State v. Sirisun, 78-239-CR

Decision Date06 April 1979
Docket NumberNo. 78-239-CR,78-239-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Socrates SIRISUN and Sharon Brown, Defendants-Respondents.
CourtWisconsin Court of Appeals

Jeffrey A. Kremers, Asst. Dist. Atty., with whom was E. Michael McCann, Dist. Atty., on brief for plaintiff-appellant.

Daniel P. Kondos of Kondos & Kondos, Milwaukee, on brief for defendants-respondents.

Before DECKER, C. J., CANNON, P. J., and ROBERT W. HANSEN, Reserve Judge.

CANNON, Presiding Judge.

This is an appeal by the state from an order of the circuit court of Milwaukee county, entered August 14, 1978, after a preliminary hearing, dismissing one of two criminal counts against the defendants, Socrates Sirisun and Sharon Brown. 1 The defendants were charged in the first count with first degree sexual assault as parties to a crime, contrary to secs. 940.225(1)(a) and 939.05, Stats. Sharon Brown is the mother of the eight-year old prosecutrix. Sirisun was allegedly Mrs. Brown's boyfriend.

Only two witnesses testified at the preliminary hearing, the prosecutrix and her father, Mr. Brown. Mr. Brown testified that his daughter lived with Mrs. Brown from June 8 to July 12, 1978. Apparently Mr. Brown had custody of the prosecutrix before June 8 and after July 12.

The prosecutrix was eight years old at the time of the preliminary hearing. She testified that when she stayed with her mother, she would occasionally sleep in the same bed with her. She testified that sometimes Socrates Sirisun also would sleep in the same bed with her and her mother. By use of a drawing, the prosecutrix indicated that sometimes Sirisun "touched" her in her vaginal area with his genitals. She testified that it hurt, that it happened more than once, and that sometimes her mother, Mrs. Brown, was present. Her mother later told her not to tell anyone about the incident. After hearing testimony, the trial court, in its oral decision, stated:

(I) suspect very strongly that what is alleged to have occurred, occurred; and I frankly loathe not binding it over, because I can't think of anything worse than a parent or a person in loco parenti, if you will, as Mr. Sirisun apparently was, could do to a little girl than they could do this.

However, the court then stated that:

(T)he little girl on questioning in direct examination and cross examination and in answer to the Court's questions was extremely vague. I could not pin it down to a time and occurrence, and it rises to the level on this Court's opinion of a strong suspicion, but not probable cause. 2

On appeal the state contends that probable cause was shown to support a bindover of the defendants for trial, and that the court abused its discretion by not so finding. We agree and reverse the trial court's order dismissing the case.

At the trial level:

A defendant may be bound over for trial when the evidence at the preliminary hearing is sufficient to establish probable cause that a crime has been committed and that the defendant probably committed it.

The probable cause that is required for a bindover is greater than that required for the issuance of an arrest warrant, but guilt beyond a reasonable doubt need not be proven. State v. Berby, 81 Wis.2d 677, 683, 260 N.W.2d 798, 802 (1978).

The appellate court operates under a different standard on appeal.

"The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence." State v. Olson 75 Wis.2d 575, 584, 250 N.W.2d 12, 17, (1977), quoting State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 583, 215 N.W.2d 390, 394 (1974).

In this case, while the prosecutrix appeared occasionally confused by her cross-examination by the defense attorney and the questioning by the court, she did not in any essential manner contradict herself and rather doggedly kept to her basic testimony that she was molested by the defendant Sirisun. 3 After a review of the record, we find the testimony at the preliminary hearing uncontradicted that the defendants, as parties to a crime, committed the crime charged.

The trial court appeared to base its decision dismissing the charge against the defendants at least partially on the fact that the prosecutrix could not determine the time of the crime or crimes to a more exact degree than between June 8 and July 12, 1978. However, in the circumstances of this case, the lack of a specific date was not a sufficient reason for the court to refuse a bindover.

Section 970.03, Stats., which provides certain rules governing preliminary hearings, does not require that proof of the exact time of the offense be shown. Although testimony regarding the time of the offense may be an important factor at a preliminary hearing, in this case the importance of the information was somewhat tempered by the age of the prosecutrix, her obvious difficulty in testifying about the alleged crime, her repeated insistence that the crime had occurred at least once, and the uncontradicted testimony that the crime had been committed during a six week span well within the confines of the statute of limitations.

Courts have generally held that at trial, a prosecutrix' inability to connect the alleged crime with a particular date goes to the issue of credibility, and thus is a matter for consideration by the jury. In State v. Mitchell, 253 Wis. 626, 628, 34 N.W.2d at 661 (1948), a 14-year old girl alleged that she was the subject of a sexual assault, but could not determine "on just what dates these acts were committed . . .." The court found:

Upon our review of the entire record it is evident that it was fully within the province of the jury to consider (the prosecutrix') testimony credible and sufficient to establish that on the occasions charged in the information the defendant did commit the criminal acts testified to by her, even though she could not remember the exact date of each occasion . . ..

Other state courts agree with this position. For instance, in State v. Berry, 101 Ariz. 310, 419 P.2d 337, 341 (1966), wherein a six-year old victim of child molestation was unable to testify regarding the exact dates of the assault, the court found:

The fact that the victim seemed somewhat unsure of the time of the assault might be considered by the jury as going to the credibility of her testimony, but we find that it is insufficient grounds for declaring a fatal variance. . . . If we were to find a fatal variance under such circumstances it would seem to behoove one who chooses to sexually assault children at the risk of irreparable psychological and physical damage to his victim, to make sure that the child is sufficiently young to be incapable of effectively testifying as to specific dates in the year and minutes on the clock. We recognize, rather, that it is for the jury to determine the truth of the witness' story, . . ..

Similarly, the Indiana Supreme Court in Tapp v. State, 256 Ind. 422, 269 N.E.2d 367, 369 (1971) considered a case in which an 11-year old girl alleged she was sexually molested by the defendant. The defendant contended on appeal that no proof was presented at trial regarding the date of the offense. The court held:

Although the precise date of the offense was not determined, it is clear that it occurred in mid-summer 1968. Time in no way being of the essence of the offense, there being no...

To continue reading

Request your trial
22 cases
  • State v. Copeland
    • United States
    • Court of Appeals of Arizona
    • April 1, 2022
    ...he has not shown or argued he was unaware of or surprised by the continuously recurring conduct alleged. Cf. State v. Sirisun , 90 Wis.2d 58, 279 N.W.2d 484, 487 (App. 1979) (reversing dismissal based on child's nonspecific testimony at preliminary hearing where no claim or indication defen......
  • State v. Drogsvold
    • United States
    • Court of Appeals of Wisconsin
    • September 25, 1981
    ...of law, and held that the magistrate erred in dismissing the complaint, all without referring to Hussong. State v. Sirisun, 90 Wis.2d 58, 61-62, 279 N.W.2d 484, 485-86 (Ct.App.1979), applying the Hussong formulation, found that a trial court abused its discretion by dismissing a complaint a......
  • U.S. v. Shannon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 2, 1996
    ...that required for the issuance of an arrest warrant, but guilt beyond a reasonable doubt need not be proven." State v. Sirisun, 90 Wis.2d 58, 61-62, 279 N.W.2d 484 (App.1979) (citation omitted). If probable cause is not found as to the crime set forth in the complaint, then in accordance wi......
  • State v. Hurley
    • United States
    • United States State Supreme Court of Wisconsin
    • March 31, 2015
    ...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). “However, no matter how abhorrent the conduct may be, a defendant's due process [rights] ... may not be igno......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT