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SCOW: Totality of circumstances determines whether complaint is sufficient to provide defendant adequate notice of accusation

State v. Brian S. Kempainen, 2015 WI 32, 3/19/15, affirming a published court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

The supreme court unanimously holds that when determining whether the accusations in a criminal complaint are specific enough to give a defendant fair notice of the charges and an opportunity to defend against them, a court must consider the totality of the circumstances, and not just the specific set or subset of factors listed in State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1981).

In 2012 Kempainen was charged with two counts of child sexual assault. One count was alleged to have occurred between August and December 1997, the second between March and June 2001. (¶¶5-12). The circuit court dismissed the charges after finding them not sufficiently definite, citing Fawcett and State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d 315 (Ct. App. 1988). (¶13).

Fawcett, 145 Wis. 2d at 253, set out seven factors a court should consider when deciding whether the defendant charged with child sexual assault has received notice of the charge sufficient to allow the defendant to plea and prepare a defense. R.A.R., 148 Wis. 2d at 411, held that the first three of those factors (the victim’s age and intelligence; the surrounding circumstances; and the nature of the offense) do not apply unless the defendant claims the state could have obtained a more definite date of the offense through more diligent effort. Kempainen didn’t claim the state could have made the charging period more diligent, so the circuit court “skip[ped] right to the fourth [Fawcett] factor.” (¶13).

The supreme court now expressly endorses the Fawcett factors. (¶¶23-24). Those factors are not the only relevant considerations, however, and no single factor is dispositive or even present in every case. The factors meant to assist a court in applying the basic test in Holesome v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968), which is whether the defendant can determine if the charge “states an offense to which he [can] plead and prepare a defense and whether conviction or acquittal is a bar to another prosecution for the same offense.”(¶¶4, 25-27). Because the Fawcett factors are neither exclusive nor dispositive, R.A.R.‘s restriction on using the first three factors cannot stand:

¶28  …. Courts are not confined solely to the seven Fawcett factors or any subset therein. Rather, courts may consider these factors and any other relevant factors helpful in determining whether a complaint is sufficient to satisfy due process. Because notice is concerned with whether the charging documents are sufficiently detailed so as to provide the defendant an opportunity to plead and prepare a defense, courts are not confined to only one set of factors when conducting their inquiry. The Holesome test requires courts to consider the totality of the circumstances surrounding the nature of the accusations. Cf. State v. Gaudesi, 112 Wis. 2d 213, 219, 332 N.W.2d 302 (1983) (“The test under Wisconsin law of the sufficiency of the complaint is one of minimal adequacy, not in a hyper[-]technical but in a common sense evaluation, in setting forth the essential facts establishing probable cause.”) (internal citations omitted). … To the extent that R.A.R. conflicts with the holding in Fawcett, and thus limits the factors a court may consider when applying the Holesome test, it is overruled.

Using all of the Fawcett factors to assess the circumstances in this case  the court holds that despite the passage of 12 and 15 years from the dates of the alleged assaults, the complaint set forth sufficient detail to give Kempainen sufficient notice of the nature of the charges against him and to allow him to plead and prepare a defense. (¶¶31-41).

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