COURT OF APPEALS

DECISION

DATED AND FILED

February 5, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2019AP855 Cir. Ct. No. 2017JV201

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN THE INTEREST OF D.I.G., A PERSON UNDER THE AGE OF 17:

STATE OF WISCONSIN,

 PETITIONER-RESPONDENT,

 V.

D.I.G.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Racine County: FAYE 

M. FLANCHER, Judge. Affirmed. 
No. 2019AP855

2

¶1 GUNDRUM, J.1 D.G. appeals from a dispositional order 

adjudicating him to be a delinquent child and requiring that he register as a sex 

offender and from the order denying his postdisposition motion to stay that portion 

of the dispositional order requiring him to register as a sex offender. For the 

following reasons, we affirm.

Background

¶2 The State filed a delinquency petition charging then twelve-year-old 

D.G. with first-degree sexual assault of his seven-year-old half sister, a child under 

the age of twelve. Among other things, the petition alleged that D.G. took off his 

sister’s underwear and began to penetrate her vagina with his penis. According to 

the petition, D.G. admitted touching his sister’s vagina with his penis but stated 

that he did not put it into her vagina. The sister told a sexual assault nurse that 

D.G. put his penis “down in there,” and the nurse observed that while her hymen 

was intact, “there were abrasions on the side which are indicative of some type of 

penetration having occurred.”

¶3 D.G. pled to an amended charge of second-degree sexual assault of a 

child. At disposition, the State and a social worker asked for, among other things, 

sex-offender registration for D.G., but D.G.’s counsel asked the court to “hold that 

issue open” in light of his age and cooperation and to “see how he is performing.” 

The circuit court ordered supervision for one year and that D.G. cooperate with a 

psychological or psychiatric evaluation, take all prescribed medications, attend 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2017-18). 

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted. 
No. 2019AP855

3

counseling, complete sex-offender treatment, and continue his placement at a 

treatment facility. The court also ordered that D.G. register as a sex offender. 

¶4 The circuit court stated that it was ordering sex-offender registration 

due to “all of the circumstances.” It expressed concern that D.G. “initially denied 

penetration,” yet “[i]t was clear ... from the nurse that examined [D.G.’s sister] 

that while her hymen was intact, there were abrasions on the side which were 

indicative of penetration having occurred.” The court stated: “Given the very 

serious nature, given the fact that penetration did occur, sex offender registration is 

appropriate.” The court added: “I think [D.G.] has a lot of therapy that he needs 

to engage in.” 

¶5 One year later, on the date the dispositional order expired, D.G. filed 

a postdisposition motion seeking a stay of the sex-offender registration

requirement. At a hearing on the motion, D.G.’s counsel noted that D.G. was only 

twelve years old at the time of the offense and that he had done “everything that I 

think we would want him to do” since that time, including engaging in sexoffender treatment and “many types of therapy” and “compl[ying] with all the 

conditions of his disposition order.” Counsel also emphasized the opinion of a

psychologist, whose report had been submitted to the court, indicating sexoffender registration was not appropriate for D.G. The State asked the court to 

deny the motion, which it did.

¶6 In denying the motion, the court began by noting the five-year age 

difference between D.G. and his sister and the fact that he had “penetrat[ed]” her. 

The court then focused on concern that D.G. still posed a potential future risk. On 

this point, the court noted that D.G.’s expert report indicated that D.G. has 
No. 2019AP855

4

“learned what to do and what not to do when he, quote, gets the urge.” The court 

continued:

 That was a red flag to me, because that indicates that 

[D.G.] is still getting urges.... I’m again quoting, [D.G] 

told this examiner he has learned that if he gets a wrong 

sexual urge, he has to take a time out because it is 

important to avoid being impulsive. He engages in 

appropriate self-talk, quote, say no, it is a bad idea, end 

quote. He should, quote, discipline yourself to don’t do it, 

end quote. He should tell himself, quote, if I do it, I will 

get in trouble, end quote. If the person he feels like having 

sex with is close to him, he should, quote, move or go 

somewhere else.

 There’s no indication in the doctor’s report what the 

frequency of [D.G.’s] urges are, whether these urges are 

still felt toward his little [sister].

 At page 11 the doctor noted that the plan was for [D.G] 

to continue receiving services and supervision through the 

Racine County Human Services Department. No indication 

if that is ongoing or not. And then the doctor talks about 

the risk assessment and talks about the fact that there are no 

specific instruments to assess juvenile sexual reoffense. 

The doctor did go on then to describe ... the studies that are 

out there.

 And I will be very honest, I didn’t look up any of this 

research myself to look at it. They talked about a Caldwell 

study from 2016 that analyzed data sets with a total of 

33,783 adolescents. I don’t know how many of those kinds 

of fact scenarios we have here with a half sibling.

 Ultimately the doctor concludes that [D.G.’s] sexual 

offense risk is under three percent, but it is a conclusion 

that she just doesn’t explain how she got there. Again, it’s 

the fact that [D.G], according to this, is still having urges 

that truly concerns me, and that’s exactly why the sex 

offender registration is so important.

 Based upon what I have read in this report ... [D.G.] ...

please understand what my concerns are, and given all the 

issues that I have with the report here ... I am denying the 

motion to stay ....
No. 2019AP855

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When the court asked if there was “[a]nything else,” counsel for D.G. indicated 

that “[o]n page [six] ... of the doctor’s report it does indicate that he denied 

feeling attracted to his sister or other children that age.” The court responded to 

this with “[a]ll right.”

Discussion

¶7 When a juvenile, such as D.G., seeks a stay of a sex-offender 

registration order, it is his burden to prove to the circuit court by clear and 

convincing evidence that it should be stayed. See State v. Cesar G., 2004 WI 61, 

¶51, 272 Wis. 2d 22, 682 N.W.2d 1. On appeal, 

[t]he function of this court is not to exercise discretion in 

the first instance but to review a circuit court’s exercise of 

discretion. “[A] discretionary determination must be the 

product of a rational mental process by which the facts of 

record and law relied upon are stated and are considered 

together for the purposes of achieving a reasonable 

determination.” An appellate court will affirm a circuit 

court’s discretionary decision as long as the circuit court 

“examined the relevant facts, applied a proper standard of 

law, and, using a demonstrated rational process, reached a 

conclusion that a reasonable judge could reach.”

Id., ¶42 (citations omitted). A circuit court properly exercises its discretion if it 

“puts forth a ‘rational and explainable’ chain of reasoning based on facts in the 

record.” State v. Richard J.D., 2006 WI App 242, ¶12, 297 Wis. 2d 20, 724 

N.W.2d 665 (citation omitted).

¶8 D.G. asserts the circuit court’s denial of his motion was in error 

because it was based largely on the court’s concern that he was “still having” 
No. 2019AP855

6

sexual “urges.”

2

 D.G. argues that the court’s concern is “clearly erroneous” 

because it was “in direct conflict with the professional psychologist’s 

(1) assessment that there was ‘no evidence [D.G.] has any atypical persistent 

sexual interest,’ (2) risk assessment finding [D.G.] at a sexual offense risk of under 

3%, and (3) professional opinion that [D.G.] was not an appropriate candidate for 

the sex offender registry.” 

¶9 We see no error. The psychologist report indicated that D.G. 

revealed to the psychologist that he was still having “wrong sexual urge[s].” 

(Emphasis added.) In light of the fact that the entire reason for D.G.’s placement 

on the sex-offender registry was due to his attempt to have intercourse with his 

seven-year-old sister when he was twelve years old, it was entirely reasonable for 

the circuit court to be concerned that D.G. was still having “wrong sexual urge[s],”

not just supposedly normal sexual urges of a then thirteen-year-old boy, as D.G. 

suggests was his meaning. On this point, we emphasize the key paragraph to 

which the court referred:

 

2

 D.G. spends six pages of his brief-in-chief discussing six factors a circuit court 

considers when deciding whether to grant a stay of a sex-offender registration requirement, see 

State v. Cesar G., 2004 WI 61, ¶50, 272 Wis. 2d 22, 682 N.W.2d 1, and the application of those 

factors to the facts of this case. Through these six factors, he argues that sex-offender registration 

is inappropriate in this case. 

In these six pages, D.G. argues as if we were the circuit court making the original 

decision to order sex-offender registration or the postdisposition decision on his motion to stay 

the sex-offender registration requirement. It is the circuit court’s responsibility to determine what 

weight it will give various factors in deciding whether to stay the registration order. See State v. 

J.E.B., 161 Wis. 2d 655, 675, 469 N.W.2d 192 (Ct. App. 1991). We are an error-correcting 

court. State v. Schumacher, 144 Wis. 2d 388, 407, 424 N.W.2d 672 (1988). Because D.G. does 

not identify in these six pages any specific errors by the circuit court, we do not address these 

arguments. As the State articulated in its response brief, “[d]isagreement does not equate to [an 

erroneous exercise] of discretion.” 
No. 2019AP855

7

[D.G.] told this examiner he has learned if he gets a wrong 

sexual urge he has to take a time-out, because it is 

important to avoid being impulsive. He engages in 

appropriate self-talk- “say no, it is a bad idea.” He should 

“discipline [himself] to don’t do it.” He should tell himself, 

“if I do it, I will get in trouble.” If the person he feels like 

having sex with is close to him, he should “move or go 

somewhere else.”

While it of course would seem healthy that D.G. was able to verbalize his sexual 

concerns to the psychologist, this in no way undermines the court’s concern that 

he still poses a danger due to the “wrong sexual urge[s]” he is experiencing. The 

report hints that D.G. may have expressed to the psychologist that he at times 

“feels like having sex with” a person or persons who are “close to him.” His then

seven-year-old sister was obviously someone “close” to him as she was his half

sister living in the same house with him at the time of the assault, and he was left 

in the home with her without adult supervision. The court was understandably 

concerned about the “wrong sexual urge[s]” D.G. continues to experience and for 

that reason alone did not err in denying the motion to stay sex-offender 

registration.

¶10 D.G. next contends that “the court’s finding that [the expert’s] report 

did not indicate ‘whether these urges are still felt toward his little [sister]’ was 

clearly erroneous” because on page six of the report, the expert indicated that D.G. 

reported that he “denied feeling attracted to his sister or other children of her age.” 

D.G. then asserts that “[t]o the extent that the court’s concern about whether 

[D.G.] still experienced ‘sexual urges’ toward [his sister] or other children still 

factored into its denial of the motion to stay the registry ... this concern was 

clearly erroneous based on [the expert’s] conclusion that [D.G.] did not have any 

atypical persistent sexual interest.”
No. 2019AP855

8

¶11 Again, we disagree with D.G., as the court was not required to stay 

sex-offender registration simply because D.G.’s expert opined that D.G. did not 

have “any atypical persistent sexual interest,” see State v. Sobonya, 2015 WI App 

86, ¶7, 365 Wis. 2d 559, 872 N.W.2d 134 (stating that a circuit court is “entitled to 

accept or disregard [an expert’s opinion] as it deem[s] appropriate”), especially in 

light of the report’s indication that he continues to have “wrong sexual urge[s]” 

and its suggestion he may have indicated he sometimes “feels like having sex with 

[a person or persons] close to him.” The court did not err in disregarding the 

expert’s personal “take” on D.G.’s self-reporting of continued urges of a “wrong 

sexual” nature and seeing it as a “red flag” that caused it sufficient concern to 

warrant requiring D.G. to register as a sex offender to assist with public safety. 

Furthermore, the psychologist’s opinion that D.G. does not have “any atypical 

persistent sexual interest” would not act to allay the court’s ultimate concern that 

he did appear to at least have occasional “wrong sexual urge[s].” (Emphasis 

added.) And with regard to D.G.’s assertion that “the court’s finding that [the 

expert’s] report did not indicate ‘whether these urges are still felt toward his little 

[sister]’ was clearly erroneous” because on page six of the report, the expert 

indicated that D.G. reported that he “denied feeling attracted to his sister or other 

children that age,” this matter was cleared up for the court before conclusion of the 

motion-to-stay hearing—as the court responded “[a]ll right” after D.G. indicated 

that “[o]n page [six] ... of the doctor’s report it does indicate that he denied 

feeling attracted to his sister or other children that age”—yet this clarification did 

not alter the court’s ruling. 

¶12 D.G. also takes issue with the circuit court’s statement at the 

postdisposition hearing that while D.G.’s expert discusses in her report various 

studies of adolescents, her conclusion that D.G.’s sexual-offense risk is less than 
No. 2019AP855

9

three percent “just doesn’t explain how she got there.” D.G. points out that the

expert stated in the report:

There is no evidence [D.G.] has any atypical persistent

sexual interest. He does not display behaviors consistent 

with a conduct disorder. He does not present with 

psychopathic features. His offense against his sister 

appeared to have come about out of the blue. His mother 

indicated he was displaying behavior concerns in the days 

prior to the offending; however, there is no evidence they 

were criminal-like behaviors, rather they appear to be 

related to ADHD symptoms. 

He points out that the psychologist indicated he completed sex-offender treatment 

and continues to participate in additional treatment. He directs us to the report’s 

reference to a 2016 “Caldwell” study which, according to the psychologist,

“indicate[s] sexual offense base rates had declined over the years: studies from 

1980 to 1995 (N=9,106) indicated a mean sexual recidivism rate of 10% over 

fifty-eight months while studies from 2000 to 2015 (N=20,008) showed a 

significantly reduced sexual recidivism rate of 3% over forty-four months.”

¶13 Again, we see no error. The court recognized, as D.G. also notes,

that the report indicated that “there are no specific instruments to assess juvenile 

sexual reoffense.” The court noted that the report referred to a “Caldwell study 

from 2016 that analyzed data sets with a total of 33,783 adolescents.” The court 

questioned the value of the study as referenced in the report because there was no 

indication as to “how many of those kinds of fact scenario[s]” dealt with half 

siblings, as in this case.

¶14 We conclude that the court’s questioning of the accuracy of the 

expert’s three-percent conclusion was not unreasonable. Identifying certain 

factors indicating a person is less likely to reoffend, as the psychologist did, is 

quite different from explaining how one concludes with specificity and certainty, 
No. 2019AP855

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as this expert did in her report, that “[D.G.’s] probability of sexual offending is 

less than 3%.” This conclusion by the psychologist appears to be connected to the 

three-percent rate found in the studies from 2000 to 2015, but the court was not in 

error in pointing out a statement in the report that “there are no specific 

instruments to assess juvenile sexual reoffense.” Perhaps most significantly, there 

is no indication that in coming to her “3%” conclusion with regard to D.G., the 

psychologist specifically considered and factored in the court’s most significant 

concern—that D.G. reported he still has “wrong sexual urge[s].” The court did not 

err in questioning the psychologist’s three-percent number in deciding whether or 

not to stay sex-offender registration. 

¶15 We conclude the court’s orders requiring D.G. to register as a sex 

offender and denying his motion to stay that requirement were entirely reasonable.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.