State v. T. E.-B., 2019AP309, 3/5/20, District 4 (one-judge decision; ineligible for publication); case activity
T. E.-B. appeals his juvenile adjudication for sexual assault of a four-year-old, arguing that the state failed to prove that the alleged assault happened when the petition said it did: “on or about June 21, 2017.” Everyone agrees that the possible range of dates for the assault doesn’t encompass that day, which was a few days after the child first reported an assault to family. Based on the child’s account, the assault actually would have to have occurred sometime between November 6, 2016 and mid-June of 2017.
We can’t see the briefs here, but per the court T. E.-B. doesn’t raise the challenge you expect to allegations involving uncertain dates: lack of notice or inability to identify an alibi. Instead, the challenge is framed as a sufficiency-of-the-evidence issue. The court analogizes to cases finding adequate notice for lengthy charging periods in cases involving small children:
In child sexual assault cases, “[y]oung children cannot be held to an adult’s ability to comprehend and recall dates.” Fawcett, 145 Wis. 2d at 249. Rather, the imprecision of a child’s memory goes to the credibility of the child and the weight of the child’s testimony. Id.at 254; State v. Sirisun, 90 Wis. 2d 58, 64, 279 N.W.2d 484 (Ct. App. 1979). “[W]e are mindful that child victims of sexual assault are often unable to pinpoint dates. Therefore, we do not hold the State to an impossible burden, especially when the State has no control over the ability to narrow.” Stark, 162 Wis. 2d at 545.
In light of the greater flexibility afforded the State in alleging a time frame for the commission of child sexual assault, and based on the evidence presented at trial, the case law cited above compels the conclusion that when the State proved that the sexual assault of the four-year-old child occurred within the seven-and-one-half months preceding June 21, 2017, it proved that the offense occurred “on or about June 21, 2017,” as alleged in the petition.
(¶¶11-12). The court also rejects a smattering of other arguments regarding double jeopardy, alleged discovery violations, and the credibility of the child. (¶¶14-18).
