This lengthy decision addresses three discrete issues: Whether Hurley was given sufficient notice of the child sexual assault charges he had to defend against; whether other acts evidence was properly admitted; and whether the prosecutor’s closing argument justified a new trial in the interest of justice.
This post covers the court’s conclusion that under its just-revised “totality of the circumstances” test for deciding whether charges of child sexual assault give a defendant adequate notice of the charges, Hurley was given sufficient notice by a criminal complaint charging him with repeated acts of sexual assault of M.C.N., his stepdaughter, on three or more occasions “on and between” 2000 and 2005. Our post on the other-acts issue is here, and our post on the prosecutor’s closing argument is here.
Hurley was charged in 2011 for allegedly assaulting M.C.N. between 2000 and 2005, when she was between 6 and 11 years of age. (¶¶10-11). Hurley argued the complaint violated his due process right to adequate notice of the charges. The court of appeals (¶¶17-38) agreed, but it was employing the test as it existed before its recent revision by the supreme court.
Under the new version of the test, “[w]hen reviewing the sufficiency of a criminal complaint and information, a court considers ‘whether, under the totality of the circumstances, the complaint and information allege facts such that the defendant can plead and prepare a defense.’ State v. Kempainen, 2015 WI 32, ¶36, __ Wis. 2d __, __ N.W.2d __.” (¶32). Review of the circumstances is “guided” by the factors adopted in State v. Fawcett, 145 Wis. 2d 244, 253, 426 N.W.2d 91 (Ct. App. 1988):
(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.
But a court may also consider “any other relevant factors necessary to determine whether a criminal complaint and information provide adequate notice. No single factor is dispositive, and not every Fawcett factor will necessarily be present.” (¶36, citing Kempainen, ¶4).
Before applying Kempainen, the court addresses the parties’ dispute about how many individual assaults are alleged in the amended complaint (the document giving Hurley notice as to what he may have to defend against). Hurley claims the complaint alleged five acts of digital penetration of M.C.N.’s vagina. But the state says there are 21 more: one act of forced touching of Hurley’s genitals, and at least twenty “after-school weighing incidents” where Hurley would have M.C.N. take off her clothes and then carry her naked on his shoulders into the bathroom and put her on the scale to be weighed. (¶¶37-39). The court agrees with the state:
¶39 …. The circumstances here (frequent nude weighing, nude “rides” on Hurley’s shoulders, and the five acts of digital penetration and one act of forced touching) are sufficient to draw a reasonable inference that Hurley acted with sexual intent during these incidents.
¶40 These 26 acts in the amended complaint were sufficiently alleged to put Hurley on notice that he might have to defend against these allegations as incidents of sexual intercourse and sexual contact. Therefore, our application of the Fawcett factors will be grounded in the conclusion that the amended complaint alleges 26 separate and distinct sexual assaults.
Applied to 26 alleged assaults of a 6- to 11-year-old girl over five years, the Fawcett factors lead the court to conclude Hurley had sufficient notice to satisfy his due process right to plead and prepare a defense. (¶¶42-53).
Factors five and six—the length of time between the offenses and arrest and charging—arguably weigh in Hurley’s favor, for the offenses occurred between 2000 and 2005, and he wasn’t charged till 2011. But the court rejects that argument as “mechanical and mathematical,” saying it would “invalidate” the lengthy (even unlimited) statute of limitations, § 939.74(2)(a)1. and (c), and that it fails to explain how Hurley’s defense was affected: “A defendant arguing that factors five and six weigh in his favor must articulate how his ability to present a defense has been impaired.” (¶51).