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COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                          96-1764-CR
                                                                                                                                                 †Petition for Review Filed
Complete Title
of Case:
                                                                   STATE OF WISCONSIN,
                                                                   PLAINTIFF-RESPONDENT,
                                                                   V.
                                                                   ODELL FISHER,
                                                                   DEFENDANT-APPELLANT. †
Opinion Filed:                                                     May 7, 1997
Submitted on Briefs:                                               March 27, 1997
JUDGES:                                                            Snyder, P.J., Brown and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                         On behalf of the defendant-appellant, the cause was submitted on the
briefs of Winifred A. Nathan, Nathan Law Office, S.C. of Racine.
Respondent
ATTORNEYS:                                                         On behalf of the plaintiff-respondent, the cause was submitted on the brief
of James E. Doyle, attorney general and Maureen McGlynn
Flanagan, assistant attorney general.




COURT OF APPEALS
DECISION
DATED AND RELEASED
                                                                                        NOTICE
MAY 7, 1997
A  party  may  file  with  the  Supreme  Court  a                                       This opinion is subject to further editing. If
petition  to  review  an  adverse  decision  by  the                                    published, the official version will appear in
Court of Appeals.   See § 808.10 and RULE 809.62,                                       the bound volume of the Official Reports.
STATS.
No.   96-1764-CR
STATE OF WISCONSIN                                                                      IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ODELL FISHER,
DEFENDANT-APPELLANT.
APPEAL  from  judgments  and  an  order  of  the  circuit  court  for
Kenosha County:   S. MICHAEL WILK, Judge.   Affirmed.
Before   Snyder, P.J., Brown and Anderson, JJ.
ANDERSON, J.                                                                            Odell  Fisher  appeals  from  his
conviction on three counts of being a party to the crime of sexual assault of a child
under the age of sixteen, §§ 939.05 and 948.02(2), STATS., 1993-94, and one count
of being a party to the crime of child enticement, §§ 939.05 and 948.07(1) and (3),




No. 96-1764-CR
STATS.,                                                                                           1993-94.    Because  sexual  exploitation  of  children  is  a  particularly
pernicious evil that cannot be concealed behind the zone of privacy, we confirm
that the state unquestionably has a very compelling interest in preventing such
conduct.    We hold that  § 948.02(2) is constitutional and does not infringe on
Fisher’s privacy rights; therefore, we affirm the judgments of conviction.   Further,
we conclude that the trial court correctly exercised its sentencing discretion when
it considered Fisher’s entire course of conduct in imposing consecutive prison
sentences  followed  by  long-term  probation  and  affirm  the  order  denying  his
motion to modify his sentence.
The procedural history of this case, along with the extensive facts of
the crimes of which he was convicted, are not necessary to our consideration of
Fisher’s challenge to the constitutionality of § 948.02(2), STATS., 1993-94.1   The
evidence that is necessary to resolve his criticism of the sentences imposed will be
set forth in that portion of this opinion.
Fisher contends that the State’s criminalization of consensual sexual
relations with children under age sixteen violates both his constitutional privacy
right to engage in sexual activity and his privacy right to make decisions regarding
procreation.   He has abandoned a contention he argued in the trial court that the
statute was invalid because it violated a minor’s right to consent to sexual relations
with a person of his or her choosing.2
1 Section 948.02(2), STATS., 1993-94, provides, “(2) SECOND DEGREE SEXUAL ASSAULT.
Whoever has sexual contact or sexual intercourse with a person who has not attained the age of
16 years is guilty of a Class C felony.”  References to § 948.02(2) are to the 1993-94 statute.
2 Fisher would lack standing to pursue this argument on appeal:
[A] party has standing to raise constitutional issues only when
his or her own rights are affected.   He or she may not vindicate
the constitutional rights of a third party.   A party has standing to
2




No. 96-1764-CR
Fisher  bears  an  awesome  burden  in  making  this  constitutional
challenge.   See Schramek v. Bohren, 145 Wis.2d 695, 702, 429 N.W.2d 501, 503
(Ct.  App.                                                                               1988).   The  law  in  this  state  presumes  all  legislative  acts  are
constitutional, and in order to prevail, the challenger must prove the opposite
beyond a reasonable doubt.   The challenger does not meet this burden by merely
establishing doubt as to the statute’s constitutionality nor by establishing that the
statute  is  probably  unconstitutional.    See  Quinn  v.  Town  of  Dodgeville,  122
Wis.2d 570, 577, 364 N.W.2d 149, 154 (1985).   The constitutionality of a statute
is a question of law that we review without deference to the trial court.    See
Szarzynski v. YMCA, 184 Wis.2d 875, 883-84, 517 N.W.2d 135, 138 (1994).
Fisher objects to the statute because it absolutely bars minors from
consenting to sexual relations.   He acknowledges that in State v. Kummer, 100
Wis.2d 220, 229-30, 301 N.W.2d 240, 245 (1981), the supreme court concluded
that the consent of the minor victim, between the ages of twelve and fifteen, is
neither an element of sexual assault nor a defense.   However, Fisher contends that
constitutionally he must be given the chance to show that the minor victim gave a
knowing and voluntary consent to sexual relations.
His analysis starts with the proposition that there is a constitutional
right to privacy and to matters involving procreation.   He argues from Carey v.
Population Servs. Int’l, 431 U.S. 678 (1977), that the decision to procreate is at
challenge a statute if that statute causes that party injury in fact
and the party has a personal stake in the outcome of the action.
This court adheres to this rule of standing because a court should
not adjudicate constitutional rights unnecessarily and because a
court should determine legal rights only when the most effective
advocate of the rights, namely the party with a personal stake, is
before it.
Mast v. Olsen, 89 Wis.2d 12, 16, 278 N.W.2d 205, 206-07 (1979) (citations omitted).
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No. 96-1764-CR
the center of constitutionally protected choices.  He contends that it is an important
element of the right to privacy that was recognized in Griswold v. Connecticut,
381 U.S. 479, 485-86 (1965).   Using Zablocki v. Redhail, 434 U.S. 374 (1978),
Fisher  asserts  that                                                                                   §  948.02(2),  STATS.,  interferes  with  the  exercise  of  the
fundamental right to engage in consensual sexual relations and does not pass
muster under the strict scrutiny test.3   He proceeds to point out that even if the
protection of minors is an important state interest, it is too broad and is not strictly
tied to only serving this interest.
Kummer did consider whether the lack of consent by the minor
victim of a sexual assault is an element of the crime.   See Kummer, 100 Wis.2d at
225, 301 N.W.2d at 243.   At issue in Kummer was § 940.225(2)(e), STATS., 1977,
which  provided  that  whoever  has sexual contact or  sexual intercourse  with a
person who is over the age of twelve years and under the age of eighteen years
without consent of that person is guilty of a class C felony.4   The supreme court
concluded:
The  legislature  set  forth  a  policy  determination  that  a
person under the age of fifteen is not competent to give
consent and that sexual contact or sexual intercourse with
such  a  person  is  a  criminal  offense.     Reading  sec.
3 At issue in Zablocki v. Redhail, 434 U.S. 374, 375 (1978), was the constitutionality of §
245.10, STATS.,  1973, which provided:                                                                  “Wisconsin resident having minor issue not in his
custody and which he is under obligation to support” may not marry, within Wisconsin or
elsewhere, without first obtaining a court order granting permission.   Because the right to marry
is of fundamental importance and the classification at issue in Zablocki significantly interferes
with that right, the Supreme Court made a “critical examination” of the state interests advanced in
support of the classification.   See id. at 383, 388.   The Court concluded that even though the
interests served by the statute may be legitimate and substantial, the means selected by the state
unnecessarily  impinged  upon  the  right  to  marry.    See  id.  at                                   388.    In  sum,  the  statutory
classification could not be justified by the interests advanced in support of it.  See id. at 390-91.
4 Section 940.225(2)(e), STATS., 1977, is the predecessor of § 948.02(2), STATS.   See
1987 Wis. Act 332, §§ 30 and 55.   See also para. 2 of notes following § 948.02 in 1987 Wis. Act
332, § 55.
4




No. 96-1764-CR
940.225 (2)                                                                              (e)  and  sec.                                        940.225(4)  together  yields  the
conclusion that consent is not an element of the offense of
second-degree sexual assault if the victim is under fifteen
years of age.
Kummer, 100 Wis.2d at 227, 301 N.W.2d at 244.
We could easily dispose of Fisher’s argument because we are bound
by the decisions of our supreme court.   See State v. Lossman, 118 Wis.2d 526,
533, 348 N.W.2d 159, 163 (1984).   However, the approach Fisher takes, that it is a
violation of his constitutional right to privacy to prevent him from establishing that
the minor victim consented to sexual relations, was not considered by the supreme
court in Kummer.
Although not mentioned explicitly in the Constitution, the United
States Supreme Court has recognized that the Fourteenth Amendment extends
protection  to  at  least  two  different  types  of  privacy  interests:                “One  is  the
individual interest in avoiding disclosure of personal matters, and another is the
interest in independence in making certain kinds of important decisions.”   Whalen
v. Roe, 429 U.S. 589, 599-600 (1977) (footnotes omitted).   Cases examining the
latter   interest   have   involved                                                      “matters   relating   to   marriage,   procreation,
contraception, family relationships, and child rearing and education.”    Paul v.
Davis,  424 U.S.  693,  713  (1976).   The privacy interest implicated in this case
concerns  the  interest  in  independence  in  making  certain  kinds  of  important
decisions.   The Wisconsin Supreme Court has also recognized the fundamental
decisional right of a citizen to procreate or not.   See Eberhardy v. Circuit Court,
102 Wis.2d 539, 561-62, 307 N.W.2d 881, 891 (1981).
Even though the right to privacy is considered “fundamental” and
personal, it is not absolute.    See State v. A.W.O.,  117 Wis.2d  120,  129,  344
N.W.2d 200, 204 (Ct. App. 1983).   The state may reasonably regulate this right in
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No. 96-1764-CR
order  to  protect  society  or  in  support  of  other  legitimate  interests.    See  id.
Although  Fisher  acknowledges  that  his  constitutional  right  to  privacy  is  not
absolute, he insists that because § 948.02(2), STATS., infringes upon his right to
procreate it must pass the strict scrutiny test of Zablocki.   See supra n.3.   Fisher’s
reasoning is fallacious.
The fundamental flaw in his reasoning is his contention that the
statute must pass the strict scrutiny test; in other words, Fisher argues that there
must be a compelling state interest to justify a restriction of the privacy rights of
an adult.   Fisher ignores the clear statements made by the Supreme Court plurality
in Carey that sexual conduct involving minors is not to be judged by the same
rules as those which govern adults.5
The  question  of  the  extent  of  state  power  to  regulate
conduct  of  minors  not  constitutionally  regulable  when
committed  by  adults  is  a  vexing  one,  perhaps  not
susceptible of precise answer.   We have been reluctant to
attempt to define  “the totality of the relationship of the
juvenile and the state.”   Certain principles, however, have
been recognized.                                                                                       “Minors, as well as adults, are protected
by the Constitution and possess constitutional rights.”                                                .
On the other hand, we have held in a variety of contexts
that                                                                                                   “the  power  of  the  state  to  control  the  conduct  of
children  reaches  beyond  the  scope  of  its  authority over
adults.”
Carey,                                                                                                 431 U.S. at 692 (citations omitted) (quoted sources omitted).   The Carey
Court went on to clarify that state restrictions regulating the privacy rights of
minors will be held to be valid if supported by ‘“any significant state interest 
5 Justice Brennan was the author of Carey v. Population Servs. Int’l, 431 U.S.  678
(1977), and writing for himself and three other justices in Part IV of the decision remarked, “ in
the area of sexual mores, as in other areas, the scope of permissible state regulation is broader as
to minors than as to adults.                                                                              [O]ur decision proceeds on the assumption that the Constitution
does not bar state regulation of the sexual behavior of minors.”  Id. at 694 n.17.
6




No. 96-1764-CR
that is not present in the case of an adult.’”   Id. at 693 (quoted source omitted).   In
an accompanying footnote the Court explained:
This test is apparently less rigorous than the “compelling
state  interest”  test  applied  to  restrictions  on  the  privacy
rights of adults.   Such lesser scrutiny is appropriate both
because  of  the  States’  greater  latitude  to  regulate  the
conduct  of  children,  and  because  the  right  of  privacy
implicated here is “the interest in independence in making
certain  kinds  of  decisions,”  and  the  law  has  generally
regarded minors as having a lesser capability for making
important decisions.
Id. at 693 n.15 (citations omitted) (quoted source omitted).   Carey establishes that
a “compelling state interest” is not required to support distinctions based on age, at
least as they apply to the decisional rights of minors to engage in sexual relations.
A “significant state interest” is all that is required.
We hold that § 948.02(2), STATS., serves a significant state interest
in regulating sexual activity on the part of its children.   The state has a strong
interest in the ethical and moral development of its children.   This state has a long
tradition of honoring its obligation to protect its children from others and from
themselves.   See Kummer, 100 Wis.2d at 231-32, 301 N.W.2d at 246.   Section
948.02(2) has many salutary purposes; among the many significant interests of the
state  are  the  dangers  of  pregnancy,  venereal  disease,  damage  to  reproductive
organs, the lack of considered consent, heightened vulnerability to physical and
psychological harm, and the lack of mature judgment.   Further, the United States
Supreme Court has itself observed that “teenage pregnancies ... have significant
social, medical, and economic consequences for both the mother and her child,
and the State.”   Michael M. v. Superior Court, 450 U.S. 464, 470 (1981).   Among
the consequences of teenage pregnancies are the attendant psychological, medical
and sociological problems associated with a child bearing a child.
7




No. 96-1764-CR
The state’s significant interest permits the legislature to forbid an
adult from having sexual intercourse with a child younger than a legislatively
fixed age.   The state’s significant interest permits the legislature to eliminate the
element of consent from the offense of sexual assault of a child under the age of
sixteen.   The state’s significant interest prohibits Fisher’s right to privacy as an
adult from being enlarged to include sexual intercourse with a child under the age
of sixteen, in violation of § 948.02(2), STATS.
Regrettably,  Fisher’s  argument  is  not  novel.    Fortunately,  there
appear to be no cases holding that the constitutional right of privacy prevents a
state from criminalizing an adult’s sexual activity with a minor.   The Supreme
Court of Iowa has held that the state has a significant interest in regulating sexual
activity of minors.   See State v. Munz,  355 N.W.2d 576,  584-85  (Iowa  1984);
State v. Coil, 264 N.W.2d 293, 294-96 (Iowa 1978).   The court noted that the state
may legitimately fix the age at which minors may consent to sexual intercourse or
other  forms  of  sexual  conduct.    See  Coil,  264  N.W.2d  at  296.    Likewise  in
Goodrow v. Perrin, 403 A.2d 864, 866 (N.H. 1979), the New Hampshire Supreme
Court held that an adult has “no privacy right to engage in sexual intercourse with
a person whom the legislature has determined is unable to give consent.”
Similarly,  a  Texas  appellate  case  holds  that  a  Texas  statute
appropriately protects minors from sexual abuse by other minors irrespective of
the victim’s consent.   See P.G. v. State, 616 S.W.2d 635, 640-41 (Tex. Ct. App.
1981).   In accord with these decisions, the Supreme Court of Utah, reviewing a
defendant’s conviction for sexual exploitation of a minor, noted that the state has a
legitimate interest in the health, safety, morals and general welfare of minors.   See
State v. Jordan, 665 P.2d 1280, 1285 (Utah 1983).   The Utah court concluded that
the  state  can  prohibit  sexual  conduct  with  a  minor  regardless  of  the  minor’s
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No. 96-1764-CR
consent.   See id.   Finally, the Vermont Supreme Court has addressed the same
issue  and  concludes  that  the  state  has  a                                                          “compelling  interest”  in  protecting
minors.6 State v. Barlow, 630 A.2d 1299, 1300 (Vt. 1993).
Fisher  makes a  sophistic argument that the  adoption of  the new
Juvenile Justice Code, ch. 938, STATS., depreciates the significant state interests in
protecting minors from sexual intercourse.   He contends that “to say that a youth
can be held responsible criminally in adult court for conduct, and then to say that a
youth the same age cannot form consent is to say the least inconsistent.”   The
argument fails because the state’s interests in holding children accountable for
criminal acts are not contradictory to the state’s interests in preventing sexual
exploitation of children.    In both cases the state’s interest includes equipping
juveniles  with  competencies  to  live  responsibly  and  productively.     See                         §
938.01(2),  STATS.    It is manifest that ch.  938 and  §  948.02(2),  STATS., both
promote  the  legitimate  state  interest in the  health,  safety,  morals and general
welfare of minors.   The statutes work in concert to fulfill the state’s obligation to
protect its children from others and from themselves.   See Barlow, 630 A.2d at
1300.
Fisher  complains  that  the  trial  court  misused  its  discretion  at
sentencing by considering additional crimes that Fisher was never found guilty of
committing.   He protests that the trial court punished him for sexual molestation of
his  co-actor  when  she  was  a  teenager  and  for  crimes  that  only  the  co-actor
committed.   We review a sentencing for a misuse of discretion which might be
6 A number of cases, including some summarized above, are collected in In re Pima
County Juvenile Appeal No. 74802-2, 790 P.2d 723, 730 (Ariz. 1990).   It is evident from all of
these cases that under any conceivable fact situation a state has significant interests in eliminating
consent as an element to any and all types of sexual conduct involving minors.
9




No. 96-1764-CR
found if the trial court fails to state on the record the material factors which
influenced its decision or if it gave too much weight to one factor in the face of
other contravening considerations.   See State v. Larsen, 141 Wis.2d 412, 428, 415
N.W.2d 535, 542 (Ct. App. 1987).   The weight to be given to each of the factors
which influence its decision is particularly within the discretion of the trial court.
See id.
At the sentencing hearing the trial court said:
I often wondered what the relationship was between you
and Valerie Carey  [the co-actor].    Here’s this gun-toting
woman who is—supposedly was in charge of this bondage
situation that went on for days and days, in which you held
these two young girls hostage and engaged in these crude,
degrading and assaultive acts.   And, as you’re aware, at the
sentencing of Valerie Carey, I asked her in public, on the
record, .
The court proceeded to relate a series of questions and answers from Carey that
established  her  contentions  that  beginning  when  she  was  twelve  Fisher,  her
brother-in-law, began to sexually molest her.   The court then told Fisher that he
had read this exchange to show Fisher’s character.
Fisher maintains that Rosado v. State, 70 Wis.2d 280, 234 N.W.2d
69 (1975), stands for the proposition that it is a misuse of sentencing discretion to
sentence a defendant for uncharged crimes.   He asserts that by the trial court’s
focusing on his alleged sexual molestation of Carey when she was a teenager, it
sentenced  him  for  additional  crimes  he  was  never  charged  and  convicted  of
committing.    Fisher’s  argument  is  meritless.    The  trial  court’s  discussion  of
Fisher’s relationship with Carey, his sister-in-law, directly contradicts Fisher’s
contention  at  sentencing  that  he  was  a  responsible  family  man  deserving  of
probation.   It supports that court’s conclusion that “anyone that gets near you in
any  kind  of  relationship  needs  protection  from  you.    I  believe  that  you  are
10




No. 96-1764-CR
manipulative.”   Further, the court concluded, “I believe that we are collectively all
at risk because of your attitude toward your sexual behavior.”
The trial court cannot be expected to conduct a sentencing in  a
vacuum.   The court has the responsibility to acquire the full knowledge of the
character and behavior of the defendant before imposing sentencing.   See Elias v.
State, 93 Wis.2d  278,  285, 286 N.W.2d 559,  562 (1980).                                 “In determining the
character of the defendant and the need for his incarceration and rehabilitation, the
court must consider whether the crime is an isolated act or a pattern of conduct.
Evidence of unproven offenses involving the defendant may be considered by the
court for this purpose.”   State v. McQuay, 154 Wis.2d 116, 126, 452 N.W.2d 377,
381 (1990).   In considering Fisher’s unproven sexual molestation of Carey, the
court  fulfilled  this  responsibility  and  summarized  the  evidence  supporting  its
justifiable assessment that Fisher’s sexual behavior put the public at risk.   See
State v. Johnson, 158 Wis.2d 458, 467, 463 N.W.2d 352, 356 (Ct. App. 1990).
Fisher also argues that it was a misuse of sentencing discretion for
the trial court to consider the entire course of Carey’s criminal conduct involving
the two minor victims when imposing sentence for the four counts for which he
was convicted.   After summarizing the evidence supporting the four counts Fisher
was  convicted  on,  the  court  described  the  entire  course  of  criminal  conduct
perpetrated on the minor victims:
The fact is it is uncontroverted that you were a willing and
active participant in holding these two young girls hostage,
in keeping them in a bondage situation, in participating, in
observing and acting as a voyeur in permitting the behavior
that has been described to go on.   It goes on and on and on,
in terms of the activities.   And to suggest that you were
ignorant and unknowing and a deceived individual is less
than candid, in this Court’s opinion.
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No. 96-1764-CR
These two young girls were being groomed for prostitution
in  Chicago;  they  were  subjected  to  acts  of  prostitution,
which money was exchanged, there were acts, sexual acts,
that were going on which suggest such degradation and
such a lack of respect for these young girls, and such a lack
of respect for each other that it defies description.    The
Court is offended and appalled by this kind of behavior.   It
is outrageous, it is decadent.   In this court’s opinion, you
are a sexual predator.
The trial court then summarized the impact of this course of conduct
on the victims:
The  Victim  Impact  Statement  indicates  that  both  of  the
victims   have   been   in   counseling;   that   they   suffer
nightmares; that they are—they have suffered personality
changes suggests that the effects of your crimes will be
long lasting.
The  court’s  consideration  of  the  criminal  course  of  conduct
involving the victims and the impact that conduct had on them was used by the
court to reach the conclusion:
The fact that your approach to this is to shrug and say
“Woe is me, Judge, I didn’t know what was going on in
that house” is a lack of candor, it’s a lack of remorse, I
believe is a lack of truthfulness.
We reject Fisher’s argument that the trial court was sentencing him
for  crimes  committed  by  Carey.    When  we  review  the  court’s  reasons  for
sentencing, we reach the conclusions that the course of the criminal conduct goes
to establishing Fisher’s lack of remorse and repentance; it is indicative of the
vicious or aggravated nature of the crimes Fisher personally committed; and, it
reflects his degree of culpability.   See State v. Tew, 54 Wis.2d 361, 367-68, 195
N.W.2d  615,  618-19  (1972), overruled on other grounds,  65 Wis.2d  415,  222
N.W.2d 696 (1974).   All of the reasons advanced by the court for imposing the
sentence are appropriate factors for consideration.
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No. 96-1764-CR
The  judge  adequately  explained  his  reasoning  for  imposing  the
sentence on the record.   There is nothing in the record to indicate that the trial
court's sentencing decision was based upon improper factors.   We can find no
misuse of discretion.   Accordingly, we affirm.
By the Court.—Judgments and order affirmed.
13

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