FILED 07-10-2017 CIRCUIT COURT DANE COUNTY, WI STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY 2016CF001268 Branch 2 STATE OF WISCONSIN, PIaintiff, Case No: 16-CF-1268 vs. SENTENCING HEARING NATHAN J. FRIAR, (Excerpt) Defendant. TRANSCRIPT OF PROCEEDINGS Transcript of proceedings of the above-entitied action heId before the HONORABLE JOSANN M. REYNOLDS. Circuit Court Judge, 215 South HamiTton Street, Madison, Wisconsin, commencing on Juiy 7, 2017. A A A RACHEL E. SATTLER and STEPHANIE HILTON, Assistant District Attorneys, appearing on behaif of the PIaintiff. G. BRIAN BROPHY, Attorney at Law, appearing on behaif of the Defendant, NATHAN J. FRIAR, appearing in person. Meianie D. Neison, RPR Circuit Court Reporter 0 I (The foTTowing is an excerpt containing the ruTing of the Court.) THE COURT: Okay. Thank you. Some cases weigh heavy from this position, and I can assure you that this is one. I am sincereTy sorry for the tragic impact that this has had on everyone and both famiTies invoived. The 69 letters submitted by the famiTy, neighbors, friends, cTassmates, coach, viITage president, daycare providers, roommates, and generaTTy everyone who has apparentTy come in contact with Mr. Friar in the Tast twenty-two years provided me significant insight into who he is as a man. a son, a brother, a friend, a worker, and a neighbor. In disposing of this matter, I am required to take into consideration the seriousness of the offense, the character and of the defendant, and the protection of the pubTic. There is no question that every sexuaT assauit is a very serious offense. This is a CTass feiony with significant potentiaT incarceration. The probTem with this charge is that the term sexuaT assauTt with the use of force creates an aimost instant and viscera] reaction in the community. It is easiiy understood when appiied to sexuai predators or assaiiants that 1ie in wait, staik, or generaiiy pian and execute a rape or assauit. In this case the two counts appear to have been in tandem with each other; that is stranguiation as alieged was the force or threat of force aiiegediy appiied by Mr. Friar. However, the jury rejected the evidence of stranguiation and acquitted Mr. Friar of the strangulation charge beiieving the marks on her neck were hickeys and not evidence of force or stranguiation. This is born out by the fact that the jury during its deiiberations requested to come back into the courtroom to view the video evidence of the images from the e1evator and in particu1ar the State's comparative biowup of MBKs neck when she went up the eievator with the biown up images showing no marks on her neck compared to those when she came down the eievator 1ess than two hours 1ayer. My notes refiect she testified that they sucked on each other's necks whiie making out. Mr. Friar testified he was sucking on her neck and trying to give her a hickey. And finaTTy, the forensic nurse examiner testified she coqu not say the marks were not hickeys. Assuming, as I must, that the jury foiiowed the jury instructions, it does cause one to ponder, pause and ponder what evidence sustained the finding of the forced eTement of this second degree sexuaT assauTt. The video evidence showed nothing but consensuai actions by both Mr. Friar and MBK. The jury heard her description of what happened in the bedroom. She described Mr. Friar's actions as being aggressive and causing her to say, stop, sTow down, be gentTe. In reviewing the nature of the conduct aTTeged here, the Court is Teft uncertain as to the exact evidence of force the jury reTied upon in reaching its verdict. Because of that it is appropriate in the Court?s view to determine the gravity or seriousness of the specific charge of second degree sexuaT assauit is Tess than the gravity of the offense in many other cases. The State brought out statistics regarding sentencing's on second degree sexuaT assauTts over the Tast approximate ten years. I don't have the ?40(11wa 0003 specifics of those cases. But I did 100k at second degree sexua1 assauit charges in this branch in recent times, and the nature of the conviction here is different in many much more serious cases. In 16-CF-804 it invoived a 31-year-01d defendant who a11eged1y had actuai intercourse with a 14-year-old victim, a compiete stranger, and the C1ass second degree sexua1 assau1t charge was amended to a fourth degree sexua1 assauit, a C1ass A misdemeanor, with a chi1d enticement charge added. 17-CM-465 invoived a domestic incident with a 20-year-01d defendant who purported1y had a chi1d with the 15-year-01d victim. No sexua1 assau1t charges were ever fi1ed. 15-CF-925 invo1ved two 21?year?o1d prior high schoo1 c1assmates who were both intoxicated and after she passed out, he a11eged1y removed her pants and had intercourse with her. And the State agreed to a1iow him to piead to two misdemeanor charges and withhoid adjudication on the fe1ony 01ass second degree sexuai assau1t, which is to be dismissed upon his successfui comp1etion of two years of probation. Notab1y, these parties are the same age has Mr. Friar and MBK at the time of this incident. In 16-CF-734 there was another charge of second degree sexual assault. It involved a 23-year-old defendant and a 15-year-old child victim who exposed himself, rubbed himself, was touching and kissing her inappropriately without consent, and that charge was also amended from a second degree sexual assault to two fourth degree sexual assaults, Class A misdemeanors, and two years of probation was recommended. Given the severity of the allegations if proved in the above-noted cases, I would understand the imposition of a period of incarceration. Instead they were given probation and one is awaiting sentencing. In this case we have two 21-year-old college students with a significant amount of alcohol and spotty memories. However, there was, as Mr. Brophy recited, extensive video footage of the couple and it showed them on the porch of Mr. Friar's apartment building beginning at 1:25 a.m. They were mutually making out, flirting. They went up the elevator at 1:47 and she left alone at 3:37 with the marks on her neck. The testimony was uncontroverted that there were at a11 times at Ieast two other ma1es in the apartment watching TV and eating and that Mr. Friar ieft her in the bedroom and went out to ciean his mouth and use mouthwash. The testimony from MBK was that Mr. Friar removed her pants fast and reckiessiy and she was saying, "stop, 310w down, be gentie". She testified he was too aggressive and that when he forcefuiiy tried to put his hand in her vagina. she said it hurt and to stop and be gentie, which according to her own testimony he did stop. I do not intend to diminish her perception of the harm that has resuited from this offense. She provided I have no reason to doubt her at this time. However, I cannot ignore my own observations of the evidence and my dissonance with the jury's verdict. The Court is bound by the jury's verdict and I do not make the iaws. I appIy them as enacted by our 1egisiature. I must in determining the appropriate disposition take into account that there is very iittie evidence in this record based on the jury's acquittai of the stranguiation charge as to the use or 1eve1 of any purported force. For this reason when examining the gravity of the offense, along with the other sentencing factors, I am satisfied that a prison sentence is not an appropriate response to this factor. The protection of the pubiic. There are a significant number of defendants who are 1aw~abiding citizens and, therefore, the pubiic expense, and inconvenience of being even charged with a crime serve as a sufficient deterrence so that they never commit another crime. Some offenders require treatment, education, or a focused and for some a brief period of confinement as a deterrent to future conduct and that experience is a sufficient wake-up caii to ensure no ongoing criminai activity. Some offenders simpiy need to be confined because they cannot or wi11 not change their behavior and thus put a1] of us in society at risk. From the totaiity of the information that I have been provided, I beiieve that Mr. Friar faiis into Category A and no one has provided me any evidence to the contrary. It is highiy uniikeiy 24 25 that Mr. Friar wi11 reoffend or that society as a whoie is at risk. Indeed the coiiege campus cuiture of aicohoi, hormones, impuisive behavior is not a good combination. In this instance, as in numerous other circumstances, it has resuited in poor choices; MBK being traumatized and Nathan Friar being a convicted feion and a registered sex offender. Any period of incarceration wi11 not serve to deter him or others simiiariy situated. In fact statistics show that young offenders sent to prison greatiy increase the likelihood of them reoffending. Whiie reading the piethora of 1etters in support of Mr. Friar. many things stood out. That as I reca11 at 1east three co11ege age individuais wrote to te11 me that Mr. Friar was the one that femaies went to and trusted to keep them safe, to wa1k them home, and to step up if others were out of 1ine. No one has provided a of evidence that Mr. Friar is in need of any treatment that needs to be provided in a confined setting. He wi11 be a registered sex offender and supervised under the very stringent guideiines of the Department of Corrections for supervision of registered sex offenders. Unti1 this point he has 1ed a compieteiy honorabie 1ife by a1] accounts of those who know him best, and this encounter was an isoiated incident. He was Cub Scout, a member of the Nationa] Honor Society, active in his church, a 4.0 student, high schoo] ciass vaiedictorian, prom king, the recipient of numerous schoiarships and awards, and was on a trajectory to compiete coiiege this spring at U.W. Madison and fu1fi11 his mother's dream for him to become an engineer and had an internship at Oshkosh Corporation, a1] of which is iost foiiowing this conviction. In addition. as a convicted feion Mr. Friar can never possess any firearm inciuding for recreation or hunting, and he not be abie to hunt with his father or teach his own son to hunt. The bonding opportunity is aiso iost forever, as is his right for now to exercise his priviiege to vote. This conviction and the sex offender status wii] affect his to compiete his education, to find empioyment, to obtain housing, and 10 camoowoumhoome u1timate1y find a 1ife partner and raise his own famiiy. The tangibie and very rea1 repercussions to Nathan Friar are far more devastating and substantia1 than any period of incarceration I couid impose. Probation shouid aiways be the Court's first disposition when there is no indication of a need for treatment in a confined setting and no indication of any ongoing threat to the pubiic. Whiie it may be politicalIy expedient for me to impose a prison sentence here today, that is not how I decide cases. Mr. Friar is now 22 years of age. I am imposing a period of probation of eight years. During that time he wi11 be supervised by the Department of Corrections and comply with a11 of his agent's requirements. I am not going to go through and articuiate those conditions at this time. Because of his status as a registered sex offender, he wi11 be under the most rigorous supervision. Sometimes forgiveness is far more rewarding that retribution and much more heaiing. Mr. Friar, many peopie have spent a great dea1 of time, given you a Iot of faith, confidence, and affection. I hope you Iive up to 11 owmuomowm their expectations and that you become and continue to he the man that your parents and the community raised you to be, Is there any credit? MR. BROPHY: There is, Vour Honor, and I did not oaTouTate it. MS. Your Honor. whiie Mr' Brophy is doing that, I woqu request no contact with --nd her family. THE COURT: There w1'11 be no Contact. Understood? MS. SATTLER: And I wou'ld 'Iike to c1arify, did you receive information from the jury that they concluded that there were hickeys or is that your deduction based on the anaiysis of the evidence THE COURT: I wi1'l not discuss things that the jury says to me fonowing a trial. If you want to Contact the jurygave you my anaiysis based on the record that was made and their requests. HR. BROPHY: Three days credit, THE COURT: Three. Do you have a postoonviction form for me? MR. BROPHV: I do not. I wi'IT have one 01 f111ed out. THE COURT: You're going to sign a postconviction form that wiTT be turned over to me. It basicaTTy teTTs you that you have twenty days from today's date to file any motions for reTief from my decision today. Do you have any questions about that? THE DEFENDANT: No, ma'am. THE COURT: Okay. We are adjourned. Thank you a1}. (End of excerpt.) l3 I I A STATE OF WISCONSIN ss: COUNTY OF DANE I, MELANIE D. NELSON, Registered Professionai Reporter, certify that I was the court reporter assigned to report the proceedings for Dane County Circuit Court, Madison, Wisconsin; that the foregoing pages are a true and accurate transcript of my stenographic notes taken in the proceedings her on Ju1y 7, 2017, and reduced to typewritten form. DATED this 10th day of Juiy} 2017. EIectronicaTTy signed by: MELANIE D. NELSON Meianie D. Ne130n, RPR Circuit Court Reporter l4