State of Wisconsin v. Brian s. Kempainen. WI criminal law, specificity of date of offense
Brian S. Kempainen was charged in Sheboygan County, Wisconsin, Circuit Court with sexual assault of a child. The trial court, Judge Terence T. Bourke, dismissed the charges on the grounds that the charges did not give the defendant sufficient notice as to when the alleged violations took place. The State appealed this dismissal to the Wisconsin Court of Appeals, which reversed and reinstated the charges on April 16, 2014.
Kempainen was charged in 2012 with two counts of sexual assault of his former stepdaughter, who was under 13 years of age at the time of the alleged assault. In 2012, she reported to police that he had sexual contact with her in 1997 and 2001. The dates were narrowed down only to August 1-December 1, 1997 and March 1-June 15, 2001.
The Court of Appeals noted that the exact date of the commission of a crime is not a material element of the offense. Therefore, it does not need to be precisely alleged. What is important is that the defendant can prepare a defense and that either a conviction or acquittal will bar another prosecution for the same offense.
An earlier decision, State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d 315 (Ct. App. 1988), had suggested that the standard varies depending on whether the state could have ascertained the exact date by using greater diligence. But the court clarified that the case was actually governed by the holding in State v. Fawcett, 145 Wis. 2d 244, 250, 426 N.W.2d 91 (Ct. App. 1988).
The Court applied the Fawcett factors and concluded that the complaint in this case was adequate to give notice. The court went on to say that double jeopardy was "not a realistic concern here." Many specific details were given, and a court could easily determine whether the charges arose out of the same incidents.
For these reasons, the Court of Appeals reversed the Circuit Court and remanded the case to reinstate the complaint.
2013AP1531-CR (Wis. Ct. App. April 16, 2014).
Please see the original opinion for the court's exact language.
Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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