State v. Brian Kempainen, 2014 WI App 53, petition for review granted 9/18/14, affirmed, 2015 WI 32; case activity
In this case, the circuit court dismissed 2 counts of sexual assault of a child against Kempainen because the charges failed to provide sufficient notice of when the assaults occurred thus violating due process. The court of appeals, clarifying the test in State v. R.A.R. and State v. Fawcett, reversed and held that the date of the crimes need not be precisely alleged.
In 2012, the child victim in this case reported to police that Kempainen had assaulted her twice–once 15 years earlier between August and December 1997 and again sometime between March and June 2012. Kempainen’s due process and double jeopardy arguments turned on State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988), which set out 7 factors courts are to apply when deciding whether a person charged with child sexual assault has received fair notice and an opportunity to defend. The issue was whether a court should even consider the first 3 Fawcett factors (victim’s age and intelligence, surrounding circumstances, and nature of the offense) in cases where the defendant has claimed that the State could have obtained a more definite offense date through diligent efforts. The answer is “yes”:
Slip op. ¶14 To the extent R.A.R. suggests courts may not consider the first three Fawcett factors unless a defendant claims a lack of prosecutorial diligence, we cannot follow it. Such a reading would conflict with our earlier holding in Fawcett and “only the supreme court … has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.” Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997).[2] Thus, we must follow Fawcett.
Slip op. ¶15 The 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 (citing Holesome v. State, 40 Wis. 2d 95, 102 161 N.W.2d 283 (1968).
Applying the Fawcett factors to the facts of this particular case, the court of appeals held that because the victim was a child at the time of the alleged assaults “a more flexible application of notice requirements is required and permitted.” Slip op. ¶24. It also held that the State’s charges were specific enough to protect against a double jeopardy violation.
Note: The court of appeals recently addressed these matters in State v. Badzinski, 2011AP2905, but then was reversed on other grounds just a few months ago. See State v. Badziski, 2014 WI 6. Also, note that a federal court upheld Fawcett on collateral review. See prior On Point post here.
