Paulus, Todd v. Enger, Troy

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TODD PAULUS IV,
Plaintiff,
v.
TROY ENGER, 1
Defendant.
OPINION and ORDER
24-cv-178-jdp
Petitioner Todd Paulus is serving a term of extended supervision under the custody of
the Wisconsin Department of Corrections’ Division of Community Corrections. Paulus seeks
a writ of habeas corpus under 28 U.S.C. § 2254. The matter is fully briefed and ready for
decision.
Paulus challenges his 2020 Wisconsin state-court conviction for enticement of a child
with intent to have sexual contact, in violation of Wis. Stat. § 948.07(1). Fourteen-year-old
KCP, who was Paulus’s ex-girlfriend’s niece, alleged that Paulus sexually assaulted her while
she was spending the night at his house. At trial, Paulus argued that KCP had fabricated the
allegations, and he sought to introduce evidence that KCP had viewed pornography before her
interview with detectives that depicted sexual acts similar to those that she alleged Paulus had
done to her. The trial judge excluded the pornography, finding that the risk of unfair prejudice
substantially outweighed its minimal probative value. Paulus contends that the exclusion of
1 	Petitioner 	originally 	named 	Maria 	Silao-Johnson, 	the 	superintendent 	of 	Winnebago
Correctional Center, as the respondent. But petitioner has since been released on extended
supervision, so the proper respondent is Troy Enger, administrator of the Wisconsin DOC’s
Division of Community Corrections. See Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996) (“If
the petitioner is on parole, the parole board or equivalent should be named.”). The court has
updated the caption accordingly.
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the pornography violated his constitutional right to present a defense. He also contends that
the state court of appeals erred by concluding that the exclusion was harmless error.
The court concludes that the exclusion of the pornography evidence did not violate
Paulus’s right to present a defense, because it was at most minimally relevant to whether KCP
had fabricated the allegations, and its introduction carried a substantial risk of unfair prejudice
and confusion to the jury. Nor did the state court of appeals act unreasonably in concluding
that the exclusion of the pornography was harmless error. Paulus’s habeas petition will be
denied.
BACKGROUND
In January 2019, 14-year-old KCP accused Paulus of sexually assaulting her while she
was staying overnight at his house a few weeks earlier. When she was first interviewed by
detectives, KCP provided only sparse details about the assault, explaining that a friend of her
dad’s “kissed her” and then “it turned into more.” Dkt. 15-6. At a forensic interview four days
later, KCP provided a much more detailed account of the assault. She said that Paulus had
brought her into his bedroom, laid on his back with her sitting on top of him, and moved her
back and forth over his underwear until he ejaculated. She also said that Paulus had put his
finger underneath her underwear and into her vagina. Dkt. 7-1 (criminal complaint), at 1–2.
Paulus denied sexually assaulting KCP.
A. Trial court proceedings
The state charged Paulus with one count of sexual assault of a child, in violation of
Wis. Stat. § 948.02(2), and one count of child enticement, in violation of Wis. Stat.
§ 948.07(1).
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To support his theory that KCP had fabricated the sexual assault allegations, Paulus
wanted to introduce evidence that in the four days between her initial interview with detectives
and her forensic interview, KCP had viewed pornography on her phone that depicted sexual
acts similar to what she alleged Paulus had done to her. Specifically, KCP viewed a video called
“Grinding StepDads Cock for Cash” four separate times on the day of her forensic interview.
Dkt. 18-1 (screenshot of KCP’s viewing history). She also saved several pornographic images,
including one of a “woman wearing underwear sitting on a naked man’s lap while the man has
his hand on her vagina over her underwear.” Dkt. 7-3 (trial transcript, day 2, 10:8–14).2
Just before trial, the court held a hearing on Paulus’s request to introduce evidence of
the pornography that KCP had viewed. Paulus argued that the pornography was admissible as
an “alternate source of knowledge of sexual content,” to rebut a jury inference that KCP
wouldn’t know about the sexual experiences that she described unless Paulus had in fact
assaulted her. Dkt. 7-2 (trial transcript, day 1, 11:1–12:18). Paulus also argued that the
evidence was admissible to explain why KCP described the sexual assault in only general terms
during her initial interview with investigators but then provided significantly more detail during
her 	forensic 	interview. 	Id. 	at 	14:1–20. 	The 	court 	excluded 	the 	pornography 	under
Wis. Stat. § 901.403, concluding that the risk of prejudice substantially outweighed any
marginal relevance. Id. at 17.
2 None of the pornographic images or videos are in the record. This description of the
pornographic image on KCP’s phone was provided to the trial court by defense counsel. The
state did not dispute defense counsel’s description of the image, although it did dispute the
extent to which the image resembled the alleged assault. Dkt. 7-3 (trial transcript, day 2,
10:15–25).
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The court revisited the pornography issue at the close of the first day of trial and in a
pretrial hearing just before the second day of trial. Id. at 199–209; Dkt. 7-3, at 5–11. Paulus
reiterated his position that the evidence was necessary to his defense, arguing:
This whole case is about the allegation of sexual contact. Evidence
of an alternate source of her knowledge does make the sexual
contact with Mr. Paulus less likely than it does without the
evidence because it gives the jury another theory to consider.
Dkt. 7-2, at 202:14–18. Paulus acknowledged that the pornography evidence could be
embarrassing to KCP, so he proposed introducing it through the detective who had examined
KCP’s phone, instead of through KCP herself. Id at 202:19–24. After hearing Paulus’s
argument and the state’s response, the court reaffirmed its decision to exclude the evidence
under § 904.03. The court reasoned that the pornography was of limited relevance to
explaining KCP’s sexual knowledge, because the jury would be unlikely to infer that a
14-year-old adolescent lacked knowledge of sexual matters. Dkt. 7-3, at 7–8. The court also
rejected Paulus’s argument that the pornography explained how KCP had come up with
additional details about the assault during her forensic interview. The judge reasoned that, in
addition to the video and image described by the defense, KCP had viewed other pornographic
content that was not similar to the sexual acts that she had described to investigators,
undermining Paulus’s theory that KCP used the pornography to fabricate her allegations. Nor
did Paulus have any evidence about KCP’s pornography habits in the months before or after
she reported the assault, so he had no reason to assume that viewing pornography like this was
out of the norm for KCP. Id. at 8–9. Finally, the court concluded that the risk of prejudice
outweighed any probative value, because “it’s fairly likely that [the pornography] could be used
or interpreted by the jury for wrong reasons, such as many of the reasons that the rape shield
statute exists.” Id. at 9:17–24.
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At trial, the state had no physical evidence corroborating KCP’s allegations that Paulus
had sexually assaulted her. The primary evidence against Paulus was KCP’s testimony about
the assault. The state also introduced Snapchat messages between Paulus and KCP, in which
Paulus called KCP “hon” and “sweetheart,” Dkt. 15-4, at 1,7,9, told her that he had had a
“nice dream” about her, Id. at 3, and asked her, “Why are you feeling so alone tonight? Are
you just needing company or are you craving more?” Id. at 5. A detective testified about the
physical features of Paulus’s bedroom, which matched KCP’s description of the bedroom when
she testified. Dkt. 7-3, at 119–22. The detective also testified that when he interviewed Paulus
in mid-January 2019, Paulus told him that KCP had visited his house on two occasions with
her cousin or her sister, but Paulus did not mention KCP ever visiting his house alone until the
detective explicitly asked whether she had been there on December 29. Dkt. 7-3, at 174.
Paulus 	attempted 	to 	portray 	his 	relationship 	with 	KCP 	as 	innocent. 	Under
cross-examination, KCP testified that she had a rocky relationship with her dad and that she
would sometimes go to Paulus’s house to escape. Dkt. 7-3, at 24–25. The day of the alleged
assault, KCP asked Paulus if she could stay the night at his house and told her dad that she
was going to a friend’s house. Dkt. 15-4, at 7. Paulus arranged to pick KCP up at a gas station
near her house, something that Paulus had done before at KCP’s insistence so that her dad
wouldn’t know where she was going. Dkt. 7-3, at 27–30, 39; Dkt. 15-4 at 8. KCP said that the
day after the alleged assault, Paulus gave her an old cellphone of his as a gift and helped her to
set it up; he then took her out for pizza and dropped her back off near her house. KCP later
messaged him on Snapchat, “Todd, i’m not in trouble” and “Thank you lots!” Dkt. 15-4, at 8.
They continued to message regularly until mid-January, when KCP reported the assault to the
police.
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Paulus also introduced evidence of inconsistencies in KCP’s account of the assault. A
friend of KCP’s testified that it was he who first suggested to KCP that she may have been
assaulted: he noticed that KCP seemed sad and asked her if she had been raped. Dkt. 7-3, at
226:5–6. Only then did KCP tell the friend that she had been “fingered” by her dad’s friend
Todd. Id. at 227:6–18. She told another friend that her dad’s friend had kissed her and “ended
up with his clothes off and his hand over her mouth,” but that it “didn’t go any further than
that.” Id. at 181. She told a school counselor that she had been assaulted by a “neighbor” who
was an adult male who had graduated high school. Id. at 56–57. KCP explained that she didn’t
want to tell the whole truth initially, so she “made a few things up . . . to kind of warm myself
up” to the idea of telling an adult. Id at 56:25–57:3.
At the conclusion of the evidence, Paulus exercised his constitutional right not to testify.
The jury reached a split verdict: Paulus was convicted of one count of child enticement in
violation of Wis. Stat. § 948.07(1), but he was acquitted on the sexual assault charge. The
court sentenced Paulus to four years of initial confinement followed by four years of extended
supervision.
B. Appellate proceedings
Paulus appealed his conviction to the Wisconsin Court of Appeals, contending that the
trial court’s exclusion of the pornography evidence violated his constitutional right to present
a defense. In an unpublished summary disposition, the court affirmed Paulus’s conviction. State
v. Paulus, No. 2022AP194-CR, 2023 WL 4195567 (Wis. Ct. App. June 27, 2023). The appeals
court declined to decide whether it was improper for the trial court to exclude the pornography
evidence. Instead, it proceeded under a harmless error analysis, concluding that any error had
been harmless for two reasons. First, the child enticement charge did not require the state to
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prove actual sexual contact between Paulus and KCP; all the state had to prove was that Paulus
caused KCP to go into a room with the intent of having sexual contact with her. The court
reasoned that Paulus’s own statements, including his Snapchat messages and his participation
in picking KCP up without her father’s knowledge, were strong evidence of improper intent;
whether KCP had downloaded pornography had no bearing on Paulus’s intent. Second, the
jury’s acquittal on the sexual assault charge indicated that the jury had disbelieved KCP about
the details of the assault, so additional evidence undermining KCP’s credibility would not have
changed the outcome.
Paulus’s petition for review in the Wisconsin Supreme Court was denied on December
12, 2023. State v. Paulus, 2024 WI 5, 6 N.W.3d 689. Paulus timely filed this habeas petition
on March 20, 2024.
ANALYSIS
To succeed in his habeas petition, Paulus must show both that the trial court violated
his constitutional right to present a defense by excluding evidence about the pornography that
KCP viewed before her forensic interview, and that the error was not harmless.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court
applies a deferential standard of review to any issue that the state court of appeals addressed
on the merits, upholding the state court decision as long as the state court decision rests on a
“reasonable” application of clearly established federal law. 28 U.S.C. § 2254(d). Issues not
addressed by the state court are reviewed de novo. Harris v. Thompson, 698 F.3d 609, 624 (7th
Cir. 2012). In this case, the state court of appeals relied on a harmless error analysis to affirm
Paulus’s conviction, so the court reviews the harmless error issue deferentially and the
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underlying constitutional issue de novo. But both issues ultimately turn on the probative value
of the pornography evidence. For that reason, the court will begin with the question whether a
constitutional error was committed in the first place. The court’s decision on that issue is
dispositive, but for completeness, the court will also examine the reasonableness of the
Wisconsin Court of Appeals’ harmless error decision.
A. Right to present a defense
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or
in 	the 	Compulsory 	Process 	or 	Confrontation 	Clauses 	of 	the 	Sixth 	Amendment, 	the
Constitution guarantees criminal defendants a meaningful opportunity to present a complete
defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (internal quotations and citations
omitted). This right is not unlimited. States retain broad latitude under the Constitution to
establish rules to ensure that the evidence presented during criminal trials is fair and reliable.
Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Defendants do not have an “unfettered right
to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard
rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). The exclusion of defense
evidence abridges a defendant’s right to present a defense only if the evidence is essential to
the defendant’s ability to present a defense, and its exclusion is arbitrary or disproportionate
to the purposes advanced by the exclusion. See Harris, 698 F.3d at 626.
The court begins with a threshold issue about the record. After the state filed its
response brief, Paulus moved to supplement the record with an exhibit that was part of the
sealed record in the state court of appeals. Dkt. 18. The proposed exhibit is KCP’s web history
from January 14, 2019; it shows that she viewed a video called “Grinding StepDads Cock for
Cash” four times that day. Paulus explained in his motion that he was submitting the proposed
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exhibit to clear up a factual issue in the state’s response brief. The state had said that KCP had
searched for the term “Grinding StepDads Cock for Cash,” whereas in reality, that was the
name of the video that KCP had watched. The state opposed Paulus’s motion to supplement,
contending that Paulus had forfeited any arguments about the proposed exhibit by failing to
raise them in his opening brief. Dkt. 24. Alternatively, the state requested that it be allowed to
submit the other sealed exhibits showing KCP’s internet activity that were part of the state
court record.
The court will grant Paulus’s motion to supplement. The state is correct that arguments
not raised in a petitioner’s opening brief are forfeited. Narducci v. Moore, 572 F.3d 313, 324
(7th Cir. 2009). But Paulus submitted the proposed exhibit to respond to a factual error in the
state’s brief; he wasn’t raising an entirely new argument that he could have raised in his opening
brief. The state’s request to submit the other sealed exhibits will be denied as unnecessary. The
parties agree about what types of pornography KCP viewed. They disagree about whether the
pornography depicts the same sex acts that Paulus is alleged to have committed, but the court
does not need to resolve that dispute. For the purpose of Paulus’s petition, the court will credit
Paulus’s view that the “Grinding StepDads Cock for Cash” video and the image that defense
counsel described as a “woman wearing underwear sitting on a naked man’s lap while the man
has his hand on her vagina over her underwear” depict sexual acts substantially similar to what
Paulus is alleged to have done to KCP. As explained below, that assumption does not change
the court’s conclusion that Paulus’s constitutional rights were not violated.
The core question in this case is whether the pornography evidence was essential to
Paulus’s defense, and, if so, whether excluding it was an arbitrary or disproportionate response
to the purposes advanced by the exclusion. See Holmes, 547 U.S. at 324–25. Paulus says that
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the evidence was essential for two reasons: first, it provides an alternate source of KCP’s sexual
knowledge; and second, it explains “how KCP went from being unable to provide any detail of
the purported assault at her first interview to providing a detailed, graphic account of sexual
activity just a few days later.” Dkt. 9, at 13–14.
Paulus invokes what is sometimes called the “sexual innocence inference theory.” The
basic premise is that the jury might infer that a child complainant lacks the sexual knowledge
needed to fabricate sexual assault allegations. See Child abuse cases: Admissibility on source of
knowledge, 3 Jones on Evidence § 19:60 (7th ed.). In certain cases, courts have held that
evidence necessary to rebut the sexual innocence inference, such as evidence that a child has
been exposed to pornography or has had previous sexual experiences, is so essential to a
defendant’s case that its exclusion under rape shield or other rules of evidence violates the
Constitution. See, e.g., State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990); LaJoie v.
Thompson, 217 F.3d 663, 671–72 (9th Cir. 2000); State v. Howard, 121 N.H. 53, 61, 426 A.2d
457 (1981). But courts must carefully scrutinize the probative value of such evidence,
considering factors such as the age of the child, whether the prior sexual experience was similar
to what the defendant is accused of doing, and whether the state opened the door by suggesting
to the jury that the child was sexually innocent. Rule 412 Sex Offense Cases, 23 Fed. Prac.
& Proc. Evid. § 5375.2 n.52–53 (2d ed.) (collecting cases); Dunlap v. Hepp, 436 F.3d 739 (7th
Cir. 2006) (child’s prior sexual experience not sufficiently similar); United States v. Powell, 226
F.3d 1181 (10th Cir. 2000) (prosecution did not portray eleven-year-old victim as a sexual
innocent). Courts must also examine the reasons for excluding the evidence, including the
likelihood of embarrassment or prejudice to the child, and the extent to which admitting the
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evidence will confuse the jury or require extensive testimony about issues of only marginal
relevance to the case. See Dunlap, 436 F.3d at 742.
The court concludes that it was not necessary in this case for Paulus to rebut the sexual
innocence inference, because there is no reason to think that the jury would have inferred that
KCP lacked the sexual knowledge necessary to fabricate her allegations. As the state points out,
KCP was 14 years old when the alleged assault occurred. Courts have routinely prevented
defendants from introducing evidence to rebut the sexual innocence inference when the
complainant is an adolescent, reasoning that most juries would assume that adolescents already
have some knowledge of sexual matters. See, e.g., State v. Schnabel, 196 N.J. 116, 131, 952 A.2d
452 (2008) (“[n]either [child] was of a tender age, nor can one say that their ages in today’s
world of movies, sexual education, television, the world-wide web, and magazines were such
that either child would not possess knowledge of the acts they described when they first
described them.”) Paulus cites no authority in which a court has admitted prior sexual
experiences to demonstrate that an adolescent complainant had an alternate source of sexual
knowledge, nor did the court discover any in its own research.
Further, nothing that occurred at trial would have led the jury to infer that KCP lacked
the sexual knowledge needed to fabricate the allegations against Paulus. The state did not make
that argument to the jury. (The trial judge told the state that if it did make that argument, that
would open the door to introducing the pornography evidence.) And in fact, the trial testimony
demonstrated that KCP did have some degree of sexual knowledge. On cross-examination,
Paulus’s counsel questioned KCP about her use of the word “came” to describe ejaculation;
KCP said that she knew that word because kids talk about sex at school, and because she hears
words like that on TV, in music, and in movies. Dkt. 7-3, at 51–52. And one of KCP’s friends
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testified that KCP told him that Paulus had “fingered” her, id. at 227, demonstrating that KCP
was familiar with lay sexual terminology. There is simply no evidence that the jury in this case
would have inferred that KCP was sexually innocent, so Paulus did not need to introduce
evidence to rebut that inference.
In his reply brief, Paulus argues that even if a jury would not find a 14-year-old sexually
innocent as a general matter, there is no evidence that KCP had knowledge of the specific
sexual acts that she described Paulus doing. But the relevant question is whether the jury would
have inferred that KCP lacked the knowledge necessary to fabricate these events. KCP
described Paulus sitting her on top of him and then moving her hips back and forth with his
hands until he “came.” Dkt. 7-2, at 164–66. She also said that his fingers went under her
underwear and inside her vagina. Id. at 168–69. The trial testimony established that KCP knew
how to describe both of these sexual acts before she viewed any of the pornography at issue, so
it’s not plausible that the jury would have inferred that she was too sexually innocent to
fabricate the allegations.
Paulus also argues that, even if the jury wouldn’t have inferred sexual innocence, the
pornography evidence explained why KCP described the assault in much greater detail at her
forensic interview compared with her initial interview with detectives. Paulus says that the jury
could have inferred that KCP used the pornography as “research” to ensure that her fabricated
description of the assault was detailed and realistic. Paulus argues that the trial court unfairly
permitted the state to put in testimony from a forensic psychologist explaining that children
who are assaulted often make “piecemeal disclosure[s],” Dkt. 7-3, at 204–05, but denied him
an opportunity to present his own theory for KCP’s inconsistent descriptions of the assault.
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The problem is that Paulus’s “research” theory is little more than speculation. Paulus
has no evidence that viewing pornography was an unusual activity for KCP, and his theory is
undermined by the entirely unrelated content that KCP viewed around the same time,
including “furry” pornography and pornography involving anime characters. Dkt. 7-2, at 15.
Defendants have a constitutional right to introduce evidence that shows a “prototypical form
of bias” on the part of a witness, such as a motive to lie, but they aren’t entitled to attack a
witness’s credibility in any way they want, no matter how speculative. Compare Davis v. Alaska,
415 U.S. 308, 316–18 (1974) (motive to lie) and Sussman v. Jenkins, 636 F.3d 329 (7th Cir.
2011) (motive to lie) with United States v. Saunders, 166 F.3d 907 (7th Cir. 1999) (speculative
theory that witness was biased in favor of the government). Paulus was allowed to probe the
inconsistencies in KCP’s description of the assault and to suggest a reason why she might have
fabricated the allegations; specifically, that KCP answered “yes” when her friend asked her if
she had been raped, and then got in over her head and felt that she couldn’t back out. See
Dkt. 7-4 (defense closing argument), at 65. The exclusion of the pornography evidence did not
prevent Paulus from presenting his fabrication theory, so it did not violate his constitutional
rights. See United States v. Sanders, 708 F.3d 976, 990 (7th Cir. 2013) (Confrontation Clause
is implicated when a defendant is “completely forbidden” from exposing a witness’s bias).
The court also concludes that excluding the pornography evidence was not arbitrary or
disproportionate to the purposes advanced by the exclusion. See Harris, 698 F.3d at 626. Paulus
says that exclusion was a disproportionate response because the risk of embarrassment to KCP
could have been ameliorated by introducing the evidence through a detective instead of
through KCP herself. But Paulus ignores the risks other than embarrassment, including unfair
prejudice and confusion of the issues. If Paulus had been permitted to introduce the “Grinding
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StepDads Cock for Cash” video and the image of a woman wearing underwear sitting on a
naked man’s lap, that would have opened the door for the state to introduce evidence of the
unrelated pornography that KCP had viewed around the same time. The state would also likely
have wanted to introduce evidence that KCP’s pornography searches were normal for a
14-year-old, or that it was common for survivors of sexual assault to view pornography to
process what had occurred. The result, as the trial court observed, would have been a
wide-ranging presentation about an issue of only marginal relevance, distracting the jury from
the main issues in the case. See Dkt. 7-3, at 11. The trial court was within its discretion to
exclude evidence to avoid that result. Cf. Nevada v. Jackson, 569 U.S. 505, 511 (2013) (“The
admission of extrinsic evidence of specific instances of a witness’ conduct to impeach the
witness’ 	credibility 	may 	confuse 	the 	jury, 	unfairly 	embarrass 	the 	victim, 	surprise 	the
prosecution, and unduly prolong the trial. No decision of this Court clearly establishes that the
exclusion of such evidence for such reasons in a particular case violates the Constitution.”)
The bottom line is that Paulus fails to show that KCP’s pornography searches had more
than minimal relevance to KCP’s credibility. Paulus was able to present his defense theory that
KCP had made inconsistent, spur-of-the-moment allegations in response to a question from a
friend about whether she had been raped. The court concludes that the excluded pornography
evidence was not essential to Paulus’s defense and the trial court did not apply the evidentiary
rules arbitrarily or disproportionately. Paulus’s contention that the trial court violated his
constitutional rights fails on the merits.
B. Harmless error
Even if the state court’s exclusion of the pornography evidence were a constitutional
error, Paulus cannot obtain habeas relief unless he can show that the Wisconsin Court of
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Appeals’ finding of harmless error (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law, as determined by the United
States Supreme Court; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. 	§ 	2254(d); 	Brown 	v. 	Davenport, 	596 	U.S. 	118, 	127 	(2022) 	(state 	court’s
harmless-error determination qualifies as an adjudication on the merits subject to review under
AEDPA). The parties agree that the clearly established law that applies here is Chapman v.
California, 386 U.S. 18 (1967), which held that, for cases reviewed on direct appeal, a
constitutional error is harmless if the state proves “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Id. at 24. Whether an error is
harmless in a particular case depends upon several factors, including the importance of the
witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and the overall strength
of the prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)
The state court of appeals recognized and applied the correct standard, citing State v.
Nelson, 2014 WI 70, which holds that an error is harmless in a criminal case if the state can
demonstrate beyond a reasonable doubt that a “rational jury would have found the defendant
guilty absent the error.” Id. ¶ 44. Paulus concedes that the Nelson standard is consistent with
Chapman. So the question is whether the state court applied Chapman “unreasonably” when it
found the exclusion of the pornography evidence to be harmless. An “unreasonable application”
of clearly established federal law means that the state appellate court’s decision was “so lacking
in justification that there was an error well understood and comprehended in existing law
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beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011). In other words, Paulus must persuade this court that no “fairminded juris[t]”
applying Chapman could 	reach 	the 	same 	conclusion 	as 	the 	Wisconsin 	Court 	of
Appeals. Davenport, 596 U.S. at 135 (quoting Davis v. Ayala, 576 U.S. 257, 269 (2015)).
Nor is the reasonableness test the only hurdle Paulus must clear to receive habeas relief.
If Paulus shows that the state court of appeals unreasonably applied clearly established law,
then this court must then conduct its own harmless error analysis under Brecht v. Abrahamson,
507 U.S. 619 (1993). The question under Brecht is whether the trial court’s error had a
“substantial and injurious effect or influence” on the jury’s verdict. Davenport, 596 U.S. at 133.
A federal court may not grant habeas relief unless it harbors “grave doubts” about whether the
trial court error affected the jury’s verdict. Id. at 136.
The state court of appeals reasoned that the pornography evidence would not have
changed the outcome of this case, for two reasons. First, the jury’s acquittal on the sexual
assault charge demonstrates that it already doubted KCP’s credibility, so additional evidence
on that point would not have made a difference. Second, the pornography had “no bearing on
Paulus’s intent” to have sexual contact with KCP, which is all the state needed to prove for the
enticement charge. Paulus, 2023 WL 4195567, at *2. On this second point, the court of appeals
reasoned that the state had introduced strong evidence of Paulus’s improper intent, specifically
the Snapchat messages Paulus had sent KCP in the weeks before the alleged assault in which
he called her “hon” and “sweetheart,” told her that he had a “nice dream” about her, and asked
her if she just needed company or was “craving more,” and the message several days after the
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alleged assault in which Paulus asked KCP if they were “still friends.” 3 The court also noted
that Paulus had agreed to pick KCP up a block away from her house so that KCP’s dad wouldn’t
know she was going to Paulus’s house. Paulus, 2023 WL 4195567, at *2.
There are some logical flaws in the court of appeals’ reasoning. As Paulus points out,
the jury’s acquittal doesn’t necessarily mean that it disbelieved KCP’s account of the sexual
assault; juries reach split and even inconsistent verdicts for many reasons, including “mistake,
compromise, or lenity.” United States v. Powell, 469 U.S. 57, 65 (1984). Nor did the court of
appeals fully explain why it believed that the pornography had “no bearing” on Paulus’s intent
to have sexual contact with KCP. As Paulus points out, if the jury believed that KCP had
fabricated the allegations, that would call into question not only whether sexual contact
occurred, but also whether Paulus intended to have sexual contact. But the question isn’t
whether the court of appeals provided an airtight explanation for its conclusion, but whether a
fair-minded jurist could have reached the same conclusion. See Harrington, 562 U.S. at 98. The
court of appeals’ harmless error analysis clears that low bar.
Paulus is correct that the evidence of intent that the court of appeals relied on, including
the Snapchat messages and Paulus’s habit of picking KCP up a block away from her house, was
not overwhelming. The Snapchat messages are subject to competing interpretations, and as
Paulus points out, it was KCP, not Paulus, who requested that she be picked up a block away.
But ultimately, the harmless error question turns on the probative value of the pornography
3 Based on the court’s own review of the Snapchat messages, it seems that Paulus did not
actually ask KCP if they were “still friends” after the alleged assault. See Dkt. 15-4. But he did
express that general sentiment. On January 3, after KCP rebuffed Paulus’s invitation to come
over again that weekend, Paulus asked her, “are you upset with me at all? Are we good?” Id. at
12. KCP responded: “No, I’m not upset with you, promise, we’re good.” Id.
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evidence. The court has already explained that the pornography evidence was only minimally
relevant to whether KCP fabricated the assault allegations. And its relevance is even less in
light of the jury’s acquittal on the sexual assault charge. The enticement charge did not require
the state to prove that any sexual contact had occurred, so the jury could have convicted Paulus
on the enticement charge even if it did not fully believe KCP’s account of what happened.
Given the extremely limited relevance of the pornography evidence to the elements of the
enticement charge, the harmfulness of its exclusion is not apparent beyond fair-minded
disagreement.
Paulus also cannot meet the Brecht standard. As explained above, this court agrees with
the trial court that the pornography evidence had little bearing on why or how KCP might have
fabricated the assault allegations against Paulus, and even less bearing on whether Paulus
intended to have sexual contact with KCP, which is all the state needed to show to prove
enticement. Thus, the court harbors no grave doubts as to whether the exclusion of this
evidence had a substantial and injurious effect on the verdict. Paulus’s habeas petition will be
denied.
C. Certificate of appealability
Under Rule 11 of the Rules Governing Section 2254 cases, the court must issue or deny
a certificate of appealability when entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282 (2004).
This means that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller El v. Cockrell, 537 U.S. 322, 336
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(2003) (internal quotations and citations omitted). The rule allows a court to ask the parties
to submit arguments on whether a certificate should issue, but it is not necessary to do so in
this case. Reasonable jurists would not debate the outcome here, so I will not issue Paulus a
certificate of appealability. He may seek a certificate from the court of appeals under Fed. R.
App. P. 22.
ORDER
IT IS ORDERED that:
1. 	The petition for a writ of habeas corpus filed by petitioner Todd Paulus IV, Dkt. 1,
is DISMISSED.
2. 	Paulus’s motion to supplement the record, Dkt. 18, is GRANTED.
3. 	Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may seek
a certificate from the court of appeals under Fed. R. App. P. 22.
Entered March 26, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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