State v. Brian S. Kempainen

2015 WI 32

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1531-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Brian S. Kempainen,
Defendant-Respondent-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 354 Wis. 2d 177, 848 N.W.2d 320
(Ct. App. 2014 – Published)
PDC No:2014 WI App 53

OPINION FILED: March 19, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 8, 2015

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Terence T. Bourke

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
by Melissa L. Mroczkowski and Kirk Obear and Associates,
Sheboygan, and oral argument by Melissa L. Mroczkowski.

For the plaintiff-appellant, the cause was argued by Sarah
L. Burgundy, assistant attorney general, and with whom on the
brief was J.B. Van Hollen, attorney general.
 2015 WI 32
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1531-CR
(L.C. No. 2012CF691)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant,
FILED
v.
MAR 19, 2015
Brian S. Kempainen,
Diane M. Fremgen
Defendant-Respondent-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 MICHAEL J. GABLEMAN, J. We review a published
decision of the court of appeals,1 which reversed the circuit

court's2 dismissal of the criminal complaint and information

filed against Brian S. Kempainen ("Kempainen"). On December 21,

2012, the Sheboygan County District Attorney's Office filed a

criminal complaint alleging Kempainen had engaged in two counts

1
State v. Kempainen, 2014 WI App 53, 354 Wis. 2d 177, 848
N.W.2d 320.
2
The Honorable Terence T. Bourke, presiding.
 No. 2013AP1531-CR

of sexual assault of a child under 13 years of age, contrary to

Wis. Stat. § 948.02(1) (2001-02).3 The complaint alleged that

the first count of sexual assault occurred "on or about August

1, 1997 to December 1, 1997." The complaint alleged that the

second count of sexual assault occurred "on or about March 1,

2001 to June 15, 2001."

3
All subsequent references to the Wisconsin Statutes are to
the 2001-02 version unless otherwise indicated.

Wisconsin Stat. § 948.02(1) provides that "[w]hoever has
sexual contact or sexual intercourse with a person who has not
attained the age of 13 years is guilty of a Class B felony."
Wisconsin Stat. § 948.02(1) (1997-98), applicable to count one
of the complaint and information, is identical to the 2001-02
version.

"Sexual contact" is defined, in relevant part, by Wis.
Stat. § 948.01(5) as:

(a) Intentional touching by the complainant or
defendant, either directly or through clothing by the
use of any body part or object, of the complainant's
or defendant's intimate parts if that intentional
touching is either for the purpose of sexually
degrading or sexually humiliating the complainant or
sexually arousing or gratifying the defendant.

2
 No. 2013AP1531-CR

¶2 Kempainen moved the circuit court to dismiss the

complaint and information4 on the grounds that they were "not

sufficiently definite and the defendant [was] not adequately

informed of the charges against him" because the time periods in

which the alleged crimes were committed were "too vague," such

that he could not plead for, or prepare a defense against,

"when" the crimes occurred. The circuit court granted

Kempainen's motion and dismissed the complaint and information.

The State appealed. In a published decision, the court of

appeals reversed the circuit court and remanded the case with

the instruction that the complaint and information be

reinstated. The court of appeals relied on State v. Fawcett,

145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988) (setting forth

seven5 "reasonableness" factors that a court may consider in

4
"The information is the charging document to which a
defendant must enter a plea." State v. Copening, 103
Wis. 2d 564, 576, 309 N.W.2d 850 (Ct. App. 1981) (citing
Pillsbury v. State, 31 Wis. 2d 87, 93, 142 N.W.2d 187 (1966)).
"A defendant has the benefit of both the factual allegations
required in the complaint and the final statutory charges
alleged in the information." Id. However, "[t]he factual
allegations relied on by the state which satisfy the elements of
the crime are more likely found in the complaint. The facts
recited in the complaint need not be repeated in the
information." Id. at 577. Thus, when discussing the
sufficiency of the factual allegations against Kempainen, we
refer to the complaint.
5
These seven factors are:

(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
(continued)
3
 No. 2013AP1531-CR

assessing the sufficiency of a complaint in a child sexual

assault case), as a basis for its determination that Kempainen

received adequate notice as to the nature of the charges against

him.

¶3 Two issues are presented for our consideration: 1)

whether a court is prohibited from considering the first three

factors set forth in Fawcett when the defendant does not claim

that the State could have obtained a more definite date through

diligent efforts;6 and 2) whether the complaint and information

charging Kempainen with two counts of sexual assault of a child

under 13 years of age provided adequate notice to satisfy

Kempainen's due process right to plead and prepare a defense.

¶4 First, we hold that in child sexual assault cases

courts may apply the seven factors outlined in Fawcett, and may

consider any other relevant factors necessary to determine

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
indictment 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.

State v. Fawcett, 145 Wis. 2d 244, 253 426 N.W.2d 91 (Ct. App.
1988).
6
In State v. R.A.R., 148 Wis. 2d 408, 411, 435 N.W.2d 315
(Ct. App. 1988), the court of appeals concluded that a court may
consider the first three Fawcett factors only in situations
where the defendant claims the State could have obtained a more
definite charging period through diligent efforts.

4
 No. 2013AP1531-CR

whether the complaint and information "states an offense to

which [the defendant can] plead and prepare a defense."

Holesome v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968).

No single factor is dispositive, and not every Fawcett factor

will necessarily be present in all cases. Second, we hold that

the complaint and information provided adequate notice of when

the alleged crimes occurred and thus did not violate Kempainen's

due process right to plead and prepare a defense. We therefore

affirm the court of appeals and remand to the circuit court with

the instruction to reinstate the complaint and information

against Kempainen.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶5 On December 21, 2012, the Sheboygan County District

Attorney's Office filed a complaint charging Kempainen with two

counts of sexual assault of a child under the age of 13. The

first count of the complaint alleged that Kempainen had sexual

contact with his stepdaughter, L.T., "on or about August 1, 1997

to December 1, 1997." The second count alleged that Kempainen
had sexual contact with L.T. "on or about March 1, 2001 to June

15, 2001." L.T. was 8 years old when the first assault occurred

and either 11 or 12 years old when the second assault occurred.

¶6 L.T. first reported the alleged assaults on October

25, 2012, to Detective Brian Retzer of the Sheboygan Police

Department. L.T. told Detective Retzer that her stepfather,

Kempainen, sexually assaulted her sometime around the start of

the school year when she was in the second grade. L.T. recalled
this specific time period because it corresponded with the
5
 No. 2013AP1531-CR

family's move to Sheboygan. According to L.T., she was sleeping

on the couch in the living room when, in the middle of the

night, Kempainen laid down next to her so that he was on the

innermost area of the couch and she was on its edge. Kempainen

allegedly began to rub L.T.'s vagina through her pajamas and

then put L.T.'s hand down his sweatpants and compelled her to

massage his penis for approximately two minutes. Next,

Kempainen allegedly performed oral sex on L.T. for "a long

time." L.T. told Detective Retzer that she was "very scared and

nervous" while this was happening. Eventually, Kempainen

"passed out" on the couch, and L.T. immediately got up, went

into the kitchen, and cried. She then went somewhere else in

the house to sleep.

¶7 L.T. stated that approximately one week after this

incident, Kempainen asked her to come down to the basement with

him. Once there, Kempainen allegedly told her that he did not

want her to tell her mother what had happened. He also told

L.T. that "I know you were bad" and that he would get in trouble
if she told her mother what happened.

¶8 The second assault occurred when L.T. was in the sixth

grade and it was "warm outside." During this time, L.T. was

responsible for waking Kempainen for work around 4:30 PM each

day. On one such day, L.T. was waiting to wake up Kempainen and

was lying sideways at the foot of the bed watching "Disney."

Kempainen woke up and began to rub L.T.'s back under her

clothes. Eventually, Kempainen allegedly moved his hands to the

6
 No. 2013AP1531-CR

front of her chest and touched L.T.'s breasts. L.T. immediately

became scared and left her home to go to a friend's house.

¶9 L.T. did not immediately tell anyone about either

incident because she was afraid that her mother would be mad at

her and because she was afraid of what her mother might do to

Kempainen. When she was in eighth grade she did tell a close

friend, J.B., about the assaults; however, J.B. did not tell

anyone.

¶10 Detective Retzer asked L.T. why she chose to come

forward now, after such a long time had passed. L.T., who was

23 years old at the time of the interview, explained that she

confided in her first serious boyfriend what Kempainen had done.

The boyfriend urged L.T. to notify the police and to tell her

mother, but L.T. remained too afraid to tell anyone. In early

October 2012, L.T.'s then ex-boyfriend informed L.T.'s mother

about Kempainen's alleged sexual assault of L.T. At this point,

L.T. finally told her mother what had happened.

¶11 On November 28, 2012, Detective Retzer contacted
L.T.'s ex-boyfriend who confirmed much of L.T.'s account. He

also added that L.T. told him that "she felt responsible for

[the assaults] and didn't want to talk about it."

¶12 Detective Retzer arrested Kempainen on December 19,

2012, for the alleged sexual assaults of L.T. The Sheboygan

County District Attorney's Office filed the complaint on

December 21, 2012, and Kempainen made his initial appearance

before the circuit court that same day. An information was
filed on December 26, 2012. On January 29, 2013, Kempainen
7
 No. 2013AP1531-CR

moved the circuit court to dismiss the complaint and information

because it was "not sufficiently definite and [he was] not

adequately informed of the charges against him." Specifically,

Kempainen argued that the "several month time spans in which the

crimes are alleged to have occurred are too vague to provide the

defendant with adequate notice of the charges against him."

¶13 The circuit court ordered briefing on Kempainen's

motion and held a hearing on May 21, 2013. Relying on Fawcett

and State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d 315 (Ct. App.

1988) (limiting a court's consideration of the first three

Fawcett factors to situations where the defendant claims the

State could have obtained a more definite charging period

through diligent efforts), the circuit court concluded that the

charges against Kempainen "are not sufficiently definite and

that [Kempainen] was not adequately informed of the charges."

Citing footnote two of the Fawcett decision, the circuit court

stated that because Kempainen had not claimed that the State

could have obtained a more definite charging period there was
"no need to go into the first three [Fawcett] factors and you

just skip right to the fourth factor." The circuit court then

dismissed the complaint and information.

¶14 The State appealed. In a published opinion, the court

of appeals reversed the circuit court. State v. Kempainen, 2014

WI App 53, ¶1, 354 Wis. 2d 177, 848 N.W.2d 320. The court of

appeals determined that "[b]ecause the date of the commission of

the crimes is not a material element of the charged offenses
here, a date need not be precisely alleged" in the complaint and
8
 No. 2013AP1531-CR

information. Id., ¶24 (citations omitted). "Any vagueness in

L.T.'s memory will more properly go to her credibility and the

weight of her testimony." Id. Thus, the court of appeals

concluded that "the charging periods are reasonable and the

details in the complaint provide Kempainen with adequate notice

of the charges against him." Id.

¶15 Kempainen petitioned this court for review, which we

granted on September 18, 2014.

II. STANDARD OF REVIEW

¶16 Whether the time period alleged in a complaint and

information is sufficient to provide notice to the defendant is

a question of constitutional fact that we review de novo.

Fawcett, 145 Wis. 2d at 249. "The criminal complaint is a self-

contained charge which must set forth facts that are sufficient,

in themselves or together with reasonable inferences to which

they give rise, to allow a reasonable person to conclude that a

crime was probably committed and that the defendant is probably

culpable." Id. at 250 (citing State v. Hoffman, 106
Wis. 2d 185, 197, 316 N.W.2d 143 (Ct. App. 1982)). The

sufficiency of a pleading is a question of law reviewed

independently. Id. In reviewing a complaint, our analysis is

restricted to the charging document and we do not consider

extrinsic evidence.

¶17 In order to satisfy the requirements of the United

States and Wisconsin Constitutions, the charges in the complaint

and information "must be sufficiently stated to allow the
defendant to plead and prepare a defense." Id. When reviewing
9
 No. 2013AP1531-CR

the sufficiency of the complaint and information, we consider

two factors: "whether the accusation is such that the defendant

[can] determine whether it 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."

Holesome, 40 Wis. 2d at 102.7

III. DISCUSSION

¶18 We first consider the appropriate factors courts may

use to determine whether a defendant in a child sexual assault

case has received sufficient notice of the charges against him.

We hold that in child sexual assault cases courts may apply the

seven factors outlined in Fawcett, and may consider any other

relevant factors necessary to determine whether the complaint

and information "states an offense to which [the defendant can]

plead and prepare a defense." Id. We then apply the Fawcett

factors to the facts of this case and conclude that Kempainen

received adequate notice of the charges against him.

A. Reviewing Courts May Consider All of the Fawcett Factors As
Well As Any Other Relevant Factors.

¶19 Due process requires that a defendant in a criminal

proceeding must be "informed of the nature and cause of the

accusation against him." Id. This right is guaranteed by the

Sixth Amendment of the United States Constitution and by Article

7
Neither Kempainen nor the State raise the double jeopardy
factor, whether conviction would be a bar to another
prosecution. Therefore, we do not address it.

10
 No. 2013AP1531-CR

I, Section 7 of the Wisconsin Constitution.8 As we explained in

Holesome, in order to determine whether there has been a

violation of the defendant's due process right to know the

"nature and cause of the accusation," courts must look to

whether the defendant can determine if the complaint and

information "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." Id. When

applying this test, we have focused our inquiry on the facts

alleged in the complaint and the elements of the crimes

involved. See e.g., State v. Connor, 2011 WI 8, 331

Wis. 2d 352, 795 N.W.2d 750; Blenski v. State, 73 Wis. 2d 685,

245 N.W.2d 906 (1976); State v. George, 69 Wis. 2d 92, 230

N.W.2d 253 (1975).

¶20 Thus, under Holesome, courts are to consider whether

the complaint alleges facts that identify the alleged criminal

conduct with reasonable certainty. See Fink v. City of

Milwaukee, 17 Wis. 26, 28 (1863) ("It is an elementary rule of
criminal law, that . . . the facts and circumstances which

8
The Sixth Amendment provides, in pertinent part, that
"[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the
accusation." U.S. Const. Amend. VI.

Article I, Section 7 of the Wisconsin Constitution has a
nearly identical provision that provides, in pertinent part,
that "[i]n all criminal prosecutions the accused shall enjoy the
right . . . to demand the nature and cause of the accusation
against him." Wis. Const. art., I, § 7.

11
 No. 2013AP1531-CR

constitute the offense . . . must be stated with such certainty

and precision that the defendant may be enabled to judge whether

they constitute an indictable offense or not . . . .").

Application of the Holesome test necessarily depends on the

nature of the specific crime(s) alleged. Therefore, courts are

to determine whether a specific complaint and information

provide the defendant with adequate notice of the charges on a

case-by-case, or count-by-count, basis.

¶21 Child sexual assaults are difficult crimes to detect

and to prosecute, as typically there are no witnesses except the

victim and the perpetrator. Fawcett, 145 Wis. 2d at 249. Often

the child is assaulted by a trusted relative, and does not know

whom to turn to for protection. Id. The child may have been

threatened, or, as is often the case, may harbor a natural

reluctance to come forward. Id. "These circumstances many

times serve to deter a child from coming forth immediately. As

a result, exactness as to the events fades in memory." Id.

Thus, "[y]oung children cannot be held to an adult's ability to
comprehend and recall dates and other specific events." Id. "A

person should not be able to escape punishment for such

a . . . crime because he has chosen to take carnal knowledge of

an infant too young to testify clearly as to the time and

details of such . . . activity." State v. Sirisun, 90

Wis. 2d 58, 65-66 n.4, 279 N.W.2d 484 (Ct. App. 1979) (citation

omitted). "However, no matter how abhorrent the conduct may be,

a defendant's due process [rights] . . . may not be ignored or
trivialized." Fawcett, 145 Wis. 2d at 250.
12
 No. 2013AP1531-CR

¶22 Because "[t]ime is not of the essence in [child]

sexual assault cases," when the date of the commission of the

crime is not a material element of the offense it need not be

precisely alleged. Id. at 250; see also Hoffman, 106 Wis. 2d at

198. A "more flexible application of notice requirements is

required and permitted [in child sexual assault cases]. The

vagaries of a child's memory more properly go to the credibility

of the witness and the weight of the testimony, rather than to

the legality of the prosecution in the first instance."

Fawcett, 145 Wis. 2d at 254.

¶23 In Fawcett, the court of appeals properly interpreted

Holesome by discussing seven factors which "assist us in

determining" whether the complaint provides the defendant notice

of the "nature and cause of the accusation against him" in child

sexual assault cases. Fawcett, 145 Wis. 2d at 253. The seven

factors considered by the court were taken from a New York case,

People v. Morris, 461 N.E.2d 1256 (N.Y. 1984). In Morris, the

New York Court of Appeals cautioned against a bright-line rule
for determining whether a complaint provides adequate notice to

the defendant. "It is . . . important to note that the

requirements for a valid indictment will vary with the

particular crime involved, and what is sufficient to charge [one

crime] would be insufficient with respect to many other crimes."

Morris, 461 N.E.2d at 294. Accordingly, New York adopted what

is essentially a totality of the circumstances test, grounded in

reasonableness, for notice in criminal proceedings. This test

13
 No. 2013AP1531-CR

is consistent with our holding in Holesome and our prior case

law.

¶24 The Fawcett court concluded that the Morris

"reasonableness" test was consistent with Holesome, and, as a

result, applied the following factors to determine "whether the

Holesome test is satisfied":

(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 indictment
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.
Fawcett, 145 Wis. 2d at 253 (formatting added). We agree that

these are proper factors to apply in cases involving child

sexual assaults, in that they provide guidance to courts when

applying the Holesome test and help determine whether a

complaint and information are sufficient to satisfy due process.

¶25 However, in R.A.R. the court of appeals refused to

apply all seven Fawcett factors. In R.A.R., the court
determined that "the first three factors apply when the

14
 No. 2013AP1531-CR

defendant claims that the State could have obtained a more

definite date through diligent efforts."9 R.A.R., 148 Wis. 2d at

411. Because the defendant in R.A.R. did not claim that the

State could have obtained a more definite date through diligent

efforts, the court did not consider the first three Fawcett

factors. Id. As a result, the court of appeals considered only

the last four Fawcett factors and held that the "charging

periods set forth . . . are not sufficiently definite and that

R.A.R. was not adequately informed of the charges against him."

Id. at 413.

¶26 The court's conclusion in R.A.R. was incorrect. The

court of appeals' decision below correctly noted that R.A.R.

appeared to be in conflict with Fawcett. Kempainen, 354 Wis. 2d

177, ¶¶13-14. Specifically, the court noted that

in Fawcett, we stated that a court 'may look to the
[first three factors]' when evaluating whether the
prosecution was diligent, and further, that when
assessing the overall reasonableness of the complaint
under Holesome, relevant factors 'include but are not
limited to' the last four factors. Significantly, we
then concluded that all seven factors can 'assist us
in determining whether the Holesome test is satisfied'
and proceeded to apply all seven factors.
Id., ¶13 (internal citations omitted). The court of appeals

thus determined that "[t]o the extent R.A.R. suggests courts may

9
These factors are "(1) the age and intelligence of the
victim and other witnesses; (2) the surrounding circumstances;
and (3) the nature of the alleged offense, including whether it
is likely to occur at a specific time or to have been discovered
immediately." R.A.R., 148 Wis. 2d at 411 (quoting Fawcett, 145
Wis. 2d at 253).

15
 No. 2013AP1531-CR

not consider the first three Fawcett factors unless a defendant

claims a lack of prosecutorial diligence, we cannot follow it."

Id., ¶14.

¶27 The court of appeals also explained that "only the

supreme court . . . has the power to overrule, modify or

withdraw language from a published opinion of the court of

appeals." Id. (quoting Cook v. Cook, 208 Wis. 2d 166, 189-90,

560 N.W.2d 246 (1997)).10 Furthermore, "[t]he ultimate question

is whether the Holesome test has been met. The seven

Fawcett factors are tools to assist—not limitations upon—courts

in answering this question. A court may consider all of these

factors, and others, if it deems them helpful in

determining whether the requirements of Holesome are satisfied."

Id., ¶15.

¶28 The court of appeals reasoning in the present case is

correct. 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

10
Both Fawcett and R.A.R. were decided in 1988. However,
Fawcett was decided May 18, 1988. R.A.R. was decided on
December 22, 1988.

16
 No. 2013AP1531-CR

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).11 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.

¶29 There is good reason to overrule this portion of

R.A.R. First, a technical application of R.A.R.'s reasoning

allows the defendant to plead so as to escape consideration of

three factors that will often weigh against him. Such an

application is ripe for manipulation as a defendant could escape

the first three Fawcett factors by simply remaining silent and

refusing to argue that the State could have obtained a more
definite date. It would always be in a defendant's best

interest to do this. Further, the first three factors (the age

and intelligence of the victim and other witnesses, the

11
In order to determine whether a complaint establishes
probable cause, courts typically consider the following
questions: who is charged; what is the person charged with; when
did the alleged offense take place; where did the alleged
offense take place; why is this particular person being charged;
and who says so? State v. Gaudesi, 112 Wis. 2d 213, 219, 332
N.W.2d 302 (1983).

17
 No. 2013AP1531-CR

surrounding circumstances, and the nature of the offense) are

especially important given the nature of child sexual assault

cases. As the Fawcett court noted:

[t]he child may have been assaulted by a trusted
relative or friend and not know who to turn to for
assistance and consolation. The child may have been
threatened and told not to tell anyone. Even absent a
threat, the child might harbor a natural reluctance to
reveal information regarding the assault. These
circumstances many times serve to deter a child from
coming forth immediately. As a result, exactness as
to the events fades in memory.
Fawcett, 145 Wis. 2d at 249. Second, the first three Fawcett

factors necessarily inform other factors, such as the seventh

factor, "the ability of the victim or complaining witness to

particularize the date and time of the alleged transaction or

offense." Id. at 253. It would be extremely difficult to

consider the ability of a victim to particularize the date and

time of the alleged crime without also considering the victim's

age and intelligence, the surrounding circumstances, or the

nature of the offense. Finally, the R.A.R. decision rests upon

a very narrow interpretation of Morris, which is at odds with
its full holding. Neither Morris nor Fawcett restrict a court's

inquiry into the sufficiency of the charges based on the nature

of the defendant's challenge.

¶30 In sum, courts must apply the Holesome test by looking

at the totality of the circumstances surrounding the challenged

complaint and information. In cases involving the alleged

sexual assault of a child, courts may be guided by the Fawcett
factors, as well as any other relevant factors necessary for a

18
 No. 2013AP1531-CR

determination of whether the complaint and information "states

an offense to which [the defendant can] plead and prepare a

defense." Holesome, 40 Wis. 2d at 102.

B. The Complaint and Information Are Sufficient to State an

Offense to Which Kempainen Can Plead and Prepare a Defense.

¶31 Having laid out the appropriate test for courts to

follow, we now turn to the application of the Fawcett factors to

Kempainen's case. We hold that the complaint and information

provided adequate notice and thus did not violate Kempainen's

due process right to plead and prepare a defense.

¶32 As the court of appeals did in both State v. Miller,

2002 WI App 197, ¶30, 257 Wis. 2d 124, 650 N.W.2d 850, as well

as Kempainen, we will "consider together the first three

[Fawcett] factors," though courts may consider these factors

separately. Kempainen, 354 Wis. 2d 177, ¶16; Miller, 257

Wis. 2d 124, ¶30. These factors are (1) the age and

intelligence of the victim and other witnesses; (2) the

surrounding circumstances; and (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. Fawcett, 145

Wis. 2d at 253.

¶33 In the instant case, the victim was 8 years old when

the first assault occurred and either 11 or 12 years old when

the second assault occurred. Kempainen, the alleged

perpetrator, was the victim's stepfather and held a position of

authority over her. As the court of appeals explained,
Kempainen's position of dominance was highlighted by the sexual
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acts allegedly performed by him, "that is, he could do

essentially whatever he wanted to [L.T.]" Kempainen, 354

Wis. 2d 177, ¶16. In addition, approximately one week after the

first incident, Kempainen allegedly called L.T. into the

basement of the home and told her that she had been "bad" and

warned her that if she told her mother, he would get in trouble.

Following the second assault, L.T. was so afraid that she left

her home and went to a friend's house. A young girl in this

situation would understandably be reluctant to tell anyone about

the assaults at the time they occurred, and L.T.'s statements

indicate that she was afraid of what would happen if she came

forward. It is also unlikely that the assaults would have

occurred at a specific time. Kempainen was L.T.'s stepfather,

they lived in the same house, and the circumstances of the two

assaults do not indicate that they occurred in conjunction with

a specific date that would have stood out in a child's mind.

Rather, they occurred during otherwise normal time periods.

Given these circumstances, we conclude that the first three
Fawcett factors weigh in favor of notice.

¶34 The fourth Fawcett factor is the length of the alleged

period of time in relation to the number of individual criminal

acts alleged. Here, the first assault occurred during a four

month period, and the second assault occurred during a three-

and-a-half month period. Kempainen claims that these ranges

prevent him from preparing an alibi defense and are overly

broad. We are unpersuaded. First, simply because a defendant
wishes to assert an alibi defense does not change the fact that
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"where the date of the commission of the crime is not a material

element of the offense charged, it need not be precisely

alleged," Fawcett, 145 Wis. 2d at 250, nor is time "of the

essence in sexual assault cases." Id. In addition,

[i]f we required that a complaint be dismissed for
lack of specificity when a defendant indicated a
desire to assert an alibi defense, such a holding
would create potential for an untenable tactic: a
defendant would simply have to interpose an alibi
defense in order to escape prosecution once it became
apparent that a child victim/witness was confused with
respect to the date or other specifics of the alleged
criminal event. We decline to adopt such a rule.
Id. at 254 n.3 (internal citation omitted). We agree, and

decline to adopt such a rule. Ultimately, there is "little

meaningful distinction between the individual offenses alleged

to have occurred in this case within a four-month period (first

offense) and a three-and-one-half-month period (second offense)

and the two offenses alleged to have occurred over a six-month

period in Fawcett." Kempainen, 354 Wis. 2d 177, ¶19. Thus, the

fourth Fawcett factor weighs in favor of notice.

¶35 The next two factors are related and take into account
the passage of time between the alleged crime(s) and the

defendant's arrest, and the length of time between the filing of

the complaint and the alleged crime(s). These two factors

"address the problem of dimmed memories and the possibility that

the defendant may not be able to sufficiently recall or

reconstruct the history regarding the allegations." Miller, 257

Wis. 2d 124, ¶35. In this case, the passage of time is the same
for each factor. The first alleged assault occurred between

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August 1 and December 1, 1997, and the second between March 1

and June 15, 2001. A total of 12 and 15 years elapsed between

the alleged assaults and Kempainen's arrest and indictment.

¶36 Typically, "[t]he statute of limitations is the

principal device . . . to protect against prejudice arising from

the lapse of time between the date of an alleged offense and an

arrest." Kempainen, 354 Wis. 2d 177, ¶21 (quoting State v.

McGuire, 2010 WI 91, ¶45, 328 Wis. 2d 289, 786 N.W.2d 227).

Here, a charge of first degree sexual assault of a child "may be

commenced at any time," meaning there is no statute of

limitations for the charges against Kempainen. Wis. Stat.

§ 939.74(2)(a)1 (2011-12). However, "the statute of limitations

is not the sole measure of a defendant's rights with respect to

pre-indictment delay." McGuire, 328 Wis. 2d 289, ¶45. As we

have stated, our test here is whether, under the totality of the

circumstances, the complaint and information allege facts such

that the defendant can plead and prepare a defense. We cannot

say that the passage of 12 to 15 years alone deprives Kempainen
of due process. Rather, we must consider why the delay occurred

and how it impacts Kempainen's ability to prepare his defense.

¶37 The complaint provides an explanation for the lengthy

passage of time between the alleged assaults and Kempainen's

arrest and charging. In response to Detective Retzer's

questions, L.T. explained that she did not come forward until

2012 for a variety of reasons. L.T. explained that she was

afraid that her mother would be mad at her, and that she was
afraid of what her mother would do to Kempainen. It was not
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until L.T.'s boyfriend informed L.T.'s mother of the alleged

assaults in early October 2012, that L.T. finally came forward.

¶38 Generally, "child molestation is not an offense which

lends itself to immediate discovery. Revelation usually depends

upon the ultimate willingness of the child to come forward."

Fawcett, 145 Wis. 2d at 254. There is no indication that L.T.'s

delay in reporting the alleged assaults was for any improper

purpose. Nor is there any indication that the investigation was

delayed once the assaults were reported. It may be true that

the passage of 12 and 15 years from the dates of the assaults

makes a particular defense more difficult; it is equally true,

however, that it makes prosecution of the offenses more

difficult. Further, if Kempainen wishes to challenge L.T.'s

explanation for waiting to come forward, that is a question of

credibility "left to the province of the jury." Miller, 257

Wis. 2d 124, ¶20. Indeed, due to the nature of the allegations,

L.T.'s credibility will likely be a central issue at trial.

This is not a case of mistaken identity, and an alibi defense is
not likely to be available to Kempainen. See People v. Jones,

792 P.2d 643, 657 (Cal. 1990) (noting that "if the defendant has

lived with the victim for an extensive, uninterrupted period and

therefore had continuous access to the victim, neither alibi nor

wrongful identification is likely to be an available defense").

A challenge to the victim's credibility does not, however,

affect "the legality of the prosecution in the first instance."

Fawcett, 145 Wis. 2d at 254.

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¶39 Even though there is no indication of impropriety due

to the passage of time in this case, in order to satisfy due

process we must still consider how it impacts Kempainen's

ability to prepare a defense. Kempainen argues that the passage

of time prevents him from putting forth an alibi defense, but,

as we have already explained, a victim is not required to allege

a specific date for the assault simply because a defendant has a

preferred defense. To do so would place "an impossible burden"

on the State to "pinpoint dates" in order to satisfy due process

notice requirements. State v. Stark, 162 Wis. 2d 537, 545, 470

N.W.2d 317 (Ct. App. 1991). In addition, the mere existence of

alibi evidence "does not raise reasonable doubt as a matter of

law[, and] is merely additional evidence which can be weighed

and disregarded if not believed by the jury." Id., at 548

(citations omitted). Kempainen has not articulated any way in

which the charging periods have impaired his ability to prepare

a defense, only that the charges make it difficult to prepare

his preferred defense. Thus, because the passage of time has
not impaired Kempainen's ability to prepare a defense, the fifth

and sixth Fawcett factors weigh in favor of notice.

¶40 The final Fawcett factor concerns the victim's ability

to particularize the date and time of the alleged offense.

Fawcett, 145 Wis. 2d at 253. While the complaint does not

provide a specific date for either assault, it does provide

specific times of day. The first assault allegedly occurred

late at night while L.T. slept on the living room couch. The
second assault allegedly occurred at approximately 4:00 PM,
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while L.T. waited to wake Kempainen for work. This precision in

identifying the time of day the assaults occurred, together with

the detail L.T. provided regarding the specific sexual acts done

to her, indicates that L.T. was able to identify the time of day

and the nature of the alleged assaults with reasonable

certainty.

¶41 Taking account of all of the circumstances surrounding

the charges against Kempainen, we hold that he was given

sufficient notice of the nature of the charges against him and

that he is able to plead and prepare a defense. Despite the

passage of 12 and 15 years from the dates of the alleged

assaults, the complaint puts forth sufficient detail such that

Kempainen was aware of the charges against him.

IV. CONCLUSION

¶42 We hold that in child sexual assault cases, courts may

apply the seven factors outlined in Fawcett, and may consider

any other relevant factors necessary to determine whether the

complaint and information "states an offense to which [the
defendant can] plead and prepare a defense." Holesome, 40

Wis. 2d at 102. No single factor is dispositive, and not every

Fawcett factor will necessarily be present in all cases.

Second, we hold that the complaint and information provided

adequate notice of when the alleged crimes occurred and thus did

not violate Kempainen's due process right to plead and prepare a

defense. We therefore affirm the court of appeals and remand to

the circuit court with the instructions to reinstate the
complaint and information against Kempainen.
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 No. 2013AP1531-CR

By the Court.—The decision of the court of appeals is

affirmed, and the cause remanded for reinstatement of the

complaint and information and for further proceedings.

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