State v. Ginger M. Breitzman

2017 WI 100

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP1610-CR

COMPLETE TITLE: State of Wisconsin,

Plaintiff-Respondent,

v.

Ginger M. Breitzman,

Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 371 Wis. 2d 760, 886 N.W.2d 593

(2016 – Unpublished)

OPINION FILED: December 1, 2017

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: September 20, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee

JUDGE: Rebecca F. Dallet

JUSTICES:

CONCURRED: ABRAHAMSON, J. concurs (opinion filed).

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs

filed and an oral argument by Hannah Schieber Jurrs, assistant

state public defender.

For the plaintiff-respondent, there was a brief filed by

Donald V. Latorraca, assistant attorney general, with whom on

the brief were Brad D. Schimel, attorney general, and Maura F.J.

Whelan, assistant attorney general. There was an oral argument

by Donald V. Latorraca.

2017 WI 100

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2015AP1610-CR

(L.C. No. 2013CF270)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED

v. DEC 1, 2017

Ginger M. Breitzman, Diane M. Fremgen

Clerk of Supreme Court

Defendant-Appellant-Petitioner.

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

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, State v.

Breitzman, No. 2015AP1610-CR, unpublished slip op., (Wis. Ct.

App. Aug. 16, 2016), which affirmed the Milwaukee County circuit

court's1 denial of Ginger Breitzman's ("Breitzman")

postconviction motion challenging her convictions for child

neglect under Wis. Stat. § 948.21(1)(2013-14)2 and disorderly

conduct under Wis. Stat. § 947.01(1).

1

The Honorable Rebecca F. Dallet presided.

2

All references to the Wisconsin Statutes are to the (2013-

14) version unless otherwise noted.

No. 2015AP1610-CR

¶2 In a criminal action by the State, Breitzman was

charged with, and convicted of, five crimes relating to her

negative interactions, confrontations, abuse, and neglect of her

son, J.K., during the time period ranging from November 2011

through December 2012: (1) Physical Abuse of a Child

(Intentional Causation of Bodily Harm) under Wis. Stat.

§ 948.03(2)(b); (2) Physical Abuse of a Child (Intentional

Causation of Bodily Harm) under § 948.03(2)(b); (3) Child

Neglect (Bodily Harm) under Wis. Stat. § 921.21(1)(b); (4) Child

Neglect (Misdemeanor) under Wis. Stat. § 948.21(1)(a); and (5)

Disorderly Conduct under Wis. Stat. § 947.01(1).

¶3 In the circuit court, Breitzman filed a postconviction

motion under Wis. Stat. § 809.30(2)(h) seeking judgments of

acquittal for counts three, four, and five. For all three, she

argued that there was insufficient evidence to support a

conviction. Additionally, she argued that defense counsel at

trial had been ineffective because he failed to move for

dismissal of count five for disorderly conduct on free speech

grounds, pursued a defense theory of reasonable parental

discipline in opening remarks that was inconsistent with

Breitzman's plan to deny striking J.K., and failed to object to

testimony regarding other-acts evidence. Following a Machner3

hearing, the circuit court granted the motion for judgment of

acquittal as to count three and denied the motion as to counts

3

State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.

1979).

2

No. 2015AP1610-CR

four and five, concluding that there was sufficient evidence to

sustain the convictions on counts four and five and that counsel

had not been ineffective at trial.

¶4 In the court of appeals, Breitzman challenged the

circuit court's denial of her postconviction motion as to counts

four and five, again challenging the sufficiency of the evidence

and asserting that defense counsel at trial had been

ineffective. The court of appeals affirmed the circuit court.

¶5 On petition to this court, Breitzman seeks review of

the denial of her ineffective assistance of counsel claim. In

this regard, we note that Breitzman's claim does not raise a

facial or as-applied challenge to the disorderly conduct

statute, Wis. Stat. § 947.01. A facial challenge would argue

that "profane conduct," as listed in § 947.01(1), is not

actionable as a crime because profanity is protected speech. An

as-applied challenge would argue that Breitzman's profane

conduct in this case was not actionable as a crime because it

was protected speech. Breitzman argues neither. Breitzman only

3

No. 2015AP1610-CR

argues that her trial counsel rendered ineffective assistance.4

Thus, while this case touches on an interesting issue of free

speech law, we reserve full analysis of what constitutes profane

speech and whether profane speech is otherwise protected as free

speech for another day and confine our analysis here to the

ineffective assistance of counsel issue presented, briefed, and

argued by the parties.

¶6 The ineffective assistance of counsel issue raised

requires consideration of whether counsel was ineffective for

any of the following reasons: (1) failing to move to dismiss the

disorderly conduct charge on the basis that it violated

Breitzman's constitutional right to free speech; (2) failing to

4

We further note that the standard for establishing that a

statute is unconstitutional is high; because we assume the

constitutionality of statutes, "the party challenging a

statute's constitutionality must prove that the statute is

unconstitutional beyond a reasonable doubt." See State v.

Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90.

Additionally, where a statute has been authoritatively

interpreted by this court, the party challenging that

interpretation must establish that our prior interpretation was

"objectively wrong." See Progressive N. Ins. Co. v. Romanshek,

2005 WI 67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417 (noting that

"stare decisis concerns are paramount where a court has

authoritatively interpreted a statute"). Wisconsin Stat.

§ 947.01 has been upheld by this court against facial and as-

applied challenges on free speech grounds on numerous occasions.

See infra ¶52. Moreover, when an authoritative interpretation

of a statute has stood for many years, stare decisis concerns

take on even greater significance. See id., ¶52; see also

Bauman v. Gilbertson, 7 Wis. 2d 467, 469-70, 96 N.W.2d 854

(1959) (holding that it was not proper to depart from stare

decisis where the interpretation stood for 11 years). Here, our

interpretation of § 947.01 as constitutional has stood as law

for nearly 50 years. See infra ¶52.

4

No. 2015AP1610-CR

present opening remarks consistent with Breitzman's anticipated

testimony; and (3) failing to object to testimony regarding

other uncharged conduct.

¶7 As to the first, we conclude that trial counsel's

failure to move to dismiss the disorderly conduct charge on the

basis that it violated Breitzman's constitutional right to free

speech was not deficient performance, and thus not ineffective

assistance of counsel, because whether profane conduct that

tends to cause or provoke a disturbance is protected as free

speech is unsettled law.

¶8 As to the second, we conclude that trial counsel's

theory of reasonable parental discipline, as presented in

opening remarks, was not deficient performance, and thus not

ineffective assistance of counsel, because it reflected trial

counsel's reasonable expectations, which were rationally based

on discussions with Breitzman, and it was part of a reasonable

trial strategy.

¶9 As to the third, we conclude that trial counsel's

failure to object to testimony regarding uncharged conduct was

not deficient performance, and thus not ineffective assistance

of counsel, because declining to object was part of a reasonable

trial strategy.

¶10 Because we conclude that trial counsel's performance

was not deficient, we need not address whether, in the context

of ineffective assistance of counsel, there was prejudice to

Breitzman, and we decline to do so.

¶11 Thus, we affirm the decision of the court of appeals.

5

No. 2015AP1610-CR

I. FACTUAL AND PROCEDURAL BACKGROUND

¶12 To give proper perspective on the narrow issues we

address here, it is important to outline the charges,

allegations, and evidence presented to the jury, as well as the

theory of defense and strategy of trial counsel.

¶13 The State charged Breitzman with the following five

counts: (1) Physical Abuse of a Child (Intentional Causation of

Bodily Harm) under Wis. Stat. § 948.03(2)(b), as to striking

J.K. in the face, resulting in a bloody nose, for J.K.'s failure

to wash the floor; (2) Physical Abuse of a Child (Intentional

Causation of Bodily Harm) under § 948.03(2)(b), as to striking

J.K. in the face, resulting in a bruise, for J.K.'s failure to

prepare a meal; (3) Child Neglect (Bodily Harm) under Wis. Stat.

§ 948.21(1)(b), as to Breitzman's failing to seek medical care

for J.K. when he was sick for a week with vomiting and diarrhea;

(4) Child Neglect (Misdemeanor) under § 948.21(1)(a), as to

Breitzman's locking J.K. out of the house during the winter; and

(5) Disorderly Conduct under Wis. Stat. § 947.01(1), as to

Breitzman's engaging in "profane conduct, under circumstances in

which such conduct tended to cause a disturbance."5 Breitzman

entered pleas of not guilty and the case was set for a jury

trial. At trial, the State's primary witness was J.K.,

Breitzman's son.

5

The criminal complaint was filed on January 12, 2013, and

Breitzman entered pleas of not guilty on May 20, 2013. On

January 31, 2013, Breitzman waived her right to a preliminary

hearing. An amended information was filed on May 20, 2013.

6

No. 2015AP1610-CR

¶14 As to the first charge, for physical abuse, J.K.

testified that he had been sweeping the floor while also trying

to keep an eye on his three-year-old little sister. Breitzman

wanted him to hurry up sweeping the floor, but his sister was

running around the house and throwing things on the floor, in

J.K.'s words, "being a three year old." Then, when Breitzman

came into the room and saw that he was not sweeping "right or

fast enough," she grabbed the broom and struck him on the side

of his head with her fist (she could not reach his face because

he had raised his hands defensively when she grabbed the broom),

telling him he never did anything right and calling him a "piece

of shit" and the "dog of the house."

¶15 As to the second charge, also for physical abuse, J.K.

testified that he could not recall the precise date on which

Breitzman struck him, but he remembered clearly the bloody nose

that resulted because it lasted three minutes and he had to go

find something to stem the flow. He said that Breitzman had

seemed angry with him when she came into his room and then

struck him in the face when he would not get out of bed, calling

him a "fuck face" and a "retard." When she left, he remembers

crying and that he did not know what he'd done wrong.

¶16 As to count three, for child neglect, J.K. testified

that, on or about November 18, 2012, he became very ill. He had

been vomiting almost every hour and had diarrhea, both of which

appeared to have blood in them. When he told Breitzman this,

she said she would get him a Gatorade at the end of the week if

he was still sick. He testified that he was sick like this for

7

No. 2015AP1610-CR

six-to-seven days, but when he asked Breitzman if he could go to

the doctor, she refused. This prompted him to call friends and

post on Facebook seeking help.

¶17 As to count four, also for child neglect, J.K.

testified that, in the winter of 2011-2012, he could not get

into the house when he got home from school because his mother

had locked the doors. The weather that morning had been warmer,

so he had not taken a coat with him to school; the weather grew

cooler over the course of the day, however, and it was cold when

he returned home at about 3:30 p.m. Finding the house locked,

he testified that he knocked on the front and back doors and

rang the doorbell for about three minutes to no avail. J.K.

said he could tell that Breitzman was home because her car was

in the driveway, but she did not come to the door so he crawled

under the grill cover on the porch for shelter. He continued to

ring the doorbell every fifteen minutes, but spent approximately

four hours outside, huddling under the grill cover to keep from

freezing.

¶18 As to the fifth charge, for disorderly conduct, J.K.

testified that, when he got home from school on December 4,

2012, he put a bag of popcorn in the microwave, but ended up

burning it and having to throw it away. When Breitzman got home

about a half hour later, he was on the phone with his best

friend, D.M., and, when he heard Breitzman come through the

door, he hid his phone in his pocket because he was afraid she

would be mad. He testified that, when she smelled the burned

popcorn and saw the bag in the trash can, she sought him out and

8

No. 2015AP1610-CR

told him he always messed things up, calling him a "fuck face,"

"retard," and a "piece of shit." He defended himself by saying

that he had not done it on purpose, but Breitzman persisted

saying she "[didn't] give a fuck." He then asked Breitzman to

stop calling him names, which she responded to by threatening to

kick him out of the house. Later that night he called D.M. back

crying and needing someone to talk to.

¶19 Over the course of J.K.'s testimony, he further

testified that it was a daily occurrence to be called "retard"

and "fuck face." He also testified that he had not had glasses

or treatment for his lazy eye since second grade and had not

been to the dentist since he was five; that there was a lock on

the refrigerator at home and he could not get lunch at school

because Breitzman would not complete the paperwork for free

lunches; and that Breitzman struck J.K. once when they were in

the car because he disagreed with her about who had taught him a

song when he was younger. The latter came up during trial

counsel's cross-examination:

Q You just have a problem with frequent nosebleeds?

A From what it appears. But this was after the

incident when she hit me in the car and my nose was

bleeding on me.

Q By the way, was she driving the car at the time?

A Yes, sir.

Q And where were you located?

A I was in the passenger's seat.

9

No. 2015AP1610-CR

Q And so it was her attempt to slap you, she was

hitting you with the back of her hand at that time?

A She hit me with the back of her hand.

Q She couldn't have hit you with the palm of her hand

because there wasn't quite a way to do that, right,

so she actually had to go this way?

A Yes, sir.[6]

¶20 The State also introduced evidence to corroborate

J.K.'s testimony: J.K.'s best friend, D.M., testified that over

the course of about six months, J.K. went from "always happy and

nice" to "more stressed out and tired and just more sad."

Specifically, when J.K. called him back on the night of

December 4, 2012, he said that J.K. seemed "beat down" and that

he had "never heard [J.K.] cry before." D.M. also testified

that J.K. had a bruise for about a week at the time of the

second allegation of abuse; J.K.'s girlfriend, A.G., also

verified this.

¶21 J.K.'s neighbor also testified. She said she had sent

over Gatorade and crackers in response to J.K.'s Facebook post

about being ill——she had had some on hand because her daughter

had been sick with the flu. She was also the one J.K. called

looking for a place to stay when Breitzman kicked him out on

December 4, 2012.

¶22 Additionally, the State called J.K.'s high school

counselor and the West Allis detective who investigated J.K.'s

6

In this exchange, the questions were asked by Breitzman's

trial counsel and were answered by J.K.

10

No. 2015AP1610-CR

claims. The counselor testified that J.K. met with him on

November 29, 2012, and told him about what had been going on at

home, that he was tired of being called "retarded" and a "[f]uck

face" and being "smacked in the head" by his mother. J.K. then

met with a detective from the West Allis Police Department on

December 11, 2012. In investigating J.K.'s claims, the

detective interviewed Breitzman. The detective testified that

Breitzman admitted that she called J.K. names, slapped and

backhanded J.K., and did not allow J.K. to have a key to the

house.

¶23 Breitzman's general defense to these allegations and

charges was that J.K. was lying and that he was a rebellious and

irresponsible teenager. She attributed this behavior to the

fact that his father had rejected him and that J.K. had a new

girlfriend.7 Specifically, as to counts one and two, Breitzman

denied striking J.K., and said that the bruise had been the

result of him dropping a dumbbell on his face. As to count

three, Breitzman testified that J.K. was not sick for a week,

that she told him there were crackers and Gatorade available,

and that the redness in his vomit and diarrhea was fruit punch

Gatorade, not blood. As to count four, Breitzman confirmed that

7

The defense called two additional witnesses, Ramona Smith

and Dan Percifield——both long-time friends of Breitzman. Smith

testified that J.K. had been well-behaved up until the last few

years, when he became more defiant. Percifield also testified

that J.K.'s relationship with Breitzman had deteriorated

recently, attributing it to J.K.'s new girlfriend.

11

No. 2015AP1610-CR

she knew what time J.K. got home from school, that she had

locked the doors to the house, that she did not let J.K. have a

key, and that she chose to take a nap at that time; but she

defended her actions by pointing out that there were any number

of businesses close by where J.K. could have gone to wait. As

to count five, Breitzman said that her conduct was justified

because J.K. had scorched the microwave when he burned the

popcorn and he "was belligerent with [her]."

¶24 Breitzman further testified that she did call J.K.

"retarded," a "piece of shit," and a "fuck face," but not

regularly;8 that she did not get J.K. glasses because she did not

have insurance and because he would not wear them when he did

have them; that J.K. did not have lunch because he could not

remember to bring home the form and did not make his own lunch,

and that J.K. always had the code to the lock on the

refrigerator, which was just in place to make him think before

eating; and that she did strike J.K. in the uncharged incident

in the car. Breitzman also testified that she would generally

discipline J.K. by grounding him or by taking away phone and/or

video game privileges, but would resort to physical violence if

she thought he was lying to her, talking back, being

belligerent, or if he did not check in when he was out. She

testified that she never struck him just to hurt him. In short,

8

Smith characterized this name-calling as "jok[ing]

around." Percifield testified that he had heard Breitzman call

J.K. these names on numerous occasions.

12

No. 2015AP1610-CR

Breitzman's defense was that J.K. could not be believed, and

that, as a single parent, she "did what [she] thought [she] had

to do."

¶25 At trial, the testimony was bookended by attorneys'

arguments. As pertains to the ineffective assistance of counsel

issue presented here, Breitzman's trial counsel argued in his

opening remarks as follows:

[W]hat's really at the base of this is the question of

the instructions that the Court gives you, have any of

these been met or not? You will also be getting later

on an instruction which is very important to this

case, and it is going to be very important when you

get to the defense case, and that is the question of

reasonable parental discipline privilege, it's a jury

instruction, number 950, 950, that's very important

because this is eventually what this comes down

to. . . .

Was she intentionally trying to inflict pain beyond

the right of a parent to inflict pain and, yes, read

chapter or read Jury Instruction 950 when you get it,

it actually refers to a parent's right to inflict,

that means cause pain, and we know you can cause pain

a million ways. You can slap someone if they are

disrespectful to you. You can smack someone hard on

the back of their butt. You can hit them on the side

of their head. . . . You are going to have a couple of

days of evidence to consider as to whether my client

is a criminal or just a struggling parent, and I

believe the evidence will show that she is not a

criminal . . . .9

As is general practice, the circuit court instructed the jury

that attorney arguments are not evidence:

9

We note that, although Breitzman was present for opening

remarks and trial, neither the trial nor the Machner hearing

transcripts reflect that she expressed any dissatisfaction with

trial counsel's statement.

13

No. 2015AP1610-CR

Remarks of the attorneys are not evidence. If

the remarks suggested facts not in evidence, disregard

the suggestion.

Consider carefully closing arguments of the

attorneys but their arguments and conclusions and

opinions are not evidence.

¶26 On May 23, 2014, the jury convicted Breitzman of all

five counts. After the verdict, the circuit court entered the

judgments of conviction.

¶27 On February 6, 2015, Breitzman filed a postconviction

motion, seeking judgments of acquittal for counts three, four,

and five. For all three, she argued that there was insufficient

evidence to support a conviction. Additionally, she argued that

defense counsel at trial had been ineffective because he failed

to move for dismissal of count five for disorderly conduct on

free speech grounds, pursued a defense theory of reasonable

parental discipline in opening remarks that was inconsistent

with Breitzman's plan to deny striking J.K., and failed to

object to testimony regarding other-acts evidence. On May 29,

2015, the circuit court held a Machner hearing on the motion, at

which both trial counsel and Breitzman testified.

¶28 As to his failure to challenge the disorderly conduct

charge on free speech grounds, trial counsel testified that he

had contemplated moving to dismiss count five for disorderly

conduct on free speech grounds, but decided not to because it

was "too shallow and there wasn't enough guts to it."

¶29 As to his assertion of the reasonable parental

discipline theory of defense, Breitzman's trial counsel

testified as follows:

14

No. 2015AP1610-CR

Q Prior to the commencement of the actual jury trial,

you asked for the Court to include within the

opening statements the reasonable discipline

defense; isn't that true?

A . . . yes.

Q Why did you ask for that?

A Because it was the only major defense position I

believed we could take, regardless of all the

charges, because jurors . . . [are] really trying

to decide which side is telling the truth in the

end . . . and the major morality of this case was

whether he had a struggling mother doing the best

she could or whether we had a mother engaged in

abuse . . . .

That's why I included the recommendation

originally, and the client saw the wisdom of

it. . . .[10]

¶30 As to his failure to object to other-acts evidence,

Breitzman's trial counsel further testified as follows:

Q Was there a reason why you did not file a motion in

limine pretrial to preclude any reference to these

other allegations of her bad behavior?

A The heart of her defense was that she had a

rebellious child. She was a single mom with very

limited economic resources. She had another child

she had to take care of. She had had a very

difficult set of circumstances she was dealing

with. She had loved her son and had had a good

relationship with him until a point in time, a year

or two before where he suddenly became rebellious,

which she attributed to either school friends or

girlfriends, and things had gone downhill from

there.

10

In this exchange, the questions were asked by Breitzman's

appellate counsel and were answered by Breitzman's trial

counsel.

15

No. 2015AP1610-CR

When we talked about how to approach the defense,

her concern was that a jury would see that she was

doing the best she could. She did not think in

advance that anything she did to him was

wrong. . . . And I believed her that she didn't at

the time believe that she was engaged in criminal

activity. She was just doing her best as a parent.

Q Was there any reason, other than that then, why you

did not object when discussion of the things we've

just talked about, these allegations of bad

behavior on her part, were then brought up at

trial?

A The plan for the defense is that we believe the

son's story, or expression of these things, would

go to such an extended or aggravated or aggrandized

extent that he would lose credibility, and then she

would take the stand and show what really happened,

that she cared for her son, that these were

difficult, times of rebellion.

. . .

So the best approach would be to be very

transparent about it with the jury and to not sit

there and make lots of objections on things that

would be overruled and become obvious and rather

let the jury see what is the other side here. . . .

The facts were what they were, and we would

approach the defense very transparently.[11]

¶31 Breitzman also testified at the Machner hearing; her

testimony focused on her understanding of the reasonable

parental discipline defense and the other acts that might come

up. As to the reasonable parental discipline defense, she

testified as follows:

11

In this exchange, the questions were asked by Breitzman's

appellate counsel and were answered by Breitzman's trial

counsel.

16

No. 2015AP1610-CR

Q Did [trial counsel] ever talk to you about arguing

reasonable parental discipline in this case?

A Yes.

Q Okay. Did he tell you this is what he intended to

argue?

A Yes.[12]

Breitzman said, however, that she told trial counsel she had not

struck J.K. on the two charged occasions. She also said that

she told him she would admit to striking J.K. in the uncharged

incident in the car if it came up, but that she did not want it

raised. On cross-examination, Breitzman confirmed that she

agreed to trial counsel's reasonable parental discipline

defense:

Q And did you agree to asserting the reasonable

discipline defense at trial?

A Yes . . . .[13]

¶32 As to other acts, Breitzman testified that she knew

her statements about striking J.K. to discipline him——which she

made in the interview with the detective——would likely come up,

and that she discussed with trial counsel the fact that the

trial would likely come down to her word against J.K.'s. She

also confirmed that, although she was present during opening

remarks, she never voiced any objection to the court regarding

12

In this exchange, the questions were asked by Breitzman's

appellate counsel and were answered by Breitzman.

13

In this exchange, the questions were asked by the State

and were answered by Breitzman.

17

No. 2015AP1610-CR

her trial counsel's introduction of the reasonable parental

discipline defense.

¶33 On July 17, 2015, the circuit court granted

Breitzman's motion as to count three14 but denied Breitzman's

motion as to counts four15 and five.16 As to count four, the

circuit court held that there was sufficient evidence to sustain

the conviction because it is the "parent's responsibility to

provide shelter. It's not a child's responsibility to find

alternative shelter." As to count five, the circuit court held

that there was sufficient evidence to sustain the conviction

because there was ample testimony that Breitzman's profane

conduct did tend to cause a disturbance, and in fact did cause a

disturbance.

14

Count three was the charge for Child Neglect (Bodily

Harm) under Wis. Stat. § 948.21(1)(b), as to Breitzman's failure

to seek medical care for J.K. when he was sick for a week with

vomiting and diarrhea. The circuit court found that there was

insufficient evidence to sustain a conviction because the State

had not proven Breitzman's inaction was a substantial factor in

harming J.K., specifically that there was no evidence that, had

Breitzman taken J.K. to the doctor, it would have made a

difference. Judgment of acquittal on count three was entered on

July 24, 2015.

15

Count four was for Child Neglect (Misdemeanor) under Wis.

Stat. § 948.21(1)(a), as to Breitzman's locking J.K. out of the

house during the winter.

16

Count five was for Disorderly Conduct under Wis. Stat.

§ 947.01(1), as to Breitzman's engaging in "profane conduct,

under circumstances in which such conduct tended to cause a

disturbance."

18

No. 2015AP1610-CR

¶34 As to the ineffective assistance of counsel claim, the

circuit court held that there was no ineffective assistance.

With regard to the failure to move for dismissal of the

disorderly conduct charge on free speech grounds, the circuit

court found that there was no prejudice because it would have

denied any motion made on the basis that Breitzman's profanity

had no social value and very clear detrimental effects.17 With

regard to admission of other-acts evidence, the court found that

there was no deficient performance because it was J.K., not

Breitzman's trial counsel, who introduced the uncharged incident

in the car, and that her trial counsel's decision not to object

on that occasion and on others was part of a reasonable strategy

to challenge J.K.'s credibility. Similarly, the circuit court

found that trial counsel's reasonable parental discipline theory

was not prejudicial because his discussion of it was vague and

brief during opening statements. The circuit court further held

that there was no aggregate prejudice, in part because it

specifically instructed the jury on other acts and limited its

instruction on reasonable parental discipline to the context of

other acts.

¶35 On August 3, 2015, Breitzman filed notice of appeal.

On August 16, 2016, the court of appeals affirmed the circuit

17

We note that this type of balancing has been rejected as

a valid method of determining constitutionality under the First

Amendment. See United States v. Stevens, 559 U.S. 460, 470

(2010). Because we affirm on other grounds we need not address

the propriety of the circuit court's reasoning here.

19

No. 2015AP1610-CR

court's denial of Breitzman's postconviction motion. See

Breitzman, unpublished slip op., ¶26. The court of appeals held

that, as to the free speech claim, there was no prejudice

because the motion would have been unsuccessful, id., ¶22; that,

as to trial strategy, there was no prejudice because the

reasonable parental discipline theory was limited to the

uncharged incident where Breitzman did not deny striking J.K.,

id., ¶24; and that, as to other-acts evidence, there was no

deficient performance because counsel's decision not to object

was strategic, deliberate, and reasonable, id., ¶23.

¶36 On September 15, 2016, Breitzman filed a petition for

review in this court. On March 13, 2017, we granted the

petition. Our review here is limited to Breitzman's ineffective

assistance of counsel claim, which argues that her trial counsel

was ineffective for failing to move to dismiss the disorderly

conduct charge on the basis that it violated Breitzman's

constitutional right to free speech, for failing to present a

theory of defense in opening remarks consistent with Breitzman's

anticipated testimony, and for failing to object to other-acts

evidence.

II. STANDARD OF REVIEW

¶37 "Under the Sixth and Fourteenth Amendments to the

United States Constitution, a criminal defendant is guaranteed

the right to effective assistance of counsel." State v.

Lemberger, 2017 WI 39, ¶16, 374 Wis. 2d 617, 893 N.W.2d 232

(quoting State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358,

805 N.W.2d 334). The same right is guaranteed under Article I,

20

No. 2015AP1610-CR

Section 7 of the Wisconsin Constitution. Whether a defendant

was denied effective assistance of counsel is a mixed question

of law and fact. See State v. Thiel, 2003 WI 111, ¶21, 264

Wis. 2d 571, 665 N.W.2d 305. The factual circumstances of the

case and trial counsel's conduct and strategy are findings of

fact, which will not be overturned unless clearly erroneous;

whether counsel's conduct constitutes ineffective assistance is

a question of law, which we review de novo. Id. To demonstrate

that counsel's assistance was ineffective, the defendant must

establish that counsel's performance was deficient and that the

deficient performance was prejudicial. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). If the defendant fails to

satisfy either prong, we need not consider the other. Id. at

697.

¶38 Whether trial counsel performed deficiently is a

question of law we review de novo. See State v. Domke, 2011 WI

95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364. To establish that

counsel's performance was deficient, the defendant must show

that it fell below "an objective standard of reasonableness."

See Thiel, 264 Wis. 2d 571, ¶19. In general, there is a strong

presumption that trial counsel's conduct "falls within the wide

range of reasonable professional assistance." State v. Carter,

2010 WI 40, ¶22, 324 Wis. 2d 640, 782 N.W.2d 695. Additionally,

"[c]ounsel's decisions in choosing a trial strategy are to be

given great deference." Balliette, 336 Wis. 2d 358, ¶26.

¶39 Whether any deficient performance was prejudicial is

also a question of law we review de novo. See Domke, 337

21

No. 2015AP1610-CR

Wis. 2d 268, ¶33. To establish that deficient performance was

prejudicial, the defendant must show that "there is 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." See Thiel, 264 Wis. 2d 571, ¶20.

III. ANALYSIS

¶40 In evaluating Breitzman's ineffective assistance of

counsel claim, we consider three acts——or failures to act——of

Breitzman's trial counsel: (A) trial counsel's failure to move

for dismissal of count five for disorderly conduct on free

speech grounds; (B) trial counsel's failure to present opening

remarks consistent with Breitzman's anticipated testimony; and

(C) trial counsel's failure to object to testimony regarding

other uncharged conduct.

¶41 As to the first, we conclude that trial counsel's

failure to move to dismiss the disorderly conduct charge on the

basis that it violated Breitzman's constitutional right to free

speech was not deficient performance, and thus not ineffective

assistance of counsel, because whether profane conduct that

tends to cause or provoke a disturbance is protected as free

speech is unsettled law.

¶42 As to the second, we conclude that trial counsel's

theory of reasonable parental discipline, as presented in

opening remarks, was not deficient performance, and thus not

ineffective assistance of counsel, because it reflected trial

counsel's reasonable expectations, which were rationally based

22

No. 2015AP1610-CR

on discussions with Breitzman, and it was part of a reasonable

trial strategy.

¶43 As to the third, we conclude that trial counsel's

failure to object to testimony regarding uncharged conduct was

not deficient performance, and thus not ineffective assistance

of counsel, because declining to object was part of a reasonable

trial strategy.

¶44 Because we conclude that trial counsel's performance

was not deficient, we need not address whether, in the context

of ineffective assistance of counsel, there was prejudice to

Breitzman, and we decline to do so.

¶45 Thus, we affirm the decision of the court of appeals.

A. Trial Counsel Was Not Deficient For Failing

To Move For Dismissal Of The Disorderly Conduct Count

On Free Speech Grounds.

¶46 We consider first whether trial counsel's failure to

move to dismiss the disorderly conduct charge on the basis that

it violated Breitzman's constitutional right to free speech

constituted ineffective assistance of counsel.

¶47 Breitzman argues that the failure to raise a free

speech claim was ineffective assistance because the disorderly

conduct charge was based on the content of Breitzman's speech in

the privacy of her home, which did not fall within one of the

narrow categories of unprotected speech. The State argues that

the failure to raise a free speech claim was not ineffective

assistance because Breitzman has not demonstrated that, as a

23

No. 2015AP1610-CR

matter of settled law, she had a right to engage in profane

conduct that tends to cause or provoke a disturbance.18

¶48 We conclude that trial counsel's failure to move to

dismiss the disorderly conduct charge on the basis that it

violated Breitzman's constitutional right to free speech was not

deficient performance, and thus not ineffective assistance of

counsel, because whether profane conduct that tends to cause or

provoke a disturbance is protected as free speech is unsettled

law.

¶49 At the outset, we note that, for trial counsel's

performance to have been deficient, Breitzman would need to

demonstrate that counsel failed to raise an issue of settled

law. "[F]ailure to raise arguments that require the resolution

of unsettled legal questions generally does not render a

lawyer's services 'outside the wide range of professionally

competent assistance' sufficient to satisfy the Sixth

Amendment." Lemberger, 374 Wis. 2d 617, ¶18 (quoting Basham v.

United States, 811 F.3d 1026, 1029 (8th Cir. 2016)). Rather,

"ineffective assistance of counsel cases should be limited to

situations where the law or duty is clear . . . ." Id., ¶33

(quoting State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621

(Ct. App. 1994)). Thus, we turn to the question of whether the

18

We note that Wis. Stat. § 947.01(1) is not limited to

public places: "Whoever, in a public or private place . . . ."

Thus, the fact that Breitzman was in the privacy of her home

does not necessarily affect our analysis.

24

No. 2015AP1610-CR

law is clear that profane conduct that tends to cause or provoke

a disturbance is protected as free speech. It is not.

¶50 An individual is guaranteed the right to free speech

under Article I, Section 3 of the Wisconsin Constitution, which

states in relevant part that "[e]very person may freely

speak . . . his sentiments on all subjects, being responsible

for the abuse of that right . . . ." The same right is

guaranteed under the First Amendment of the United States

Constitution, which states in relevant part that "Congress shall

make no law . . . abridging the freedom of speech." "Despite

the differences in language between these two provisions, we

have found no differences in the freedoms that they guarantee."

State v. Robert T., 2008 WI App 22, ¶6, 307 Wis. 2d 488, 746

N.W.2d 564.

¶51 The First Amendment case law applicable to profanity

and disorderly conduct finds root in Chaplinsky v. New

Hampshire, which held:

There are certain well-defined and narrowly limited

classes of speech, the prevention and punishment of

which have never been thought to raise any

Constitutional problem. These include the lewd and

obscene, the profane, the libelous, and the insulting

or "fighting" words——those which by their very

utterance inflict injury or tend to incite an

immediate breach of the peace. . . . [S]uch utterances

are no essential part of any exposition of ideas, and

are of such slight social value as a step to truth

that any benefit that may be derived from them is

clearly outweighed by the social interest in order and

morality. "Resort to epithets or personal abuse is

not in any proper sense communication of information

or opinion safeguarded by the Constitution, and its

25

No. 2015AP1610-CR

punishment as a criminal act would raise no question

under that instrument."

315 U.S. 568, 571-72 (1942) (footnotes omitted) (quoting

Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940)).

¶52 In a series of cases post-Chaplinsky, this court

upheld Wis. Stat. § 947.01 against numerous free speech

challenges. In State v. Zwicker we held that § 947.01 (1967-

68)19 did not violate defendants' free speech rights because

"[i]t rarely has been suggested that the constitutional freedom

for speech . . . extends its immunity to speech or writing used

as an integral part of conduct in violation of a valid criminal

statute." 41 Wis. 2d 497, 513, 164 N.W.2d 512 (1969). In State

v. Maker we again upheld § 947.01 (1967-68), noting that any

challenge to the disorderly conduct statute based on words

spoken or conduct engaged in must balance "the right to maintain

the public peace" with "the imperative to protect

constitutionally assured personal freedoms." 48 Wis. 2d 612,

615, 180 N.W.2d 707 (1970). In State v. Werstein we upheld

§ 947.01 (1971-72) once again, emphasizing that "[i]t is the

combination of conduct and circumstances that is crucial in

applying the statute to a particular situation"; "convictions

for being 'otherwise disorderly' result[] from the

inappropriateness of specific conduct because of the

circumstances involved," namely, where "demeanor could be deemed

19

The operative language of subsection (1) of the statute,

which is at issue here, has not changed substantially since

these cases were decided.

26

No. 2015AP1610-CR

abusive or disturbing in the eyes of reasonable persons." 60

Wis. 2d 668, 672-74, 211 N.W.2d 437 (1973); see also State v.

Becker, 51 Wis. 2d 659, 664-65, 188 N.W.2d 449 (1971); State v.

Givens, 28 Wis. 2d 109, 121-22, 135 N.W.2d 780 (1965).

¶53 The United States Supreme Court, however, soon after

issuing Chaplinsky, narrowed its holding. See Terminiello v.

Chicago, 337 U.S. 1, 4 (1949). In Terminiello, the Court held

that "freedom of speech, though not absolute . . . is

nevertheless protected against censorship or punishment, unless

shown likely to produce a clear and present danger of a serious

substantive evil that rises far above public inconvenience,

annoyance, or unrest." Id. But see Roth v. United States, 354

U.S. 476, 482-83 (1957) ("[At the time of ratification] all of

[the] States made either blasphemy or profanity, or both,

statutory crimes. . . . In light of this history, it is apparent

that the unconditional phrasing of the First Amendment was not

intended to protect every utterance.").20

20

In response, Breitzman cites to Duncan v. United States,

48 F.2d 128 (9th Cir. 1931), for the proposition that "[t]he

question of what constitutes profane language . . . is usually

dealt with as a branch of the common-law offense of blasphemy."

Presumably, Breitzman cites this case to undermine the

constitutionality of a statute which regulates speech rooted in

archaic norms of propriety. We do not address this issue here,

however, as Breitzman has not raised a claim that her speech was

not profane, or that the statute is facially unconstitutional or

unconstitutional as-applied to her; her claim here is limited to

whether defense counsel was ineffective for failing to make such

a challenge.

27

No. 2015AP1610-CR

¶54 Similarly, while we need not adopt any of the

following tests for the purposes of our review today, we note

that our more recent case law could be read to restrict

statutory regulation of speech to the well-defined categories of

unprotected speech: fighting words,21 speech that incites others

into imminent lawless action,22 obscenity,23 libel and defamatory

speech,24 and true threats25.26 See State v. Douglas D., 2001 WI

47, ¶17, 243 Wis. 2d 204, 626 N.W.2d 725; State v. A.S., 2001 WI

48, ¶16, 243 Wis. 2d 173, 626 N.W.2d 712 ("[The defendant's]

speech can be prosecuted only if [it] is one of the limited

21

See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

22

See Brandenburg v. Ohio, 395 U.S. 444 (1969).

23

See Miller v. California, 413 U.S. 15 (1973).

24

See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

25

See Watts v. United States, 394 U.S. 705 (1969).

26

See also United States v. Alvarez, 567 U.S. 709, 717

(2012) (adding "speech integral to criminal conduct," "child

pornography," "fraud," and "speech presenting some grave and

imminent threat the government has the power to prevent" as

other content-based restrictions that have been permitted).

With regard to content-based restrictions, Breitzman also cites

Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660

(2004) for the proposition that the Constitution "demands that

content-based restrictions on speech be presumed

invalid . . . and that the Government bear the burden of showing

their constitutionality." We express no opinion here, however,

as to the constitutionality of Wis. Stat. § 947.01 with regard

to whether it is a content-based restriction or otherwise,

because Breitzman has not made a facial or as-applied challenge

to the statute; her claim here is limited to whether defense

counsel was ineffective for failing to make such a challenge.

28

No. 2015AP1610-CR

categories of speech that fall outside the protections of the

First Amendment."); cf. Douglas D., 243 Wis. 2d 204, ¶24,

(noting that Wis. Stat. § 947.01 is "a recognition of the fact

that in some circumstances words carry with them proscribable

nonspeech elements," i.e., "conduct"); State v. Schwebke, 2002

WI 55, ¶¶29-31, 253 Wis. 2d 1, 644 N.W.2d 666 (holding that the

disorderly conduct statute does not only apply to public

disruptions). The depth and breadth of these restrictions on

free speech are not so settled in Wisconsin law that counsel's

performance could be deemed deficient in this case.

¶55 Additionally, the United States Supreme Court has

rejected any balancing test that may be inferred from its

historical descriptions of unprotected categories of speech as

being "of such slight social value . . . that any benefit that

may be derived from them is clearly outweighed by the social

interest in order and morality." See United States v. Stevens,

559 U.S. 460, 470 (2010) (quoting R.A.V. v. St. Paul, 505 U.S.

377, 383 (1992) (quoting Chaplinsky, 315 U.S. at 572)); see also

Brown v. Entm't Merch. Ass'n, 564 U.S. 786, 792 (2011); cf.

Brown, 564 U.S. at 792 (quoting Stevens, 559 U.S. at 472)

("'Maybe there are some categories of speech that have been

historically unprotected, but have not yet been specifically

identified or discussed as such in our case law.'").

¶56 This body of case law does not promulgate a clear

standard as to whether a charge under Wis. Stat. § 947.01, based

on profane conduct that tends to cause or provoke a disturbance,

violates the constitutional right to free speech. And, because

29

No. 2015AP1610-CR

Breitzman does not raise a facial or as-applied challenge to the

disorderly conduct statute,27 we are confined to considering the

narrower issue of whether the law was so well settled that

counsel's performance was legally deficient. See State v.

Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) ("An

appellate court should decide cases on the narrowest possible

grounds."). In that regard, trial counsel was not ineffective

for not moving to dismiss the disorderly conduct charge, because

doing so would have required that there be a resolution of an

unsettled question of law. See Lemberger, 374 Wis. 2d 617, ¶18.

¶57 We recognize, however, that the use of profanity alone

is not enough to sustain a charge for disorderly conduct. A

charge for disorderly conduct has two elements: first, that the

defendant "engage[d] in violent, abusive, indecent, profane,

boisterous, unreasonably loud or otherwise disorderly conduct";

second, that the defendant's conduct "tends to cause or provoke

a disturbance." See Wis. Stat. § 947.01(1). Profanity alone

might satisfy the first element, but it does not likely satisfy

the second element. Thus, it is not profanity alone that is

being regulated by the statute.

¶58 We also note that the charge against Breitzman was

not just that she engaged in "profane conduct," but that she

"did engage in profane conduct, under circumstances in which

27

See supra ¶5, n.4.

30

No. 2015AP1610-CR

such conduct tended to cause a disturbance . . . ."28 To be

clear, the crime of disorderly conduct under Wis. Stat. § 947.01

requires more than profane speech alone. See Cohen v.

California, 403 U.S. 15, 22 (1971) (holding that wearing a

jacket bearing the words "Fuck the Draft" did not disturb the

peace where the words were the only conduct, in part because

there was "no evidence that persons powerless to avoid

appellant's conduct did in fact object to it"). But, as is

clear from the testimony here, Breitzman was not charged with

disorderly conduct solely because she swore at her son in the

privacy of her home; rather she was charged and convicted of

disorderly conduct because her profane conduct was that which,

under the circumstances presented, tended to cause or provoke a

disturbance. See Werstein, 60 Wis. 2d at 673-74 ("[C]onvictions

for being 'otherwise disorderly' result[] from the

inappropriateness of specific conduct because of the

circumstances involved," namely where "demeanor could be deemed

abusive or disturbing in the eyes of reasonable persons").

¶59 Here, the jury heard evidence of other occasions where

Breitzman called J.K. a "fuck face," "retard," and "piece of

shit"——and on two of the five occasions charged, this profanity

was punctuated by physical abuse. Conviction on count one, for

28

Additionally, we note that the State could have charged

Breitzman with more than "profane conduct," as it is one of many

options under the statute. Had the State done so, Breitzman

acknowledged at oral argument that the constitutional question

here would not be in issue.

31

No. 2015AP1610-CR

physical abuse, was supported by testimony that Breitzman struck

J.K. on the side of the head when he was not sweeping "right or

fast enough," calling him a "piece of shit" and the "dog of the

house." Conviction on count two, also for physical abuse, was

supported by testimony that Breitzman came into J.K.'s room and

struck him in the face when he would not get out of bed, calling

him a "fuck face" and a "retard."

¶60 The jury also heard testimony from J.K.'s best friend

about the impact this had on J.K., who went from "always happy

and nice" to "more stressed out and tired and just more sad."29

A situation need not escalate to violence for the reasonable

person to determine that the profanity tended to cause or

provoke a disturbance.30 Simply stated, were this case about

profanity alone, isolated from the context and conduct out of

which the charge arose, and had Breitzman made a constitutional

challenge to the validity of the statute vis-à-vis profanity

alone, we might be confronted with the need to resolve a free

speech argument. But that is just not this case; rather

29

Additionally, J.K. testified that these interactions with

his mother made him feel worthless, often making him cry,

ultimately causing him to report this home situation to his

counselor at school and to the police.

30

"It is not necessary that an actual disturbance must have

been committed from the defendant's conduct. The law requires

only that the conduct be of the type that tends to cause or

provoke a disturbance under the circumstances as they then

existed. You must consider not only the nature of the conduct,

but also the circumstances surrounding that conduct. What is

proper under one set of circumstances may be improper under

other circumstances." See Wis JI——Criminal 1900 (2016).

32

No. 2015AP1610-CR

Breitzman's conduct, "because [of] the circumstances involved,"

could rightfully "be deemed abusive or disturbing in the eyes of

reasonable persons." Werstein, 60 Wis. 2d at 673-74.

¶61 In sum, Breitzman has failed to demonstrate that

counsel's performance was deficient because the law in this area

is unsettled. Additionally, Breitzman's conduct was more than

just profanity, and the law does not support the notion that,

because Breitzman engaged in profane conduct, she is to be

protected from prosecution regardless of the fact that the

circumstances tended to cause or provoke a disturbance. Thus,

her trial counsel's performance did not fall below the objective

standard of reasonableness.

B. Trial Counsel Was Not Deficient For Failing

To Present Opening Remarks Consistent With

Breitzman's Anticipated Testimony.

¶62 We consider second the issue of whether defense

counsel's theory of reasonable parental discipline at trial

constituted ineffective assistance of counsel in light of

Breitzman's denial that she struck J.K. on the two charged

occasions.

¶63 Breitzman argues that it was inconsistent to argue in

opening remarks that striking J.K. was reasonable parental

discipline where she planned to testify that she did not strike

J.K. on the two charged occasions, and that, but for this

inconsistency, the jury would have been presented with a more

straightforward credibility comparison. The State argues that

Breitzman's counsel's theory of reasonable parental discipline,

33

No. 2015AP1610-CR

as presented in the opening remarks, was not ineffective

assistance because it was short, vague, and struck a careful

balance between Breitzman's plan to deny that she struck J.K. on

the two charged occasions and trial counsel's reasonable

anticipation that the uncharged incident in the car would likely

arise during testimony; moreover, Breitzman agreed with this

strategy and any unfair prejudice was addressed by the circuit

court's jury instruction that attorney arguments are not

evidence.

¶64 We conclude that defense counsel's theory of

reasonable parental discipline, as presented in opening remarks,

was not deficient performance, and thus not ineffective

assistance of counsel, because it reflected trial counsel's

reasonable expectations, which were rationally based on

discussions with Breitzman, and it was part of a reasonable

trial strategy.

¶65 At the outset, we note that, for trial counsel's

performance to have been deficient, Breitzman would need to

overcome the strong presumption of reasonableness of her defense

counsel's trial strategy by demonstrating that counsel's

incorporation of the reasonable parental discipline defense was

irrational or based on caprice. Trial strategy is afforded the

presumption of constitutional adequacy. See, e.g., Balliette

336 Wis. 2d 358, ¶26; State v. Maloney, 2005 WI 74, ¶43, 281

Wis. 2d 595, 698 N.W.2d 583. "Reviewing courts should be

'highly deferential' to counsel's strategic decisions and make

'every effort . . . to eliminate the distorting effects of

34

No. 2015AP1610-CR

hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's

perspective at the time.'" See Domke, 337 Wis. 2d 268, ¶36

(quoting Carter, 324 Wis. 2d 640, ¶22). "This court will not

second-guess a reasonable trial strategy, [unless] it was based

on an irrational trial tactic or based upon caprice rather than

upon judgment." Id., ¶49. In fact, where a lower court

determines that counsel had a reasonable trial strategy, the

strategy "is virtually unassailable in an ineffective assistance

of counsel analysis." State v. Maloney, 2004 WI App 141, ¶23,

275 Wis. 2d 557, 685 N.W.2d 620. Thus, we turn to the question

of whether trial counsel's defense theory of reasonable parental

discipline was an irrational trial tactic or based on caprice.

It was not.

¶66 The parties focus their arguments on defense counsel's

opening remarks, which discussed the jury instruction for

reasonable parental discipline and framed the issue as "whether

[Breitzman] is a criminal or just a struggling parent[.] I

believe the evidence will show that she is not a

criminal . . . ."

¶67 Trial counsel testified at the Machner hearing that he

pursued the reasonable parental discipline theory in part

because of his concern about the credibility battle that would

play out at trial. He also testified that he discussed the

reasonable parental discipline theory with Breitzman, and

Breitzman testified that she agreed to it. Trial counsel did

not specifically recall whether Breitzman had categorically

35

No. 2015AP1610-CR

denied striking J.K. on the two charged occasions, but did

recall that it was important to Breitzman to bring up the

uncharged incident in the car to explain J.K.'s level of

animosity toward his mother such that he would falsely accuse

her of abuse and neglect.31

¶68 Given this testimony, defense counsel's decision to

incorporate the theory of reasonable parental discipline in his

opening remarks was not ineffective assistance. First, "[i]n

light of the not uncommon practice of lawyers to argue

inconsistent theories, we cannot say that the decision [to do

so] deprive[s a defendant] of the right to constitutionally

effective assistance, irrespective of whether we or the trial

court view that strategy as the best." State v. Marks, 2010 WI

App 172, ¶17, 330 Wis. 2d 693, 794 N.W.2d 547; see also Brown v.

Dixon, 891 F.2d 490, 494–95 (4th Cir. 1989) (holding that it was

not ineffective assistance of counsel where the defense theory

was that "Brown either did not commit the murders or did so

while drunk" because "the use of inconsistent defenses was

objectively reasonable under prevailing professional norms").

¶69 Second, trial counsel's decision was based on a

discussion with Breitzman about her relationship with J.K. and

the evidence that she expected and wanted to come out at trial;

31

At the Machner hearing, defense counsel testified that

"[s]he also told me that she believed that [the car incident]

was part of the . . . animus [] he had against her to try to

create these other issues such as when he was injured lifting

dumbbells and claimed she had struck him, et cetera."

36

No. 2015AP1610-CR

therefore, it was not based on caprice. Nor was it irrational:

the record reflects that the State pled a number of other acts

in its criminal complaint, including the uncharged incident in

the car; that Breitzman in fact wanted this other act to come in

to establish J.K.'s motive to lie; and that Breitzman never

unequivocally told trial counsel that she intended to deny

striking J.K. on the two charged occasions.32 Thus, it was

rational for her trial counsel to formulate a strategy and argue

a theory of defense with the expectation that some other acts

would come out at trial. Such a strategy had to account for the

possibility that Breitzman's credibility would be undermined by

evidence of other acts, and giving the jury an alternate ground

for acquittal in the event that they had doubts about

Breitzman's credibility and questions about the other acts was a

reasonable means of accommodating such contingency.

¶70 Additionally, there are many aspects of a trial which

make its outcome uncertain and we cannot let our judgment of

trial strategy be clouded by the clarity of hindsight. See,

e.g., Domke, 337 Wis. 2d 268, ¶36 ("Reviewing courts

should . . . make every effort to eliminate the distorting

32

In this regard, we note that the circuit court found that

defense counsel's testimony at the Machner hearing was credible.

In light of Breitzman's bias, both from hindsight and as an

interested party, we cannot hold that such a finding was clearly

erroneous. See State v. Shata, 2015 WI 74, ¶31, 364 Wis. 2d 63,

868 N.W.2d 93 ("[T]his court will not exclude the circuit

court's articulated assessments of credibility and demeanor,

unless they are clearly erroneous.").

37

No. 2015AP1610-CR

effects of hindsight.") We have concluded here that defense

counsel's decision to argue the reasonable parental discipline

defense in his opening remarks was not ineffective based on the

record. We note that the record also reflects that Breitzman's

trial counsel adjusted his strategy based on the development of

evidence at trial: after Breitzman's testimony concluded, her

trial counsel adjusted course, successfully advocating for the

inclusion of reasonable parental discipline as a therapeutic

instruction for other acts and limiting his discussion of

reasonable parental discipline during closing argument to the

other acts.33 These adjustments were appropriate.

¶71 In sum, Breitzman has failed to demonstrate that her

trial counsel's performance was deficient because pursuing a

theory of reasonable parental discipline was rationally based on

counsel's discussions with Breitzman and his expectations for

what evidence would come out at trial. Additionally, when trial

33

After testimony concluded on day two, and before

testimony began on day three, the circuit court conferred with

the parties outside the presence of the jury regarding jury

instructions. The court expressed concern that there was not

enough evidence to give the reasonable parental discipline

instruction because Breitzman was denying striking J.K. on the

two charged occasions. The State agreed. Defense counsel

argued that the instruction was appropriate because the State

had introduced other acts, namely the uncharged incident in the

car, which entitled Breitzman to assert the reasonable parental

discipline defense. The court ultimately agreed to incorporate

part of the jury instruction for the reasonable parental

discipline defense, see Wis JI——Criminal 950 (2014), as a

therapeutic instruction responsive to other acts. See infra

¶78.

38

No. 2015AP1610-CR

did not proceed in accordance with counsel's expectations, he

adjusted course and the court's limiting instructions——discussed

below——appropriately addressed any potential juror confusion.

Thus, trial counsel's performance did not fall below the

objective standard of reasonableness.

C. Trial Counsel Was Not Deficient For Failing To Object To

Testimony Regarding Other Uncharged Conduct.

¶72 We consider third the related issue of whether trial

counsel's failure to object to testimony regarding other

uncharged conduct constituted ineffective assistance of counsel.

¶73 Breitzman argues that the failure to object to

testimony about acts other than those underlying the charges was

ineffective assistance because the testimony was inadmissible

"other acts" evidence under Wis. Stat. § 904.04 and, but for

admission, the jury would have been presented with a more

straightforward credibility comparison. The State argues that

the failure to object was not ineffective assistance because

allowing this testimony was a reasonable means of accomplishing

trial counsel's strategy to undermine J.K.'s credibility by

depicting him as a rebellious teenager who was making grandiose

allegations; moreover, Breitzman agreed with this strategy.

¶74 We conclude that trial counsel's failure to object to

testimony regarding uncharged conduct was not deficient

performance, and thus not ineffective assistance of counsel,

because declining to object was part of a reasonable trial

strategy.

39

No. 2015AP1610-CR

¶75 At the outset, we note that this is again a question

of trial strategy, and, as such, that Breitzman must overcome

the strong presumption of reasonableness afforded to trial

counsel's decisions regarding trial strategy; for trial

counsel's performance to have been deficient, Breitzman would

need to demonstrate that counsel's decision not to object to

other acts was inconsistent with a reasonable trial strategy,

that is, that it was irrational or based on caprice. As noted

above, trial strategy is afforded the presumption of

constitutional adequacy. See, e.g., Balliette 336 Wis. 2d 358,

¶26; Maloney, 281 Wis. 2d 595, ¶43. "Reviewing courts should be

highly deferential to counsel's strategic decisions and 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.'" See Domke, 337 Wis. 2d 268, ¶36 (quoting Carter,

324 Wis. 2d 640, ¶22). "This court will not second-guess a

reasonable trial strategy, [unless] it was based on an

irrational trial tactic or based upon caprice rather than upon

judgment." Id., ¶49. In fact, where a lower court determines

that counsel had a reasonable trial strategy, the strategy "is

virtually unassailable in an ineffective assistance of counsel

analysis." Maloney, 275 Wis. 2d 557, ¶23. Thus, we turn to the

question of whether trial counsel's failure to object to other-

acts evidence was an irrational trial tactic or based on

caprice. It was not.

40

No. 2015AP1610-CR

¶76 Here, the trial strategy was to demonstrate that J.K.

was making false and grandiose allegations against Breitzman.

As a part of this strategy, trial counsel did not object to

other acts involving slapping, failing to provide medical care,

and/or profanity, because he intended for that evidence to

undermine J.K.'s credibility and cast Breitzman as a single

parent doing the best she could with a rebellious teenager. In

other words, the testimony as to other acts was central to the

defense's strategy for bolstering Breitzman's credibility, and

its theory of reasonable parental discipline, because, for the

defense to be successful, the jury needed to understand the

context of the relationship between Breitzman and J.K. so as to

appropriately assess credibility and determine culpability.

Thus, failing to object to other acts testimony was not

deficient performance because it was rational in light of trial

counsel's strategy and theory.

¶77 In general, it can be quite effective for a defendant

to say 'I did this and I did that, but I did not do what the

State has charged me with,' because it tends to establish a

defendant's credibility. But, there are many aspects of a trial

which make its outcome uncertain and we cannot let our judgment

of trial strategy be clouded by the clarity of hindsight. See,

e.g., Domke, 337 Wis. 2d 268, ¶36 ("Reviewing courts

should . . . make every effort to eliminate the distorting

effects of hindsight."). Furthermore, Breitzman agreed to the

defense theory of reasonable parental discipline and "[a]n

accused cannot follow one course of strategy at the time of

41

No. 2015AP1610-CR

trial and if that turns out to be unsatisfactory complain [she]

should be discharged or have a new trial." Cross v. State, 45

Wis. 2d 593, 605, 173 N.W.2d 589 (1970). Thus, Breitzman cannot

now complain just because a strategy that was reasonable at the

outset turned out to be unsuccessful.

¶78 Additionally, the circuit court gave jury instructions

that limited any unfair prejudice that may have resulted from

the other acts testimony. With regard to other acts, the court

instructed as follows:

Evidence has been presented regarding other

conduct of the defendant for which the defendant is

not on trial. . . . If you find that this conduct did

occur, you should consider it only on the issues of

intent and context or background. You may not

consider this evidence to conclude that the defendant

has a certain character or a certain character trait

and that the defendant acted in conformity with that

trait or character with respect to the offense charged

in this case.

The evidence was received by [sic] the issues of

intent, that is, whether the defendant acted with the

state of mind that is required for the offense

charged, and to prove context or background that is to

provide a more complete presentation of the evidence

related to the offense charged.

With regard to the uncharged incident in the car, the court

additionally instructed as follows:

As to [the] striking of [J.K.] with the back of

the hand in the car, discipline of a child is an

issue. The law allows a person responsible for the

child's welfare to use reasonable force to discipline

that child. Reasonable force is that force which a

reasonable person would believe is necessary.

Whether a reasonable person would have believed

that the amount of force used was necessary and not

42

No. 2015AP1610-CR

excessive must be determined from the standpoint of

the defendant at the time of the defendant's acts.

The standard is what a person of ordinary

intelligence and prudence would have believed in the

defendant's position under circumstances that existed

at the time of the alleged offense.

These limiting instructions were sufficient to address any

unfair prejudice that may have resulted from the other acts

testimony, and in fact bolstered Breitzman's defense regarding

reasonable parental discipline. See State v. Marinez, 2011 WI

12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399 ("We presume that

juries comply with properly given limiting and cautionary

instructions, and thus consider this an effective means to

reduce the risk of unfair prejudice to the party opposing

admission of other[-]acts evidence.").

¶79 In sum, Breitzman has failed to demonstrate that

counsel's performance was deficient because admission of other

acts testimony was central to a reasonable defense theory and

strategy. Additionally, any unfair prejudice was appropriately

addressed by limiting instructions from the court. Thus,

defense counsel's performance did not fall below the objective

standard of reasonableness.

D. We Need Not Consider Prejudice Because

Trial Counsel Was Not Deficient.

¶80 To succeed on an ineffective assistance of counsel

claim, a petitioner must establish both that counsel's

performance was deficient and that the deficient performance was

prejudicial. See Strickland, 466 U.S. at 687.

43

No. 2015AP1610-CR

¶81 Where the petitioner fails to satisfy either prong of

the ineffective assistance of counsel analysis we need not

consider the other. See Strickland, 466 U.S. at 697. Because

we conclude that Breitzman has not established that trial

counsel's performance was deficient, we need not address

whether, in the context of ineffective assistance of counsel,

the alleged errors individually or cumulatively prejudiced

Breitzman, and we decline to do so.

IV. CONCLUSION

¶82 On petition to this court, Breitzman sought review of

the denial of her ineffective assistance of counsel claim. In

this regard, Breitzman's claim did not raise a facial or as-

applied challenge to the disorderly conduct statute, Wis. Stat.

§ 947.01. A facial challenge would have argued that "profane

conduct," as listed in § 947.01(1), is not actionable as a crime

because profanity is protected speech. An as-applied challenge

would have argued that Breitzman's profane conduct in this case

was not actionable as a crime because it was protected speech.

Breitzman argued neither. Breitzman only argued that her trial

counsel rendered ineffective assistance. Thus, while this case

touched on an interesting issue of free speech law, we confined

our analysis to the ineffective assistance of counsel issue

presented, briefed, and argued by the parties.

¶83 The ineffective assistance of counsel issue raised

required consideration of whether counsel was ineffective for

any of the following reasons: (1) failing to move to dismiss the

disorderly conduct charge on the basis that is violated

44

No. 2015AP1610-CR

Breitzman's constitutional right to free speech; (2) failing to

present opening remarks consistent with Breitzman's anticipated

testimony; and (3) failing to object to testimony regarding

other uncharged conduct.

¶84 As to the first, we conclude that trial counsel's

failure to move to dismiss the disorderly conduct charge on the

basis that it violated Breitzman's constitutional right to free

speech was not deficient performance, and thus not ineffective

assistance of counsel, because whether profane conduct that

tends to cause or provoke a disturbance is protected as free

speech is unsettled law.

¶85 As to the second, we conclude that trial counsel's

theory of reasonable parental discipline, as presented in

opening remarks, was not deficient performance, and thus not

ineffective assistance of counsel, because it reflected trial

counsel's reasonable expectations, which were rationally based

on discussions with Breitzman, and it was part of a reasonable

trial strategy.

¶86 As to the third, we conclude that trial counsel's

failure to object to testimony regarding uncharged conduct was

not deficient performance, and thus not ineffective assistance

of counsel, because declining to object was part of a reasonable

trial strategy.

¶87 Because we conclude that trial counsel's performance

was not deficient, we need not address whether, in the context

of ineffective assistance of counsel, there was prejudice to

Breitzman, and we decline to do so.

45

No. 2015AP1610-CR

¶88 Thus, we affirm the decision of the court of appeals.

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

affirmed.

46

No. 2015AP1610-CR.ssa

¶89 SHIRLEY S. ABRAHAMSON, J. (concurring). The court's

opinion is a very narrow decision limited to the facts of the

case and the issues the defendant raised.

¶90 This case does not decide a facial or as-applied

challenge to the disorderly conduct statute, Wis. Stat.

§ 947.01. Breitzman made no such challenge.

¶91 Additionally, in this court, Breitzman does not

challenge the sufficiency of the evidence supporting the

conviction; Breitzman accepts the jury's finding that her

profane conduct tended to cause or provoke a disturbance within

the meaning of the statute.

¶92 The claim in the instant case is ineffective

assistance of counsel. Breitzman claims that trial counsel was

ineffective because counsel failed to raise a First Amendment

defense to Breitzman's disorderly conduct charge.

¶93 The majority opinion holds against Breitzman on this

claim, relying on the "unsettled law" rubric. The majority

opinion asserts that defense counsel was not ineffective because

"whether profane conduct that tends to cause or provoke a

disturbance is protected as free speech is unsettled law."

Majority op., ¶7.

¶94 I write to make two points: (1) Nothing in the

majority opinion should be read as commenting on the merits of

the underlying First Amendment defense; and (2) The "unsettled

law" doctrine guiding the determination of ineffective

assistance of counsel is not sufficiently protective of a

1

No. 2015AP1610-CR.ssa

defendant's constitutional and statutory rights to effective

counsel.

¶95 The bench and bar should be working for a better

standard for determining the adequacy of representation.

¶96 I write further on a different topic, namely, my

practice in participating or not participating in a case

depending on my participation in various aspects of the

decision-making process. I write on this topic in the instant

case in which I am participating because a majority of the court

insists that a justice who does not participate in a case merely

state on the court record the fact of non-participation or

withdrawal from participation and not state grounds for non-

participation.

¶97 Lawyers and litigants should know that it is my

practice not to participate in a decision when I do not fully

participate in every stage of the decision-making process.

Thus, for example, if I were present at oral argument but did

not participate in the decision conference, I would be shown as

not participating in the decision.

¶98 For the reasons set forth, I write separately.

2

No. 2015AP1610-CR.ssa

1