State v. Kempainen
848 N.W.2d 320
Wis. Ct. App.2014Background
- In Dec. 2012 the State charged Brian Kempainen with two counts of sexual assault of a child based on allegations by his former stepdaughter (L.T.) reporting assaults in 1997 (age 8) and 2001 (age 11–12). The complaint specified multi-month time windows rather than exact dates.
- Complaint described detailed facts about each incident, L.T.'s fear, subsequent disclosures to peers and a boyfriend, and a delayed police report in Oct. 2012 after the boyfriend told L.T.’s mother.
- Kempainen moved to dismiss under due process grounds, relying on State v. R.A.R., arguing the multi-month charging periods were too vague to give adequate notice to prepare a defense; the circuit court granted dismissal.
- The State appealed. The court of appeals reviewed de novo whether the complaint satisfied constitutional notice and double jeopardy concerns under Holesome v. State.
- The court applied the seven-factor Fawcett framework (age/intelligence; surrounding circumstances; nature of offense; length of charged period vs. number of acts; passage of time to arrest; duration between indictment and offense; victim’s ability to particularize) and concluded the complaint provided adequate notice.
- The court reversed the dismissal and remanded for reinstatement of the complaint and further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kempainen) | Held |
|---|---|---|---|
| Whether multi-month time windows in child-sexual-assault complaint satisfy due process/notice and double jeopardy requirements | Complaint plus factual details and reason for delayed report give adequate notice; Fawcett factors support sufficiency | Time windows (4 months and 3.5 months) are too vague to permit preparation of defenses (e.g., alibi); R.A.R. limits factors to last four unless defendant alleges prosecutorial diligence failure | Reversed dismissal: court may consider all seven Fawcett factors; given victim's age, circumstances, detailed factual allegations, and absence of claimed prosecutorial bad faith or actual prejudice, charging periods were reasonable and provided adequate notice; double jeopardy not a realistic concern |
Key Cases Cited
- Holesome v. State, 40 Wis. 2d 95 (1968) (establishes due process/double jeopardy notice test for sufficiency of charging allegations)
- State v. Fawcett, 145 Wis. 2d 244 (Ct. App. 1988) (adopts seven-factor framework for evaluating sufficiency of vague date allegations in child sexual-assault cases)
- State v. R.A.R., 148 Wis. 2d 408 (Ct. App. 1988) (discussed but court of appeals rejects reading that limits consideration of first three Fawcett factors only to cases asserting prosecutorial diligence issues)
- State v. Sirisun, 90 Wis. 2d 58 (Ct. App. 1979) (supports liberality in date pleading when victim is a young child)
- State v. Miller, 257 Wis. 2d 124 (Ct. App. 2002) (applies Fawcett factors in delayed-report child sexual-assault case)
- State v. McGuire, 328 Wis. 2d 289 (2010) (Wis. 2010) (explains due-process claim for delay requires showing actual prejudice and improper prosecutorial purpose)