On Point: F. Notice of charge

State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)

Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and on appeal, Nelson submitted that the repeater enhancer is invalid because he didn’t receive notice of what the prior conviction was alleged to be.

State v. Terry L. Hibbard, 2022 WI App 53; case activity (including briefs)

In a decision that allows for a sweeping expansion of aiding and abetting prosecutions in Len Bias cases, the court of appeals holds that a person assisting only a buyer a drug transaction could also be prosecuted for reckless homicide if the buyer dies from using the drug because any act aiding the buyer in getting the drugs also necessarily aids the seller in making the delivery.

Micah D. Stern v. Michael Meisner, 7th Circuit Court of Appeals No. 15-2558, 2/9/16

Stern’s conviction for using a computer to facilitate a sex crime against a child under § 948.075 is constitutional because the Wisconsin appellate court’s conclusion that the statute allows conviction based on the defendant’s “reason to believe” the victim is a minor was neither unreasonable nor unforeseeable.

State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)

The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.

State v. Joel M. Hurley, 2015 WI 35, 3/31/15, reversing an unpublished per curiam court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

This lengthy decision addresses three discrete issues: Whether Hurley was given sufficient notice of the child sexual assault charges he had to defend against; whether other acts evidence was properly admitted; and whether the prosecutor’s closing argument justified a new trial in the interest of justice.

This post covers the court’s conclusion that under its just-revised “totality of the circumstances” test for deciding whether charges of child sexual assault give a defendant adequate notice of the charges, Hurley was given sufficient notice by a criminal complaint charging him with repeated acts of sexual assault of M.C.N., his stepdaughter, on three or more occasions “on and between” 2000 and 2005. Our post on the other-acts issue is here, and our post on the prosecutor’s closing argument is here.

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.

State v. John R. Edwards, 2013 WI App 51; case activity

The longer period of probation applicable to a misdemeanor act of domestic abuse under Wis. Stat. § 973.09(2)(a)1.b. may be ordered even though the charging documents did not allege the crime was an act of domestic abuse.

Edwards was charged with substantial battery, strangulation and suffocation, and disorderly conduct based on an incident with his live-in girlfriend.

State v. Janet A. Conner, 2009 WI App 143, PFR filed 9/28/09
For Conner: J. Steven House

Issue/Holding: An information alleging the elements of stalking, § 940.32(2m)(b), but not the acts allegedly establishing the “course of conduct,” provided adequate notice of the charge; court rejecting argument that Connor deprived of notice of “time frame in which the crime allegedly occurred.”

State v.