and we will go on to case number five which is here in verses meisner in its appeal fifteen twenty five fifty eight the question of whether the wisconsin court of appeals denied mr stearns due process right to fair notice by essentially expanding the scope of the statute for which he was convicted and then applying  retroactively to stern mr stern was convicted under wisconsin statute that makes it illegal to use a computerized communication system to communicate with someone who the defendant either subjectively believes is a minor or objectively has reason to believe is a minor with intent to have sex with that person in violation very interesting but doesn't the reason to believe language keep pretty clear that the legislators intent that it sure actually no your honor that i'm not and specifically we are not rendering it surplusage what our argument is is that the court of appeals rendered a different part of the statute surplusage there are two different there are two independent requirements in the statute the first is that the defendant either has to have a subjective actual belief or an objectively reasonable reason to believe that the person is under sixteen the second and independent mens rea a requirement is that the defendant in the statutory language must have in mind that it's not it's paraphrased apologized but the second independent intent requirement is that the defendant act with the intent to have sex with that person not just have sex with that person but to have sex with that person in violation of the child sex assault laws now where our position comes from is that requirement that the intent be to have sex in violation of the child sex assault laws because first if the person that you are communicating with in fact is a child then your intent to have sex with that person necessarily meets that requirement however if the person you're communicating with is an adult intending to have sex with an adult is not intending to have sex in violation of the child sex assault statutes unless the defendant believes that the person is a child analogy the  if you have an attempt to commit a child sexual assault and the only thing that makes that an attempt is that you believe that the person is a child that still is a valid attempt but if you have sex with someone and you believe them to be an adult and they in fact are an adult it doesn't matter whether the person says i'm only fourteen if that person is an adult you have not committed attempted sexual assault of a child so are you proposing different tests for when the victim is an adult versus when it's a child because a statute doesn't make that distinction on it's face right the statute does make its the state the distinction on its face by requiring that the sex be  intent to have sex in violation of the child sex sexual assault statute that the statute there the statute for which mr stern was convicted of does make the distinction through that if the legislature didn't intend there to be a distinction didn't intend that the person either be that you're communicating with either be a child or be an adult that you believe to be a child then this the legislature would have cut off the statute after the word sax or after saying you have to intend to have sex with that person the language in violation of section nine forty eight point  has to have independent meaning the state court of appeals decision the nice of that provision that clause any independent meaning the state has never indicated what meaning  have under its interpretation the court of appeals never indicated or never even referenced it and the warden here has never indicated how we can say this is plain meaning of the statute when you're taking a to believe this is some minor that is hands off period even if you're not sure he or she is a minor or even if you're skeptical that the church and the legislature perhaps could have done that subject to my second argument which is that if you are communicating with someone who in fact is an adult and you believe that person to be an adult it's a violation of lawrence v texas and the due process right to consensual adult sexual privacy to make that illegal but sticking just with this first issue if we just ignore that second issue the legislature perhaps could have done that  but it didn't it included this language in violation of the child sexual assault statute that has to have meaning and the neither the state nor the court of appeals ever suggested what meaning that house under its analysis the meaning that i see and that is that the legislature meant what it said that you have to intend to have sex not just with the individual but with the individual of the child sexual assault laws you can do that again in two ways if you believe that the person you are communicating with is a child hands down that's a violation if the person you are communicating with is a child and you have reason to believe that that person is a child doesn't matter you know that you think you might be an adult that is a file ation that addresses the court's concern and the legislature's legitimate concern in protecting real children but what we have here is not a real child we have a sting operation where an adult is pretending to be a child here we have a defendant who explained at length at trial why he in fact believed that this person was an adult it the instructions to the jury however tonight him any consideration by the jury of that defense now the let the legislature has every right to protect children this is not a case of protecting children they also have every right to make a determination that we want to protect children but we do not want to scoop up people who in fact correctly believe that they are communicating with adults another adult and it and role play or whatever there may be a reason to believe the person is a child because they're construction of the statu violates his right to adult consensual adult sexual privacy because he actually believes he was communicating with an adult the state disagrees and things of the district court should be a forum for following three main reasons briefly number one if his entire at the plate argument assumes the credibility of his own testimony it assumes that the jury believes that the court of appeals believed that this court believed he actually believed that peter was an adult this was a credibility determination for the jury and the jury with good reason found him incredible they found him incredible because he had admitted to the jury i i lied when i said i had never seen this craigslist ad before i lied when i said i have never had you know correspondence with peter i lied when i said i've never called peter to mean that tom the jury with good reason found him incredible his actions and his words without question indicate that he knew or had reason to know that peter was a minor number two the fact that the recipient of stern's communication was actually in adult is irrelevant because it does not negate the elements that he has to either believe or reasonably believed that peter was a minor decision wisconsin statute nine four eight point zero seven five is plain it is violated when the actor either believes or has reason to believe the individual is under age so do you think there's any tension in the statute between that section and the reason to believe language and the intent to buy away so action and i'm sure eight point two i don't i think the reason that that language is in the statute because you know that the title of the statute used a computer to facilitate a child sex crime when it says in violation of ninety four eight point zero two or zero two one what it's basically doing i think is just showing the wisconsin legislature has criminalized child sex crimes and this is where it's  so i don't think it's surface search i don't think it's i just think that's all it's doing and saying this is the title statute sex crimes this is where it's criminalized in the court so i don't see any kind of i guess i disagree with counsel's argument  the court of appeals somehow disregarded that language in the statute i take it that if a dependent actually know the individual he is corresponding with a sober sixteen he would have no reason to believe otherwise but apart from that scenario it's your view isn't it that that he may not be if the jury finds that he had reason to believe yes and in this case there was i mean they had all the evidence they had the emails they had you know the pictures of the my space  jury was presented with the e mail correspondence so it had all the subject other than that with all this and with you know the act of actually meeting at mcdonald's there was reason to believe that mr stern thought peter was under credibility has always been for the jury and credibility in this case credibility of what the warden has as alleged here is being controlling was never decided by this jury because the instructions pacifically told the jury that it wasn't necessary to go into what the defendant actually believed because it was sufficient if there is reason to believe so that whole issue is out the this is a general statute the reason why we have elements and alternative elements in a general statute is because they address a wide range of potentials for constantin in this case the statute addresses the potential where there is an actual  and where there is an adult who is pretending to be a child and the reason why you have in the first men's wear a requirement either police actually believes or reason to believe is because we want to protect real children but the second element secondments re element requiring that the sex be with intent to violate the child sex assault laws is to distinguish between when someone is a child or when some