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State v. Brian S. Kempainen, 2013AP1531-CR; State v. Joel Hurley, 2013AP558-CR; petitions for review granted 9/18/14

On review of a published court of appeals decision in Kempainen (case activity) and a per curiam decision in Hurley (case activity)

Issues (adapted from the State’s  PFR in Hurley):

Did the amended complaint charging repeated sexual assault of a child, which alleged that Hurley assaulted his stepdaughter at least 26 times over a five or six-year charging period, satisfy Hurley’s due process right to prepare a defense?

Did the circuit court properly exercise its discretion in admitting “other acts” evidence that Hurley repeatedly assaulted his sister when she was 10 and he was 14 in view of the greater latitude shown “other crimes” evidence in child sexual assault cases?

Did the circuit court err in ordering a new trial due to the prosecutor’s unobjected-to remark in closing argument about Hurley’s failure in his trial testimony to make a strong denial of his sister’s allegations?

The common denominator between Kempainen and Hurley is the issue of whether the State’s complaint charging child sexual assault was unconstitutionally vague. State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988) established 7 factors to assist in determining whether a complaint alleging child sexual assault satisfies due process and double jeopardy concerns. The factors at issue here appear to be #4 the length of the alleged period of time in relation to the number of criminal acts alleged, #5 the passage of time between the alleged period for the crime and the defendant’s arrest, and #6 the duration between the date of the indictment and the alleged offense.

The complaint against Hurley alleged assaults occurring “on and between 2000 and 2005.” The parties dispute whether there were 5 criminal acts or 26, but they apparently agree that the charging period spanned 5 (or maybe 6) years and the amended complaint was filed about 5 1/2 years after the end of the charging period. Meanwhile, the complaint against Kempainen alleged sexual contact “on or about August 1, 1997 to December 1, 1997” and again “on or about March 1, 2001 to June 15, 2001.”  The victim reported the assaults to the police 12 and 15 years after they occurred. The court of appeals held that complaint against Hurley violated due process, but the complaint against Kempainen satisfied it.  See our post re Kempainen.

UPDATE (3/19/15): The supreme court affirmed the court of appeals’ decision in Kempainen; see our post on the decision here.

You know what F. Scott Fitzgerald said: The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function. Has our court of appeals displayed a “first-rate intelligence”? Or do these two applications of Fawcett display an inability to function? Either way, we expect that SCOW will give the Fawcett factors, as modified State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d 315 (Ct. App. 1988), a thorough review when it decides these cases.  That review may also address the question of whether the first 3 Fawcett factors even apply when the defendant does not allege that the State could have obtained a more definite date through diligent efforts. Take a look at the State’s PFR and Hurley’s response.

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