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Challenges to charging periods and jury instructions in child sexual assault case rejected

State v. Michael T. Dewey, 2021AP174-CR, District 4, 4/14/22 (not recommended for publication); case activity (including briefs)

Dewey was charged with three dozen counts of child sexual assault related crimes alleged to have occurred during various times between 2005 and 2013. He argues the charging periods for most of the counts were “too long and disjointed” to allow him to prepare an adequate defense and that his trial lawyer was ineffective for not objecting to jury instructions for five of the counts on the ground that the three non-continuous time periods charged for those counts failed to protect his right to a unanimous verdict. The court of appeals rejects his arguments.

The charges were grouped together to cover specific places and specific time periods, some continuous, some not. For instance, counts 1, 3, and 4 covered a nine-month period in 2005; counts 14 to 17 covered two periods, one in 2010 to 2011, the other in 2011 only. (¶17). While a defendant is entitled to notice of the time frame, the date of commission is not an element of the offense and needn’t be precisely alleged; instead, whether the charge gives the defendant sufficient notice  is assessed using the factors set out 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 [charging] 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.

This is a fact-intensive inquiry, and the court’s application of the factors here leads it to conclude the charging periods were reasonable given ages of the child witnesses and the alleged frequency of the conduct which made it hard to distinguish or recall more specific dates. (¶¶19-36).

The ineffective assistance claim involves the instructions on counts 32 to 36, each of which alleged a specific offense (sexual assault of a child, incest, child enticement, or exposing genitals to a child) during three specific periods: approximately five months in early 2010; three months spanning late 2010 into early 2011; and over six months in late 2011. Dewey argues that trial counsel should have objected to the instructions on these counts because the inclusion of three, non-continuous charging periods in each count deprived him of his right to a unanimous verdict by allowing different members of the jury to find that Dewey committed any one of the acts alleged in each count in any one of the three charging periods, without agreeing as to which act occurred in which period. (¶41).

The circuit court found there was no prejudice to trial counsel’s failure to object because if trial counsel had objected, the court “would have amended the jury instruction to include one continuous time frame” covering all three periods, and that would have been permissible under the case law—see, e.g., State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983) (when separate criminal offenses of the same type occur during one continuous criminal transaction, the prosecutor may join these acts in a single count if they can properly be viewed as one continuous occurrence without violating the protections afforded the defendant by the rule against duplicity). According to the court of appeals, Dewey doesn’t address how instructing on the continuous charging period, as the circuit court said it would have done in the event trial counsel objected, violated his right to a unanimous verdict, and therefore he hasn’t established his ineffective assistance of counsel claim. (¶42 & n.7).

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