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,

 v.

Brian S. Kempainen,

 Defendant-Respondent-Petitioner.

FILED

MAR 19, 2015

Diane M. Fremgen

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 

2

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.
No. 2013AP1531-CR 

3

¶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)
No. 2013AP1531-CR 

4

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.
No. 2013AP1531-CR 

5

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 
No. 2013AP1531-CR 

6

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 
No. 2013AP1531-CR 

7

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 
No. 2013AP1531-CR 

8

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 
No. 2013AP1531-CR 

9

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 selfcontained 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 
No. 2013AP1531-CR 

10

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.
No. 2013AP1531-CR 

11

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. 
No. 2013AP1531-CR 

12

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.
No. 2013AP1531-CR 

13

¶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 
No. 2013AP1531-CR 

14

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 
No. 2013AP1531-CR 

15

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).
No. 2013AP1531-CR 

16

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.
No. 2013AP1531-CR 

17

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).
No. 2013AP1531-CR 

18

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 
No. 2013AP1531-CR 

19

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 
No. 2013AP1531-CR 

20

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 threeand-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 
No. 2013AP1531-CR 

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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 
No. 2013AP1531-CR 

22

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 
No. 2013AP1531-CR 

23

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.
No. 2013AP1531-CR 

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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, 
No. 2013AP1531-CR 

25

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.
No. 2013AP1531-CR 

26

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.
No. 2013AP1531-CR 

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