                                                                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
                                               19
                                                                        No.        2013AP1531-CR



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
                                               20
                                                                        No.        2013AP1531-CR



"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

                                               21
                                                                    No.    2013AP1531-CR



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
                                             22
                                                              No.   2013AP1531-CR



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.


                                        23
                                                                   No.    2013AP1531-CR



      ¶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,
                                         24
                                                                             No.     2013AP1531-CR



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.
                                                  25
                                                           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.




                                   26
    No.   2013AP1531-CR




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