty good incentive to negotiate. If he is denying he did it and they (the DA's Office) say they will give him a misdemeanor, any attorney has to say, 'Do you want to take the offer or roll the dice on being a sex offender the rest of your life?' People will plead to things they are innocent of under that kind of pressure."
Sharpe said there was insufficient evidence to justify prosecution of a Class C felony.
Ayala said she could show the court a photo of the hickey but it would need to be sealed. She also offered the case be reopened so an officer could describe the location of the mark.
Sharpe did not allow the extra testimony and said he was not interested in viewing the photos, according to the transcript.
