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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                         This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 28, 2001
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                        petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                         and RULE 809.62.
                                                                                                                                                         Cir. Ct. No.   00-CF-286
Appeal No.                                                                              01-1773-CR
STATE OF WISCONSIN                                                                                                                                       IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ROGER LENOX,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Eau  Claire
County:   BENJAMIN D. PROCTOR, Judge.   Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1                                                                                      PER CURIAM.    Roger Lenox challenges the sentence he received
on his conviction for second-degree sexual assault of a child.   Following his guilty
plea,  the  court sentenced  Lenox to twenty years’  confinement and ten  years’
extended  supervision.    Lenox  contends  that  the  sentencing  court  erroneously
exercised  its  discretion  by imposing an unduly harsh  and excessive  sentence.




No.   01-1773-CR
Because the record discloses a reasonable basis for the sentence, we affirm the
judgment.
¶2                                                                                        Lenox, age fifty-nine, pled guilty to second-degree sexual assault of
a child.   The criminal complaint alleged that on June 6, 2000, a fifteen-year-old
girl and a friend were waiting for a bus.   The fifteen-year-old told the investigating
officer that Lenox came up to her and began calling her a  “bitch.”    He then
grabbed her by the head and shoulders and rammed her head into the side of a
parked city bus.   She stated that Lenox then grabbed her by her hair and forcefully
rubbed her face into his genital area.   The investigating officer observed red marks
on her forehead, nose and shoulder that were consistent with her report.    The
victim did not know Lenox.
¶3                                                                                        A witness stated that after he saw the assault, Lenox then went to his
car, made motions with his hands as if to say “come and get me” and left the
scene.    The witness obtained Lenox’s license plate  number  from the vehicle.
When the officer questioned Lenox about the assault, he first stated, “all I did was
call her a bitch.”   Later, he admitted that he pushed the victim’s head down to his
waist level and placed her face into his crotch because he wished to punish her for
calling him a name.
¶4                                                                                        Before sentencing, Lenox’s mental status was evaluated, and the
report  from  the  Winnebago  Mental  Health  Institute  determined  that  he  was
competent to proceed.   At sentencing, the State recommended a lengthy sentence
in order to protect the public.   It pointed out that Lenox had a history of assaulting
vulnerable  developmentally  disabled  males  and  has  been  convicted  twice  for
sexual  assault.    He  has  served  time  in  prison  and  participated  in  community
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No.   01-1773-CR
programming.   It noted that Lenox remains in denial, which makes him a very
high risk to re-offend.
¶5                                                                                         Defense  counsel  stated  that  Lenox  has  the  mental  acuity  and
functions at about the level of a ten- to fourteen-year-old.   Counsel acknowledged
that Lenox has an extensive criminal record, has been placed in various secure
settings, has been incarcerated and has not done very well.   He was found to be in
need of protective placement under WIS. STAT. ch.  55, but was placed in the
community as the least restrictive environment for the last year and one-half.
Counsel pointed out that before the assault, Lenox was consuming alcohol and
hanging around the bus station, but not doing anything unlawful.   While Lennox’s
behavior was clearly inappropriate, counsel recommended a lengthy period of
probation instead of incarceration, along with conditions to give the department
leeway to remove him from the community if he showed any sign of danger to
himself or others.
¶6                                                                                         Lenox  argues  that  his  sentence  is  excessive  due  to  his  tragic
circumstances  and  is  disproportionate  to  the  offense.    He  recognizes  that  his
placement in the community was chaotic because he was “placed in a variety of
different housing settings because of the difficulty of dealing with his individual
pathology that included aggressive homosexual behavior and the commission of
thefts against other residents ….”   Although his competency was questioned in
this  proceeding,  he  acknowledges  that  after  an  evaluation  he  was  deemed
competent for the purposes of WIS. STAT. § 971.14.   He claims that although the
offense is serious, the aggravated nature of the offense, his character and the need
for public protection do not rationally explain the sentence imposed.   We disagree.
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No.   01-1773-CR
¶7                                                                                         Lenox acknowledges the deferential standard an appellate court must
apply when  reviewing  a  sentence.    A  sentencing decision is reviewed  for  an
erroneous exercise of discretion.   McCleary v. State, 49 Wis. 2d 263, 277, 182
N.W.2d 512 (1971).    Discretion is erroneously exercised when the sentence is “so
excessive and unusual and so disproportionate to the offense committed as to
shock public sentiment and violate the judgment of reasonable people concerning
what is right and proper under the circumstances.”   Ocanas v. State, 70 Wis. 2d
179, 185, 233 N.W.2d 457 (Ct. App. 1975).
¶8                                                                                         The primary factors to be considered are the gravity of the offense,
the character of the offender and the need for protection of the public.   Elias v.
State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980).   The sentence should call for
the  minimum  amount  of  confinement  consistent  with  these  factors.    State  v.
Kreuger, 119 Wis. 2d 327, 336, 351 N.W.2d 738 (Ct. App. 1984).
¶9    Lenox’s  argument  attempts  to  minimize  the  seriousness  of  the
offense  due  to  the  lack  of  evidence  of  sexual  gratification.    We  reject  his
contention that pushing and rubbing a child’s face into the genital area of an adult
male to punish or degrade her can be likened to disorderly conduct.   We conclude
that the seriousness of the offense, together with Lenox’s criminal record, his
previous conduct on probation and parole, and the need to protect the public
provide a rational basis for the lengthy sentence.
¶10    The  record  demonstrates  a  reasonable  exercise  of  sentencing
discretion.  The  court  took  into  account  Lenox’s  age  and  background.     It
considered the two charges that were dismissed and read in:   intentionally causing
bodily harm to a child and disorderly conduct.   It also considered his extensive
record,  including  stealing  a  car,  contributing  to  the  delinquency  of  a  minor,
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No.   01-1773-CR
disorderly conduct, and two sexual assaults, for which he  received a total of
seventeen years in prison.   The second sexual assault was of a developmentally
disabled individual and was committed while Lenox was on probation.    After
serving  his  prison  sentence,  while  on  parole,  he  committed  another  theft.
Subsequently, he received thirty days and eight months in jail for two obstructing
convictions.
¶11    The court noted that in 1987, Lenox was placed at the Wisconsin
Resource  Center  for  programming  in  the  areas  of  dishonesty,  thievery,
manipulation, alcohol abuse and inappropriate sexual behavior.   In 1988, on the
day he was released, he stole a portable police scanner.   The court considered that
“The Department of Corrections used as many community resources as possible to
assist Roger in making positive changes in his lifestyle.”   These included halfway
homes, group homes, employment and training opportunities, counseling services,
punishment in the form of probation/parole detentions at the county jail, verbal
reprimands and placements in institutions.   The court found:                          “Despite all this,
Roger has continued to be a serious threat.”
¶12    Lenox was institutionalized the first thirty-six years of his life and
since he has been in the community has had a very difficult time adjusting.   The
court took into account that Lenox suffers from mental retardation, has no ability
to read and write, has shown anger, hostility, alcohol abuse, and is diagnosed as a
developmentally disabled individual and pedophile.   The court considered that the
nature of the assault,  “a diagnosed pedophile acting out in anger in a sexually
degrading way toward a 15-year-old female,” underlines his inability to control
himself.   The court also considered that the offense is one of the most serious as
designated by the legislature.
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No.   01-1773-CR
¶13    The  court  stated  that  the  factors  of  Lenox’s  background,  the
seriousness of  the  crime  and  his danger  to  the  community  “far  outweigh  his
rehabilitative potential.”   The court found that Lenox is a threat and his history of
alcohol abuse and inability to recognize himself as responsible for what he has
done weighed against him.   The court considered the age and type of victims upon
whom Lenox preys:   “basically younger, defenseless, sometimes mentally disabled
people.”   The court determined that on balance, protection of society compelled a
lengthy sentence of twenty years’ confinement followed by ten years’ supervision.
¶14    The  record  reveals  that  the  court  considered  proper  factors  and
reached a conclusion that a reasonable judge could reach.   That is the essence of a
discretionary exercise.   The issue before us is not whether the facts of record could
support a contrary result.   Our function is to determine whether a reasonable judge
could have reached the same result as the one here.                                      “It is recognized that a trial
court in an exercise of its discretion may reasonably reach a conclusion which
another judge or another court may not reach, but it must be a decision which a
reasonable judge or court could arrive at by the consideration of the relevant law,
the facts, and a process of logical reasoning.”   Hartung v. Hartung, 102 Wis. 2d
58, 66, 306 N.W.2d 16 (1981).   Because the record discloses a reasonable exercise
of discretion, we do not reverse it on appeal.
By the Court.—Judgment affirmed.
                                                                                         This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                (b)5.
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