State v. James R. Hunt

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 App. 2013 – Unpublished)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¶1 MICHAEL J. GABLEMAN, J. We review an unpublished,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State v. Hunt, No. 2012AP2185-CR, unpublished slip op.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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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

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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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