2014 WI 102
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2185-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
James R. Hunt,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 349 Wis. 2d 789, 837 N.W.2d 178
(Ct. App. 2013 – Unpublished)
OPINION FILED: August 1, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 19, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: Randy R. Koschnick
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., PROSSER, J.,
dissent. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Eileen W. Pray, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief by Shelley
M. Fite, assistant state public defender, and oral argument by
Shelley M. Fite.
2014 WI 102
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2185-CR
(L.C. No. 2010CF320)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. AUG 1, 2014
James R. Hunt, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 MICHAEL J. GABLEMAN, J. We review an unpublished,
per curiam decision of the court of appeals1 reversing the
Jefferson County Circuit Court's judgment of conviction against
the defendant, James R. Hunt.2 At trial, a jury found Hunt
guilty of one count of causing a child under 13 to view or
1
State v. Hunt, No. 2012AP2185-CR, unpublished slip op.
(Wis. Ct. App. July 18, 2013).
2
Judge Randy R. Koschnick presided.
No. 2012AP2185-CR
listen to sexual activity in violation of Wis. Stat. § 948.055
(2009-10).3
¶2 Two issues are presented for our consideration: 1)
whether the circuit court erred in excluding the testimony of
Hunt's friend, Matt Venske, that he never sent Hunt a video of a
man and woman engaging in sexual intercourse, and if so, whether
the error was harmless; and 2) whether Hunt's trial counsel
provided ineffective assistance.
¶3 Because Venske's testimony was relevant to Hunt's
theory of defense and corroborated his version of events, we
hold that the circuit court erred in excluding the testimony.
However, we conclude that the State met its burden of proving
that it is "clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error," State
v. Harvey, 2002 WI 93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189
(quoting Neder v. United States, 527 U.S. 1, 18 (1999)), and
thus, the error was harmless. We further determine that Hunt's
ineffective assistance of counsel arguments fail under the two-
part inquiry of Strickland v. Washington, 466 U.S. 668, 687
(1984). We conclude that, under the totality of the
circumstances, Hunt received a fair trial, and our confidence in
the judgment is not undermined. Accordingly, we reverse the
decision of the court of appeals and reinstate the circuit
3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No. 2012AP2185-CR
court's judgment of conviction and affirm its denial of Hunt's
post-conviction motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶4 On November 11, 2010, James R. Hunt was charged with
one count of sexual assault of a child under 13 in violation of
Wis. Stat. § 948.02(1), and one count of causing a child under
13 to view or listen to sexual activity in violation of Wis.
Stat. § 948.055(1) and (2)(a). The complaining witness was
Hunt's adopted daughter, A.H. A.H. alleged that Hunt had placed
her hand on his penis when she was six years old, and that when
she was twelve, he had shown her three inappropriate images on
his cell phone. The first image was a cartoon depiction of a
woman in a dress bending over. The second image was a picture
of a woman undressed from the waist up posing over a deer head
and holding the antlers. The third image was a video of a man
and a woman engaged in sexual intercourse.
¶5 Hunt pled not guilty to both charges, and the case was
tried in the Jefferson County Circuit Court. During the
preliminary hearing, A.H. testified that when Hunt had shown her
the graphic images, he told her "this is the stuff that Matt
sends me," referring to Hunt's friend, Matt Venske, who would
later testify at trial for the defense. This testimony was
supported by A.H.'s account of events to Police Officer Terrance
Nachtigal of the Fort Atkinson Police Department during his
3
No. 2012AP2185-CR
initial investigation of the incident, as recorded in his police
report.4
¶6 Prior to trial, the court ruled the first two images
described above did not constitute "sexually explicit conduct"
under Wis. Stat. § 948.055(1).5 However, the court determined
that the video of the man and woman engaged in sexual
intercourse could satisfy the statutory requirements. Hunt's
counsel filed a pretrial motion in limine arguing for exclusion
of testimony regarding any images other than the video of sexual
intercourse, citing Wis. Stat. § 906.08(2),6 but did not mention
4
Officer Nachtigal's police report, which recounted his
initial interview with A.H. on October 11, 2010, was admitted
into evidence as Def. Ex. No. 2.
5
"Sexually explicit conduct" is defined as actual or
simulated:
(a) Sexual intercourse, meaning vulvar penetration as
well as cunnilingus, fellatio or anal intercourse
between persons or any other intrusion, however
slight, of any part of a person's body or of any
object into the genital or anal opening either by a
person or upon the person's instruction. The emission
of semen is not required;
(b) Bestiality;
(c) Masturbation;
(d) Sexual sadism or sexual masochistic abuse
including, but not limited to, flagellation, torture
or bondage; or
(e) Lewd exhibition of intimate parts.
Wis. Stat. § 948.01(7).
6
Wis. Stat. § 906.08(2) provides:
4
No. 2012AP2185-CR
the motion during the final pretrial motion hearing.
Nevertheless, Hunt's counsel objected at trial to statements
regarding the two other images described by A.H. and also moved
for a mistrial on that basis on two occasions. The circuit
court ruled that evidence concerning these two images was
relevant and admissible, explaining:
Well, these two images are not sexually explicit
conduct under the statute.
They are, however, inappropriate images for an adult
male to show to a minor female.
Mr. Hunt allegedly displayed these images to [A.H.] in
a very short period of time on one particular
occasion. So, all these three images are relevant to
provide context and to fill out the picture of what
occurred at that time.
These are not separate or remote incidents. All three
images were allegedly displayed at about the same
time.
Only one fits the definition of sexually explicit
conduct. The other two, however, are inappropriate
given the circumstances and are relevant to allow the
State to explain the entire relevant set of
circumstances to the jury.
Hunt's counsel continued to object that the other images were
irrelevant each time A.H. testified regarding their content.
Specific instances of the conduct of a witness, for
the purpose of attacking or supporting the witness's
credibility . . . may not be proved by extrinsic
evidence. They may, however, subject to s. 972.11(2),
if probative of truthfulness or untruthfulness and not
remote in time, be inquired into on cross-examination
of the witness or on cross-examination of a witness
who testifies to his or her character for truthfulness
or untruthfulness.
5
No. 2012AP2185-CR
¶7 At trial, A.H. testified that Hunt had shown her the
images in question in the basement of her grandparents' house.
She explained that Hunt walked across the room and held the cell
phone in his hand and laughed as he showed her the images, and
he admonished her to never tell her mother. On cross-
examination, Hunt's counsel asked A.H. the following question:
"When your father showed you the pictures on his cell phone, he
said something like, hey, do you want to see the kind of stuff
that Matt sends me?" The State objected on hearsay grounds, and
Hunt's counsel countered that the evidence was admissible as a
statement against interest. The circuit court sustained the
State's objection.
¶8 Hunt testified that he had never shown A.H. any of the
images she described. Hunt explained that, on the day in
question, he received a text message from Venske that said "just
be glad you don't have a hernia like this." Accompanying the
message was a picture of a testicular hernia. Hunt had recently
undergone surgery for an umbilical hernia, and he believed the
message was meant as a joke. Hunt testified that A.H. was
standing next to him when he received the text, but he did not
intentionally show it to her, and he immediately turned his cell
phone off after viewing the picture. Hunt also stated the image
of a woman posing with a deer head described by A.H. was
actually the screensaver on his cell phone for approximately a
year and a half, and although he never purposefully showed it to
A.H., she had seen it on his cell phone during that period.
Hunt maintained he had never possessed any image of a cartoon
6
No. 2012AP2185-CR
depiction of a woman bending over or any videos of sexual
intercourse, and he denied ever receiving text message images
from anyone other than Venske.7
¶9 Hunt's theory of defense was that A.H. had seen the
image of the testicular hernia and embellished the event to
include other, more explicit images. Hunt believed the charges
against him stemmed from his recent divorce from A.H.'s
biological mother and the ensuing battle for custody of their
biological daughter, J.H. Hunt also testified that, several
months before A.H. leveled accusations against him, she had
gotten into a fight with Hunt's mother during a family trip and
did not see Hunt for several months after that incident.
¶10 Officer Nachtigal also testified at trial. Officer
Nachtigal initially interviewed A.H. at the Fort Atkinson Police
Department regarding her complaint against Hunt. Officer
Nachtigal explained that, based on his interview with A.H., he
had reason to believe Venske was the source of the inappropriate
images allegedly sent to Hunt's cell phone. Following his
interview with A.H., Officer Nachtigal interviewed Venske and
7
None of the images at issue in this case were recovered
from Hunt's cell phone or otherwise admitted into evidence at
trial. While Hunt acknowledges that the image of the naked
woman posing with a deer head and image of the testicular hernia
were, at one time, in his cell phone, he denies that he ever
possessed the other images that A.H. alleges he showed her.
Because the circuit court determined the image described by A.H.
of the cartoon depiction of a woman bending over did not meet
the statutory criteria for "sexually explicit conduct," and was
never offered into evidence, the image's existence was not
established at trial and remains disputed by the parties.
7
No. 2012AP2185-CR
asked him whether he had ever sent any videos to Hunt from his
cell phone or computer. Officer Nachtigal testified that Venske
denied sending any videos from his cell phone. Hunt's counsel
then asked Officer Nachtigal if Venske admitted sending videos
to Hunt from his computer, but the State objected on hearsay
grounds.
¶11 The circuit court overruled the State's objection
after issuing the following hearsay instruction to the jury:
A witness is not allowed to tell us what somebody else
told him to prove that it happened. But the officer,
or any witness, is allowed to discuss other
conversations simply to establish who said what to
whom.
So, if somebody wants to prove that Mr. Venske -–
. . . . Did something or didn't do something, they
either need to have a witness who saw him do it or
have Mr. Venske come in and testify himself.
When the Officer is being allowed to testify about
this conversation, it's not to be used by you to
determine whether Mr. Venske actually sent something
from his phone or not.
It's being admitted simply so you understand the
conversation that took place between these two
gentlemen. . . .
A statement is not hearsay if it's not used to prove
the truth of the matter asserted, is the technical
legal definition.
¶12 Hunt's counsel then called Venske, who testified he
had sent Hunt text messages that occasionally contained
pictures. Venske explained he had sent Hunt a picture of a
testicular hernia as a joke following Hunt's hernia surgery, and
he also had sent Hunt a picture of a topless woman posing with a
8
No. 2012AP2185-CR
deer head. Hunt's counsel then attempted to ask Venske the
following question: "There has been allegations against my
client that you sent something to Mr. Hunt and he showed it to
his daughter involving a man and woman engaging in intercourse.
Did you ever send such——" The court interrupted counsel mid-
question and pointed out that there was no allegation that the
disputed video came from Venske.
¶13 Hunt's counsel replied that Officer Nachtigal had
recently testified that A.H. told him Venske was the source of
the video. Therefore, it was important for the defense to
counter that statement with Venske's own testimony that he had
never sent the video. The circuit court disagreed, noting that
the question posed by Hunt's counsel to Officer Nachtigal
centered on the issue of where A.H. claimed Hunt obtained the
video. The court explained, "It seems to me that you are the
one who is introducing it in the first place and you are the one
that is also introducing contradictory evidence concerning the
source." The circuit court concluded the source of the video
was a collateral issue and irrelevant to the defense.
¶14 During the jury instruction conference, the circuit
court suggested adding language to a pattern instruction
indicating that the video of sexual intercourse was the only
image supporting the charges against Hunt. Both parties
accepted the proposed instruction, and the jury was instructed
as follows:
The second count of the information charges that
between September 1st, 2009, and June 30th, 2010, in
9
No. 2012AP2185-CR
the City of Fort Atkinson, Jefferson County,
Wisconsin, the defendant did commit the crime of
causing a child to view or listen to sexual activity,
specifically, a video clip of a man and woman engaging
in sexual intercourse.
(Emphasis added). The circuit court also suggested that the
parties specify which image was disputed during closing
arguments. In addition, the circuit court recommended
additional clarifying language to the jury instruction
describing the elements of causing a child to view or listen to
sexual activity. If accepted, the circuit court would have
delivered the following instruction to the jury:
Element Number 1, the defendant caused [A.H.] to view
or listen to sexually explicit conduct. Sexually
explicit conduct means actual or simulated sexual
intercourse, masturbation, lewd exhibition of an
intimate part.
In this case, the State alleges that the video clip of
a man and woman engaging in sexual intercourse is
sexually explicit conduct.
(Emphasis added).
¶15 Hunt's counsel objected to this latter proposed
instruction, however, providing the following explanation:
I think [the instruction] amplifies it and gives some
validity of the State's argument when we tell [the
jury] an element of this is what the State is
alleging. It's like me adding that what the defense
is alleging is a defense as well.
The circuit court agreed, and the second proposed jury
instruction was rejected.
¶16 Hunt was found not guilty of the sexual assault charge
but guilty of causing a child under 13 to view or listen to
sexual activity in violation of Wis. Stat. § 948.055. Hunt was
10
No. 2012AP2185-CR
sentenced to seven years of probation and one year of
conditional jail time.
¶17 Hunt appealed his conviction, arguing that the circuit
court improperly excluded Venske's testimony regarding the video
and that his trial counsel rendered ineffective assistance. The
court of appeals reversed Hunt's conviction and remanded to the
circuit court for a new trial. The court of appeals determined
that the circuit court's decision to exclude Venske's testimony
was erroneous, because the evidence was relevant and would have
corroborated Hunt's version of events. The court of appeals
also concluded that the circuit court's error was not harmless,
because the outcome of the case turned on the credibility of the
parties.
¶18 Although the State argued Officer Nachtigal's
testimony regarding his interview with Venske functionally
conveyed the same information as Venske's excluded testimony,
the court of appeals reasoned that the circuit court's hearsay
instruction prevented the jury from considering "whether Venske
did or did not send anything from his phone to Hunt . . . ."
State v. Hunt, No. 2012AP2185-CR, unpublished slip op., ¶13
(Wis. Ct. App. July 18, 2013). Further, the court of appeals
noted that the circuit court's instruction specifically informed
jurors "that proof of what Venske did or did not do would have
to be established through Venske's testimony, only highlighting
the lack of that testimony from Venske." Id. Because the court
of appeals reversed Hunt's conviction based on his evidentiary
claim, it did not address Hunt's ineffective assistance claims.
11
No. 2012AP2185-CR
¶19 Hunt petitioned this court for review, which we
granted on December 17, 2013. We now reverse.
II. STANDARD OF REVIEW
¶20 This court will not disturb a circuit court's decision
to admit or exclude evidence unless the circuit court
erroneously exercised its discretion. State v. Ringer, 2010 WI
69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448. "A circuit court
erroneously exercises its discretion if it applies an improper
legal standard or makes a decision not reasonably supported by
the facts of record." Weborg v. Jenny, 2012 WI 67, ¶41, 341
Wis. 2d 668, 816 N.W.2d 191 (citing Johnson v. Cintas Corp. No.
2, 2012 WI 31, ¶22, 339 Wis. 2d 493, 811 N.W.2d 756).
¶21 A circuit court's erroneous exercise of discretion in
admitting evidence is subject to the harmless error rule. State
v. Harris, 2008 WI 15, ¶85, 307 Wis. 2d 555, 745 N.W.2d 397.
Whether the error was harmless presents a question of law that
this court reviews de novo. State v. Jackson, 2014 WI 4, ¶44,
352 Wis. 2d 249, 841 N.W.2d 791.
¶22 This case also requires us to determine whether Hunt's
trial counsel rendered ineffective assistance. Whether a person
was deprived of the constitutional right to the effective
assistance of counsel presents a mixed question of law and fact.
State v. Trawitzki, 2001 WI 77, ¶19, 244 Wis. 2d 523, 628
N.W.2d 801. The circuit court's findings of fact will be upheld
unless they are clearly erroneous. State v. Pitsch, 124
Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Whether counsel's
performance was deficient and prejudicial to his or her client's
12
No. 2012AP2185-CR
defense is a question of law that we review de novo. Trawitzki,
244 Wis. 2d 523, ¶19.
¶23 In Strickland, 466 U.S. at 687, the United States
Supreme Court set forth a two-part test for determining whether
counsel's actions constitute ineffective assistance. First, the
defendant must demonstrate that counsel's performance was
deficient. Id.; State v. McDowell, 2004 WI 70, ¶49, 272
Wis. 2d 488, 681 N.W.2d 500. Second, the defendant must
demonstrate that counsel's deficient performance was prejudicial
to his or her defense. Strickland, 466 U.S. at 687; McDowell,
272 Wis. 2d 488, ¶49. This requires a showing that counsel's
errors were "so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable." Strickland, 466 U.S.
at 687.
III. DISCUSSION
¶24 We first consider whether the circuit court erred in
excluding Venske's testimony and conclude that it did. We then
address whether the error was harmless and hold that it was.
Finally, we examine Hunt's three ineffective assistance claims
and determine that each argument fails under Strickland's two-
part test.
A. The Circuit Court's Decision to Exclude Venske's
Testimony was Harmless Error
¶25 As a threshold matter, we agree with the court of
appeals and both parties that the circuit court erred in
excluding Venske's testimony that he never sent the video of
sexual intercourse to Hunt. Venske's testimony was directly
13
No. 2012AP2185-CR
relevant to Hunt's theory of defense.8 As explained above,
Hunt's theory of defense at trial was that A.H. saw an image of
a testicular hernia on Hunt's cell phone, and A.H. later
embellished that event by alleging that Hunt had also shown her
other, more sexually explicit, images. At trial, Venske
corroborated Hunt's testimony regarding sending Hunt the photo
of a testicular hernia, but the circuit court excluded his
testimony that he had never sent Hunt any videos, including the
video of sexual intercourse. Venske's excluded testimony would
have corroborated Hunt's testimony and lent credibility to
Hunt's version of events.
¶26 Thus, we must consider whether the circuit court's
error in excluding Venske's testimony was harmless. The
erroneous exclusion of testimony is subject to the harmless
error rule. See Wis. Stat. § 901.03(1) ("Error may not be
predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected . . . .").
Harmless error analysis requires us to look to the effect of the
error on the jury's verdict. State v. Weed, 2003 WI 85, ¶29,
263 Wis. 2d 434, 666 N.W.2d 485. For the error to be deemed
harmless, the party that benefited from the error——here, the
8
Evidence is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." Wis. Stat. § 904.01.
Evidence is deemed to be relevant if it bears "upon any one of
[the] countless . . . factors which are of consequence to the
determination of the action." Holmes v. State, 76 Wis. 2d 259,
268, 251 N.W.2d 56 (1977).
14
No. 2012AP2185-CR
State——must prove "beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained."
Harris, 307 Wis. 2d 555, ¶42 (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). Stated differently, the error is harmless
if it is "clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error."
Harvey, 254 Wis. 2d 442, ¶49 (quoting Neder, 527 U.S. at 18).
¶27 This court has previously articulated several factors
to assist in a harmless error analysis, including but not
limited to: the importance of the erroneously admitted or
excluded evidence; the presence or absence of evidence
corroborating or contradicting the erroneously admitted or
excluded evidence; the nature of the defense; the nature of the
State's case; and the overall strength of the State's case.
State v. Norman, 2003 WI 72, ¶48, 262 Wis. 2d 506, 664 N.W.2d
97. Although non-exhaustive, these factors assist in our review
of whether the exclusion of Venske's testimony was harmless. We
consider each in turn.
¶28 The State and Hunt naturally dispute the importance of
the erroneously excluded evidence at issue in this case. Hunt
contends the exclusion of Venske's testimony was vitally
important because it corroborated his theory of defense. In a
case that largely turns on credibility determinations, Hunt
argues the court's error in excluding testimony that would have
lent credibility to his version of the facts cannot be harmless.
¶29 To be sure, Venske's testimony was relevant to Hunt's
theory of defense. This is why we agree with the parties and
15
No. 2012AP2185-CR
the court of appeals that it was error for the circuit court to
exclude the evidence. The exclusion of relevant evidence,
however, does not automatically trigger the need for a new
trial. Harmless error analysis is not intended to simply
identify errors, but instead is meant to determine whether the
error was consequential to the verdict obtained. For this
reason, we examine the totality of the circumstances, which
requires the reviewing court to gauge whether the admitted or
excluded evidence contributed to the trial's outcome.
¶30 In determining the import of the erroneously excluded
evidence, we find another factor in particular informs our
analysis——that is, the presence or absence of evidence
corroborating or contradicting the erroneously admitted or
excluded evidence. Hunt testified at trial that Venske had
never sent him any videos and, specifically, had never sent him
a video of a man and woman engaging in sexual intercourse.
Although Venske's testimony on this point was excluded by the
circuit court, we agree with the State that Officer Nachtigal's
testimony functionally served the same purpose by corroborating
Hunt's version of events. See State v. Everett, 231 Wis. 2d
616, 631, 605 N.W.2d 633 (Ct. App. 1999) (holding that exclusion
of evidence was harmless where other evidence was heard by the
jury that "functionally conveyed the same theory of defense
. . . .").
¶31 Hunt argues that Officer Nachtigal's testimony could
not have corroborated Hunt's testimony because the jury was
instructed by the circuit court that it could use Officer
16
No. 2012AP2185-CR
Nachtigal's testimony only to determine "who said what to whom,"
and not as evidence to ascertain "whether Venske actually sent
something from his phone or not." Hunt claims this instruction
to the jury rendered Officer Nachtigal's testimony "wholly
irrelevant" because it was "stripped of the truth of its
content."
¶32 Hunt's argument overstates the implications of the
circuit court's hearsay instruction. Simply because the jury
could not use Officer Nachtigal's testimony as evidence to prove
the truth of what Venske had told him does not render Officer
Nachtigal's testimony immaterial. The jury could still use
Officer Nachtigal's testimony as evidence to prove that Venske
had told Officer Nachtigal that he sent no videos to Hunt.
Undoubtedly, Venske's excluded testimony had some probative
value to Hunt's defense. However, with respect to corroborating
Hunt's testimony that Venske did not send the video of sexual
intercourse to Hunt, we conclude that there is little meaningful
difference between Venske's assertion that he did not send Hunt
a video and Officer Nachtigal's testimony that Venske told him
he did not send Hunt a video. The circuit court's instruction
accurately informed the jury that it could not conclude, based
solely on Officer Nachtigal's testimony, that Venske did not
send the video. However, the jury still heard that Venske had
represented to the police that he did not send the video, which
corroborated what Hunt had already alleged at trial.
¶33 Further, the erroneously excluded evidence would not
have assisted Hunt's defense by contradicting the State's
17
No. 2012AP2185-CR
evidence regarding the source of the images. The State never
suggested at trial that Hunt obtained the images from Venske.
In fact, no evidence regarding the source of the images was ever
introduced by the State at trial. So, while the excluded
evidence would have lent credibility to Hunt's version of
events, it would not have served to weaken the State's case on
the issue of where Hunt obtained the sexually explicit video,
because the State never alleged it was sent by Venske.
¶34 We conclude our harmless error analysis by examining
the nature of the defense, the nature of the State's case, and
the overall strength of the State's case. Norman, 262 Wis. 2d
506, ¶48. Hunt was charged with one count of causing a child to
view or listen to sexual activity in violation of Wis. Stat.
§ 948.055(1). The statute prohibits "intentionally caus[ing] a
child who has not attained 18 years of age . . . to view or
listen to sexually explicit conduct . . . ." Id. Under the
plain language of the statute, the State is not required to
establish the source of the sexually explicit conduct shown to
the complainant. The State need only demonstrate that the
defendant showed sexually explicit conduct to a child under 18
years of age. Since the source of the video was not a required
element of the State's case, the value of Venske's excluded
testimony lay solely in its potential to corroborate Hunt's
version of events. Thus, any harm arising from the exclusion of
Venske's testimony was minimized by the admission of Officer
Nachtigal's testimony.
18
No. 2012AP2185-CR
¶35 Moreover, the fact that Officer Nachtigal's testimony
could not be considered for the purpose of determining whether
Venske actually sent Hunt the video is not decisive, because it
is clear from a review of the record that the State's case
against Hunt was not predicated on whether Hunt received the
video of sexual intercourse from Venske. The strength of the
State's case was largely dependent on the specific and
consistent testimony of A.H, who was the State's principal
witness at trial. Notably, A.H. never testified about the
source of the images on Hunt's cell phone, and the State never
raised the issue while making its case to the jury. The crux of
the State's case was not who sent the video of sexual
intercourse to Hunt, but rather, whether Hunt showed the video
of sexual intercourse to A.H. Consequently, A.H.'s testimony,
and the State's case, focused on A.H.'s detailed description of
the circumstances surrounding Hunt showing her inappropriate
images on his cell phone, as well as the content of those
images. Therefore, the importance of Venske's excluded
testimony was its value in corroborating Hunt's testimony that
Venske never sent him a video, a purpose that was effectively
achieved by the admission of Officer Nachtigal's testimony.
¶36 In sum, we conclude that the exclusion of Venske's
testimony was harmless error. The jury heard direct testimony
from Hunt that Venske did not send him the video of sexual
intercourse. This testimony was corroborated by Officer
Nachtigal's testimony that Venske had told him in a police
interview that he did not send any videos to Hunt, which
19
No. 2012AP2185-CR
bolstered Hunt's version of the facts and was favorable to the
defense. Further, the record shows that the State's case did
not hinge on establishing the source of the inappropriate images
on Hunt's cell phone. The strength of the State's case rested
largely on A.H.'s testimony, and the State never raised the
issue at trial of where the images on Hunt's phone originated
from in proving the essential elements of the crime for which
Hunt was convicted. For these reasons, we conclude that it is
clear "beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained." Harris, 307 Wis.
2d 555, ¶42 (quoting Chapman, 386 U.S. at 24).
B. Hunt's Ineffective Assistance Argument
¶37 Hunt's second argument on appeal is that his trial
counsel rendered constitutionally ineffective assistance. To
support his claim, Hunt points to three separate incidents at
trial that he contends amount to ineffective assistance. First,
Hunt asserts trial counsel was ineffective for failing to argue
an applicable hearsay exception that would permit A.H. to
testify that Venske sent the images to Hunt's cell phone.
Second, Hunt maintains trial counsel did not effectively argue
to prevent testimony regarding the two images described by A.H.
that the circuit court determined did not constitute "sexually
explicit conduct" as a matter of law. See Wis. Stat.
§ 948.055(1). Finally, Hunt argues trial counsel was
ineffective for failing to accept the circuit court's invitation
to include additional clarifying language in the jury
instructions. Because Hunt's ineffective assistance claims
20
No. 2012AP2185-CR
implicate distinct facts from his evidentiary argument discussed
above, we address each individually below. We conclude that,
regarding Hunt's first two ineffectiveness claims, Hunt's
defense was not prejudiced by the performance of trial counsel.
On Hunt's third ineffectiveness claim, we conclude Hunt's
counsel was not deficient.
i. Applicable Legal Principles
¶38 Criminal defendants are guaranteed a right to
effective assistance of counsel under the Sixth and Fourteenth
Amendments to the United States Constitution. Strickland, 466
U.S. at 685-86; State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d
358, 805 N.W.2d 334. In Strickland, a seminal decision on
ineffective assistance of counsel claims, the United States
Supreme Court set forth a two-part test for establishing that
counsel's performance was ineffective: (1) counsel's performance
was deficient; and (2) the defendant was prejudiced as a result.
466 U.S. at 687. "The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result." Id. at
686. In addition, "a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies." Id. at 697; see also State v. Johnson, 153
Wis. 2d 121, 128, 449 N.W.2d 845 (1990).
¶39 Regarding the first prong of the Strickland test, the
Supreme Court explained counsel's performance is deficient when
21
No. 2012AP2185-CR
"in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally
competent assistance." Id. at 690. "[C]ounsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment." Id. In assessing counsel's performance, a court
must make "every effort . . . to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Id. at 689.
¶40 Under the second prong of the Strickland test,
deficient performance by counsel is prejudicial only if the
"errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable." Id. at 687. A
defendant must demonstrate "a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Id. at 694.
ii. Hunt's First Ineffective Assistance Claim
¶41 Hunt first asserts his trial counsel was ineffective
for failing to argue that certain testimony by A.H. was
admissible under the present sense impression exception to the
22
No. 2012AP2185-CR
hearsay rule.9 During the trial, Hunt's counsel asked A.H. the
following question: "When your father showed you the pictures on
his phone, he said something like, hey, do you want to see the
kind of stuff that Matt sends me?" The State objected on
hearsay grounds, and Hunt's counsel argued the testimony was
within the scope of cross-examination and admissible under the
exception to the hearsay rule for statements against interest.10
The circuit court sustained the State's objection, noting that
Hunt's counsel sought to "introduce a statement of your own
client against your own client's interests." On appeal, Hunt
argues counsel performed deficiently by failing to argue the
evidence was admissible as a present sense impression, and his
defense was prejudiced as a result.
9
Hearsay evidence is generally inadmissible at trial. Wis.
Stat. § 908.02. However, Wis. Stat. § 908.03(1) provides for
the admission of hearsay evidence that describes a present sense
impression, defined as "[a] statement describing or explaining
an event or condition made while the declarant was perceiving
the event or condition, or immediately thereafter."
10
Wisconsin Stat. § 908.045(4) provides that a statement
against interest is admissible as an exception to the general
rule against hearsay evidence. A statement against interest is
defined as "[a] statement which was at the time of its making so
far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or
criminal liability . . . that a reasonable person in the
declarant's position would not have made the statement unless
the person believed it to be true." Id. However, this
provision only applies if the declarant is unavailable to
testify. Wis. Stat. § 908.045. The exception would not apply
in this case because the declarant, Hunt, testified on his own
behalf shortly after A.H.
23
No. 2012AP2185-CR
¶42 The State concedes the present sense impression
exception applied to A.H.'s testimony.11 However, the State
argues that "cho[osing] the wrong exception" to the hearsay rule
does not rise to the level of deficient performance. The State
also asserts that any deficiency by counsel did not prejudice
Hunt for purposes of an ineffective assistance claim.
¶43 We conclude Hunt was not prejudiced by trial counsel's
failure to cite an applicable hearsay exception. The State's
case against Hunt was not predicated on whether he received the
video from Venske. Hunt was charged with causing a child to
view or listen to sexual activity in violation of Wis. Stat.
§ 948.055(1). The source of the sexually explicit image is not
an essential element of the statute. Had the State brought
charges against Venske, the issue of whether Venske sent the
video would be unquestionably central to his defense. As it
stands, however, the relevant question for the jury to consider
was whether Hunt showed A.H. the video, not from whom it was
received.
11
We note that, while the State has conceded the present
sense impression exception applied to A.H.'s testimony, the
question of whether a statement is admissible under a hearsay
exception is a question of law. Horak v. Bldg. Servs. Indus.
Sales Co., 2012 WI App 54, ¶11, 341 Wis. 2d 403, 815 N.W.2d 400.
Because it is our constitutional duty to say what the law is, we
are not bound by a party's concessions of law. Lloyd Frank
Logging v. Healy, 2007 WI App 249, ¶15 n.5, 306 Wis. 2d 385, 742
N.W.2d 337. However, for the sake of argument, we assume,
without deciding, that A.H.'s testimony was admissible under the
present sense impression exception to the hearsay rule.
24
No. 2012AP2185-CR
¶44 Therefore, any testimony relating to whether Venske
sent the video to Hunt could relate only to the credibility of
each party's respective version of events. The testimony that
was admitted at trial conveyed two stories: Hunt testifying that
Venske did not send him a video, and Officer Nachtigal
testifying that A.H. told him in her police interview that the
video came from Venske.12 Officer Nachtigal's testimony
functionally conveyed the same information as A.H.'s excluded
testimony. Although A.H.'s version of events might have been
stronger if she had been allowed to corroborate Officer
Nachtigal's testimony, such an outcome would certainly not be
helpful to Hunt. If Hunt's counsel had successfully argued for
admission of A.H.'s testimony, the jury would have heard her
provide only more detailed information about where Hunt obtained
the video. Such additional evidence would have been utterly
inconsistent with Hunt's own testimony, and far from
strengthening his case, might instead have undercut his own
credibility. Counsel cannot be ineffective for failing to
successfully introduce testimony that might very well have been
damaging to Hunt and that was functionally conveyed from another
source. We therefore conclude that Hunt's counsel was not
ineffective for failing to argue for admission of A.H.'s
testimony as a present sense impression.
12
Officer Nachtigal's testimony was further collaborated by
the police report recounting his interview with A.H. The police
report——which was admitted into evidence at trial——explained
A.H. told Officer Nachtigal that when Hunt showed her the video,
he remarked, "this is the kind of stuff that [Hunt's] friend
[Venske] sends him."
25
No. 2012AP2185-CR
iii. Hunt's Second Ineffective Assistance Claim
¶45 Hunt's second ineffective assistance argument is that
trial counsel failed to provide the circuit court with the
strongest argument for excluding evidence regarding the cell
phone image of a topless woman posing with a deer head and the
alleged image of a woman bending over. Hunt's counsel filed a
pretrial motion in limine arguing for exclusion of this
evidence, but did not mention the motion during the pretrial
motion hearing. During the trial, Hunt's counsel objected to
A.H.'s testimony describing these two images on the basis that
they were extrinsic and irrelevant.
¶46 Hunt contends his trial counsel performed deficiently
in failing to invoke Wis. Stat. § 904.03, which provides for
exclusion of evidence "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . ." Specifically, Hunt
argues that Wis. Stat. § 904.03 was applicable because the
evidence in question posed a high likelihood of confusing or
misleading the jury. According to Hunt, because the other two
images described by A.H. also featured offensive sexual conduct,
the jury could easily be confused about which image could
support a conviction. As a result, there was a high risk that
Hunt would be convicted based on images which the circuit court
had already ruled were not "sexually explicit conduct" as a
matter of law. See Wis. Stat. § 948.055(1). Hunt also points
out that the probative value of the evidence was minimal because
26
No. 2012AP2185-CR
it was admitted for the purpose of providing context to A.H.'s
testimony.
¶47 The State argues that, even assuming Hunt's counsel
performed deficiently in failing to invoke Wis. Stat. § 904.03,
the deficiency did not prejudice his defense.
¶48 We agree with the State.13 Hunt's argument is premised
on the possibility that the jury could have convicted him based
on images that did not meet the statutory criteria in Wis. Stat.
§ 948.055(1). However, the circuit court's instruction to the
jury specified that the only unlawful image was the video of
sexual intercourse:
The second count of the information charges that
between September 1st, 2009, and June 30th, 2010, in
the City of Fort Atkinson, Jefferson County,
Wisconsin, the defendant did commit the crime of
causing a child to view or listen to sexual activity,
specifically, a video clip of a man and woman engaging
in sexual intercourse.
(Emphasis added). For Hunt's argument to succeed, we would have
to assume that the jury failed to adhere to the circuit court's
instruction. However, as Hunt points out in his brief,
"[j]urors are presumed to have followed jury instructions."
State v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d
780.
13
As we have previously observed, because the defendant
must prove both deficient performance and prejudice under
Strickland's two-part test in order to establish ineffective
assistance of counsel, courts "may reverse the order of the two
[Strickland] tests or avoid the deficient performance analysis
altogether if the defendant has failed to show prejudice[.]"
State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990).
27
No. 2012AP2185-CR
¶49 In addition, during the supplemental postconviction
motion hearing, the circuit court explained that even if Hunt's
counsel had raised the confusion argument at trial, the outcome
would have been no different:
I don't think that the confusion argument is
particularly compelling.
. . . . Even if it were made, I would not have granted
the objection on that basis because the danger of
confusion is really relatively low here. Especially
given the fact that I instructed the jury that the
image of the two people allegedly engaging in a sex
act is the image that constitutes the basis for that
criminal charge.
. . . . The other two images, as they have been
referred to today and elsewhere on the record, were
highly probative for the reasons I have previously
indicated.
That highly probative value substantially outweighs
whatever danger of confusion might have been present
and I find that any risk of confusion was relatively
low.
¶50 In arguing that evidence of the two images described
by A.H. posed a significant risk of confusing the jury, Hunt
overlooks that he also introduced evidence of an additional
offensive image at trial——that is, the picture of a testicular
hernia. If there was a risk of confusion to the jury, it was
created equally by both sides. Hunt cannot convincingly argue
that his own evidence posed "no real danger" of confusion, but
that comparable evidence introduced by the prosecution should
have been excluded.
¶51 For these reasons, we conclude that Hunt failed to
meet his "burden of showing that the decision reached would
28
No. 2012AP2185-CR
reasonably likely have been different absent the errors" under
his second ineffective assistance of counsel claim. Strickland,
466 U.S. at 696.
iv. Hunt's Third Ineffective Assistance Claim
¶52 Hunt's final ineffective assistance claim is that
trial counsel was deficient for failing to ensure the jury
instructions clearly distinguished between the images that were
discussed at trial. During the jury instruction conference, the
circuit court suggested adding clarifying language to the jury
instruction describing the elements of causing a child to view
or listen to sexual activity. The proposed instruction would
have specified that the contested image in this case was the
video of sexual intercourse, not the other images described by
A.H. If accepted, the circuit court would have delivered the
following instruction to the jury:
Element Number 1, the defendant caused [A.H.] to view
or listen to sexually explicit conduct. Sexually
explicit conduct means actual or simulated sexual
intercourse, masturbation, lewd exhibition of an
intimate part.
In this case, the State alleges that the video clip of
a man and woman engaging in sexual intercourse is
sexually explicit conduct.
(Emphasis added). Hunt's trial counsel objected to the
additional language, and Hunt now argues his trial counsel
lacked a valid strategic reason for the objection. Hunt
maintains that, due to the nature of the images described by
A.H., there was a heightened risk the jury would convict him
29
No. 2012AP2185-CR
based on an image that did not meet the statutory criteria for
"sexually explicit conduct" under Wis. Stat. § 948.055(1).
¶53 The State asserts that counsel's decision to object to
the instruction was a legitimate strategic decision, and as
such, it cannot form the basis for an ineffective assistance
claim.
¶54 We agree with the State that counsel's performance was
not deficient. During the jury instruction conference, Hunt's
counsel provided the following rationale in support of his
objection to the proposed instruction:
I think [the instruction] amplifies it and gives some
validity of the State's argument when we tell [the
jury] an element of this is what the State is
alleging. It's like me adding that what the defense
is alleging is a defense as well.
Hunt's counsel also referred to the circuit court's previous
amended jury instruction, which already clarified that the video
of sexual intercourse was the basis for the State's charge. In
response to Hunt's objection, the circuit court explained,
"Okay, I don't mind if we take that one out. . . . I want the
jury to be on notice of what image we are talking about, and I
think we have covered that in [the previous
instruction]. . . . I'm agreeing with you."
¶55 Hunt's counsel weighed the possibility of juror
confusion against the likelihood that the proposed instruction
would appear to legitimize the State's allegations, and he made
a reasonable strategic choice to object to the instruction.
Hunt's counsel concluded that the circuit court's other amended
30
No. 2012AP2185-CR
jury instruction would rectify any possible confusion about
which image formed the basis for the State's complaint. We find
no reason for concluding that counsel's strategic decision "fell
below an objective standard of reasonableness." Strickland, 466
U.S. at 688. To the contrary, the circuit court later expressed
agreement with the reasoning of Hunt's counsel.14 "A strategic
trial decision rationally based on the facts and the law will
not support a claim of ineffective assistance of counsel."
State v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App.
1996). We will not "second-guess[] the trial counsel's
considered selection of trial tactics or the exercise of a
professional judgment in the face of alternatives that have been
weighed by trial counsel." State v. Felton, 110 Wis. 2d 485,
502, 329 N.W.2d 161 (1983). Therefore, we conclude that
counsel's decision to object to the circuit court's second
14
In Hunt's postconviction motion hearing, the circuit
court explained:
[Hunt's trial counsel's] stated strategy was that he did
not want that to be in the instruction because it might
convey to the jury that the Court believed that the video
image in question was, in fact, sexually explicit conduct.
That's a legitimate strategy decision. . . . [I]n
hindsight, I think [Hunt's trial counsel] was right about
that. It probably would have been detrimental to the
defense to have that explanation in [the jury instruction],
because it could have placed that quality on the assertion
in the instruction that this has been endorsed by the Court
as constituting sexually explicit conduct.
31
No. 2012AP2185-CR
amended jury instruction was not deficient performance for
purposes of an ineffective assistance of counsel claim.15
IV. CONCLUSION
¶56 Because Venske's testimony was relevant to Hunt's
theory of defense and corroborated his version of events, we
hold that the circuit court erred in excluding the testimony.
However, we conclude that the State met its burden of proving
that it is "clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error," Harvey,
254 Wis. 2d 442, ¶49 (quoting Neder, 527 U.S. at 18), and thus,
the error was harmless. We further determine that Hunt's
ineffective assistance of counsel claims fail under the two-part
15
Hunt also argues that his trial counsel's alleged
deficiencies, taken in the aggregate, had a significant,
prejudicial impact on his defense. It is true that we consider
the cumulative effect of counsel's deficiencies when assessing
whether the prejudice standard in Strickland has been satisfied.
State v. Thiel, 2003 WI 111, ¶59, 264 Wis. 2d 571, 665 N.W.2d
305. As this court has previously explained, "[j]ust as a
single mistake in an attorney's otherwise commendable
representation may be so serious as to impugn the integrity of a
proceeding, the cumulative effect of several deficient acts or
omissions may, in certain instances, also undermine a reviewing
court's confidence in the outcome of a proceeding." Id., ¶60.
This approach is inapplicable, however, in situations——such as
this case——where the reviewing court concludes that the alleged
errors, taken in isolation, did not constitute a deficient act
or omission. "[E]ach alleged error must be deficient in law——
that is, each act or omission must fall below an objective
standard of reasonableness——in order to be included in the
calculus for prejudice." Id., ¶61. Because we conclude that
one of the alleged errors raised by Hunt are not deficient as a
matter of law, we cannot address Hunt's aggregacy argument, as
we do not find any, let alone multiple, instances of deficient
performance.
32
No. 2012AP2185-CR
inquiry of Strickland, 466 U.S. at 687 (1984). We conclude
that, under the totality of the circumstances, Hunt received a
fair trial, and our confidence in the judgment is not
undermined. Accordingly, we reverse the decision of the court
of appeals and reinstate the circuit court's judgment of
conviction and affirm its denial of Hunt's post-conviction
motion.
By the Court.—The decision of the court of appeals is
reversed.
33
No. 2012AP2185-CR.awb
¶57 ANN WALSH BRADLEY, J. (dissenting). The State of
Wisconsin seeks review of an unpublished per curiam opinion of
the court of appeals that reversed the defendant's conviction.
¶58 This is not a close case on the relevant issue of law,
that is, whether the circuit court committed error in excluding
key witness testimony necessary to support the defendant's
version of events. Rather, this is a case where both parties,
the court of appeals, the majority, and I all conclude that it
was error.1
¶59 I part ways with the majority, however, when it
concludes that the error is harmless. Its conclusion is based
on the faulty assertion that there is "little meaningful
difference" between the probative value of Venske's excluded
testimony and the probative value of Officer Nachtigal's
admitted testimony. Majority op., ¶32.
¶60 To support this conclusion the majority has to ignore
both logic and the law of evidence. When an out-of-court
statement is admitted to show the event occurred but
specifically is not admitted for the truth of the matter
asserted, its probative value in ascertaining the truth of the
matter asserted is minimal, if any. Contrary to the majority's
assertion, it is meaningfully different in probative value than
Accordingly, there is no law development function that we
1
engage in here. The test for determining whether the error is
harmless is well established. We are left to address only an
error correction function, one that this court does not normally
perform. See Wis. Stat. § (Rule) 809.62(1r).
1
No. 2012AP2185-CR.awb
relevant in-person testimony which is offered for the truth of
the assertion.
¶61 This was a he-said——she-said case. The excluded
evidence was the only evidence available to corroborate either
version of the events——and it corroborated the defendant's
version.
¶62 After reviewing all of the relevant factors in a
harmless error analysis, I conclude that the exclusion of key
testimony supporting the defendant's credibility was not
harmless. Accordingly, I respectfully dissent.2
I
¶63 Hunt was charged with showing an obscene video on his
cell phone to his stepdaughter. She told police that the video
had been sent by Hunt's friend, Venske. Hunt testified that he
never had a video like the one she described and that he had not
received any such video from Venske. The circuit court excluded
Venske's corroborating testimony that he never sent any videos
to Hunt.
¶64 The majority determines as a threshold matter that the
circuit court erred in excluding Venske's relevant testimony
"that he had never sent Hunt any videos, including the video of
sexual intercourse." Majority op., ¶25. It acknowledges that
2
Because this issue is dispositive, I do not address the
majority's ineffective assistance of counsel analysis. However,
I note that the majority's analysis appears to continue a
troubling trend of paying lip service to Strickland v.
Washington, 466 U.S. 668 (1984), while deviating from the
principles of Strickland itself. See State v. Starks, 2013 WI
69, ¶82, 349 Wis. 2d 274, 833 N.W.2d 146 (Bradley, J.,
dissenting).
2
No. 2012AP2185-CR.awb
"Venske's testimony was directly relevant to Hunt's theory of
defense" because "Venske's excluded testimony would have
corroborated Hunt's testimony and lent credibility to Hunt's
version of events." Nevertheless, it concludes that the error
was harmless. Id.
¶65 The majority notes that although the excluded
testimony had value in corroborating Hunt's testimony, that
purpose "was effectively achieved by the admission of Officer
Nachtigal's testimony." Id., ¶35. Specifically, it determines
that Officer Nachtigal's testimony that Venske told him that he
had not sent Hunt the video "functionally served the same
purpose as Venske's excluded testimony by corroborating Hunt's
version of events." Id., ¶30. Even though the circuit court
instructed the jury not to use the officer's testimony to
determine "whether Venske actually sent something from his phone
or not," the majority concludes that there was "little
meaningful difference" between the probative value of Venske's
excluded testimony and the probative value of Officer
Nachtigal's admitted testimony. Id., ¶¶31, 32.
II
¶66 The majority's determination of harmless error rests
primarily on its erroneous conclusion that Officer Nachtigal's
testimony was essentially as valuable to the defense as Venske's
excluded testimony would have been. Id., ¶¶10, 30-32.
Undermining the majority's conclusion is the fact that the jury
was specifically instructed not to consider for the truth of the
matter asserted Nachtigal's testimony about what Venske told
3
No. 2012AP2185-CR.awb
him. The circuit court's instruction was detailed and unusually
specific, and bears repeating in its entirety:
A witness is not allowed to tell us what somebody else
told him to prove that it happened. But the officer,
or any witness, is allowed to discuss other
conversations simply to establish who said what to
whom.
So, if somebody wants to prove that Mr. Venske ——
[COUNSEL]: That is correct.
THE COURT: Did something or didn't do something, they
either need to have a witness who saw him do it or
have Mr. Venske come in and testify himself.
When the Officer is being allowed to testify about
this conversation, it's not to be used by you to
determine whether Mr. Venske actually sent something
from his phone or not.
It's being admitted simply so you understand the
conversation that took place between these two
gentlemen.
That's the best explanation I can give you for
hearsay. You spend about three months on it in law
school, and that's the nutshell version.
A statement is not hearsay if it's not used to prove
the truth of the matter asserted, is the technical
legal definition.
(Emphasis supplied.) It is difficult to imagine what else the
circuit court could have done to communicate to the jury that it
could not consider Officer Nachtigal's testimony as probative of
whether or not Venske actually sent the video to Hunt.
¶67 In light of this detailed jury instruction, there is
no logical way to reconcile the majority's suggestion that the
jury could use Officer Nachtigal's testimony as probative in
proving what Venske told him, with the court's instruction that
4
No. 2012AP2185-CR.awb
it could not use it for that purpose. The court instructed:
"it's not to be used by you to determine whether Mr. Venske
actually sent something from his phone or not."
¶68 The only way to make any sense of the conclusion that
the majority embraces is that the majority assumes that the jury
did not heed the court's instruction. However, the jury is
presumed to have followed the court's instructions. State v.
LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780; see
also State v. Gary M.B., 2004 WI 33, ¶33, 270 Wis. 2d 62, 676
N.W.2d 475 ("When a circuit court gives a proper cautionary
instruction, appellate courts presume that the jury followed
that instruction and acted in accordance with the law."); State
v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990)
("[O]nce the jury has been properly instructed on the principles
it must apply to find the defendant guilty beyond a reasonable
doubt, a court must assume on appeal that the jury has abided by
those instructions."). The majority undermines the presumption
and calls into question whether the circuit court's instructions
had any effect.
III
¶69 The majority's conclusion also rests on a
misperception of the law of evidence. The majority mistakenly
treats Officer Nachtigal's testimony about Venske's out-of-court
statement, admitted to prove that a conversation occurred, as
having essentially the same probative value as direct testimony
from Venske. In his instruction to the jury, the circuit court
correctly explained the difference.
5
No. 2012AP2185-CR.awb
¶70 Hearsay is "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." Wis. Stat.
§ 908.01(3). Here the statement was that Venske did not send
Hunt the video. As the circuit court specifically instructed,
this statement by Venske to Officer Nachtigal was not admitted
into evidence for the truth of the statement. Rather it was
admitted to explain how Officer's Nachtigal's investigation
proceeded. State v. Wilson, 160 Wis. 2d 774, 779, 467 N.W.2d
130 (Wis. Ct. App. 1991) ("Where a declarant's statement is
offered for the fact that it was said, rather than for the truth
of its content, it is not hearsay."). This type of evidence has
been held admissible under res gestae, which literally means
that the thing happened, "things done" or "thing transacted."
Black's Law Dictionary 1310 (7th ed., 1999).
¶71 Nachtigal's testimony has little, if any, probative
value in regards to proving the truth of the statement that
Venske did not send a video to Hunt. "Probative value" has been
defined as "the tendency of evidence to establish the
proposition that it is offered to prove." 1 Charles T.
McCormick on Evidence 774 (4th ed. 1992). Even if there is some
minimal probative value, proving that the conversation took
place is different than proving as true what was said in the
conversation. See State v. Payano, 2009 WI 86, ¶81, 320 Wis. 2d
348, 768 N.W.2d 832 (2009) ("Essentially, probative value
reflects the evidence's degree of relevance. Evidence that is
6
No. 2012AP2185-CR.awb
highly relevant has great probative value, whereas evidence that
is only slightly relevant has low probative value.").
¶72 In light of the circuit court's jury instruction that
Officer Nachtigal's testimony could not be used for the truth of
the matter asserted, the majority's conclusion of "little
meaningful difference" between the probative value of Venske's
excluded testimony and the probative value of Officer
Nachtigal's admitted testimony is baffling. Majority op., ¶32.
Contrary to the majority's conclusion, there is a vast probative
difference. It takes both a leap of logic and the law to
conclude otherwise.
IV
¶73 This court has repeatedly stated that a harmless error
analysis considers the totality of the circumstances. State v.
Beamon, 2013 WI 47, ¶3, 347 Wis. 2d 559, 830 N.W.2d 681 ("A
harmless error analysis asks whether, based on the totality of
the circumstances, it is clear beyond a reasonable doubt that a
rational jury, properly instructed, would have found the
defendant guilty."); State v. Patricia A.M., 176 Wis. 2d 542,
556-57, 500 N.W.2d 289 (1993) ("[A] reviewing court must look
to the totality of record and determine whether the error
contributed to the trial's outcome.").
¶74 The majority correctly observes that this court has
previously articulated a number of factors to assist in a
harmless error analysis, including the importance of the
erroneously admitted or excluded evidence, the presence or
absence of evidence corroborating or contradicting the
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erroneously admitted evidence, the nature of the State's case,
the overall strength of the State's case, and the nature of the
defense. Majority op., ¶27 (citing State v. Norman, 2003 WI 12,
¶48, 262 Wis. 2d 605, 664 N.W.2d 97).
¶75 Although the majority pays lip service to the totality
of the circumstances, its focus appears narrow. In all but one
of the factors it considers, the majority relies on the strength
of Officer Nachtigal's testimony. This almost singular focus is
contrary to our harmless error jurisprudence.
¶76 In considering the first factor, importance, the
majority determines it is informed by the presence or absence of
corroborating evidence. Id., ¶30. It notes that although
Venske was not allowed to testify, Officer Nachtigal's testimony
served the same function. Id., ¶¶32, 35.
¶77 In addressing the nature of the case, the majority
again relies on the strength of Officer Nachtigal's testimony.
It reasons that because the State was not required to prove how
Hunt obtained the video, the only value in Venske's testimony
was to corroborate Hunt's version of events. Thus, it
determines, "any harm arising from the exclusion of Venske's
testimony was minimized by the admission of Officer Nachtigal's
testimony." Id., ¶34.
¶78 Next, in its discussion of the nature and strength of
the State's case against Hunt, the majority observes that the
State's case was not predicated on whether Hunt received the
video from Venske. Id., ¶35. It then reiterates that the value
of Venske's testimony was in corroborating Hunt's testimony, "a
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purpose that was effectively achieved by the admission of
Officer Nachtigal's testimony." Id.
¶79 The only point at which the majority relies on a
different basis is in its discussion of Hunt's defense. Id.,
¶33. There, it notes that the State never suggested at trial
that Hunt obtained the video from Venske. Thus, it reasons,
although the excluded evidence would have lent credibility to
Hunt's version of events, it would not have weakened the State's
case. Id.
¶80 Overall, the majority's conclusion that the error in
excluding Venske's testimony was harmless relies fundamentally
on its erroneous assertion that Officer Nachtigal's testimony
was the functional equivalent of Venske's. The majority
continuously emphasizes its focal point that Nachtigal's
testimony filled the void left by the exclusion of Venske's
testimony. It is hard to square what is essentially the
singular focus in the majority's harmless error analysis with
the directive to consider the totality of the circumstances.
V
¶81 Contrary to the majority, after considering the
totality of the circumstances, I conclude that the State has not
shown beyond a reasonable doubt that the circuit court's
erroneous exclusion of Venske's testimony was harmless.
¶82 In assessing whether an error is harmless, "we focus
on the effect of the error on the jury's verdict." State v.
Weed, 2003 WI 85, ¶29, 263 Wis. 2d 434, 666 N.W.2d 485. We have
described the test as "whether it appears beyond a reasonable
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doubt that the error complained of did not contribute to the
verdict obtained." Id. (quoting State v. Harvey, 2002 WI 93,
¶44, 254 Wis. 2d 442, 647 N.W.2d 189, quoting in turn Neder v.
United States, 527 U.S. 1, 15-16 (1999)). To conclude that an
error "did not contribute to the verdict . . . a court must be
able to conclude 'beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.'" Id.
(quoting Harvey, 254 Wis. 2d 442, ¶48 n.14).
¶83 As previously noted, we are to consider the totality
of the circumstances when conducting a harmless error analysis.
Beamon, 347 Wis. 2d 559, ¶3. This court has articulated a
number of factors which include: the nature of the case, the
importance of the erroneously admitted or excluded evidence, the
nature of the error and the alleged harm caused, the presence or
absence of evidence corroborating or contradicting the
erroneously admitted or excluded evidence, whether the
erroneously admitted evidence duplicates untainted evidence, the
nature of the defense, the nature of the State's case, and the
overall strength of the State's case. Norman, 262 Wis. 2d 506,
¶48; Weed, 263 Wis. 2d 434, ¶30; see also State v. Rhodes, 2011
WI 73, ¶33, 336 Wis. 2d 64, 799 N.W.2d 850.
¶84 Considering the nature of the case, the excluded
evidence was of high importance. This case presents two
versions of what happened: the events as relayed by A.H. and the
events as relayed by Hunt. There was no evidence of what
happened on the day in question other than their statements. In
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No. 2012AP2185-CR.awb
these circumstances, the primary focus is on the credibility of
these witnesses.
¶85 "Corroborating evidence is often the key to breaking
credibility deadlocks." Daniel D. Blinka, 7 Wisconsin Practice
Series: Wisconsin Evidence, § 420.5 at 294 (3d ed. 2008); see
also State v. Daniels, 160 Wis. 2d 85, 109, 465 N.W.2d 633
(1991) (error not harmless when the excluded evidence "was
needed to bolster the defendant's credibility"). Venske's
testimony would have corroborated Hunt's version of events and
thus was important to the credibility determination.
Accordingly, the nature of the case and the importance of the
excluded evidence weigh against a determination that the error
was harmless.
¶86 In this context, the nature of the error is
particularly onerous. Defendants have a constitutional right to
present a defense. As the United States Supreme Court has
repeatedly observed, "few rights are more fundamental than that
of an accused to present witnesses in his own defense."
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (citations
omitted).
¶87 Our caselaw stresses the importance of allowing a
defendant to "produce supporting evidence" to corroborate his or
her version of events. Daniels, 160 Wis. 2d at 104 (a defendant
should not be "limited merely to his own assertion but should be
allowed to produce supporting evidence" to corroborate his
testimony). Here, the excluded testimony was necessary to
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No. 2012AP2185-CR.awb
bolster Hunt's version of events. This weighs against a
determination that excluding Venske's testimony was harmless.
¶88 There was no admitted evidence that duplicated or
corroborated the erroneously excluded evidence. In this case
the only evidence that could be considered duplicating or
corroborating the excluded testimony was Officer's Nachtigal's
testimony about what Venske told him. Given that Officer
Nachtigal's testimony could not be considered for the truth of
"whether Venske actually sent something from his phone or not"
it was of no value as corroborating evidence. There was no
other evidence to take the place of the erroneously excluded
evidence. Further, the jury instruction explaining that proof
of what Venske did or did not do would have to be established
through Venske's testimony only highlighted the lack of such
testimony from Venske. As such, this factor also cuts against a
conclusion of harmless error.
¶89 The other factors this court has offered to assist in
harmless error analysis also demonstrate that the State has not
met its burden of showing beyond a reasonable doubt that the
error did not contribute to the verdict. The majority briefly
alludes to the "strength of the State's case" which it frames as
"largely dependent on the specific and consistent testimony of
A.H., who was the State's principal witness at trial." Majority
op., ¶35. However, it omits any specific discussion of A.H.'s
testimony, and the strength of any other evidence of guilt.
Compare id. with State v. Evers, 139 Wis. 2d 424, 450, 407
N.W.2d 256 (1987) (examining the record as a whole, finding that
12
No. 2012AP2185-CR.awb
the "evidence of guilt was overwhelming," and concluding that
the error of admitting prior crimes testimony was harmless
beyond a reasonable doubt). A closer look at the State's case
reveals that the fact that it was dependent on A.H.'s testimony
was part of its weakness. This was a case of he-said——she-said,
and the excluded evidence was the only available evidence to
corroborate either version of the story.
¶90 These factors, considered in light of the totality of
the circumstances, create a reasonable doubt that a rational
jury would have found the defendant guilty had the erroneously
excluded evidence been admitted. Hunt's sole conviction
depended on the jury's belief that he had the video on his
phone, despite Hunt's testimony to the contrary. The case
turned on the relative credibility of Hunt and A.H., and
Venske's excluded testimony was the only testimony offered to
bolster either story.
VI
¶91 In sum, I conclude that the State failed to meet its
burden of proving that the erroneous exclusion of testimony was
harmless. It was "directly relevant to Hunt's theory of
defense" and "would have corroborated Hunt's testimony and lent
credibility to Hunt's version of events." Majority op., ¶25.
¶92 Contrary to the majority, I conclude that the
exclusion of key testimony going to the defendant's credibility,
in this case involving two competing versions of events, was not
harmless. Accordingly, I respectfully dissent.
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No. 2012AP2185-CR.awb
¶93 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON and Justice DAVID T. PROSSER, JR., join this dissent.
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