decision below: 2009 WI App 143; for Conner: Steven J. House
What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?
Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?
Whether a defendant received adequate notice of the nature and cause of the criminal accusations in an information (See State v. Cheers, 102 Wis. 2d 367, 403 – 04, 306 N.W.2d 676 (1981) and State v. Copening, 103 Wis. 2d 564, 576, 309 N.W.2d 850 (1981)).
“Stalking” requires a “course of conduct,” which is defined as “a series of 2 or more acts carried out over time,” § 940.32(1); and becomes a Class H felony if “the present violation” occurs within 7 years of a previous conviction involving the same victim, § 940.32(2m). The question, then, is whether the course of conduct must all come within this 7-year restriction, or whether 1 act within that window is enough. The court of appeals held that this 7-year time restriction requires that only the final act charged as part of a course of conduct occur within seven years of the previous conviction, without temporal restriction on the other acts establishing the underlying course of conduct element. As for the other issue, notice of the charge, the question appears to be whether it’s enough for the charging document merely to recite the elements of the offense, or whether it must specifically allege the acts establishing the “course of conduct.”