State v. Gerrod R. Bell

2018 WI 28

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2667-CR & 2015AP2668-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Gerrod R. Bell,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 373 Wis. 2d 310, 895 N.W.2d 104
(2017 – Unpublished)

OPINION FILED: April 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 23, 2017

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Monroe
JUDGE: Michael J. Rosborough

JUSTICES:
CONCURRED: ZIEGLER, J. concurs (opinion filed).
DISSENTED: A.W. BRADLEY, J. dissents (opinion filed).
NOT PARTICIPATING: ROGGENSACK, C.J. withdrew from participation.
ABRAHAMSON, J. did not participate.

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
filed by and an oral argument by Suzanne L. Hagopian, assistant
state public defender.

For the plaintiff-respondent, there was a brief filed by
Daniel J. O’Brien, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by Daniel
J. O'Brien.
 2018 WI 28
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2015AP2667-CR & 2015AP2668-CR
(L.C. Nos. 2001CF239 & 2001CF249)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. APR 10, 2018

Gerrod R. Bell, Sheila T. Reiff
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DANIEL KELLY, J. Gerrod Bell says he is entitled to

a new trial because the first one, which resulted in convictions

for the sexual assault of two victims, was unfair——a violation
of his due process rights. He believes it was unfair because

the State told the jurors they could not find him not guilty

unless they thought the victims lied about the sexual assaults,

and that they should not disbelieve the victims because there

was no motive for them to lie. This, he says, shifted the

burden of proof and distorted the jury's credibility

determinations. He also claims the jury based its verdict, at

least in part, on inadmissible evidence contained in two
 No. 2015AP2667-CR & 2015AP2668-CR

exhibits sent to the jury room during deliberations. We

conclude that Mr. Bell is not entitled to a new trial and affirm

the decision of the court of appeals.1

I. BACKGROUND

¶2 The State charged Mr. Bell with sexually assaulting

two victims——T.P., who was fourteen years of age at the time,

and her older sister, A.L., who was then seventeen. The

incidents came to light when, in August of 2001, T.P.'s mother

reported to Sergeant Dale Stickney of the Sparta Police

Department that Mr. Bell, a family friend, had sexually

assaulted T.P. in the backyard of T.P.'s home after a birthday

party for A.L.

¶3 Detective LaVern Erickson and a social worker met with

T.P. to interview her about the incident. Subsequently,

Detective Erickson questioned A.L. about her sister's sexual

assault. In the course of that interview, A.L. revealed to

Detective Erickson that she had herself been the victim of three

sexual assaults by Mr. Bell, all of which had occurred around
the time of the incident with T.P.2 Approximately five months
1
This is a review of an unpublished decision of the court
of appeals, State v. Bell, Nos. 2015AP2667-CR & 2015AP2668-CR,
unpublished slip op. (Wis. Ct. App. Dec. 1, 2016), affirming the
Monroe County Circuit Court's denial of Mr. Bell's
postconviction motion. The Honorable Michael Rosborough
presided over both the jury trial and the postconviction motion.
2
It is somewhat unclear whether A.L. revealed all of this
conduct during the course of a single interview with Detective
Erickson; however, it appears that she reported these three
incidents within approximately one to two weeks of T.P. having
reported her assault.

2
 No. 2015AP2667-CR & 2015AP2668-CR

after reporting these incidents, A.L. further disclosed that Mr.

Bell had also sexually assaulted her in the bathroom of her

mother's home in early July 2001——prior to the incidents she had

previously reported and prior to the sexual assault of T.P. Of

the four incidents, only the one occurring in the bathroom

involved sexual intercourse.

¶4 The State initiated two cases against Mr. Bell, one

for each of the victims, but joined them for trial.3 With

respect to T.P., the State charged Mr. Bell with one count of

sexual assault as a persistent repeater contrary to Wis. Stat.

§§ 940.225(2)(a) (2001-02),4 939.50(3)(bc), and 939.62(2m) (Count

1); one count of second-degree sexual assault of a child as a

persistent repeater contrary to Wis. Stat. §§ 948.02(2),

939.50(3)(c), and 939.62(2m)(b)2. (Count 2); and one count of

misdemeanor bail jumping as a repeater contrary to Wis. Stat.

§§ 946.49(1)(a), 939.51(3)(a), and 939.62(1)(a) (Count 3). With

respect to A.L., the State charged Mr. Bell with two counts of

sexual assault as a persistent repeater contrary to Wis. Stat.
§§ 940.225(2)(a), 939.50(3)(bc), and 939.62(2m) (Counts 1 and

2);5 and two counts of attempted second degree sexual assault as

3
Monroe County Circuit Court Case No. 2001CF239 (T.P.);
Monroe County Circuit Court Case No. 2001CF249 (A.L.).
4
All subsequent references to the Wisconsin Statutes are to
the 2001-02 version unless otherwise indicated.
5
Count 1 pertained to sexual contact without consent by use
of threat or force and Count 2 pertained to non-consensual
sexual intercourse with use of threat or by force.

3
 No. 2015AP2667-CR & 2015AP2668-CR

a persistent repeater contrary to Wis. Stat. §§ 940.225(2)(a),

939.50(3)(bc), and 939.62(1)(c) (Counts 3 and 4). Before

submitting the case to the jury, the circuit court dismissed

Count 3 for lack of sufficient evidence, and then dismissed

Count 4 at the State's request.

¶5 During deliberations, the jury requested that certain

documents be delivered to it for review. Two of the documents

indicated that T.P. had not had sexual intercourse until she was

assaulted by Mr. Bell. Neither the prosecutor nor defense

counsel asked for that information to be redacted from the

exhibits.

¶6 The jury returned guilty verdicts on all counts

submitted to it, and Mr. Bell received his sentence in due

course. He then moved to vacate the judgments of conviction and

requested a new trial pursuant to Wis. Stat. § (Rule)

809.30(2)(h) (2015-16)6 on July 13, 2015.7 His motion claimed he

6
Wisconsin Stat. § (Rule) 809.30(2)(h) (2015-16) provides:

Notice of appeal, postconviction or postdisposition
motion. The person shall file in circuit court and
serve on the prosecutor and any other party a notice
of appeal or motion seeking postconviction or
postdisposition relief within 60 days after the later
of the service of the transcript or circuit court case
record. The person shall file a motion for
postconviction or postdisposition relief before a
notice of appeal is filed unless the grounds for
seeking relief are sufficiency of the evidence or
issues previously raised. A postconviction or
postdisposition motion under this section may not be
accompanied by a notice of motion and is made when
filed. A notice of appeal filed under this section
(continued)
4
 No. 2015AP2667-CR & 2015AP2668-CR

did not receive a fair trial because: (1) the prosecutor's

comments regarding motive and evidence of lying during closing

argument shifted the burden of proof; and (2) the jury was

allowed to view two inadmissible exhibits during deliberation.8

As to his first argument, Mr. Bell argued he was entitled to

relief based on the plain error doctrine or ineffective

assistance of counsel, and as to his second argument, he sought

relief based on the interests of justice or ineffective

assistance of counsel. The circuit court conducted a Machner9

hearing at which trial counsel testified. The court denied the

motion because it concluded the trial was free from harmful

shall conform to the requirements set forth in s.
809.10.
7
The procedural history in these cases is long,
complicated, and but for the portions we have recounted, not
relevant to the issues sub judice. For our purposes, it will
suffice that the case is before us on direct appeal,
notwithstanding the nearly 13 years between the verdict and Mr.
Bell's postconviction motion.
8
Mr. Bell also sought resentencing on Count 1 in the case
related to T.P. (2001CF239). He asserted that if the court
denied his request for a new trial, he was entitled to
resentencing on this count because the persistent repeater had
been incorrectly applied. The persistent repeater had also been
applied incorrectly to Counts 1 and 2 in the case related to
A.L. (2001CF249), which error was corrected in 2014. At the
conclusion of the postconviction motion hearing, the circuit
court agreed that resentencing on Count 1 in 2001CF239 would be
necessary in the event the appellate courts upheld Mr. Bell's
convictions. The resentencing issue is not currently before
this court.
9
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).

5
 No. 2015AP2667-CR & 2015AP2668-CR

error. The court of appeals affirmed, and we granted Mr. Bell's

petition for review.

II. STANDARD OF REVIEW

¶7 Mr. Bell asks us to review the State's trial

commentary under the plain error doctrine or, alternatively, for

a determination that he received ineffective assistance of

counsel. With respect to his attorney's failure to request

redaction of the exhibits sent to the jury room, he asks us to

determine only whether he received ineffective assistance of

counsel.

¶8 The "plain error" Mr. Bell claims is at issue is a

violation of his due process rights, which is a question of law

we review de novo. State v. Burns, 2011 WI 22, ¶23, 332

Wis. 2d 730, 798 N.W.2d 166. However, we will not remedy errors

under this doctrine unless they are "obvious and substantial[,]"

and "so fundamental that a new trial or other relief must be

granted even though the action was not objected to at the time."

State v. Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754
N.W.2d 77 (citation and internal marks omitted).

¶9 A claim of ineffective assistance of counsel presents

a mixed question of fact and law. State v. Tourville, 2016

WI 17, ¶16, 367 Wis. 2d 285, 876 N.W.2d 735. We will not

reverse the circuit court's findings of fact unless they are

clearly erroneous. Id. We independently review, as a matter of

law, whether those facts demonstrate ineffective assistance of

counsel. Id.

6
 No. 2015AP2667-CR & 2015AP2668-CR

III. DISCUSSION

¶10 Mr. Bell says his right to a fair trial was violated

by: (1) the State's trial commentary, which he believes

improperly shifted the burden of proof to him; and (2) the

jury's review of certain unredacted documents during

deliberations. We will address each issue in turn.

A. The State's Trial Commentary10
¶11 The essence of Mr. Bell's argument is that the State

impermissibly shifted the burden of proof by framing this case

as a binary proposition: The jury must convict him if it

believes the victims, and may find him not guilty only if it

does not.11 Mr. Bell maintains there are other reasons the jury

legitimately could have chosen to acquit him, and so the State's

commentary misstated the law.12 Because the defense did not move

for a mistrial on that basis, this alleged error was not

10
When we refer to the State's "trial commentary," we mean
it to include comments and questions during voir dire, the
opening statement, examination of witnesses, and closing
arguments.
11
Mr. Bell says the State compounded this error by also
telling the jurors they should not believe the victims unless
they could discern a reason for them to lie.
12
Mr. Bell's brief purports to identify other reasons the
jury could have acquitted him, but each one was just a different
way of describing the jury's failure to believe the victims'
testimony.

7
 No. 2015AP2667-CR & 2015AP2668-CR

preserved for appellate review.13 Mr. Bell says we should

nonetheless reach and decide this issue under our "plain error"

doctrine, or conclude that the failure to request a mistrial

deprived him of the effective assistance of counsel during the

trial.

¶12 The "plain error" doctrine allows us to review errors

even when they were not properly preserved at trial. State v.

Mayo, 2007 WI 78, ¶29, 301 Wis. 2d 642, 734 N.W.2d 115; see also

Wis. Stat. § 901.03(4) (2015-16) ("Nothing in this rule

precludes taking notice of plain errors affecting substantial

rights although they were not brought to the attention of the

judge."). To qualify for this doctrine's application, however,

the error "must be 'obvious and substantial[,]'" and "'so

fundamental that a new trial or other relief must be granted

even though the action was not objected to at the time.'"

Jorgensen, 310 Wis. 2d 138, ¶21 (citation and one set of marks

omitted). We employ this doctrine sparingly. Id.

¶13 We can also address unpreserved claims of error if the
error is of such a nature that it deprived the defendant of "the

13
See State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537,
613 N.W.2d 606 (defendant who objects to a prosecutor's closing
argument but fails to timely move for a mistrial waives his
objection to the prosecutor's closing argument statements);
State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611
N.W.2d 727 ("It is a fundamental principle of appellate review
that issues must be preserved at the circuit court. Issues that
are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on
appeal.").

8
 No. 2015AP2667-CR & 2015AP2668-CR

effective assistance of counsel." See Strickland v. Washington,

466 U.S. 668, 686 (1984). If the failure to move for a mistrial

based on the State's trial commentary comprised deficient

performance, and that deficiency was prejudicial, Mr. Bell would

be entitled to a new trial. See id. at 687; State v. Pitsch,

124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985).

¶14 There can be neither a deficiency nor plain error,

however, unless the State's trial commentary was improper.

Therefore, whether we analyze this case under the "plain error"

doctrine or as an ineffective assistance of counsel claim, our

first step is to determine whether the State's trial commentary

was improper. If it was, our analysis would then turn to

whether counsel's failure to request a mistrial: (1) was an

error so obvious, substantial, and fundamental that a new trial

is necessary; or (2) comprised deficient and prejudicial

performance.

¶15 We begin with the fundamental tenet that Mr. Bell is

guaranteed the right to due process of law. See U.S. Const.
amend. XIV, § 1 ("No State shall . . . deprive any person of

life, liberty, or property, without due process of

law . . . ."); Wis. Const. art. I, § 8 ("No person may be held

to answer for a criminal offense without due process of

law . . . ."). This guaranty extends to the State's comments

during trial: "When a defendant alleges that a prosecutor's

statements and arguments constituted misconduct, the test

applied is whether the statements 'so infected the trial with
unfairness as to make the resulting conviction a denial of due
9
 No. 2015AP2667-CR & 2015AP2668-CR

process.'" Mayo, 301 Wis. 2d 642, ¶43 (quoting State v.

Davidson, 2000 WI 91, ¶88, 236 Wis. 2d 537, 613 N.W.2d 606)

(some internal marks omitted); see also Darden v. Wainwright,

477 U.S. 168, 181 (1986) (same).

¶16 These due process considerations do not, however,

prevent the State from energetically pressing its case. The

State's attorney is free to "prosecute with earnestness and

vigor——indeed, he should do so." Berger v. United States, 295

U.S. 78, 88 (1935). But in conducting a trial, he must keep in

mind that he represents "a sovereignty whose obligation to

govern impartially is as compelling as its obligation to govern

at all; and whose interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice shall be

done." Id. For that reason, "while he may strike hard blows,

he is not at liberty to strike foul ones. It is as much his duty

to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to

bring about a just one." Id.
¶17 Mr. Bell says the State struck foul blows in his

trial, the result of which was that he bore the burden of

proving to the jury he was not guilty——a burden that does not

belong to him. The burden to prove guilt beyond a reasonable

doubt belongs to the State. Barrera v. State, 109 Wis. 2d 324,

329, 325 N.W.2d 722 (1982) (citing In re Winship, 397 U.S. 358

(1970)) ("The state bears the burden of proving all elements of

a crime beyond reasonable doubt."); see also State v. Kuntz, 160
Wis. 2d 722, 736, 467 N.W.2d 531 (1991) ("It is axiomatic that
10
 No. 2015AP2667-CR & 2015AP2668-CR

the State must prove all the elements of a crime beyond a

reasonable doubt to convict a defendant."). Specifically, Mr.

Bell says the State's comments throughout trial (including its

closing argument) required the jury to convict him unless he

could prove the victims lied about the sexual assaults and

prevented the jury from questioning the victims' veracity unless

it could divine a reason for them to lie.

¶18 We cannot, of course, look at the State's comments in

isolation. We must examine them in the context of the entirety

of the trial——including the nature of the defense Mr. Bell

presented. It is fair to say that in evaluating Mr. Bell's

claim, context is everything.

1. The Trial

¶19 To provide the proper context, we will recount, at

length, the relevant parts of the trial proceedings. The

purpose for doing so is to compare the State's commentary

against the relevant facts and law. Our analysis will inquire

into whether there is such a meaningful discrepancy between the
two that it could have caused the jury to convict Mr. Bell

without finding him guilty beyond a reasonable doubt. Mr. Bell

says the State's improper commentary started with the

examination of potential jurors, so we will begin there.

a. Voir Dire

¶20 The prosecutor introduced the idea that people

generally don't lie without reason early in the proceedings. He

queried the prospective jurors closely on the truthfulness of
teenagers and the reasons they might lie. For example, he asked
11
 No. 2015AP2667-CR & 2015AP2668-CR

if any of the prospective jurors had "ever known a teenager to

lie[,]" whether anyone had "ever not known a teenager to have

lied[,]" and "what are some of the typical things you might

expect a teenager to lie about?". After hearing from

prospective jurors who acknowledged that teenagers likely do lie

in some circumstances but are less likely to do so in others,

the prosecutor asked:

Would everybody agree here that——that, though, that if
you're going to lie, you're going to have a reason
like jealousy of some sort; there's going to be a
reason why you would lie? Everybody agree with that?
Everybody is nodding their head.
¶21 The prosecutor then asked "what are some reasons that

a teenage girl might falsely accuse someone of sexual assault?"

One juror responded that a teenage girl might lie for

"attention," another answered "[l]ack of understanding of the

gravity of accusing someone," another answered "revenge," and

one prospective juror responded that teenage girls might lie

about a sexual assault if they were afraid "that they'd get in

trouble with their parents for having sex in the first place if

they got caught." So the State asked the prospective jurors if

they would "expect there would be some evidence that somebody

would have a reason to lie? There would be some sort of

evidence that this person would have a reason to lie about——[.]"

Two prospective jurors responded that they would expect there to

be some type of evidence that the person had lied. The State

cautioned the prospective jurors they would hear jury
instructions telling them that they would not be allowed to

12
 No. 2015AP2667-CR & 2015AP2668-CR

speculate and that their verdict would need to be based on

evidence or the lack of evidence.

¶22 The defense was similarly interested in the

prospective jurors' impression of teenagers' truthfulness.

After asking each prospective juror the ages of their children,

he asked "How many people believe that a child 14 years old, 18

years old can——can lie about a sexual assault?" He then

reminded the prospective jurors that the prosecutor had

mentioned the concept of someone omitting certain details and

asked if "anybody [has] heard of lying by omission?" He pursued

this theme as he inquired into: (1) whether the jurors believed

that someone might lie because she does not understand the

repercussions; (2) whether someone might tell a lie and then

continue telling the lie because it is too difficult to

backtrack; and (3) whether someone might "lie to gain attention

because they want the love and attention from that person[.]"

b. Opening Statements And Evidence Adduced at Trial

¶23 During his opening statement, defense counsel signaled
that he would be concentrating on the victims' veracity. Part

of his remarks referred to testimony that he said would

establish T.P. had lied about the amount of alcohol she drank on

the night of the assault, that she lied about the assaults

having occurred, that A.L. had admitted prior to trial that she

previously lied about how much alcohol T.P. consumed the night

of the assault, and concluded by telling the jury that "the

evidence will show at the end of this, that in fact . . . [T.P.]
and [A.L.] did not know what the truth is."
13
 No. 2015AP2667-CR & 2015AP2668-CR

¶24 Central to the State's case was the testimony of T.P.

and A.L., who testified extensively and in great detail about

the sexual assaults. T.P. not only recounted details of the

actual assault, she also described the circumstances surrounding

it. So, for example, she testified that on the day Mr. Bell

sexually assaulted her, she had multiple alcoholic beverages and

felt intoxicated at some point during the evening. T.P. then

explained that when her mother asked her to go make sure the

bonfire was out, Mr. Bell came out and sat on the picnic table

with her. She then gave a moment by moment description of how

Mr. Bell sexually assaulted her. She said that, afterwards, Mr.

Bell demanded that she tell no one what he had done and warned

her that if she did, it would happen again.

¶25 Mr. Bell's counsel questioned T.P. closely. Part of

the cross-examination focused on potential motives for lying.

So, for example, he obtained T.P.'s admission that she "ha[d]n't

had the best life" and that she had received comfort and

attention from her mother, and others, after reporting the
assaults. He also took direct aim at her credibility, getting

her to admit she had previously lied about the amount of alcohol

she had consumed on the night of the assault and that——despite

her earlier statements——she was, in fact, intoxicated at some

point that evening. T.P. also confirmed she had previously lied

regarding the extent of her knowledge about sexual matters, and

defense counsel also identified other discrepancies between

T.P.'s trial testimony and her previous statements.

14
 No. 2015AP2667-CR & 2015AP2668-CR

¶26 A.L. provided testimony both about the evening her

sister was assaulted and about her own assaults. With respect

to T.P.'s assault, she said there was alcohol at her (A.L.'s)

birthday party, that she (A.L.) had "a slight buzz," and that

T.P. had been drinking, too, and was "kinda tipsy." A.L. said

she (A.L.) left the party at some point with Mr. Bell and three

other men and that they were "getting stoned," and she explained

that after the group returned to the house around 7:00 p.m., she

and one of the other men left again around midnight. When she

returned shortly thereafter, she noticed a change in T.P.'s

countenance and described her as seeming more sober and "off to

herself."

¶27 A.L. also testified that she herself had been sexually

assaulted by Mr. Bell on four occasions. She said three of the

assaults occurred around the time Mr. Bell assaulted T.P. The

fourth assault (the one she did not originally report to the

police) involved sexual intercourse (unlike the other three

events). She said she did not initially report this assault
along with the others because she was "ashamed to talk about" it

and "didn't want to remember it." Additionally, she said Mr.

Bell had threatened to do the same thing to her sister if she

told anyone what had occurred.

¶28 During his cross-examination of A.L., Mr. Bell's

counsel focused on her credibility. He questioned her about

discrepancies between her trial testimony and the statements she

gave to police and her preliminary hearing testimony as to what
occurred on the night Mr. Bell had non-consensual sexual
15
 No. 2015AP2667-CR & 2015AP2668-CR

intercourse with her, and he also questioned A.L. about whether

she had previously lied about how much alcohol she consumed on

the night of T.P.'s sexual assault. A.L. confirmed she had

previously lied about the amount she consumed because she was

afraid of getting in trouble for drinking. A.L. also confirmed

that after reporting the first three incidents involving Mr.

Bell——which did not include sexual intercourse——she had lied to

investigators when she told them that no other incidents had

occurred. When asked whether her mother had been supportive of

her after she had reported the fourth incident, A.L. confirmed

that she had been and that her mother's support "was different"

from what she had experienced in the past.

¶29 Dr. Ann Budzak, the pediatrician who examined T.P.,

also testified. She explained that although she performed a

pelvic exam of T.P., she did not perform a forensic exam——which

would include collecting specimens such as hair and semen if

possible——because the exam occurred approximately five weeks

after the alleged assault. Dr. Budzak further testified that
based upon a reasonable degree of medical certainty, there was

evidence that T.P. may have had sexual intercourse at some point

because she had tolerated the pelvic exam and because there was

a lack of hymenal tissue. She also testified, however, that a

lack of hymenal tissue "is not specific or proof of having had a

penetration experience such as sexual intercourse" and that

although that was generally the most common explanation for its

absence or disruption, "there are other ways hymenal tissue can
be disrupted[.]"
16
 No. 2015AP2667-CR & 2015AP2668-CR

¶30 Through cross-examination, defense counsel elicited

that Mr. Bell had told the police he had not assaulted T.P. and

A.L. In an attempt to bolster the credibility of this

statement, defense counsel called Sergeant Stickney as a witness

to recount Mr. Bell's offer to undergo a Computer Voice Stress

Analysis. According to Sergeant Stickney, measuring the stress

in an individual's voice can help in determining whether the

person is telling the truth. However, Sergeant Stickney never

followed up on Mr. Bell's offer to take the test. Defense

counsel also attacked A.L.'s credibility by calling a private

investigator to explain how the physical layout of the bathroom

where A.L. said she had been sexually assaulted contradicted her

testimony.

c. Jury Instructions

¶31 Prior to closing arguments, the circuit court

instructed the jury, in relevant part, as follows:

Consider only the evidence received during this
trial and the law as given to you by these
instructions and from these alone, guided by your
soundest reason and best judgment, reach your verdict.

. . . .

The burden of establishing every fact necessary
to constitute guilt is upon the State. Before you can
return a verdict of guilty, the evidence must satisfy
you beyond a reasonable doubt that the defendant is
guilty.

If you can reconcile the evidence upon any
reasonable hypothesis consistent with the defendant's
innocence, you should do so and return a verdict of
not guilty.

17
 No. 2015AP2667-CR & 2015AP2668-CR

The term "reasonable doubt" means a doubt based
upon reason and common sense. It is doubt for which a
reason can be given, arising from a fair and rational
consideration of the evidence or lack of evidence. It
means such a doubt as would cause a person of ordinary
prudence to pause or hesitate when called upon to act
in the most important affairs of life.

A reasonable doubt is not a doubt which is based
on mere guesswork or speculation. A doubt which
arises merely from sympathy or from fear to return a
verdict of guilt is not a reasonable doubt. A
reasonable doubt is not a doubt such as may be used to
escape the responsibility of a decision.

While it is your duty to give the defendant the
benefit of every reasonable doubt, you are not to
search for doubt. You are to search for the truth.
¶32 The court defined evidence as: (1) "the sworn

testimony of witnesses, both on direct and cross-examination";

(2) "exhibits the court has received"; and (3) "any facts to

which the lawyers have agreed or stipulated or which the court

has directed you to find." The court emphasized that the

"[r]emarks of the attorneys are not evidence" and that while the

jury should "[c]onsider carefully" the closing arguments, the

attorneys' "arguments and conclusions and opinions are not
evidence."

¶33 The court also identified the various factors the jury

should consider in determining a witness's credibility and the

weight to give the witness's testimony. Among the factors the

court identified were "possible motives for falsifying

testimony" and "all other facts and circumstances during the

trial which tend to either support or to discredit the
testimony." In doing so, the court instructed the jury to use

18
 No. 2015AP2667-CR & 2015AP2668-CR

"your common sense and experience. In everyday life you

determine for yourselves the reliability of things people say to

you. You should do the same thing here."

d. Closing Arguments

¶34 As the prosecutor commenced his closing argument, he

reminded the jurors of the instructions they had just heard. He

then reprised the theme of his case: The jury shouldn't return

a verdict of "not guilty" unless it believed T.P. and A.L. had

lied:

I think it's interesting to start from this point of
view. What must we believe, what things must we
believe for the defendant to be not guilty? After
hearing all the evidence that we've heard, what are
the things that we must believe true if he is not
guilty?

First of all, when it comes to [T.P.], who's 13
[sic], that she first lied to Sergeant Stickney about
the defendant raping her. We have to believe that she
then proceeded in the videotape that occurred over two
days——one of those videotapes we saw, the first one——
that she then lied to the social worker . . . about
the rape. That the defendant, when the defendant
assaulted her.

We then have to believe that she lied to us. You
have to believe that.

We have to then believe when we look at [A.L.]
and her testimony, we would have to believe if the
defendant is not guilty, that she first lied to
Detective LaVern Erickson when she told him about the
incident on the couch when the defendant held her down
and grabbed her breast. And that the first thing that
she came forward with.

The other instances when they were investigating
the night of the party, we have to believe she lied
about that.

19
 No. 2015AP2667-CR & 2015AP2668-CR

At that point, trial counsel objected; however, the circuit

court overruled the objection and the prosecutor resumed his

argument:

We must believe that she [A.L.] lied to Detective
LaVern Erickson about that. We must believe then six
months later, for some reason, she just decided to
pile on another story and that she lied to Sergeant
Stickney when he said there was a pool of tears, there
was a wet spot there when she got done testifying——or
telling him about the rape in the shower on July 2d.
We have to believe that she lied about that.

And we have to then believe that she lied at the
preliminary hearing back in February of this year when
she had to discuss both of those instances.

We have to believe that she lied to us over the
course of two days when she was up there for a number
of hours, that she intentionally lied to us this week.
That's what we'd have to believe.
The prosecutor further argued that, to believe T.P. and A.L.

were lying, the jury would have "to believe that those two

girls, [A.L. and T.P.] are simply two of the best actors——or

actresses we have ever seen. Could Meryl Streep have done any

better? The reason their testimony is so compelling is because

they weren't acting."

¶35 The prosecutor encouraged the jurors not to disbelieve

the victims unless they found a motive to lie. He said that "if

somebody is going to lie about something, they're going to have

a reason. They're going to have some evidence of that reason."

He argued that in this case, however, defense counsel had "no

idea" why A.L. and T.P. might lie and that because he had no

idea, he "just begins to speculate. He just begins to make
guesses after he says he has no idea why [T.P.] would make this

20
 No. 2015AP2667-CR & 2015AP2668-CR

up." The prosecutor further argued that "[i]f a person lies

about something, they must have a reason. And the reason why

there is no evidence in this case about why anybody would lie is

because they're not lying. [T.P.] and [A.L.] are not lying."

¶36 Defense counsel's closing argument focused exclusively

on whether T.P. and A.L. should be believed. He argued that the

police had not thoroughly investigated T.P.'s and A.L.'s

allegations and that "much like the Salem Witch Trials of 1962

(sic), certain people were believed and that was it, that was

all that was necessary. And apparently, unfortunately——

unfortunately for [Mr.] Bell, that it was assumed that the girls

were telling the truth." Trial counsel also juxtaposed A.L.'s

testimony about the layout of the bathroom where one of the

sexual assaults occurred with the testimony of the private

investigator Mr. Bell hired to argue that A.L. had been lying

and that she had "change[d] her story." Defense counsel's

argument became even more pointed, asserting that "it [the

sexual assaults] never happened. The reason why it doesn't make
sense is it just didn't happen." Revisiting each of the

victim's allegations, he told the jury "[t]his never happened"

or "[i]t didn't happen."

¶37 Defense counsel also told the jury that A.L. and T.P.

had ample motive to lie. He explained that in light of their

"difficult life," "lying becomes easy" and eventually turns into

"a way of survival." In regard to T.P., defense counsel argued

that she had

21
 No. 2015AP2667-CR & 2015AP2668-CR

learn[ed] that she can manipulate what happens to her,
she can manipulate not going to school, she can
manipulate trying to get closer to mom and so lying
becomes an easy thing. Lying can be a daily event for
an individual like that, like protecting others,
protecting themselves, can be a cry for attention, so
I don't have to do something such as go to school, so
they'll allow me to do something.

Lying can be out of jealousy, lying can be out of
hurt, lying can be for revenge and a lie is out of
control. And that's what's happened here. The lies
have become so deep and so out of control that you
can't bring it back. You can't expose what the truth
is and that the truth that this never happened; you
can't because you would be the scorn of all. And in
fact, maybe her actions tell you so much by saying I
don't want to pursue this thing.
Defense counsel further argued:

That's what this is all about; a life where lies don't
mean anything, they don't mean anything to these girls
because they've had to live that life the entire time.
It's a way to protect themselves, it's their shield.
And so it's easy for them that they can look you in
the eye and I'm not lying, no, it was one wine
cooler. . . .

. . . .

They put on a mask. He——[the prosecutor] talks
about Meryl Streep and great actresses. They've had
to act their whole life; . . . . They're crying for
help; it's easy to act.
¶38 On rebuttal, the prosecutor dismissed defense

counsel's theories about why A.L. and T.P. might lie as "[p]ure

speculation, pure speculation, pure speculation" and argued that

there simply was "no testimony that they were lying. There's no

evidence that they were lying." The prosecutor also told the

jurors that the jury instructions precluded them from
speculating and engaging in "sheer guesswork."

22
 No. 2015AP2667-CR & 2015AP2668-CR

2. Propriety of the State's Trial Commentary

¶39 Although there are boundaries on what prosecutors may

say during trial, we leave them plenty of room to address the

facts and law. "Counsel is allowed considerable latitude in

closing arguments, with discretion given to the trial court in

determining the propriety of the argument." State v. Burns,

2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166. A "prosecutor

may comment on the evidence, detail the evidence, argue from it

to a conclusion and state that the evidence convinces him and

should convince the jurors." State v. Draize, 88 Wis. 2d 445,

454, 276 N.W.2d 784 (1979) (citation and internal marks

omitted). "The prosecutor should aim to 'analyze the evidence

and present facts with a reasonable interpretation to aid the

jury in calmly and reasonably drawing just inferences and

arriving at a just conclusion upon the main or controlling

questions.'" Burns, 332 Wis. 2d 730, ¶48 (quoting Draize, 88

Wis. 2d at 454). But a prosecutor cannot suggest that the jury

consider facts not in evidence. Burns, 332 Wis. 2d 730, ¶48.
¶40 Because people are endlessly inventive, and each trial

is unique, it is impossible to describe in detail the outer

parameters of proper trial commentary. However, based on what

we said in Draize and Burns, we may conclude that those

boundaries extend at least far enough to encompass fair

characterizations of the law and the state of the evidence. If

the prosecutor steps across the permissible boundary, we must

then determine whether the incursion is so significant (either
alone or in combination with other infractions) that it renders
23
 No. 2015AP2667-CR & 2015AP2668-CR

the entire trial unfair. "When a defendant alleges that a

prosecutor's statements constituted misconduct, the test we

apply is whether the statements so infected the trial with

unfairness as to make the resulting conviction a denial of due

process." Davidson, 236 Wis. 2d 537, ¶88 (internal marks and

citations omitted); see also State v. Hurley, 2015 WI 35, ¶96,

361 Wis. 2d 529, 861 N.W.2d 174 (quoting Mayo, 301 Wis. 2d 642,

¶43) ("'[T]he [challenged] statements must be looked at in the

context of the entire trial.'").

¶41 With that context, we are now prepared to assess Mr.

Bell's claim that the State's comments deprived him of the due

process of law. Mr. Bell says the improper commentary fell into

two categories. The first comprised the prosecutor's statements

that the jurors had to believe T.P. and A.L. were lying before

they could find him not guilty (the "must believe" statements).

The second category contained those statements in which the

prosecutor claimed that people generally do not lie without

reason, and that if the victims had no motive to lie, they
should be believed (the "motive" statements). Mr. Bell has not

identified any Wisconsin case addressing the propriety of

statements of this nature, nor have we found any. So we will

resolve this matter by drawing on the general principles

enunciated above and the wisdom we find in other jurisdictions.

a. The "Must Believe" Statements

¶42 As is apparent from our recitation of trial

highlights, the prosecution and defense theories of the case
were mirror-images: The prosecution said T.P. and A.L. were
24
 No. 2015AP2667-CR & 2015AP2668-CR

telling the truth, the defense said they were not. But they

agreed that the resolution of that contest would decide the

case. The prosecutor said it would be improper for the jury to

find Mr. Bell not guilty unless the victims lied, while the

defense said such a finding was necessary because they did.

¶43 Mr. Bell pursued a reasonable, but narrowly focused

strategy. He did not argue that T.P. and A.L.'s description of

events failed to satisfy the statutory elements of the crimes

with which he was charged. He did not argue mistaken identity

or assert that someone else bore responsibility for the

assaults. He did not argue the actions had been misconstrued.

He said they never happened. The only evidence he adduced at

trial related to the victims' credibility, and all of his

efforts went into showing that T.P. and A.L. could not be

believed. Through comments in voir dire, the outline of the

case provided in opening statements, the examination of

witnesses, and closing arguments, the defense offered the jury

one reason, and one reason only, for acquitting him——to wit, the
untruthfulness of the victims. This is not just our

characterization of the record, it is Mr. Bell's own description

of his defense strategy: "The entire defense was aimed at

establishing reasonable doubt in the jurors' minds about the

sisters' accusations, by vigorous cross-examination of A.L. and

T.P. to establish inconsistencies and to show that they had been

encouraged by their mother to lie about T.P.'s drinking."

¶44 Consequently, we must determine whether there is any
meaningful distinction in this case between the defense's
25
 No. 2015AP2667-CR & 2015AP2668-CR

assertion that the jury must find Mr. Bell not guilty because

the victims lied and the prosecution's argument that the jury

may not make such a finding unless they did. This is not just a

quibble over semantics. The two propositions implicate the

logical distinction between those conditions that are

"sufficient" to reach a conclusion versus those that are merely

"necessary" (but not sufficient).

¶45 An example of the latter condition would be a case in

which the victim is the sole source of evidence for some (but

not all) of the elements of the crime. In that situation, her

testimony is necessary to convict the defendant, but not

sufficient——the State must still present evidence in support of

the remaining elements from other sources. Viewing the same

scenario from the defendant's perspective illustrates the

asymmetrical nature of "sufficient" conditions. It is

sufficient for an acquittal that he convince the jury not to

believe the victim, because that negatives the elements of the

crime for which she was the sole source of evidence. But it is
not necessary for the jury to disbelieve the victim, because (in

this example) there were other elements of the crime the State

had to establish, and the jury could legitimately conclude the

State failed to do so. The logical prerequisites for each

party's success are asymmetrical because it is necessary for the

State to succeed with respect to each element, while it is

sufficient for the defense to succeed with respect to just one.

In this category of cases, the State may not suggest the jury
should not return a verdict of "not guilty" unless it concludes
26
 No. 2015AP2667-CR & 2015AP2668-CR

the victim lied. Such a suggestion would be an improper

shifting of the burden of proof because although the victim's

untruthfulness was a sufficient condition for acquittal, it was

not necessary.

¶46 There is a different category of cases, however, in

which the logical prerequisites for each party's success are

symmetrical. This category comprises situations in which, for

example, the State need only prove the truth of one condition to

obtain a conviction. From the State's perspective, that

condition is both necessary and sufficient. Unlike the prior

category of cases, the defendant's perspective is the mirror

image——an acquittal is not possible unless that one condition is

not true. That is to say, it is not just sufficient that the

one condition be untrue, it is also necessary.

¶47 Mr. Bell presents us with just such a case. Here,

that one condition was whether the victims were telling the

truth. If they were, their testimony satisfied all of the

elements of the crimes with which Mr. Bell was charged.
Therefore, the only way Mr. Bell could have won an acquittal

would have been to falsify that condition——that is, convince the

jury that the victims lied. Mr. Bell offered the jury no

weakness in the State's case other than the victims'

credibility. Even now, he does not tell us how (absent jury

nullification) the jury could have acquitted him if it

nonetheless believed the victims. And jury nullification is not

an option——there is no right to have the jury disregard the law
or evidence. State v. Bjerkaas, 163 Wis. 2d 949, 960, 472
27
 No. 2015AP2667-CR & 2015AP2668-CR

N.W.2d 615 (Ct. App. 1991) (the defendant has no "right to have

a jury decide a case contrary to law or fact, much less a right

to an instruction telling jurors they may do so or to an

argument urging them to nullify applicable laws."); see also

United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) ("It

[the jury] has the power to acquit on bad grounds, because the

government is not allowed to appeal from an acquittal by a jury.

But jury nullification is just a power, not also a

right . . . .") (emphasis omitted); Strickland, 466 U.S. at 695

("An assessment of the likelihood of a result more favorable to

the defendant must exclude the possibility of arbitrariness,

whimsy, caprice, 'nullification,' and the like. A defendant has

no entitlement to the luck of a lawless decisionmaker, even if a

lawless decision cannot be reviewed. The assessment of prejudice

should proceed on the assumption that the decisionmaker is

reasonably, conscientiously, and impartially applying the

standards that govern the decision.") (analyzing prejudice under

ineffective assistance of counsel). Therefore, the jury's
resolution of the case had to follow its conclusion regarding

the victims' veracity.

¶48 The authorities Mr. Bell cited do not persuade us

because they are not in the same logical category as this case.

In United States v. Vargas, 583 F.2d 380 (7th Cir. 1978), for

example, the prosecution's case depended not just on the

witnesses' honesty, but also on the accuracy of their

observations and the inferences they concluded from them. As
the Seventh Circuit later characterized that case, the
28
 No. 2015AP2667-CR & 2015AP2668-CR

prosecutor's error was in telling the jury there was only one

way to reach acquittal, when in fact the evidence gave them

other paths to that end:

Not content to let the jury decide the case according
to the judge's instructions, he set up a "false
dilemma" by informing the jury that they had to choose
between two and only two options——either the defendant
was lying or all the federal agents were lying——when
in fact the jury had more options than only those
two . . . ."
United States v. Amerson, 185 F.3d 676, 687 (7th Cir. 1999)

(citing Vargas, 583 F.2d at 387).

¶49 The prosecutor's argument in United States v. Cornett,

232 F.3d 570 (7th Cir. 2000), suffered the same deficiency as

the one in Vargas. The Cornett jury could have acquitted the

defendant on the charge he unlawfully possessed a firearm if it

concluded that what the law enforcement officer observed did not

amount to possession of a firearm. Because the jury could

acquit without believing the officer had lied, the prosecutor's

statement to the contrary was error. Likewise, the defendant in

United States v. Reed, 724 F.2d 677 (8th Cir. 1984), faced

multiple counts of wire fraud in which the State's case relied

not just on the honesty of its witnesses, but the rational

inferences one could derive from their testimony. Therefore, it

was error for the prosecutor to argue that the jury could acquit

only if the jury "determine[s] that [the defendant] is telling

the truth and that all [the government witnesses] are lying to

you." Id. at 681. As in Vargas and Cornett, the jury could
have believed the witnesses but acquitted anyway because they

29
 No. 2015AP2667-CR & 2015AP2668-CR

did not agree with the conclusions the witnesses drew from what

they observed.14

¶50 We see support for the propriety of the prosecutor's

trial commentary in the principles described in Amerson and

United States v. Sandoval, 347 F.3d 627, 631-32 (7th Cir. 2003).

In Sandoval, the prosecutor said "'Well, you would have to

conclude that the police officers were not telling the truth if

you're going to accept the defendant's testimony.'" Id. at 632.

The court said this was in the nature of "ask[ing] the jury to

14
Most of the other cases on which Mr. Bell relies are not
in the same logical category as his because they describe
circumstances in which the jury could have acquitted the
defendant based on something other than the witness's
untruthfulness. See, e.g., United States v. Richter, 826
F.2d 206 (2nd Cir. 1987) (prosecutor's argument that jury could
determine defendant was "not telling . . . the truth" because
that would mean the two FBI agents had "committed perjury" was
"patently misleading" because resolution of the "fundamental
issue" did not "hinge[] upon the veracity of the FBI agents.");
State v. Albino, 97 A.3d 478 (Conn. 2014) (despite concluding
defendant was not deprived of a fair trial, prosecutor's
argument that jury would "have to find that every single person
in this case is wrong" in order to find defendant not guilty
precluded jury from reaching reasonable reconciliations of
conflicting testimony); People v. Dace, 604 N.E.2d 1013 (Ill.
App. Ct. 1992) (court explained that "the jury could have
believed some of the witnesses and still have believed
defendant's testimony that he did not sexually assault
L.R."); State v. Graves, 668 N.W.2d 860 (Iowa 2003)
(prosecutor's statement that if the jury believed the officer's
testimony then "there is no question [defendant] is guilty as
charged" was improper because even if jury believed officer's
testimony regarding defendant's residency, defendant's
"residency alone would not support a guilty verdict on the
possession-with-intent-to-deliver charge."). The remaining
cases Mr. Bell cited provide insufficient information for us to
identify the logical category into which they would fit.

30
 No. 2015AP2667-CR & 2015AP2668-CR

weigh the credibility of the witnesses." Id. Similarly, in

Amerson, the prosecutor said the jury couldn't "'believe the

testimony of these police officers and believe the defendant's

testimony at the same time.'" 185 F.3d at 680. The Amerson

court said this was "a mere statement of fact, which was no

different than stating to the jury that they had a chance to

determine whether the officers or the defendant was telling the

truth and that it was up to the jury to determine who was more

credible when applying the . . . jury instructions . . . ." Id.

at 687.

¶51 The key to both Amerson and Sandoval is that when the

prosecutor's statements are fairly characterized as impressing

on the jury the importance of assessing the witnesses'

credibility, there is no error. That is the practical effect of

the prosecutor's commentary in this case. The parties did not

offer competing story lines, nor did the defense advance an

alternative version of the events described by T.P. and A.L.

There was the truth of the events the victims described, or the
lack of truth. The verdict would necessarily follow the option

chosen by the jury. Therefore, because Mr. Bell is in the

category of cases in which the verdict will necessarily follow

the jury's determination of the victims' credibility, the

State's argument that the jurors should not find Mr. Bell not

guilty unless they conclude T.P. and A.L. lied is equivalent to

asking the jurors to carefully weigh the victims' credibility.

¶52 We conclude that the State's "must believe" commentary
was not improper; that does not, however, end our inquiry, as we
31
 No. 2015AP2667-CR & 2015AP2668-CR

must also consider whether the prosecutor's "motive" statements

were improper.

b. The "Motive" Statements

¶53 Mr. Bell characterizes the prosecutor's "motive

statements" as instructing the jury that it could not disbelieve

the victims unless there was evidence of a motive for them to

lie. We do not believe this fairly characterizes the nature of

these statements. Taken as a whole, the prosecutor was

undoubtedly encouraging the jurors not to disbelieve the victims

unless they found evidence of a motive to lie. But such an

argument is in an entirely different category from an assertion

that they cannot disbelieve the victims without such evidence.

The first category comprises persuasion, while the second

relates to purported statements of the law.

¶54 Both the prosecutor and defense counsel spent time

during voir dire questioning prospective jurors about the

reasons a person might lie. Defense counsel used cross-

examination to suggest some motives for lying, including a
desire for parental attention and sympathy, and avoiding

responsibility for misdeeds. The statements that come closest

to Mr. Bell's claim of error took place during closing

arguments. There, the prosecutor made statements such as "if

somebody is going to lie about something, they're going to have

a reason. They're going to have some evidence of that reason."

Additionally, he argued that "[i]f a person lies about

something, they must have a reason. And the reason why there is
no evidence in this case about why anybody would lie is because
32
 No. 2015AP2667-CR & 2015AP2668-CR

they're not lying." Defense counsel responded by describing

various reasons the victims might have lied, including jealousy,

hurt, revenge, and a perceived need for survival. The

prosecutor, during rebuttal, told the jurors that defense

counsel was inviting them to speculate about the motives to lie

and that the jury instructions say they must not speculate.

¶55 We agree with the court of appeals that it is a matter

of general life experience that people normally do not lie

without reason: "It is common sense that people do not lie

unless there is a reason behind the lie. That is, at least

ordinarily, and arguably by definition, a lie is the result of a

decision to convey a falsehood." State v. Bell, Nos.

2015AP2667-CR & 2015AP2668-CR, unpublished slip op., ¶32 (Wis.

Ct. App. Dec. 1, 2016). All but one of the prosecutor's

"motive" statements consist of observations about this common-

sense principle and an encouragement not to discard it as they

weighed the victims' credibility. That is, the comments fell

into the category of persuasion.
¶56 The one comment that fell into the "statements of law"

category was the prosecutor's admonition that the jury

instructions did not allow the jurors to speculate with respect

to a witness's credibility. Mr. Bell says they may, and directs

our attention to the jury instruction's description of what may

be considered in weighing a witness's credibility:

It is the duty of the jury to scrutinize and to
weigh the testimony of witnesses and to determine the
sole effect of the evidence as a whole. You are the
sole judges of the credibility, that is, the

33
 No. 2015AP2667-CR & 2015AP2668-CR

believability, of the witnesses and of the weight to
be given to their testimony.

In determining the credibility of each witness
and the weight you give to the testimony of each
witness, consider these factors: whether the witness
has an interest or lack of interest in the result of
this trial; the witness' conduct, appearance, and
demeanor on the witness stand; the clearness or lack
of clearness of the witness' recollections; the
opportunity the witness had for observing and for
knowing the matters the witness testified about; the
reasonableness of the witness testimony; the apparent
intelligence of the witness; bias or prejudice, if any
has been shown; possible motives for falsifying
testimony; and all other facts and circumstances
during the trial which tend either to support or to
discredit the testimony. Then give to the testimony
of each witness the weight you believe it should
receive.

There is no magic way for you to evaluate
testimony; instead, you should use your common sense
and experience. In everyday life you determine for
yourselves the reliability of things people say to
you. You should do the same thing here.
¶57 This instruction does not suggest the jury may

speculate about witness credibility. It gives examples of

considerations that may affect the jurors' judgment about the
witness's credibility, amongst which are the possible motives

for falsifying testimony, and "all other facts and

circumstances" that "either support or discredit the trial

testimony." This is not an invitation to speculate, nor does it

endorse the creation of discrediting evidence ex nihilo. As in

all other aspects of the case, the jury must consider the

witnesses' testimony in light of the admissible evidence and

reasonable inferences, all as directed by their "common sense
and experience."

34
 No. 2015AP2667-CR & 2015AP2668-CR

¶58 Mr. Bell says our decision in Vill. of Bangor v. Hussa

Canning & Pickle Co., 208 Wis. 191, 242 N.W. 565 (1932),

recognizes the jury's right to speculatively discount a

witness's credibility. There, we observed that "[i]n a jury

trial there are a great many factors, some of them very subtle,

which, consciously or unconsciously, influence the juror's mind

in judging the credibility of witnesses and resolving the merits

of the case." Id. at 198. True enough, but just because the

evidence's effect is subtle does not make the jurors' response

to it a matter of speculation.

¶59 The prosecutor did not shift the burden to Mr. Bell by

encouraging the jury not to discount the victims' testimony in

the absence of a motive to lie. This was persuasion, not a

statement of the law. Nor was his admonition that the jurors

must not speculate, even with respect to matters of credibility,

erroneous. Consequently, having determined that neither the

"must believe" nor the "motive" statements were improper, Mr.

Bell has identified no error to which we may apply the "plain
error" doctrine, and no cognizable deficiency in his counsel's

performance at trial. That necessarily means we need not

consider whether, if they had been improper, it would have been

so obvious, substantial, and fundamental that it would

necessitate a new trial under our "plain error" doctrine. It

also means Mr. Bell's counsel could not have performed

deficiently (on this issue) because Mr. Bell would not have been

entitled to a mistrial even if he had requested it. See, e.g.,
Strickland, 466 U.S. at 687 (to prove deficiency, defendant must
35
 No. 2015AP2667-CR & 2015AP2668-CR

establish "that counsel made errors so serious that counsel was

not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment.").

B. The Jury's Review of Unredacted Exhibits

¶60 Mr. Bell's final challenge to his convictions is that

his trial counsel was ineffective for failing to seek redaction

of information from two of his exhibits that suggested T.P. had

not been sexually active prior to the assault. The statements

at issue are brief. Mr. Bell's challenge to the first exhibit——

a transcript of T.P.'s taped statement to Sergeant Stickney——

relates to the following exchange:

[Sergeant Stickney]: "Had you ever had sex before
that point?"

[T.P.]: "No."
As to the second exhibit, Sergeant Stickney's written report

recounting the interview with T.P., Mr. Bell challenges the

following commentary:

She is 14 years old but seemed to have very little
knowledge about sex. She had told me she had never
had sex before.

She also could not say if he ejaculated or even if she
knew what that meant. I tried to explain and she said
she did not think he did but was not sure.
¶61 The Sixth Amendment15 guarantees to a criminal

defendant "the effective assistance of counsel." Strickland,

466 U.S. at 686. A successful attack on counsel's performance

15
See U.S. Const. amend. VI; Wis. Const. art. I, § 7.

36
 No. 2015AP2667-CR & 2015AP2668-CR

requires that the defendant establish both that trial counsel

performed deficiently and that the deficiency was prejudicial.

See Pitsch, 124 Wis. 2d at 633; see also Strickland, 466 U.S. at

697.

¶62 The first prong requires us to compare counsel's

performance to the "wide range of professionally competent

assistance." Strickland, 466 U.S. at 690. Only if his conduct

falls outside that objectively reasonable range will we conclude

that counsel performed deficiently. State v. Thiel, 2003 WI

111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. To show prejudice

(the second prong), a defendant must establish "'a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'" Pitsch,

124 Wis. 2d at 642 (quoting Strickland, 466 U.S. at 694). "A

reasonable probability is a probability sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694. A

lack of confidence arises when "'counsel's errors were so

serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.'" Lockhart v. Fretwell, 506 U.S. 364,

369 (1993) (quoting Strickland, 466 U.S. at 687). If the

defendant fails to prove one element, it is unnecessary to

address the other. Strickland, 466 U.S. at 697.

¶63 Mr. Bell says the two documents at issue contained

evidence made inadmissible by Wis. Stat. § 972.11(2)(b) (the

"Rape Shield" statute), which precludes admission of "any

evidence" of the complainant's "prior sexual conduct." Prior
sexual conduct includes a lack of sexual conduct, meaning that
37
 No. 2015AP2667-CR & 2015AP2668-CR

evidence that a complainant had never had sexual intercourse is

inadmissible. State v. Gavigan, 111 Wis. 2d 150, 159, 330

N.W.2d 571 (1983). This prohibition extends to indirect

references to a complainant's lack of sexual experience or

activity. Id. Evidence of this nature is prohibited because it

"is generally prejudicial and bears no logical correlation to

the complainant's credibility." Id. at 156. The rule applies

to adolescents as well as adults. See State v. Mitchell, 144

Wis. 2d 596, 601, 424 N.W.2d 698 (1988).

¶64 Both the prosecutor and defense counsel had the

opportunity to review the requested exhibits and to redact them

as they saw fit before they went to the jury room. Defense

counsel and the prosecutor agreed to redact information from

exhibits other than the ones at issue. Defense counsel did not,

however, seek redaction of the exhibits about which Mr. Bell is

now concerned. At the December 2015 Machner hearing, defense

counsel could not specifically recall why he did not seek

redaction of these exhibits and speculated that he believed the
unredacted statements would bolster the inconsistencies in

T.P.'s testimony.

¶65 We agree with Mr. Bell that these exhibits should not

have been submitted to the jury without redaction. It is well-

established that the type of information Mr. Bell challenged is

generally inadmissible, and defense counsel acknowledged as much

at the Machner hearing, stating that he may have "goofed up" in

not requesting redaction. Defense counsel's attempt to explain
his possible rationale for failing to do so was hampered by the
38
 No. 2015AP2667-CR & 2015AP2668-CR

passage of time——13 years between the trial and the Machner

hearing. The result is that we have insufficient information to

conclude that there was no deficiency in defense counsel's

performance.16 For the sake of the remaining analysis,

therefore, we will assume——without deciding——that his

performance was deficient.

¶66 To succeed with his challenge Mr. Bell must also

establish that the deficient performance was prejudicial. We

conclude the circumstances do not support such a conclusion.

¶67 Mr. Bell primarily argues that the unredacted

information was prejudicial because it "was likely to arouse

sympathy for [T.P.] and undercut defense counsel's contention

that she was uncooperative because the assault never occurred"

and that in light of Dr. Budzak's testimony regarding T.P.'s

lack of hymenal tissue, evidence that T.P. "had not had sexual

intercourse until she was assaulted by [Mr.] Bell undermines

confidence in the outcome." This lack of confidence, Mr. Bell

says, arises because the combination of Dr. Budzak's testimony
and the inadmissible evidence "created a strong inference that,

because [T.P.] had never before had intercourse, the destruction

16
Our review of the record confirms that defense counsel
was aware of the Rape Shield statute at the time of trial, at
least generally speaking: On the second day of trial, prior to
reprising A.L.'s testimony, he sought permission to address
A.L.'s prior sexual conduct on cross-examination despite being
aware that the "Rape Shield exists . . . ." The court ruled
that it would not allow him to do so based on the Rape Shield
statute.

39
 No. 2015AP2667-CR & 2015AP2668-CR

of her hymen occurred during the only time she had intercourse,

and that was the assault by Bell." We disagree.

¶68 The connection between Dr. Budzak's testimony and the

statements at issue——that T.P. had not had sexual intercourse

prior to the sexual assault——was not the subject of argument,

and neither the prosecutor nor trial counsel drew any such

connection for the jury. Moreover, careful review of Dr.

Budzak's trial testimony weakens Mr. Bell's argument. While Dr.

Budzak did testify that based on T.P.'s exam "[i]t would be

likely" that T.P "had had sexual intercourse" at some point in

her life and that her conclusion was based on T.P.'s "lack of

hymenal tissue and her ability to tolerate the exam easily[,]"

she also explained that because approximately five weeks elapsed

between the assault and the exam, there simply was no way to

confirm that the sexual intercourse was the result of a sexual

assault. She likewise did not confirm whether it is possible to

pinpoint when the hymenal tissue became disrupted. Moreover,

Dr. Budzak explained that a lack of hymenal tissue does not
conclusively prove an individual has had sexual intercourse

because there are other explanations as to why that tissue is

absent or disrupted. Therefore, the fact that the physical exam

indicated T.P. may have had sexual intercourse at some point in

her life does not necessarily establish that she did have sexual

intercourse. And even if this established that she had had

sexual intercourse, it is entirely incapable of identifying with

whom she had it. Nor can it even establish that the hymenal
tissue was disrupted as a consequence of the sexual assault, as
40
 No. 2015AP2667-CR & 2015AP2668-CR

opposed to sexual intercourse prior to that date, or during the

five weeks between that date and the examination. Therefore,

this evidence does not make it any more likely that the sexual

intercourse——assuming it occurred——was with Mr. Bell.

¶69 At best, Mr. Bell posits that the jury——without any

prompting by trial counsel or the prosecutor——may have drawn a

connection between Dr. Budzak's testimony and the inadmissible

evidence. This is too speculative to conclude that Mr. Bell

suffered any prejudicial effect at all, particularly because Dr.

Budzak's testimony and the exhibits at issue pertained only to

T.P. and said nothing of A.L.'s assault. This error was not so

serious that it deprived Mr. Bell of a fair trial, so it does

not shake our confidence in the outcome. Therefore, although it

was error for the jury to view the statements alluding to T.P.'s

lack of sexual intercourse prior to the sexual assault, there is

no reasonable probability that, but for defense counsel's

deficient performance, the result of the trial would have been

different. So we conclude that Mr. Bell did not receive
ineffective assistance of counsel when his attorney allowed

defense exhibits to go to the jury room without redaction of the

inadmissible evidence.

IV. CONCLUSION

¶70 The State's trial commentary was not improper, which

means there is no error, plain or otherwise, for us to address.

That also means the State's commentary cannot serve as the basis

for a claim of ineffective assistance of counsel. With respect
to the inadmissible evidence submitted to the jury in two of the
41
 No. 2015AP2667-CR & 2015AP2668-CR

defense's exhibits, we conclude there is no reasonable

probability that redacting that evidence would have changed the

result of the trial. Accordingly, we conclude Mr. Bell received

a fair trial and is not entitled to a new one; we therefore

affirm the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

¶71 PATIENCE DRAKE ROGGENSACK, C.J., withdrew from

participation.

¶72 SHIRLEY S. ABRAHAMSON, J., did not participate.

42
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

¶73 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I write

to clarify why I join the court's opinion. In this writing I

intend to concisely highlight the main holdings of the opinion.

¶74 This is a review of an unpublished decision of the

court of appeals, State v. Bell, Nos. 2015AP2267-CR and

2015AP2668-CR, unpublished slip. op., (Wis. Ct. App. Dec. 1,

2016), affirming the Monroe County circuit court's1 denial of

Gerrod Bell's ("Bell") postconviction motion for a new trial.

¶75 In a consolidated criminal action by the State, Bell

was charged with seven crimes relating to the sexual assaults of

two minors, A.L. and T.P. Majority op., ¶4. The case proceeded

to trial. At different points during the trial, the prosecutor

made a number of statements regarding witness credibility to the

effect that (1) to find Bell not guilty the jury must believe

that T.P. had lied (the "must believe" statements), and (2) to

believe that T.P. had lied, there had to be evidence of a reason

to lie (the "motive" statements). Majority op., ¶41. Defense
counsel objected to these statements during the State's closing

argument, but failed to properly preserve the objection by

moving for a mistrial before the jury rendered its verdict.2

1
The Honorable Michael Rosborough presided.
2
During the State's closing argument, when it was going
through its litany of "must believe" statements, defense counsel
objected:

[DEFENSE COUNSEL]: Your Honor, I'm concerned
about how he's presenting this because I think he's
reversing the burden of proof.

(continued)
1
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

Additionally, when reviewing exhibits requested by the jury,

defense counsel failed to request the redaction of two exhibits

that tended to establish T.P.'s "prior sexual conduct," which is

inadmissible evidence pursuant to Wis. Stat. § 972.11(2)(b) (the

"Rape Shield" statute). The jury ultimately found Bell guilty

of all counts.

¶76 After the judgments of conviction were entered, Bell

filed a postconviction motion under Wis. Stat. (Rule)

§ 809.30(2)(h) seeking a new trial. See majority op., ¶6. The

circuit court denied Bell's motion for a new trial because it

found that the prosecutor's statements did not violate Bell's

constitutional rights given the totality of the circumstances at

(continued)
[STATE]: No I'm not Your Honor; I'm simply——

THE COURT: Well, this is argument; I think the
jury understands that. It's not evidence and there
has to be some latitude for advocacy during the course
of argument. I'm not convinced that what he's saying
is going beyond that at this point. And, of course,
you still have the opportunity to get up there and
make your presentation.

So let's proceed with that in mind.

As a procedural matter, this was insufficient to preserve the
issue for direct appeal. See State v. Davidson, 2000 WI 91,
¶86, 236 Wis. 2d 537, 613 N.W.2d 606 (concluding that the
defendant's failure "to make a timely motion for
mistrial . . . before the jury returned its judgment constitutes
a waiver of his objections to the prosecutor's statements during
closing arguments"); see also majority op., ¶11 n.13. Bell
acknowledges that this procedural requirement was not met, which
is why he must raise the issues before the court in the context
of plain error and ineffective assistance of counsel.

2
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

trial, namely that the jury had been properly instructed. Bell

appealed.

¶77 The court of appeals affirmed. See Bell, unpublished

slip op., ¶3. The court of appeals held that the prosecutor's

statements were not misstatements of law; rather, the statements

were a characterization of the evidence that was responsive to

the defense's theory. Id., ¶36. Because it concluded that

there was no error, the court of appeals did not reach the

issues of whether the error was sufficient to entitle Bell to a

new trial on the basis of plain error or ineffective assistance

of counsel. Similarly, the court of appeals held that defense

counsel's failure to request redaction of the exhibits was not

ineffective assistance of counsel because the jury's review of

unredacted exhibits did not result in prejudice. Id., ¶¶38, 48.

Bell petitioned for review.

¶78 On review, we consider three issues: (1) Whether the

prosecutor's statements constitute plain error so as to entitle

Bell to a new trial; (2) whether Bell is entitled to a new trial
because defense counsel's failure to properly preserve objection

to the prosecutor's statements constitutes ineffective

assistance of counsel; and (3) whether Bell is entitled to a new

trial because defense counsel's failure to request redaction of

the exhibits constitutes ineffective assistance of counsel.

I

¶79 We consider first whether the prosecutor's statements

constitute plain error so as to entitle Bell to a new trial. We
conclude that the prosecutor's "must believe" statements were

3
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

not improper, and, therefore, that there was no error, because

their practical effect was only to "impress[] on the jury the

importance of assessing the witnesses' credibility." Majority

op., ¶51. We further conclude that the prosecutor's "motive"

statements were not improper, and, therefore, that there was no

error, because either they were not statements of law at all or

they were not misstatements of law. Majority op., ¶¶55-57, 59.

Thus, we conclude that Bell is not entitled to a new trial

because there was no error. Majority op., ¶70. Here, I strive

to clarify why the "must believe" statements do not amount to

error.

¶80 Where witness testimony is the only evidence presented

at trial, and, if credible, it is sufficient to prove guilt, it

is not an error which requires reversal for the prosecutor to

argue that, to find the defendant not guilty, the jury must

believe the witnesses are lying. Majority op., ¶46. Here, this

is true for two reasons. First, the prosecutor's arguments are

not evidence. The court instructs the jury in that respect, and
we properly rely on the assumption that the jury follows the

instructions of the court. See, e.g., State v. Marinez, 2011 WI

12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399.

¶81 Second, the witnesses' testimony——the sole evidence in

this case——is sufficient to prove guilt; that is, it provides

sufficient evidence to support a finding of guilt on every

element the State is required to prove. Majority op., ¶46.

While the jury could believe the witnesses and conclude the
defendant is not guilty because the State has not met its burden

4
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

of proof, the jury will still need to assess the witnesses'

credibility and determine what weight to attach to that

testimony. In other words, the jury is instructed to determine

who is believable and it is not beyond the jury's ability to

discern which witnesses the State hopes the jury will find

credible. We presume "that the decisionmaker is reasonably,

conscientiously, and impartially applying the standards that

govern the decision";3 that is, a defendant cannot argue that a

lawless jury is a possibility that renders otherwise sufficient

evidence, insufficient. Majority op., ¶47.

¶82 I also agree with the majority that Vargas,4 Cornett,5

and Reed6 are all distinguishable, in part because, in those

cases, the credibility of the witnesses' testimony was not

determinative of guilt. Majority op., ¶¶48-49; id., ¶49 n.14.

I further recognize that, where the credibility of a witness'

testimony is not the only thing at stake, the jury could find

the defendant "not guilty" for some other reason, for example,

if additional evidence offered is unpersuasive or persuasive.
Thus, it could be a misstatement of law in those circumstances

to say that to find the defendant not guilty, the jury must

believe the witnesses are lying. Majority op., ¶45.

3
Strickland v. Washington, 466 U.S. 668, 695 (1984).
4
United States v. Vargas, 583 F.2d 380 (7th Cir. 1978).
5
United States v. Cornett, 232 F.3d 570 (7th Cir. 2000).
6
United States v. Reed, 724 F.2d 677 (8th Cir. 1984).

5
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

¶83 But that is not the circumstance here, and Amerson7 and

Sandoval8 provide additional support for the conclusion that the

prosecutor's statements were not improper because these cases

demonstrate that the statements may be properly characterized as

"impressing on the jury the importance of assessing the

witnesses' credibility." Majority op., ¶51. In fact, that is

what the prosecutor did here. The State impressed on the jury

the apparent fact that the jury must determine the credibility

of the witnesses and the weight to attach to their testimony.

It urged the jury to do what the jury already knew the State

wanted the jury to do. It was hardly a secret who the

prosecutor hoped the jury would believe. But, unlike improperly

vouching for a witness, the prosecutor here was merely telling

the jury what it already knew: the State wanted the jury to find

its witnesses credible.

¶84 In sum, I conclude that the prosecutor's "must

believe" statements were not misstatements of law, especially in

this case, where the witnesses' credible testimony is alone
enough for the State to prove guilt, and is, in fact, the only

proof offered. Majority op., ¶¶46-47. Additionally, the

practical effect of the statements was only to "impress[] on the

jury the importance of assessing the witnesses' credibility,"

majority op., ¶51, telling the jury what it already knew. The

State's case rested on the jury believing a particular witness,

7
United States v. Amerson, 185 F.3d 676 (7th Cir. 1999).
8
United States v. Sandoval, 347 F.3d 627 (7th Cir. 2003).

6
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

but the prosecutor was not stepping into the shoes of the jury

to tell them whom to believe. The State was instead describing

the duty of the jury to determine what testimony they find more

appealing to their good judgment and common sense.

II

¶85 We consider second whether Bell is entitled to a new

trial because defense counsel's failure to properly preserve

objection to the prosecutor's statements constitutes ineffective

assistance of counsel. We conclude that Bell's defense counsel

did not perform deficiently in failing to move for a mistrial

prior to the verdict on the basis of the prosecutor's statements

because the prosecutor's statements were not objectionable

error. Majority op. ¶59. Thus, we conclude that Bell is not

entitled to a new trial because there is no ineffective

assistance of counsel where there is no deficient performance.

Majority op., ¶70.

III

¶86 We consider third whether Bell is entitled to a new
trial because defense counsel's failure to request redaction of

the exhibits constitutes ineffective assistance of counsel.

Although we hold that allowing the jury to review unredacted

versions of the exhibits was error because admission of such

evidence is prohibited under Wis. Stat. § 972.11(2)(b), majority

op., ¶65, we conclude that the error was harmless because Bell's

argument that the jury may have inferred T.P.'s prior sexual

history from Dr. Budzak's testimony and the inadmissible
contents of the exhibits is too speculative. Majority op., ¶69.

7
 Nos. 2015AP2667-CR & 2015AP2668-CR.akz

Thus, we conclude that Bell is not entitled to a new trial

because there is no ineffective assistance of counsel where the

error does not prejudice the defendant. Majority op., ¶70.

¶87 For the foregoing reasons, I respectfully concur.

8
 No. 2015AP2667-CR & 2015AP2668-CR.awb

¶88 ANN WALSH BRADLEY, J. (dissenting). At the

foundation of our system of justice lies the principle that

defendants do not have to prove their innocence. State v.

Sawyer, 266 Wis. 494, 506, 63 N.W.2d 749 (1954). In fact, a

defendant is entitled to a presumption of innocence and need not

present any evidence at all at trial. See Johnson v. State, 85

Wis. 2d 22, 27, 270 N.W.2d 153 (1978); State v. Johnson, 11

Wis. 2d 130, 134, 104 N.W.2d 379 (1960).

¶89 As a corollary to this foundational principle, the

State bears the burden to prove beyond a reasonable doubt every

fact necessary to constitute guilt. State v. Schulz, 102

Wis. 2d 423, 427, 307 N.W.2d 151 (1981); In re Winship, 397

U.S. 358, 361-64 (1970). This burden remains with the State

throughout the entirety of trial, and cannot be shifted to the

defendant. Schulz, 102 Wis. 2d at 427.

¶90 Despite these well-established principles, the State

in this case argued to the jury that the defendant has a burden

to present evidence and convince the jury of the victims' motive
to lie. Because the statements made during voir dire and

closing argument misstated the law governing a jury's

consideration of evidence and impermissibly shifted to the

defendant a burden he does not carry, I respectfully dissent.

I

¶91 A jury convicted Bell of the sexual assault of two

underage victims, T.P. and A.L. At trial, Bell's defense

focused largely on the credibility of the victims. Both Bell
and the State presented extensive argument on this subject.

1
 No. 2015AP2667-CR & 2015AP2668-CR.awb

¶92 The question is whether certain arguments made by the

State, referred to by the majority as the "must believe"

statements and the "motive" statements, crossed the line so as

to impermissibly shift the burden of proof from the State to the

defendant. Because it is dispositive, I focus my analysis on

the "motive" statements only.

II

¶93 The "motive" statements framed the State's entire

case. Setting the stage during voir dire, the prosecutor asked

the jury panel, "Would everybody agree here that . . . if you're

going to lie, you're going to have a reason like jealousy of

some sort; there's going to be a reason why you would lie?"

¶94 Probing further, the prosecutor then posed the

question to individual jurors, "Would you expect there would be

some evidence that somebody would have a reason to lie? There

would be some sort of evidence that this person would have a

reason to lie[.]" Conflating the burden of proof jury

instruction with the instruction on credibility of witnesses,
the prosecutor began to instruct the jury panel on the law. He

advised that the "jury instructions on reasonable doubt" do not

allow the jury to speculate, and that the jury must instead

2
 No. 2015AP2667-CR & 2015AP2668-CR.awb

"just look at the facts, the evidence or lack of evidence in

this case" with regard to witness credibility.1

¶95 During closing argument, the State built on the theme

introduced in voir dire, repeatedly contending that there was no

evidence demonstrating that the victims had lied. Majority op.,

¶¶34-35. It advanced that in the absence of such evidence the

jury should believe the victims. See id., ¶35. Specifically,

the State argued to the jury, "if somebody is going to make a

flat out lie about something, they're going to have a reason.

They're going to have some evidence of that reason." The State

further asserted that Bell "has no idea why [the victim] would

make this up. He says that repeatedly and he . . . just begins

to speculate."

¶96 The State suggested next that if no evidence was

presented regarding the victims' motive to lie, then the jury

would be left with only speculation as to their credibility. It

contended that Bell "just begins to make guesses after he says

he has no idea why she would make this up." In concluding this
segment of its closing argument, the State reiterated, "If a

person lies about something, they must have a reason. And the

reason why there is no evidence in this case about why anybody

would lie is because they're not lying."

1
The jury instruction on burden of proof indicates that
"[a] reasonable doubt is not a doubt which is based on mere
guesswork or speculation." Wis JI——Criminal 140 (2000). But
when the prosecutor spoke of speculation and evidence, he was
speaking not of the ultimate burden of proof on the State to
prove guilt beyond a reasonable doubt, but of witness
credibility, thus conflating the two instructions.

3
 No. 2015AP2667-CR & 2015AP2668-CR.awb

¶97 Following Bell's closing argument, the State returned

for rebuttal. It doubled down on its previous arguments,

asserting "[t]here's never testimony they were lying because

[they have a bad life]. There's no testimony they were lying

for any other reason. There's no testimony that they were

lying. There's no evidence that they were lying. . . . And

we're supposed to look at the evidence or lack of evidence."

The State then admonished the jury that it is forbidden from

speculating as to why the victims would lie.

¶98 According to the State, who has to come up with this

important evidence of motive? The State? Certainly not.

Rather, according to the State's distortion of the burden of

proof instruction, it is the defendant who must introduce this

evidence. Yet, a theory of defense that the witnesses are lying

should not be transformed into a shift of the burden of proof,

requiring that the defendant offer evidence of motive to lie.

¶99 The majority, however, does not see a problem with the

prosecutor's statements, contending that "it is a matter of
general life experience that people normally do not lie without

reason: It is common sense that people do not lie unless there

is a reason behind the lie. That is, at least ordinarily, and

arguably by definition, a lie is the result of a decision to

convey a falsehood." Majority op., ¶55 (quoting State v. Bell,

Nos. 2015AP2667-CR & 2015AP2668-CR, unpublished slip op., ¶32

(Wis. Ct. App. Dec. 1, 2016)). In the majority's view, the

State's arguments "fell into the category of persuasion" because
they "consist of observations about this common-sense principle

4
 No. 2015AP2667-CR & 2015AP2668-CR.awb

and an encouragement not to discard it as [jurors] weighed the

victims' credibility." Id.

¶100 However, what becomes apparent upon reading the

transcript in this case is that the State essentially

misinformed the jury that it could not find the victims lacking

in credibility unless Bell presented "evidence" of their motive

to lie. Such an assertion is legally incorrect. Pursuant to

well-established precepts, Bell need not do anything of the

sort. See Sawyer, 266 Wis. at 506.

¶101 Even accepting the majority's dubious premise that

there is always a reason behind an untruthful statement, such a

premise does not require that a defendant present evidence of a

witness's motive to lie. Indeed, as observed above, the

defendant has no burden to present any evidence whatsoever, let

alone evidence proving a motive. See Johnson v. State, 85

Wis. 2d at 27.

¶102 Here the State's remarks are akin to those at issue in

U.S. v. Smith, 500 F.2d 293 (6th Cir. 1974). In Smith, the
prosecutor made the statement in closing argument "that the jury

should 'require' the defendants to present a 'reasonable

explanation' of the meaning of taped wiretap evidence, other

than the criminal meaning he ascribed to the conversations[.]"

Id. at 294. In other words, the prosecutor implored the jury to

require the defendant to present evidence, shifting the burden

of proof. See id.

¶103 The Smith court determined that "[t]he challenged
comments of the prosecutor were clearly improper argument." Id.

5
 No. 2015AP2667-CR & 2015AP2668-CR.awb

at 295. The remarks "had the effect of shifting the burden of

proof from the government to the defendants and abrogating the

presumption of innocence to which [the defendants] were

entitled." Id. at 294.

¶104 In reaching this result, the Smith court forewarned

that "[i]t is, of course the duty of the prosecutor to advance

the government's cause with force and persuasiveness. However,

this duty includes concerns in addition to mere advocacy." Id.

at 295. Specifically, the prosecutor is entrusted with "the

responsibility of observing in practice the principles

considered under our system to be essential to a fair and just

criminal procedure[,]" thereby protecting the constitutional

right to due process. Id.

¶105 Smith is not alone in distinguishing between lawful

advocacy and an unlawful shift of the burden of proof. Courts

around the country have determined that a shift of the burden of

proof to the defendant constitutes a denial of the required

"fair and just criminal procedure." See, e.g., People v.
Santana, 255 P.3d 1126, 1130 (Colo. 2011) (explaining that it is

impermissible for a prosecutor to "shift the burden of proof

through argument or comment"); People v. Fyda, 793 N.W.2d 712,

723 (Mich. Ct. App. 2010) ("A prosecutor may not imply in

closing argument that the defendant must prove something or

present a reasonable explanation for damaging evidence because

such an argument tends to shift the burden of proof."); State v.

Roman Nose, 667 N.W.2d 386, 399 (Minn. 2003) ("[A] prosecutor
may not comment on a defendant's failure to call witnesses or to

6
 No. 2015AP2667-CR & 2015AP2668-CR.awb

contradict testimony because such comments might lead the jury

to believe that the defendant has a duty to call witnesses or

bears some burden of proof.").

¶106 I agree with the majority that, "while [a prosecutor]

may strike hard blows, he is not at liberty to strike foul

ones." Majority op., ¶16 (citing Berger v. United States, 295

U.S. 78, 88 (1935)). However, the majority errs in its

application of this principle.

¶107 Like the blows landed by the prosecutor in Smith, the

jabs the State takes in this case are foul. They constitute a

"clearly improper argument" that "shift[s] the burden of proof

from the government to the defendants and abrogate[s] the

presumption of innocence" to which Bell is entitled. See Smith,

500 F.2d at 294-95. In short, Bell has no burden of proof, yet

the State's comments placed one on him.

¶108 The error here is not a mere evidentiary error.

Rather, it constitutes a violation of the due process right to a

fair trial by distorting the burden of proof jury instruction,
thus shifting the burden of proof to the defendant.

¶109 When a defendant alleges that a prosecutor's

statements constituted plain error, as does Bell, the burden is

on the State to prove that the error is harmless beyond a

reasonable doubt. State v. Mayo, 2007 WI 78, ¶29, 301

Wis. 2d 642, 734 N.W.2d 115. Because I determine that on this

record the State has failed to make such a showing, I

respectfully dissent.

7
No. 2015AP2667-CR & 2015AP2668-CR.awb

1