Appellant plead guilty to one count of possession of child pornography and one count of sexual assault of a child under thirteen (in exchange for dismissal of several other counts of each). Appellant seeks to withdraw his guilty plea. A conviction for possession of child pornography under WIS. STAT. § 948.12(1m) requires proof that the defendant possessed a “photograph … or other recording of a child engaged in sexually explicit conduct.” “Sexually explicit conduct,” as it relates to § 948.12(1m), requires that the material depict very specific types of acts, like intercourse, masturbation, or “lewd exhibition of intimate parts.” See WIS. STAT. § 948.01(7). The statement of probable cause attached to the complaint indicated that investigators found a file “depicting nude females, including a nude child.” Two other files depicted “a female child in a sexualized pose.” A fourth file showed “a pubescent female torso including breasts.” “[T]wo nude females, one of which is a female child yet to develop breasts or pubic hair,” were shown in four other files. This report uses conclusory language regarding the images, but does nothing to actually describe what is depicted.
During the plea colloquy the court went over the elements of possession of child pornography and showed appellant the Information; but never inquired if appellant understood the definition of “sexually explicit conduct.” Appellant told the court that he understood the “general nature” of the offense. In support of the plea, the court used the statement of probable cause as well as a therapy report where appellant admitted to possessing child pornography. At no point did the State offer the images themselves or any comprehensive description. During the sentencing argument the State argued that Appellant possessed images of “children” and that he “admitted” to doing so. Defense counsel argued that the images were “just plain images, nothing sexual, no sexual activity or anything.”
To accept a plea, a circuit court is required to establish a sufficient factual basis for the defendant’s guilt. See WIS. STAT. § 971.08(1)(b) (court must make “such inquiry as satisfies it that the defendant in fact committed the crime charged”). “A factual basis may be established through testimony by witnesses, reading of police reports or statements of evidence by the prosecutor.” White v. State, 85 Wis.2d 485, 490, 271 N.W.2d 97 (1978). The court may examine the defendant regarding his actions, but the guilty plea, without more, is insufficient to establish the elements of the crime.
The descriptions contained in the probable cause statement could only be child pornography if they contained the lewd and lascivious exhibition of the genitals (since there is no sexual activity described). While there is no single answer for what “lewd” is, it at minimum requires the exhibition of the genitals in an unnatural and sexual position. Without a better description of the images, or the images themselves; the rudimentary conclusory analysis in the probable cause statement is insufficient, especially considering defense counsel’s sentencing argument. Just because someone admits to a crime doesn’t mean one was actually committed. Appellant has demonstrated a manifest injustice namely,” the record is devoid of a factual basis for finding him guilty of possession of child pornography.”
Practitioner Note: While it is best to include the images in anticipation of appellate review, a very detailed description of photographs will do. The descriptions however must satisfy the elements of child pornography and not merely describe child erotica.
Reversed and Remanded.