On Point: m. Sexual assault

State v. Heather L. Steinhardt, 2017 WI 62, 6/21/17, affirming a per curiam court of appeals opinion; case activity (including briefs)

Steinhardt led her 12 year old daughter to her bedroom so that her husband (the child’s step father) could have sex with her. In fact, Steinhardt sat on the bed while the assault occurred. The majority holds that leading the daughter to the assault and sitting on the bed during the assault are 2 different acts supporting 3 different crimes and punishments. Justice Abrahamson (joined by A.W. Bradley) calls Steinhardt’s crimes “revolting and detestable” but insists the “constitutional guarantees against double jeopardy protect us all, even Heather Steinhardt.” Dissent ¶47.

Review of an unpublished per curiam court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  Was Steinhardt’s right to be free from double jeopardy violated when she was convicted of both party to the crime of First Degree Child Sexual Assault in violation of § 948.02(1)(e) and Failure to Protect a Child from Sexual Assault in violation of § 948.02(3)?

(2)  Did Steinhardt forfeit her right to raise the double jeopardy issue by pleading no contest to the charges?

(3)  Did Steinhardt’s postconviction motion, which alleged trial counsel was ineffective for failing to advise her about the double jeopardy issue, sufficiently allege that she was prejudiced by trial counsel’s failure?

State v. Jama I. Jama, 2014AP2432-CR, District 4, 2/25/16 (not recommended for publication); case activity (including briefs)

Jama was convicted of both second degree sexual assault of a person too intoxicated to give consent, § 940.225(2)(cm), and third degree sexual assault (sexual intercourse or contact without consent), § 940.225(3), for the same act. The court of appeals rejects Jama’s claim that he can’t be convicted of both counts.

State v. Brian S. Kempainen, 2015 WI 32, 3/19/15, affirming a published court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

The supreme court unanimously holds that when determining whether the accusations in a criminal complaint are specific enough to give a defendant fair notice of the charges and an opportunity to defend against them, a court must consider the totality of the circumstances, and not just the specific set or subset of factors listed in State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1981).

On review of a published court of appeals decision in Kempainen (case activity) and a per curiam decision in Hurley (case activity)

Issues (adapted from the State’s  PFR in Hurley):

Did the amended complaint charging repeated sexual assault of a child, which alleged that Hurley assaulted his stepdaughter at least 26 times over a five or six-year charging period, satisfy Hurley’s due process right to prepare a defense?

Did the circuit court properly exercise its discretion in admitting “other acts” evidence that Hurley repeatedly assaulted his sister when she was 10 and he was 14 in view of the greater latitude shown “other crimes” evidence in child sexual assault cases?

Did the circuit court err in ordering a new trial due to the prosecutor’s unobjected-to remark in closing argument about Hurley’s failure in his trial testimony to make a strong denial of his sister’s allegations?

State v. Brian Kempainen, 2014 WI App 53, petition for review granted 9/18/14, affirmed, 2015 WI 32; case activity

In this case, the circuit court dismissed 2 counts of sexual assault of a child against Kempainen because the charges failed to provide sufficient notice of when the assaults occurred thus violating due process.  The court of appeals, clarifying the test in State v. R.A.R. and State v. Fawcett, reversed and held that the date of the crimes need not be precisely alleged.

City of South Milwaukee v. Todd J. Kester, 2013 WI App 50; case activity

Sex offender residency restrictions – constitutionality; ex post facto and double jeopardy

 South Milwaukee’s ordinance prohibiting persons convicted of certain child sex offenses from living within 1,000 feet of a school or other facility frequented by children does not violate the double jeopardy or ex post facto prohibitions of the state or federal constitution:

¶31      Kester fails to offer the “clearest proof”

State v. Scott E. Ziegler, 2012 WI 73, on certification; case activity

Interfering with Child Custody, § 948.31(2) – Elements

Language in State v. Bowden, 2007 WI App 234, ¶18, 306 Wis. 2d 393, 742 N.W.2d 332, that one method of violating § 948.31(2) (interference with child custody) requires the parent’s “initial permission” to take child, is now “withdrawn”:

¶52  Pursuant to the plain language of Wis.

State v. Thomas A. Nommensen, 2007 WI App 224
For Nommensen: Anthony L. O’Malley

Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :

¶8        Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id.

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether charges of completed and attempted sexual assault of the same victim were multiplicitous.

Holding:

¶34. The nature of the two acts was different because the attempted sexual assault was foiled by the victim’s resistance. There was some time separation between the two acts, sufficient for a question and answer.