State v. Brian S. Kempainen ( 2015 )

2015 WI 32
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1531-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Brian S. Kempainen,
Defendant-Respondent-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 354 Wis. 2d 177, 848 N.W.2d 320
(Ct. App. 2014 – Published)
PDC No:2014 WI App 53
OPINION FILED: March 19, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 8, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Terence T. Bourke
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
by Melissa L. Mroczkowski and Kirk Obear and Associates,
Sheboygan, and oral argument by Melissa L. Mroczkowski.
For the plaintiff-appellant, the cause was argued by Sarah
L. Burgundy, assistant attorney general, and with whom on the
brief was J.B. Van Hollen, attorney general.
2015 WI 32
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1531-CR
(L.C. No. 2012CF691)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v.
MAR 19, 2015
Brian S. Kempainen,
Diane M. Fremgen
Defendant-Respondent-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. We review a published
decision of the court of appeals,1 which reversed the circuit
court's2 dismissal of the criminal complaint and information
filed against Brian S. Kempainen ("Kempainen"). On December 21,
2012, the Sheboygan County District Attorney's Office filed a
criminal complaint alleging Kempainen had engaged in two counts
1
State v. Kempainen, 2014 WI App 53, 354 Wis. 2d 177, 848
N.W.2d 320.
2
The Honorable Terence T. Bourke, presiding.
No. 2013AP1531-CR
of sexual assault of a child under 13 years of age, contrary to
Wis. Stat. § 948.02(1) (2001-02).3 The complaint alleged that
the first count of sexual assault occurred "on or about August
1, 1997 to December 1, 1997." The complaint alleged that the
second count of sexual assault occurred "on or about March 1,
2001 to June 15, 2001."
3
All subsequent references to the Wisconsin Statutes are to
the 2001-02 version unless otherwise indicated.
Wisconsin Stat. § 948.02(1) provides that "[w]hoever has
sexual contact or sexual intercourse with a person who has not
attained the age of 13 years is guilty of a Class B felony."
Wisconsin Stat. § 948.02(1) (1997-98), applicable to count one
of the complaint and information, is identical to the 2001-02
version.
"Sexual contact" is defined, in relevant part, by Wis.
Stat. § 948.01(5) as:
(a) Intentional touching by the complainant or
defendant, either directly or through clothing by the
use of any body part or object, of the complainant's
or defendant's intimate parts if that intentional
touching is either for the purpose of sexually
degrading or sexually humiliating the complainant or
sexually arousing or gratifying the defendant.
2
No. 2013AP1531-CR
¶2 Kempainen moved the circuit court to dismiss the
complaint and information4 on the grounds that they were "not
sufficiently definite and the defendant [was] not adequately
informed of the charges against him" because the time periods in
which the alleged crimes were committed were "too vague," such
that he could not plead for, or prepare a defense against,
"when" the crimes occurred. The circuit court granted
Kempainen's motion and dismissed the complaint and information.
The State appealed. In a published decision, the court of
appeals reversed the circuit court and remanded the case with
the instruction that the complaint and information be
reinstated. The court of appeals relied on State v. Fawcett,
145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988) (setting forth
seven5 "reasonableness" factors that a court may consider in
4
"The information is the charging document to which a
defendant must enter a plea." State v. Copening, 103
Wis. 2d 564, 576, 309 N.W.2d 850 (Ct. App. 1981) (citing
Pillsbury v. State, 31 Wis. 2d 87, 93, 142 N.W.2d 187 (1966)).
"A defendant has the benefit of both the factual allegations
required in the complaint and the final statutory charges
alleged in the information." Id. However, "[t]he factual
allegations relied on by the state which satisfy the elements of
the crime are more likely found in the complaint. The facts
recited in the complaint need not be repeated in the
information." Id. at 577. Thus, when discussing the
sufficiency of the factual allegations against Kempainen, we
refer to the complaint.
5
These seven factors are:
(1) the age and intelligence of the victim and other
witnesses; (2) the surrounding circumstances; (3) the
nature of the offense, including whether it is likely
to occur at a specific time or is likely to have been
(continued)
3
No. 2013AP1531-CR
assessing the sufficiency of a complaint in a child sexual
assault case), as a basis for its determination that Kempainen
received adequate notice as to the nature of the charges against
him.
¶3 Two issues are presented for our consideration: 1)
whether a court is prohibited from considering the first three
factors set forth in Fawcett when the defendant does not claim
that the State could have obtained a more definite date through
diligent efforts;6 and 2) whether the complaint and information
charging Kempainen with two counts of sexual assault of a child
under 13 years of age provided adequate notice to satisfy
Kempainen's due process right to plead and prepare a defense.
¶4 First, we hold that in child sexual assault cases
courts may apply the seven factors outlined in Fawcett, and may
consider any other relevant factors necessary to determine
discovered immediately; (4) the length of the alleged
period of time in relation to the number of individual
criminal acts alleged; (5) the passage of time between
the alleged period for the crime and the defendant's
arrest; (6) the duration between the date of the
indictment and the alleged offense; and (7) the
ability of the victim or complaining witness to
particularize the date and time of the alleged
transaction or offense.
State v. Fawcett, 145 Wis. 2d 244, 253 426 N.W.2d 91 (Ct. App.
1988).
6
In State v. R.A.R., 148 Wis. 2d 408, 411, 435 N.W.2d 315
(Ct. App. 1988), the court of appeals concluded that a court may
consider the first three Fawcett factors only in situations
where the defendant claims the State could have obtained a more
definite charging period through diligent efforts.
4
No. 2013AP1531-CR
whether the complaint and information "states an offense to
which [the defendant can] plead and prepare a defense."
Holesome v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968).
No single factor is dispositive, and not every Fawcett factor
will necessarily be present in all cases. Second, we hold that
the complaint and information provided adequate notice of when
the alleged crimes occurred and thus did not violate Kempainen's
due process right to plead and prepare a defense. We therefore
affirm the court of appeals and remand to the circuit court with
the instruction to reinstate the complaint and information
against Kempainen.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶5 On December 21, 2012, the Sheboygan County District
Attorney's Office filed a complaint charging Kempainen with two
counts of sexual assault of a child under the age of 13. The
first count of the complaint alleged that Kempainen had sexual
contact with his stepdaughter, L.T., "on or about August 1, 1997
to December 1, 1997." The second count alleged that Kempainen
had sexual contact with L.T. "on or about March 1, 2001 to June
15, 2001." L.T. was 8 years old when the first assault occurred
and either 11 or 12 years old when the second assault occurred.
¶6 L.T. first reported the alleged assaults on October
25, 2012, to Detective Brian Retzer of the Sheboygan Police
Department. L.T. told Detective Retzer that her stepfather,
Kempainen, sexually assaulted her sometime around the start of
the school year when she was in the second grade. L.T. recalled
this specific time period because it corresponded with the
5
No. 2013AP1531-CR
family's move to Sheboygan. According to L.T., she was sleeping
on the couch in the living room when, in the middle of the
night, Kempainen laid down next to her so that he was on the
innermost area of the couch and she was on its edge. Kempainen
allegedly began to rub L.T.'s vagina through her pajamas and
then put L.T.'s hand down his sweatpants and compelled her to
massage his penis for approximately two minutes. Next,
Kempainen allegedly performed oral sex on L.T. for "a long
time." L.T. told Detective Retzer that she was "very scared and
nervous" while this was happening. Eventually, Kempainen
"passed out" on the couch, and L.T. immediately got up, went
into the kitchen, and cried. She then went somewhere else in
the house to sleep.
¶7 L.T. stated that approximately one week after this
incident, Kempainen asked her to come down to the basement with
him. Once there, Kempainen allegedly told her that he did not
want her to tell her mother what had happened. He also told
L.T. that "I know you were bad" and that he would get in trouble
if she told her mother what happened.
¶8 The second assault occurred when L.T. was in the sixth
grade and it was "warm outside." During this time, L.T. was
responsible for waking Kempainen for work around 4:30 PM each
day. On one such day, L.T. was waiting to wake up Kempainen and
was lying sideways at the foot of the bed watching "Disney."
Kempainen woke up and began to rub L.T.'s back under her
clothes. Eventually, Kempainen allegedly moved his hands to the
6
No. 2013AP1531-CR
front of her chest and touched L.T.'s breasts. L.T. immediately
became scared and left her home to go to a friend's house.
¶9 L.T. did not immediately tell anyone about either
incident because she was afraid that her mother would be mad at
her and because she was afraid of what her mother might do to
Kempainen. When she was in eighth grade she did tell a close
friend, J.B., about the assaults; however, J.B. did not tell
anyone.
¶10 Detective Retzer asked L.T. why she chose to come
forward now, after such a long time had passed. L.T., who was
23 years old at the time of the interview, explained that she
confided in her first serious boyfriend what Kempainen had done.
The boyfriend urged L.T. to notify the police and to tell her
mother, but L.T. remained too afraid to tell anyone. In early
October 2012, L.T.'s then ex-boyfriend informed L.T.'s mother
about Kempainen's alleged sexual assault of L.T. At this point,
L.T. finally told her mother what had happened.
¶11 On November 28, 2012, Detective Retzer contacted
L.T.'s ex-boyfriend who confirmed much of L.T.'s account. He
also added that L.T. told him that "she felt responsible for
[the assaults] and didn't want to talk about it."
¶12 Detective Retzer arrested Kempainen on December 19,
2012, for the alleged sexual assaults of L.T. The Sheboygan
County District Attorney's Office filed the complaint on
December 21, 2012, and Kempainen made his initial appearance
before the circuit court that same day. An information was
filed on December 26, 2012. On January 29, 2013, Kempainen
7
No. 2013AP1531-CR
moved the circuit court to dismiss the complaint and information
because it was "not sufficiently definite and [he was] not
adequately informed of the charges against him." Specifically,
Kempainen argued that the "several month time spans in which the
crimes are alleged to have occurred are too vague to provide the
defendant with adequate notice of the charges against him."
¶13 The circuit court ordered briefing on Kempainen's
motion and held a hearing on May 21, 2013. Relying on Fawcett
and State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d 315 (Ct. App.
1988) (limiting a court's consideration of the first three
Fawcett factors to situations where the defendant claims the
State could have obtained a more definite charging period
through diligent efforts), the circuit court concluded that the
charges against Kempainen "are not sufficiently definite and
that [Kempainen] was not adequately informed of the charges."
Citing footnote two of the Fawcett decision, the circuit court
stated that because Kempainen had not claimed that the State
could have obtained a more definite charging period there was
"no need to go into the first three [Fawcett] factors and you
just skip right to the fourth factor." The circuit court then
dismissed the complaint and information.
¶14 The State appealed. In a published opinion, the court
of appeals reversed the circuit court. State v. Kempainen, 2014
WI App 53, ¶1, 354 Wis. 2d 177, 848 N.W.2d 320. The court of
appeals determined that "[b]ecause the date of the commission of
the crimes is not a material element of the charged offenses
here, a date need not be precisely alleged" in the complaint and
8
No. 2013AP1531-CR
information. Id., ¶24 (citations omitted). "Any vagueness in
L.T.'s memory will more properly go to her credibility and the
weight of her testimony." Id. Thus, the court of appeals
concluded that "the charging periods are reasonable and the
details in the complaint provide Kempainen with adequate notice
of the charges against him." Id.
¶15 Kempainen petitioned this court for review, which we
granted on September 18, 2014.
II. STANDARD OF REVIEW
¶16 Whether the time period alleged in a complaint and
information is sufficient to provide notice to the defendant is
a question of constitutional fact that we review de novo.
Fawcett, 145 Wis. 2d at 249. "The criminal complaint is a self-
contained charge which must set forth facts that are sufficient,
in themselves or together with reasonable inferences to which
they give rise, to allow a reasonable person to conclude that a
crime was probably committed and that the defendant is probably
culpable." Id. at 250 (citing State v. Hoffman, 106
Wis. 2d 185, 197, 316 N.W.2d 143 (Ct. App. 1982)). The
sufficiency of a pleading is a question of law reviewed
independently. Id. In reviewing a complaint, our analysis is
restricted to the charging document and we do not consider
extrinsic evidence.
¶17 In order to satisfy the requirements of the United
States and Wisconsin Constitutions, the charges in the complaint
and information "must be sufficiently stated to allow the
defendant to plead and prepare a defense." Id. When reviewing
9
No. 2013AP1531-CR
the sufficiency of the complaint and information, we consider
two factors: "whether the accusation is such that the defendant
[can] determine whether it states an offense to which he [can]
plead and prepare a defense and whether conviction or acquittal
is a bar to another prosecution for the same offense."
Holesome, 40 Wis. 2d at 102.7
III. DISCUSSION
¶18 We first consider the appropriate factors courts may
use to determine whether a defendant in a child sexual assault
case has received sufficient notice of the charges against him.
We hold that in child sexual assault cases courts may apply the
seven factors outlined in Fawcett, and may consider any other
relevant factors necessary to determine whether the complaint
and information "states an offense to which [the defendant can]
plead and prepare a defense." Id. We then apply the Fawcett
factors to the facts of this case and conclude that Kempainen
received adequate notice of the charges against him.
A. Reviewing Courts May Consider All of the Fawcett Factors As
Well As Any Other Relevant Factors.
¶19 Due process requires that a defendant in a criminal
proceeding must be "informed of the nature and cause of the
accusation against him." Id. This right is guaranteed by the
Sixth Amendment of the United States Constitution and by Article
7
Neither Kempainen nor the State raise the double jeopardy
factor, whether conviction would be a bar to another
prosecution. Therefore, we do not address it.
10
No. 2013AP1531-CR
I, Section 7 of the Wisconsin Constitution.8 As we explained in
Holesome, in order to determine whether there has been a
violation of the defendant's due process right to know the
"nature and cause of the accusation," courts must look to
whether the defendant can determine if the complaint and
information "states an offense to which he [can] plead and
prepare a defense and whether conviction or acquittal is a bar
to another prosecution for the same offense." Id. When
applying this test, we have focused our inquiry on the facts
alleged in the complaint and the elements of the crimes
involved. See e.g., State v. Connor, 2011 WI 8, 331
Wis. 2d 352, 795 N.W.2d 750; Blenski v. State, 73 Wis. 2d 685,
245 N.W.2d 906 (1976); State v. George, 69 Wis. 2d 92, 230
N.W.2d 253 (1975).
¶20 Thus, under Holesome, courts are to consider whether
the complaint alleges facts that identify the alleged criminal
conduct with reasonable certainty. See Fink v. City of
Milwaukee, 17 Wis. 26, 28 (1863) ("It is an elementary rule of
criminal law, that . . . the facts and circumstances which
8
The Sixth Amendment provides, in pertinent part, that
"[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the
accusation." U.S. Const. Amend. VI.
Article I, Section 7 of the Wisconsin Constitution has a
nearly identical provision that provides, in pertinent part,
that "[i]n all criminal prosecutions the accused shall enjoy the
right . . . to demand the nature and cause of the accusation
against him." Wis. Const. art., I, § 7.
11
No. 2013AP1531-CR
constitute the offense . . . must be stated with such certainty
and precision that the defendant may be enabled to judge whether
they constitute an indictable offense or not . . . .").
Application of the Holesome test necessarily depends on the
nature of the specific crime(s) alleged. Therefore, courts are
to determine whether a specific complaint and information
provide the defendant with adequate notice of the charges on a
case-by-case, or count-by-count, basis.
¶21 Child sexual assaults are difficult crimes to detect
and to prosecute, as typically there are no witnesses except the
victim and the perpetrator. Fawcett, 145 Wis. 2d at 249. Often
the child is assaulted by a trusted relative, and does not know
whom to turn to for protection. Id. The child may have been
threatened, or, as is often the case, may harbor a natural
reluctance to come forward. Id. "These circumstances many
times serve to deter a child from coming forth immediately. As
a result, exactness as to the events fades in memory." Id.
Thus, "[y]oung children cannot be held to an adult's ability to
comprehend and recall dates and other specific events." Id. "A
person should not be able to escape punishment for such
a . . . crime because he has chosen to take carnal knowledge of
an infant too young to testify clearly as to the time and
details of such . . . activity." State v. Sirisun, 90
Wis. 2d 58, 65-66 n.4, 279 N.W.2d 484 (Ct. App. 1979) (citation
omitted). "However, no matter how abhorrent the conduct may be,
a defendant's due process [rights] . . . may not be ignored or
trivialized." Fawcett, 145 Wis. 2d at 250.
12
No. 2013AP1531-CR
¶22 Because "[t]ime is not of the essence in [child]
sexual assault cases," when the date of the commission of the
crime is not a material element of the offense it need not be
precisely alleged. Id. at 250; see also Hoffman, 106 Wis. 2d at
198. A "more flexible application of notice requirements is
required and permitted [in child sexual assault cases]. The
vagaries of a child's memory more properly go to the credibility
of the witness and the weight of the testimony, rather than to
the legality of the prosecution in the first instance."
Fawcett, 145 Wis. 2d at 254.
¶23 In Fawcett, the court of appeals properly interpreted
Holesome by discussing seven factors which "assist us in
determining" whether the complaint provides the defendant notice
of the "nature and cause of the accusation against him" in child
sexual assault cases. Fawcett, 145 Wis. 2d at 253. The seven
factors considered by the court were taken from a New York case,
People v. Morris, 461 N.E.2d 1256 (N.Y. 1984). In Morris, the
New York Court of Appeals cautioned against a bright-line rule
for determining whether a complaint provides adequate notice to
the defendant. "It is . . . important to note that the
requirements for a valid indictment will vary with the
particular crime involved, and what is sufficient to charge [one
crime] would be insufficient with respect to many other crimes."
Morris, 461 N.E.2d at 294. Accordingly, New York adopted what
is essentially a totality of the circumstances test, grounded in
reasonableness, for notice in criminal proceedings. This test
13
No. 2013AP1531-CR
is consistent with our holding in Holesome and our prior case
law.
¶24 The Fawcett court concluded that the Morris
"reasonableness" test was consistent with Holesome, and, as a
result, applied the following factors to determine "whether the
Holesome test is satisfied":
(1) The age and intelligence of the victim and other
witnesses;
(2) The surrounding circumstances;
(3) The nature of the offense, including whether it
is likely to occur at a specific time or is
likely to have been discovered immediately;
(4) The length of the alleged period of time in
relation to the number of individual criminal
acts alleged;
(5) The passage of time between the alleged period
for the crime and the defendant's arrest;
(6) The duration between the date of the indictment
and the alleged offense; and
(7) The ability of the victim or complaining witness
to particularize the date and time of the alleged
transaction or offense.
Fawcett, 145 Wis. 2d at 253 (formatting added). We agree that
these are proper factors to apply in cases involving child
sexual assaults, in that they provide guidance to courts when
applying the Holesome test and help determine whether a
complaint and information are sufficient to satisfy due process.
¶25 However, in R.A.R. the court of appeals refused to
apply all seven Fawcett factors. In R.A.R., the court
determined that "the first three factors apply when the
14
No. 2013AP1531-CR
defendant claims that the State could have obtained a more
definite date through diligent efforts."9 R.A.R., 148 Wis. 2d at
411. Because the defendant in R.A.R. did not claim that the
State could have obtained a more definite date through diligent
efforts, the court did not consider the first three Fawcett
factors. Id. As a result, the court of appeals considered only
the last four Fawcett factors and held that the "charging
periods set forth . . . are not sufficiently definite and that
R.A.R. was not adequately informed of the charges against him."
Id. at 413.
¶26 The court's conclusion in R.A.R. was incorrect. The
court of appeals' decision below correctly noted that R.A.R.
appeared to be in conflict with Fawcett. Kempainen, 354 Wis. 2d
177, ¶¶13-14. Specifically, the court noted that
in Fawcett, we stated that a court 'may look to the
[first three factors]' when evaluating whether the
prosecution was diligent, and further, that when
assessing the overall reasonableness of the complaint
under Holesome, relevant factors 'include but are not
limited to' the last four factors. Significantly, we
then concluded that all seven factors can 'assist us
in determining whether the Holesome test is satisfied'
and proceeded to apply all seven factors.
Id., ¶13 (internal citations omitted). The court of appeals
thus determined that "[t]o the extent R.A.R. suggests courts may
9
These factors are "(1) the age and intelligence of the
victim and other witnesses; (2) the surrounding circumstances;
and (3) the nature of the alleged offense, including whether it
is likely to occur at a specific time or to have been discovered
immediately." R.A.R., 148 Wis. 2d at 411 (quoting Fawcett, 145
Wis. 2d at 253).
15
No. 2013AP1531-CR
not consider the first three Fawcett factors unless a defendant
claims a lack of prosecutorial diligence, we cannot follow it."
Id., ¶14.
¶27 The court of appeals also explained that "only the
supreme court . . . has the power to overrule, modify or
withdraw language from a published opinion of the court of
appeals." Id. (quoting Cook v. Cook, 208 Wis. 2d 166, 189-90,
560 N.W.2d 246 (1997)).10 Furthermore, "[t]he ultimate question
is whether the Holesome test has been met. The seven
Fawcett factors are tools to assist—not limitations upon—courts
in answering this question. A court may consider all of these
factors, and others, if it deems them helpful in
determining whether the requirements of Holesome are satisfied."
Id., ¶15.
¶28 The court of appeals reasoning in the present case is
correct. Courts are not confined solely to the seven Fawcett
factors or any subset therein. Rather, courts may consider
these factors and any other relevant factors helpful in
determining whether a complaint is sufficient to satisfy due
process. Because notice is concerned with whether the charging
documents are sufficiently detailed so as to provide the
defendant an opportunity to plead and prepare a defense, courts
are not confined to only one set of factors when conducting
10
Both Fawcett and R.A.R. were decided in 1988. However,
Fawcett was decided May 18, 1988. R.A.R. was decided on
December 22, 1988.
16
No. 2013AP1531-CR
their inquiry. The Holesome test requires courts to consider
the totality of the circumstances surrounding the nature of the
accusations. Cf. State v. Gaudesi, 112 Wis. 2d 213, 219, 332
N.W.2d 302 (1983) ("The test under Wisconsin law of the
sufficiency of the complaint is one of minimal adequacy, not in
a hyper[-]technical but in a common sense evaluation, in setting
forth the essential facts establishing probable cause.")
(internal citations omitted).11 To the extent that R.A.R.
conflicts with the holding in Fawcett, and thus limits the
factors a court may consider when applying the Holesome test, it
is overruled.
¶29 There is good reason to overrule this portion of
R.A.R. First, a technical application of R.A.R.'s reasoning
allows the defendant to plead so as to escape consideration of
three factors that will often weigh against him. Such an
application is ripe for manipulation as a defendant could escape
the first three Fawcett factors by simply remaining silent and
refusing to argue that the State could have obtained a more
definite date. It would always be in a defendant's best
interest to do this. Further, the first three factors (the age
and intelligence of the victim and other witnesses, the
11
In order to determine whether a complaint establishes
probable cause, courts typically consider the following
questions: who is charged; what is the person charged with; when
did the alleged offense take place; where did the alleged
offense take place; why is this particular person being charged;
and who says so? State v. Gaudesi, 112 Wis. 2d 213, 219, 332
N.W.2d 302 (1983).
17
No. 2013AP1531-CR
surrounding circumstances, and the nature of the offense) are
especially important given the nature of child sexual assault
cases. As the Fawcett court noted:
[t]he child may have been assaulted by a trusted
relative or friend and not know who to turn to for
assistance and consolation. The child may have been
threatened and told not to tell anyone. Even absent a
threat, the child might harbor a natural reluctance to
reveal information regarding the assault. These
circumstances many times serve to deter a child from
coming forth immediately. As a result, exactness as
to the events fades in memory.
Fawcett, 145 Wis. 2d at 249. Second, the first three Fawcett
factors necessarily inform other factors, such as the seventh
factor, "the ability of the victim or complaining witness to
particularize the date and time of the alleged transaction or
offense." Id. at 253. It would be extremely difficult to
consider the ability of a victim to particularize the date and
time of the alleged crime without also considering the victim's
age and intelligence, the surrounding circumstances, or the
nature of the offense. Finally, the R.A.R. decision rests upon
a very narrow interpretation of Morris, which is at odds with
its full holding. Neither Morris nor Fawcett restrict a court's
inquiry into the sufficiency of the charges based on the nature
of the defendant's challenge.
¶30 In sum, courts must apply the Holesome test by looking
at the totality of the circumstances surrounding the challenged
complaint and information. In cases involving the alleged
sexual assault of a child, courts may be guided by the Fawcett
factors, as well as any other relevant factors necessary for a
18
No. 2013AP1531-CR
determination of whether the complaint and information "states
an offense to which [the defendant can] plead and prepare a
defense." Holesome, 40 Wis. 2d at 102.
B. The Complaint and Information Are Sufficient to State an
Offense to Which Kempainen Can Plead and Prepare a Defense.
¶31 Having laid out the appropriate test for courts to
follow, we now turn to the application of the Fawcett factors to
Kempainen's case. We hold that the complaint and information
provided adequate notice and thus did not violate Kempainen's
due process right to plead and prepare a defense.
¶32 As the court of appeals did in both State v. Miller,
2002 WI App 197, ¶30, 257 Wis. 2d 124, 650 N.W.2d 850, as well
as Kempainen, we will "consider together the first three
[Fawcett] factors," though courts may consider these factors
separately. Kempainen, 354 Wis. 2d 177, ¶16; Miller, 257
Wis. 2d 124, ¶30. These factors are (1) the age and
intelligence of the victim and other witnesses; (2) the
surrounding circumstances; and (3) the nature of the offense,
including whether it is likely to occur at a specific time or is
likely to have been discovered immediately. Fawcett, 145
Wis. 2d at 253.
¶33 In the instant case, the victim was 8 years old when
the first assault occurred and either 11 or 12 years old when
the second assault occurred. Kempainen, the alleged
perpetrator, was the victim's stepfather and held a position of
authority over her. As the court of appeals explained,
Kempainen's position of dominance was highlighted by the sexual
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No. 2013AP1531-CR
acts allegedly performed by him, "that is, he could do
essentially whatever he wanted to [L.T.]" Kempainen, 354
Wis. 2d 177, ¶16. In addition, approximately one week after the
first incident, Kempainen allegedly called L.T. into the
basement of the home and told her that she had been "bad" and
warned her that if she told her mother, he would get in trouble.
Following the second assault, L.T. was so afraid that she left
her home and went to a friend's house. A young girl in this
situation would understandably be reluctant to tell anyone about
the assaults at the time they occurred, and L.T.'s statements
indicate that she was afraid of what would happen if she came
forward. It is also unlikely that the assaults would have
occurred at a specific time. Kempainen was L.T.'s stepfather,
they lived in the same house, and the circumstances of the two
assaults do not indicate that they occurred in conjunction with
a specific date that would have stood out in a child's mind.
Rather, they occurred during otherwise normal time periods.
Given these circumstances, we conclude that the first three
Fawcett factors weigh in favor of notice.
¶34 The fourth Fawcett factor is the length of the alleged
period of time in relation to the number of individual criminal
acts alleged. Here, the first assault occurred during a four
month period, and the second assault occurred during a three-
and-a-half month period. Kempainen claims that these ranges
prevent him from preparing an alibi defense and are overly
broad. We are unpersuaded. First, simply because a defendant
wishes to assert an alibi defense does not change the fact that
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No. 2013AP1531-CR
"where the date of the commission of the crime is not a material
element of the offense charged, it need not be precisely
alleged," Fawcett, 145 Wis. 2d at 250, nor is time "of the
essence in sexual assault cases." Id. In addition,
[i]f we required that a complaint be dismissed for
lack of specificity when a defendant indicated a
desire to assert an alibi defense, such a holding
would create potential for an untenable tactic: a
defendant would simply have to interpose an alibi
defense in order to escape prosecution once it became
apparent that a child victim/witness was confused with
respect to the date or other specifics of the alleged
criminal event. We decline to adopt such a rule.
Id. at 254 n.3 (internal citation omitted). We agree, and
decline to adopt such a rule. Ultimately, there is "little
meaningful distinction between the individual offenses alleged
to have occurred in this case within a four-month period (first
offense) and a three-and-one-half-month period (second offense)
and the two offenses alleged to have occurred over a six-month
period in Fawcett." Kempainen, 354 Wis. 2d 177, ¶19. Thus, the
fourth Fawcett factor weighs in favor of notice.
¶35 The next two factors are related and take into account
the passage of time between the alleged crime(s) and the
defendant's arrest, and the length of time between the filing of
the complaint and the alleged crime(s). These two factors
"address the problem of dimmed memories and the possibility that
the defendant may not be able to sufficiently recall or
reconstruct the history regarding the allegations." Miller, 257
Wis. 2d 124, ¶35. In this case, the passage of time is the same
for each factor. The first alleged assault occurred between
21
No. 2013AP1531-CR
August 1 and December 1, 1997, and the second between March 1
and June 15, 2001. A total of 12 and 15 years elapsed between
the alleged assaults and Kempainen's arrest and indictment.
¶36 Typically, "[t]he statute of limitations is the
principal device . . . to protect against prejudice arising from
the lapse of time between the date of an alleged offense and an
arrest." Kempainen, 354 Wis. 2d 177, ¶21 (quoting State v.
McGuire, 2010 WI 91, ¶45, 328 Wis. 2d 289, 786 N.W.2d 227).
Here, a charge of first degree sexual assault of a child "may be
commenced at any time," meaning there is no statute of
limitations for the charges against Kempainen. Wis. Stat.
§ 939.74(2)(a)1 (2011-12). However, "the statute of limitations
is not the sole measure of a defendant's rights with respect to
pre-indictment delay." McGuire, 328 Wis. 2d 289, ¶45. As we
have stated, our test here is whether, under the totality of the
circumstances, the complaint and information allege facts such
that the defendant can plead and prepare a defense. We cannot
say that the passage of 12 to 15 years alone deprives Kempainen
of due process. Rather, we must consider why the delay occurred
and how it impacts Kempainen's ability to prepare his defense.
¶37 The complaint provides an explanation for the lengthy
passage of time between the alleged assaults and Kempainen's
arrest and charging. In response to Detective Retzer's
questions, L.T. explained that she did not come forward until
2012 for a variety of reasons. L.T. explained that she was
afraid that her mother would be mad at her, and that she was
afraid of what her mother would do to Kempainen. It was not
22
No. 2013AP1531-CR
until L.T.'s boyfriend informed L.T.'s mother of the alleged
assaults in early October 2012, that L.T. finally came forward.
¶38 Generally, "child molestation is not an offense which
lends itself to immediate discovery. Revelation usually depends
upon the ultimate willingness of the child to come forward."
Fawcett, 145 Wis. 2d at 254. There is no indication that L.T.'s
delay in reporting the alleged assaults was for any improper
purpose. Nor is there any indication that the investigation was
delayed once the assaults were reported. It may be true that
the passage of 12 and 15 years from the dates of the assaults
makes a particular defense more difficult; it is equally true,
however, that it makes prosecution of the offenses more
difficult. Further, if Kempainen wishes to challenge L.T.'s
explanation for waiting to come forward, that is a question of
credibility "left to the province of the jury." Miller, 257
Wis. 2d 124, ¶20. Indeed, due to the nature of the allegations,
L.T.'s credibility will likely be a central issue at trial.
This is not a case of mistaken identity, and an alibi defense is
not likely to be available to Kempainen. See People v. Jones,
792 P.2d 643, 657 (Cal. 1990) (noting that "if the defendant has
lived with the victim for an extensive, uninterrupted period and
therefore had continuous access to the victim, neither alibi nor
wrongful identification is likely to be an available defense").
A challenge to the victim's credibility does not, however,
affect "the legality of the prosecution in the first instance."
Fawcett, 145 Wis. 2d at 254.
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No. 2013AP1531-CR
¶39 Even though there is no indication of impropriety due
to the passage of time in this case, in order to satisfy due
process we must still consider how it impacts Kempainen's
ability to prepare a defense. Kempainen argues that the passage
of time prevents him from putting forth an alibi defense, but,
as we have already explained, a victim is not required to allege
a specific date for the assault simply because a defendant has a
preferred defense. To do so would place "an impossible burden"
on the State to "pinpoint dates" in order to satisfy due process
notice requirements. State v. Stark, 162 Wis. 2d 537, 545, 470
N.W.2d 317 (Ct. App. 1991). In addition, the mere existence of
alibi evidence "does not raise reasonable doubt as a matter of
law[, and] is merely additional evidence which can be weighed
and disregarded if not believed by the jury." Id., at 548
(citations omitted). Kempainen has not articulated any way in
which the charging periods have impaired his ability to prepare
a defense, only that the charges make it difficult to prepare
his preferred defense. Thus, because the passage of time has
not impaired Kempainen's ability to prepare a defense, the fifth
and sixth Fawcett factors weigh in favor of notice.
¶40 The final Fawcett factor concerns the victim's ability
to particularize the date and time of the alleged offense.
Fawcett, 145 Wis. 2d at 253. While the complaint does not
provide a specific date for either assault, it does provide
specific times of day. The first assault allegedly occurred
late at night while L.T. slept on the living room couch. The
second assault allegedly occurred at approximately 4:00 PM,
24
No. 2013AP1531-CR
while L.T. waited to wake Kempainen for work. This precision in
identifying the time of day the assaults occurred, together with
the detail L.T. provided regarding the specific sexual acts done
to her, indicates that L.T. was able to identify the time of day
and the nature of the alleged assaults with reasonable
certainty.
¶41 Taking account of all of the circumstances surrounding
the charges against Kempainen, we hold that he was given
sufficient notice of the nature of the charges against him and
that he is able to plead and prepare a defense. Despite the
passage of 12 and 15 years from the dates of the alleged
assaults, the complaint puts forth sufficient detail such that
Kempainen was aware of the charges against him.
IV. CONCLUSION
¶42 We hold that in child sexual assault cases, courts may
apply the seven factors outlined in Fawcett, and may consider
any other relevant factors necessary to determine whether the
complaint and information "states an offense to which [the
defendant can] plead and prepare a defense." Holesome, 40
Wis. 2d at 102. No single factor is dispositive, and not every
Fawcett factor will necessarily be present in all cases.
Second, we hold that the complaint and information provided
adequate notice of when the alleged crimes occurred and thus did
not violate Kempainen's due process right to plead and prepare a
defense. We therefore affirm the court of appeals and remand to
the circuit court with the instructions to reinstate the
complaint and information against Kempainen.
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No. 2013AP1531-CR
By the Court.—The decision of the court of appeals is
affirmed, and the cause remanded for reinstatement of the
complaint and information and for further proceedings.
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No. 2013AP1531-CR
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