State v. Mister M. S. Gibson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 7, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2020AP528-CR Cir. Ct. Nos. 2016CF2313
2016CF2497
2020AP529-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MISTER M. S. GIBSON,

DEFENDANT-APPELLANT.

APPEAL from judgments of the circuit court for Dane County:
WILLIAM E. HANRAHAN, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2020AP528-CR
2020AP529-CR

¶1 PER CURIAM. In these consolidated appeals, Mister Gibson
appeals judgments of conviction entered by the Dane County Circuit Court for two
counts of second degree sexual assault of a child under the age of sixteen, contrary
to WIS. STAT. § 948.02(2) (2003-04, 2005-06, and 2007-08), one count of repeated
first degree sexual assault of the same child, contrary to WIS. STAT.
§ 948.025(1)(a) (2003-04, 2005-06, and 2007-08), and one count of sexual assault
of a child, contrary to § 948.02(1) (2003-04, 2005-06, and 2007-08).1 Gibson
argues that the circuit court erred in denying his motion to dismiss all of these
counts because the length of the charging period alleged for each offense deprived
him of his due process right to prepare an adequate defense. We affirm.

BACKGROUND

¶2 In two criminal cases, Gibson was accused of sexual assaults of
three children.

¶3 In case No. 2016CF2313, an amended complaint filed in November
2016 set forth the following pertinent allegations.

¶4 In October 2016, Madison Police Department Detective Kathleen
Riley interviewed A and B.2 A and B are Gibson’s nieces. Each victim informed
Riley that she had been sexually assaulted by Gibson at times when each slept

1
The offenses were alleged to have been committed by Gibson over periods of time that
were covered by different versions of the Wisconsin Statutes for those offenses. However, no
changes to the applicable statutes are pertinent to any issue raised on appeal.

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Pursuant to WIS. STAT. RULE 809.86(4), we use a letter of the alphabet in place of each
victim’s name.

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overnight at their grandmother’s house. At the time of the assaults, Gibson lived
with A and B’s grandmother. Gibson was born on September 15, 1990.

¶5 A, born in 1999, described to Riley two separate acts of sexual
assault by Gibson. A recounted the first charged act as follows:

[W]hile [A] was in first grade, at her grandmother’s house
[located] near Leopold Elementary School, Gibson sexually
assaulted her in his bedroom…. Gibson asked [A] if she
wanted candy and when she said she did, he replied, “You
gotta do me a favor and I’ll give you candy.” Gibson
pulled down his pants and leaned back on his bed. [A] said
that she pulled her own pants down and that Gibson helped.
She recalled that she and Gibson were both standing on the
floor and then he told her to bend over. [A] said that
Gibson spat on his hand and put it on his “area,” referring
to Gibson’s penis, continuing, “And then at that point he
was like rubbing it on my private area, rubbing it against
it.” … At first, [A] said that was all she remembered. She
then later said [to Riley], that, “It hurt. It was hurting. I
was moving away from him. He would grab my arm and
pull me back closer to where he was.... He was trying to …
like he was trying to put it inside my areas.”

¶6 Based on records obtained from a municipal public housing
authority, as corroborated by A’s statement regarding the general location of the
house, Detective Riley confirmed that A and B’s grandmother lived at an address
in Madison, which is given in the amended complaint, from March 17, 2005, until
December 20, 2005.

¶7 Based on that account from A, Gibson was charged with having
sexual contact with a child under the age of sixteen, A, “between March 17, 2005
and December 20, 2005.” During that period, A was five or six years old and
Gibson was fourteen or fifteen years old.

¶8 A described the second charged act as follows:

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[Gibson] took [A] and one of her sister[]s into a bathroom
at her grandmother’s residence [a different residence than
the residence in which the other charged act occurred]. [A]
described the bathroom as having a marble counter and an
orange light by the door above the mirror…. Gibson told
[A] to open her mouth and pulled out his penis. When she
said she could not do that, he told her, “You have to.”
Gibson said, “Just this last thing and we’ll be done.” …
[A] said that Gibson’s penis did touch her mouth and go
into it…. She also remembered moving around as Gibson
tried to put his penis into [what she described as] her butt
because it hurt.

¶9 Based on records obtained from the housing authority, as
corroborated by A’s statement regarding her grandmother’s residence at that time,
Detective Riley confirmed that A and B’s grandmother lived at an address in
Madison, given in the amended complaint, from December 21, 2005, until
September 24, 2009.

¶10 Based on that account from A, Gibson was charged with having
sexual contact with a child under the age of 16, A, “between December 21, 2005
and September 1, 2009.” During that period, A was between six years old and
nine years old, and Gibson was between fifteen years old and eighteen years old.

¶11 B, born in 2001, told Riley that “when she was younger she would
sleep at her grandmother’s residence a lot and that ‘every other night’ Gibson
would touch her.” B stated that the first time Gibson assaulted her he “[held] her
down and she struggled but could not move.” B stated that she was “young” and
that “[a]ll [she’d] do is cry because [she] knew [she] couldn’t do anything.” “She
remembered Gibson placing his hand in her pants and rubbing her ‘down there.’
Later during her interview, [B] circled a diagram of the female body indicating
that was where her vagina was…. She said that the assaults were the same, ‘He
would do a routine. It was always the same.’” B described one residence where
the assaults happened as “a house with an upstairs and a downstairs with a patio

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that was next to a drainage basin.” From records of the housing authority, as
corroborated by B’s description of her grandmother’s residence at the relevant
times, Detective Riley confirmed this was the same residence where the second
assault of A by Gibson occurred.

¶12 As a result of that account from B, Gibson was charged with
“repeated sexual assaults involving the same child, [B] … where at least three of
the assaults were violations of [WIS. STAT. §] 948.02(1)” “between December 21,
2005 and September 1, 2009.” During that period, B was between four and eight
years old, and Gibson was between fifteen and eighteen years old.

¶13 A and B’s mother confirmed that A and B stopped going to their
grandmother’s house in 2008 or 2009.

¶14 In Dane County Circuit Court case No. 2016CF2497, a criminal
complaint was filed in December 2016 charging Gibson with one count of sexual
assault of a child, C, under the age of thirteen “on or about December 21, 2005
through September 24, 2009.” C, Gibson’s nephew, was born in 1997. The
complaint set forth the following pertinent allegations.

¶15 In December 2016, C informed Detective Riley that when C “was at
his grandmother’s house, which [C] described as ‘on the west side, on the circle’
his uncle, Gibson, had assaulted him.” Based on records from the housing
authority, as corroborated by C’s statement regarding the general location of that
house, Detective Riley determined that the assault occurred at the same residence
as the second assault of A and the assaults of B. During that time period, C was
between the ages of eight and twelve and Gibson was between fifteen and eighteen
years old.

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¶16 “[C] stated he was asleep, positioned on his stomach, and when he
awoke Gibson was behind him with his pants down on top of him. [C] stated, ‘He
was trying to freak on me’” and that “Gibson’s penis touched [C’s] butt.” C stated
he asked Gibson, “‘What are you doing?’ and Gibson responded, ‘Shh. Be quiet,
be quiet.’” “[C] stated Gibson pulled down his pants and underwear and Gibson’s
private parts touched his butt. [C] stated he was scared by this, and did not know
what to do.” Gibson told C: “‘Don’t tell Grandma’ and ‘you better not say
anything.’” “[C] explained that when he slept at [C’s grandmother’s] home, it was
boys in the basement and the girls would sleep upstairs. [C] stated the basement
was always pitch black and that he was terrified when he slept down there. [C]
stated he would physically hide under his covers at night.” “Gibson later bribed
[C] to not tell [C’s grandmother] about the assault” by buying C a cellular phone
that C wanted.

¶17 In April 2017, Gibson filed motions in the circuit court arguing that
the charges against him in both cases must be dismissed because the complaints3
failed to allege time frames for the alleged offenses that were sufficiently definite
to provide him with an opportunity to prepare an adequate defense. In a written
decision, the circuit court denied Gibson’s motions.

3
For ease of reading, throughout the remainder of this opinion, we will refer to the
amended complaint in case No. 2016CF2313 and the complaint in case No. 2016CF2497
collectively as “the complaints.”

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¶18 The two cases were joined for trial and were tried before a jury. The
jury found Gibson guilty of all three charges. Gibson appeals.4

¶19 We will mention other material facts in our discussion.

DISCUSSION

¶20 As noted, the issue in this appeal is whether the charging periods in
the complaints were so expansive that Gibson’s due process rights were violated
because the lengthy charging period deprived him of the ability to prepare an
adequate defense. We begin by setting forth governing principles and our
standard of review.

I. Governing Principles and Standard of Review.

¶21 A defendant has a due process right, guaranteed by the Sixth
Amendment to the United States Constitution,5 to both fair notice of the charges
against him or her, and a fair opportunity to defend against those charges. See
State v. Fawcett, 145 Wis. 2d 244, 250, 426 N.W.2d 91 (Ct. App. 1988). In order
to satisfy constitutional requirements, the criminal complaint, which is a self-
contained charge, must “under the totality of the circumstances ... allege facts such

4
Postconviction, Gibson argued in the circuit court that joinder of the cases was
improper and that other acts evidence should not have been admitted into evidence. Gibson does
not renew either argument on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d
475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the [circuit] court, but not raised
on appeal, is deemed abandoned.”).
5
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.

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that the defendant can … prepare a defense.”6 State v. Hurley, 2015 WI 35, ¶¶26,
32, 361 Wis. 2d 529, 861 N.W.2d 174 (quoting State v. Kempainen, 2015 WI 32,
¶36, 361 Wis. 2d 450, 862 N.W.2d 587); see Fawcett, 145 Wis. 2d at 250;
Holesome v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968). Allegations of
fact in a complaint are constitutionally sufficient if the allegations inform the
defendant of the charges against him or her, as well as the underlying facts
constituting the offense, including the time frame in which the crime allegedly
occurred.7 See Fawcett, 145 Wis. 2d at 253.

¶22 In child sexual assault cases, a “more flexible application of [the]
notice requirements is required and permitted,” and under this more flexible
standard the complaint need not set forth precise allegations regarding the date the
child sexual assault was committed. Hurley, 361 Wis. 2d 529, ¶34 (quoting
Fawcett, 145 Wis. 2d at 254). The lack of specificity “of a child’s memory
[regarding dates of an alleged sexual assault] more properly go[es] to the
credibility of the witness and the weight of the testimony, rather than to the
6
Sufficient notice of the charges also requires adequate information to allow a defendant
to enter a plea to the charge and also for a later determination of whether conviction or acquittal
would be a bar to another prosecution. State v. Fawcett, 145 Wis. 2d 244, 251, 426 N.W.2d 91
(Ct. App. 1988); State v. Kempainen, 2015 WI 32, ¶¶17-19, 361 Wis. 2d 450, 862 N.W.2d 587.
Here, however, Gibson argues only that the complaints were not sufficient to give him the
opportunity to prepare a defense to the charges.
7
As our supreme court has explained, and the parties here implicitly recognize, we look
to the criminal complaints regarding the factual allegations that apply in this context. See State v.
Hurley, 2015 WI 35, ¶9 n.5, 361 Wis. 2d 529, 861 N.W.2d 174. It is the information in a
criminal case that provides the notice of the charge or charges the defendant must defend against
at trial. See generally id. However, it is also true that, in evaluating his or her options and in
potentially defending himself or herself at trial, a defendant has the benefit of seeing the factual
allegations that must have been stated in the criminal complaint to establish probable cause based
on the elements of the crime or crimes that are ultimately charged in the information. See id.
Because the State typically does not include factual allegations in an information, when
discussing the sufficiency of the factual allegations against a defendant, the focus is on the facts
alleged in the complaint that pertain to the respective charges in the information. See id.

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legality of the prosecution ….” Fawcett, 145 Wis. 2d at 254. In addition, “the
date of the commission of the crime is not a material element of the [child sexual
assault] offense.” Hurley, 361 Wis. 2d 529, ¶34 (citing Fawcett, 145 Wis. 2d at
250); see WIS. STAT. § 948.02(1) and (2) (proof of the exact date is not required).

¶23 This court has summarized the competing aims regarding sufficiency
of notice of child sexual assault allegations. “A person should not be able to
escape punishment for such a ... crime because he [or she] has chosen to [sexually
assault] an infant too young to testify clearly as to the time and details of such ...
activity.” State v. Sirisun, 90 Wis. 2d 58, 65 n.4, 279 N.W.2d 484 (Ct. App.
1979) (citing State v. Rankin, 181 N.W.2d 169, 172 (Iowa 1970)). “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.

¶24 In Fawcett, we adopted a seven-factor test a court may use to
determine whether the charging period delineated in a complaint alleging sexual
assault of a child provides adequate notice of the charges. See id. at 253; see also
Hurley, 361 Wis. 2d 529, ¶35. We are to apply this test to pertinent allegations
made in the complaints. See Hurley, 361 Wis. 2d 529, ¶¶26-27, 42-53; see also
Kempainen, 361 Wis. 2d 450, ¶¶19-20, 32-41. These 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 discovered immediately;

(4) The length of the alleged period of time in relation to the number of
individual criminal acts alleged;

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(5) The passage of time between the alleged offense period and the
defendant’s arrest;

(6) The duration between the alleged offense period and the date of the
filing of the complaint; and

(7) The ability of the victim or complaining witness to identify the date and
time of the alleged offense.

Fawcett, 145 Wis. 2d at 253. No single Fawcett factor is dispositive, and not
every factor will necessarily be present in each case. Kempainen, 361 Wis. 2d
450, ¶4.8

¶25 Whether the charging period alleged in a complaint adequately
informs a defendant of the charges against him or her is a question which this
court reviews, based on pertinent contents of the criminal complaint,
independently of the circuit court’s analysis. Fawcett, 145 Wis. 2d at 250;
Kempainen, 361 Wis. 2d 450, ¶16.

II. The Complaints Are Constitutionally Sufficient.

¶26 We now consider the seven Fawcett factors, and conclude that the
charging time periods “provided adequate notice and thus did not violate

8
In addition to the seven Fawcett factors, courts “may consider any other relevant
factors necessary to determine whether the complaint … ‘states an offense to which [the
defendant can] … prepare a defense.’” Kempainen, 361 Wis. 2d 450, ¶4 (quoting Holesome v.
State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968)). However, neither party asserts that any
factor other than the above-mentioned factors are germane to our analysis, and we do not
ourselves identify any additional factors that appear pertinent in this case.

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[Gibson’s] due process right to … prepare a defense.” See Kempainen, 361 Wis.
2d 450, ¶31.9

A. First Factor.

¶27 The first factor, the ages of the victims, weighs in favor of the
conclusion that the complaints provided sufficient notice to Gibson.10 See
Fawcett, 145 Wis. 2d at 253. Gibson concedes as much in briefing in this court
when he states: “Yet in total, the alleged victims’ ages argue in favor of
[sufficient] notice.”

9
The State contends that Gibson’s motions to dismiss were untimely and his appeal
should be rejected for that reason. WISCONSIN STAT. § 971.31(5)(c) provides: “In felony actions,
objections based on the insufficiency of the complaint shall be made prior to the preliminary
examination or waiver thereof or be deemed waived.” See also State v. Berg, 116 Wis. 2d 360,
365, 342 N.W.2d 258 (Ct. App. 1983) (“Challenges to the sufficiency of a complaint must be
made prior to the preliminary hearing,” and the “[f]ailure to object to a defect in the institution of
a criminal proceeding constitutes a waiver [of that defect].”). Gibson waived his preliminary
hearings in both cases months before he filed motions to dismiss based on the insufficiency of the
complaints. Gibson asserts that, even if his motions challenging the complaints were not timely
filed, we should ignore his failure to meet the statutory deadline because the State did not object
to the untimeliness of his motions in the circuit court. Essentially, Gibson argues that the State
has forfeited the right to raise an objection on appeal to the timeliness of his motions. “Forfeiture
is a rule of judicial administration, and whether we apply the rule is a matter addressed to our
discretion.” State v. Kaczmarski, 2009 WI App 117, ¶7, 320 Wis. 2d 811, 772 N.W.2d 702.
Here, based on all of the circumstances, we apply the rule of forfeiture against the State, reject on
that ground its argument about the timeliness of Gibson’s motion, and accordingly decide the
issue raised on the merits.
10
Our supreme court instructs that the first three factors are “especially important given
the nature of child sexual assault cases.” Kempainen, 361 Wis. 2d 450, ¶29.

The first factor also considers the “intelligence” of the victims. See Fawcett, 145 Wis. 2d
at 253. However, the complaint does not refer to the intelligence of any victim. Neither party
makes an argument about the “intelligence” of any victim but, instead, the parties confine their
arguments to the victims’ ages and development. In addition, the first factor considers the age
and intelligence of “other witnesses.” Id. Neither party refers to other witnesses in the context of
the first factor.

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¶28 Victim age is a significant factor in this context because
youthfulness naturally bears on the victim’s ability or inability to provide details,
including the ability or inability to identify dates or the sequence of the assaults.
See Hurley, 361 Wis. 2d 529, ¶42. In Hurley, the complaint alleged that the
defendant sexually assaulted the victim “on three or more occasions ‘on and
between’ 2000 and 2005,” when the victim was between the ages of six and
eleven. See id., ¶¶10-11, 42. Addressing the first factor, our supreme court stated:

At age six, [the victim] was still a young child. At this
young age it is highly unlikely that she could particularize
the dates or the sequences in which the assaults occurred.
Even at the age of ten years old, given her young age and
intelligence, [the victim] was likely rendered incapable of
reporting the incidents or recalling back to the exact date or
time period when the assaults began.

Id., ¶42.

¶29 Pertinent to the multiple charged assaults of B by Gibson, the
supreme court in Hurley stated that a repeated and similar nature of assaults on a
victim “could reasonably have led to [the victim’s] failure to recall the exact dates
and times of the assaults. A child repeatedly assaulted at such a young age is
likely extremely confused and upset, and it is not surprising that she would not
take note of the specific date on which the assaults occurred.” Id., ¶43 (internal
citation omitted).

¶30 Here, the complaint alleged that A was between the ages of five and
nine years old when she was assaulted by Gibson, and that B was between the ages
of four and eight years old when she was repeatedly assaulted by Gibson.
Following the reasoning in Hurley, at those ages, and in the circumstances alleged
in the complaints, it is “highly unlikely” that either victim “could particularize the
dates or sequences in which the assaults occurred.” Id., ¶42.

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¶31 The complaint alleged that C was between the ages of eight and
twelve when Gibson assaulted him. Gibson points out that, at the age of twelve, C
would be expected to have “better recall of the specific facts of the assaults” than a
child of four or five years of age. Experience suggests that a typical twelve-year-
old will be better at recalling and stating dates and details of events than a typical
five-year-old. However, without more, that one generalized observation regarding
the upper range of C’s age at the time he was assaulted is simply one consideration
and is not dispositive. Moreover, that charging period goes back to when C was
eight years old, and it is more likely that he was eight, rather than twelve, years
old when the charged assault happened because C remembered being six or seven
years old when he was assaulted by Gibson, and housing authority records show
that C’s grandmother moved to the house where the assault happened when C was
eight years old. Like the victim in Hurley, the young age of C rendered it difficult
for him to particularize the exact date of the sexual assault by Gibson. See id.,
¶¶42-43; see also Fawcett, 145 Wis. 2d at 254 (“Child molestation often
encompasses a period of time and a pattern of conduct. As a result, a singular
event or date is not likely to stand out in [a] child’s mind.”).

¶32 The first factor supports the conclusion that the complaints provided
Gibson adequate notice of the dates of the assaults.

B. Second and Third Factors.11

¶33 The second and third factors, the surrounding circumstances and the
nature of the offense, including whether the offense is likely to occur at a specific

11
Each of the seven Fawcett factors may be considered together with any of the other
factors. See Kempainen, 361 Wis. 2d 450, ¶32.

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time or is likely to have been discovered immediately, weigh in favor of the
conclusion that the complaints provided sufficient notice to Gibson. See Fawcett,
145 Wis. 2d at 253.

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.

Kempainen, 361 Wis. 2d 450, ¶21; see also Hurley, 361 Wis. 2d 529, ¶33.

¶34 Here, Gibson was the victims’ uncle and lived in their grandmother’s
house where the assaults occurred, and thus the victims likely saw him as a
“trusted relative.” See Kempainen, 361 Wis. 2d 450, ¶21; Hurley, 361 Wis. 2d
529, ¶33.

¶35 Also, the complaints allege that the victims were threatened and had
a natural reluctance to report the assaults. Gibson contends that we should
interpret the allegations in the complaints as reflecting that his “coercion” of the
three victims was “minimal,” but we interpret the complaints’ allegations
differently.

¶36 As the summaries of the victims’ statements in the complaints given
in the Background, above, reveal, there is a reasonable inference from the
complaints that, as their uncle, Gibson held a position of some authority over the
children and that he took advantage of that authority and of their physical and
emotional vulnerability through threats, physical force, pain, and one bribe. Under
those circumstances, “it is … understandable that a child may not immediately

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come forward.” See Hurley, 361 Wis. 2d 529, ¶46. Given the victims’ ages at the
time and the circumstances of the assaults, the delay in each victim reporting the
assaults is easily understood.

¶37 Gibson attempts to downplay these circumstances and the nature of
the offenses for two reasons. First, Gibson argues that his physical restraint of the
victims is not relevant to our analysis because the use of physical force to
overcome a victim “is true in many sexual assaults.” We fail to see how that fact
lessens the fear and intimidation felt by the victims, or the force used by Gibson,
in sexually assaulting those victims. Second, Gibson argues that he “was young
himself” (Gibson was between the ages of fourteen and nineteen when each of the
assaults occurred), and that “[t]here is no indication that he had any right to
supervise, instruct, or punish” the children and therefore “nothing [he did]
approach[ed] parental authority” of the children. This assertion also fails. A and
B were as young as four and five when the assaults began. There existed a
substantial age difference between Gibson and A and B, which Gibson
acknowledges would have given him stature in their eyes. Although C was older
than A and B when the assault against him occurred, we agree with the State that
the smaller relative age difference between C and Gibson does not change the fact
that Gibson, as C’s older uncle, would have an apparent position of authority over
C.

¶38 The nature and the circumstances of Gibson’s offenses made it
unlikely those assaults would have been discovered immediately, and the second
and third factors support the conclusion that the complaints gave Gibson sufficient
notice.

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C. Fourth Factor.

¶39 The fourth factor concerns the length of the alleged period of time in
relation to the number of individual criminal acts alleged. Fawcett, 145 Wis. 2d at
253. For clarity, we repeat the individual counts charged and the charging periods.
Three counts were charged in case No. 2016CF2313. Count one alleged one
criminal act by Gibson against A that occurred during a nine-month time span.
Count two alleged one criminal act by Gibson against A that occurred during a
nearly four-year time span. Count three alleged multiple criminal acts by Gibson
against B that occurred over a nearly four-year time span. One count was charged
in case No. 2016CF2497. That count alleged a single criminal act by Gibson
against C that occurred during a nearly four-year time span.

¶40 Regarding the nine-month charging period in count one of case
No. 2016CF2313, Gibson’s sole argument is that this charging period is longer
than the charging periods in Fawcett and Kempainen and, as a result, there was a
due process violation.12 Gibson’s argument that he was deprived of due process

12
For this argument, Gibson also relies on State v. R.A.R., 148 Wis. 2d 408, 435 N.W.2d
315 (Ct. App. 1988). However, R.A.R. was overruled in part by our supreme court. See
Kempainen, 361 Wis. 2d 450, ¶¶25-29. In R.A.R., this court concluded that a court should
consider the first three Fawcett factors only in situations in which the defendant contends that the
State could have obtained a more definite charging period through diligent efforts. R.A.R., 148
Wis. 2d at 411. The supreme court stated in Kempainen that R.A.R.’s limitation on the
consideration of the Fawcett factors was erroneous and overruled R.A.R. “[t]o 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.” Kempainen, 361 Wis. 2d 450, ¶¶26, 28. In Blum v. 1st Auto
& Cas. Ins. Co., 2010 WI 78, ¶44, 326 Wis. 2d 729, 786 N.W.2d 78, the supreme court addressed
the precedential value of a court of appeals decision when the supreme court overrules part of that
decision in the context of an opinion in a separate appeal. The court held in Blum that “a court of
appeals decision expressly overruled by this court no longer retains any precedential value, unless
this court expressly states that it is leaving portions of the court of appeals decision intact.” Id.,
¶56. Although the supreme court in Kempainen may suggest implicitly that those portions of
R.A.R. that do not conflict with Fawcett were not overruled, the supreme court did not “expressly
(continued)

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regarding the other three counts that have nearly four-year charging periods is only
that, although these charging periods are less than the five-year charging period
approved in Hurley, that appeal involved a greater number of acts than were
charged in the present cases and the acts in Hurley were committed by a parental
figure.

¶41 We are not persuaded. The seven Fawcett factors are fact-intensive
inquires, necessarily dependent on details unique to the allegations contained in a
criminal complaint in each case. See Kempainen, 361 Wis. 2d 450, ¶28
(explaining courts are required to consider the totality of the circumstances).
Gibson makes no effort to compare the allegations in the present case with the
allegations in the cases that he relies on. Gibson fails to explain how or why, in
the context of this factor, the broadness of these charging time periods deprived
him of sufficient notice such that he was unable to prepare an adequate defense.
See Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3,
258 Wis. 2d 915, 656 N.W.2d 56 (declining to consider conclusory and
undeveloped assertions). Accordingly, Gibson’s conclusory assertions regarding
this factor give us insufficient reason to reverse the order of the circuit court.

D. Fifth and Sixth Factors.

¶42 Factors five and six address the passage of time between the alleged
offense period and the defendant’s arrest, and the passage of time between the

state[],” that it was leaving portions of R.A.R. intact. See id. Thus, R.A.R. retains no
precedential value. See id.

Further, because Gibson’s reliance on R.A.R. has no meaningful effect on our analysis,
we disregard Gibson’s erroneous reliance on that case.

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Nos. 2020AP528-CR
2020AP529-CR

alleged offense period and the date of the filing of the complaint. See Fawcett,
145 Wis. 2d at 253. For context, we repeat that the charging periods at issue
ended in 2005 and 2009. In each case, after the victims reported the assaults to
police in October and December of 2016, Gibson was arrested and charged within
one month.

¶43 “[T]hese 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.” State v. Miller, 2002 WI App 197, ¶35, 257
Wis. 2d 124, 650 N.W.2d 850. In Hurley, our supreme court rejected “a purely
mathematical approach” to determining the overall reasonableness of the charging
period. See Hurley, 361 Wis. 2d 529, ¶51. That is to say, a defendant cannot
simply argue that “too much time has passed to allow for a prosecution.” Id., ¶50.
“A defendant arguing that factors five and six weigh in his favor must articulate
how his ability to present a defense has been impaired.” Id., ¶51; seeKempainen,
361 Wis. 2d 450, ¶39. Gibson argues that the delay between when the offenses
were committed and when Gibson was charged impaired his ability to present a
defense in two ways.

¶44 First, Gibson contends that the delay prevented him from presenting
an alibi defense. However, the Fawcett court stated:

[A]n alibi defense does not change the nature of the charges
against the defendant or suddenly incorporate time as a
necessary element of the offense.... If 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.

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Nos. 2020AP528-CR
2020AP529-CR

Fawcett, 145 Wis. 2d at 254 n.3 (internal citation omitted); see also Hurley, 361
Wis. 2d 529, ¶48 and Kempainen, 361 Wis. 2d 450, ¶34 (both quoting this
passage favorably).

¶45 In addition, at the time of the assaults, Gibson lived in the house
where the assaults occurred and, thus, had continuous access to the victims when
they stayed overnight at their grandmother’s house. An alibi defense was
therefore limited. See Kempainen, 361 Wis. 2d 450, ¶38 (citing People v. Jones,
792 P.2d 643 (Cal. 1990), for the proposition that, when a defendant has had
continuous access to a victim, alibi is not a likely defense). Accordingly, we reject
Gibson’s argument that the delay between the time of the offenses and the filing of
the complaints impaired his ability to present an alibi defense.

¶46 Second, Gibson argues that the delay prevented him from
investigating the truth of the victims’ allegations, and that delay “effectively
foreclosed” his ability to investigate the children’s demeanors during the charged
time periods and how each interacted with Gibson because “[m]emories dim and
fade.” Gibson asserts that “[t]his type of evidence is foundational to a child sexual
assault defense.”

¶47 There is no doubt that memories generally fade over time. But, it is
not an absolute truth that, in seven to eleven years, memories of witnesses who
may provide exculpatory evidence for Gibson are obliterated. In this context,
Gibson gives us nothing more than hypotheticals about how the passage of time
may have undermined his defense to the charges. However, for these factors,
Gibson does not make any showing that, either at the trial or in a statement, any
witness who may have had exculpatory information has said that the witness is
unable to remember relevant events. For that reason, Gibson has failed to

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Nos. 2020AP528-CR
2020AP529-CR

articulate how his ability to prepare a defense has been impaired by the delay. See
Hurley, 361 Wis. 2d 529, ¶51 and Kempainen, 361 Wis. 2d 450, ¶39.

¶48 Accordingly, we conclude that the fifth and sixth factors weigh in
favor of the conclusion that the complaints gave Gibson adequate notice of the
charges against him.

E. Seventh Factor.

¶49 The seventh Fawcett factor concerns the ability of the victim to
identify the date and time of the alleged offense. Fawcett, 145 Wis. 2d at 253.
The seventh factor is informed by the first three factors, all of which, as discussed,
favor rejection of Gibson’s argument. See Kempainen, 361 Wis. 2d 450, ¶29.

¶50 Gibson states that this factor is a “mixed picture,” and argues only
that the details given by the victims do not help him present a defense.

¶51 The charging periods were broad, but this factor alone does not
render the complaints constitutionally insufficient. See id., ¶¶4, 42 (“No single
factor is dispositive ….”). Each victim was unable to offer specific dates of the
assaults by Gibson. But, each was able to provide some details, such as the school
grades they were in and descriptions of the homes their grandmother was living in
at the time of the assaults. In addition, A and B’s mother confirmed to police the
time when A and B stopped going to their grandmother’s house, and Detective
Riley was able to confirm the addresses of the houses the victims’ grandmother
resided in during the charged time periods. As discussed earlier, each victim
appeared to give to the best of the victim’s ability details of the crimes, including
where and when the assaults occurred. Accordingly, the seventh factor supports
the conclusion that the complaints gave Gibson sufficient notice.

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Nos. 2020AP528-CR
2020AP529-CR

¶52 In sum, based on our application of the seven Fawcett factors, we
conclude that the complaints provided constitutionally sufficient notice to satisfy
Gibson’s due process right to prepare an adequate defense. Accordingly, the
circuit court did not err in denying Gibson’s motions to dismiss.

CONCLUSION

¶53 For the foregoing reasons, the judgments of the circuit court are
affirmed.

By the Court.—Judgments affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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