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Proving the “within a specified period of time” element of repeated child sexual assault

State v. Daniel Wilson, 2017AP813-CR, 3/27/18, District 1 (not recommended for publication); case activity (including briefs)

This appeal raises, among others things, a novel issue specific to child sexual assault cases. Is the State actually required to prove the 2nd element of repeated child sexual assault–that at least 3 assaults took place “within a specified period of time” as §948.025(1)(b) plainly states? Or is it relieved of that burden by virtue of various opinions holding that the State does not have to prove the “specifics” of a child sexual assault?

The State charged Wilson with repeatedly assaulting 8-year-old F.T. between January 1, 2013 and May 5, 2014.  Wilson had been involved with F.T.’s mom and had fathered one of her children. At trial, F.T. testified that many of the assaults had occurred at a place where the family had not moved until May 13, 2014. On appeal Wilson argued that the State had failed to offer sufficient evidence to prove the “time frame”  element of repeated child sexual assault. The evidence, construed most favorably to the State, showed that all but one of the alleged assaults occurred after May  5, 2014.

The court of appeals held:

However, exact dates upon which the assaults occurred are not required. State v. Hurley, 2015 WI 35, ¶10 n.6, 361 Wis. 2d 529, 861 N.W.2d 174. This is due to the nature of the crime. As this court discussed in State v. Fawcett:

Sexual abuse and sexual assaults of children are difficult crimes to detect and prosecute. Often there are no witnesses except the victim. The 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.

Id., 145 Wis. 2d 244, 249, 426 N.W.2d 91 (Ct. App. 1988) (citation omitted).

Quoting §948.025, the court of appeals also held that the State had to prove a pattern of sexual abuse and assault, not specific events or dates. Opinion ¶24 (citing State v. Nommensen, 2007 WI App 224, ¶15, 305 Wis. 2d 695, 741 N.W.2d 481).

Fawcett is distinguishable because it involved a single child sexual assault. Hurley is distinguishable because it involved 1 count of repeated child sexual assault but did not address the issue here: what, if anything, the State must show for a jury to find that the defendant committed at least 3 assaults during the charged time frame. Ditto re Nommenson. The plain language of §948.025(1)(b) provides that “whoever commits 3 or more violations under s. 948.02(1) or (2) within a specified period of time involving the same child is guilty of [one of various classes of felonies.]” (Emphasis supplied). Maybe the State does not have to prove that an assault occurred on a specific date, but doesn’t it still have to prove that at least 3 assaults occurred within its chosen “specified period of time?”

Ineffective assistance of counsel. Wilson also raised 2 ineffective assistance claims. (1) The State offered F.T.’s medical records to prove that she had herpes. Trial counsel should have objected on the grounds that the records violated the Confrontation Clause and Crawford v. Washington, 541 U.S. 36 (2004). The court of appeals held:

¶32 F.T.’s medical records are not testimonial. A social worker at BMCW testified that it is standard procedure for all children being placed in foster care to receive a complete medical evaluation by a doctor. When the lesions in F.T.’s vaginal and anal areas were discovered, they were tested for the purpose of determining proper treatment. Thus, F.T.’s medical records were prepared during the course of regularly conducted activity by BMCW, and not for the primary purpose of Wilson’s criminal prosecution. See WIS. STAT. § 908.03(6). Additionally, as patient health care records, an authenticating witness was not required. See WIS. STAT. §908.03(6m).

(2) Wilson argued that trial counsel was ineffective for failing to object to expert testimony that the vast majority of child sexual abusers are relatives or acquaintances of the victims and will often threaten the victims to ensure their silence and for failing to object to expert testimony that most abusers have an inter-familial connection and that being the boyfriend of the victim’s mother is an inter-familial connection. The court of appeals rejected the argument:

¶37 “The criterion of relevancy is whether the evidence sought to be introduced would shed any light on the subject of inquiry.”  Rogers v. State, 93 Wis. 2d 682, 688, 287 N.W.2d 774 (1980).  The relationship between Wilson and F.T. was certainly relevant to the issues being addressed at trial; thus, trial counsel was not deficient for failing to object.  See Allen, 373 Wis. 2d 98, ¶46.  Furthermore, Wilson concedes that there was no evidence introduced that Wilson had ever threatened F.T.9 and, as such, Wilson fails to demonstrate how that particular statement was prejudicial to his case.  See State v. Koller, 2001 WI App 253, ¶9, 248 Wis. 2d 259, 635 N.W.2d 838 (“Showing prejudice means showing that counsel’s alleged errors actually had some adverse effect on the defense.”).  Accordingly, because Wilson has failed to satisfy either prong of the Strickland test, this claim fails as well. See id., 466 U.S at 687.

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