State v. Leon Garrett, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP519-CR Cir. Ct. No. 2014CF1362

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LEON GARRETT, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS and STEPHANIE ROTHSTEIN,
Judges. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP519-CR

¶1 PER CURIAM. Leon Garrett, Jr. appeals his judgment of conviction
for one count of first-degree sexual assault of a child under the age of thirteen, and
one count of exposing his genitals to a child. He also appeals the order denying his
postconviction motion. Garrett argues that his trial counsel was ineffective for
failing to introduce evidence that the victim had a history of suffering from cold
sores that predates the assault by Garrett, and without this evidence there was
nothing to counter the inference from other testimony that the sore on the victim’s
lip was the result of the sexual assault by Garrett. Upon review, we affirm.

BACKGROUND

¶2 The charges against Garrett stem from an incident that occurred in
March 2014 when the victim, M.L.T., was seven years old. According to the
criminal complaint, M.L.T. stated that she knew Garrett because he was her
mother’s friend. She told police that she was on an overnight visit to Garrett’s house
when he woke her up, took her into the bathroom, and exposed his penis to her. She
said that he tried to put it in her mouth; she kept her lips closed, but his penis did
touch her lips. M.L.T. said that Garrett also kissed her on the lips, using his tongue.

¶3 Approximately two days after that overnight stay, M.L.T.’s mother,
S.L., noticed a bump on M.L.T.’s lip and asked M.L.T. about it. M.L.T. then told
S.L. about the assault. S.L. took M.L.T. to the hospital, where she was diagnosed
with herpes.

¶4 Garrett was arrested and charged with child enticement, exposing his
genitals to a child, and first-degree sexual assault of a child. At a pretrial hearing,
the State moved that any information relating to M.L.T.’s herpes diagnosis be
precluded from being introduced. The State observed that S.L. had indicated in
M.L.T.’s medical records that she had a history of cold sores, and “[t]hus, the herpes

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cannot be connected to [Garrett].” The trial court granted the motion, and further
stated that there was to be no testimony regarding whether Garrett had herpes.

¶5 The matter proceeded to trial. The first trial, held in February 2015,
resulted in a mistrial due to a hung jury. At the second trial1 held in August 2016,
M.L.T. testified about the assault by Garrett as she had described it to the police.
M.L.T. further testified that she told her mother what had happened after she noticed
a bump on M.L.T.’s lip. On cross-examination, M.L.T. stated “I really do get bumps
on my lip a lot because I have like a cold. It’s like a cold bump.” She also said that
she had told her mother the bump may have been there “because [Garrett] kissed
me.”

¶6 S.L. also testified. Prior to her testimony, out of the presence of the
jury, Garrett’s trial counsel2 raised the issue of a line of questioning he wanted to
pursue relating to whether S.L. believed that Garrett “was likely to molest
children[.]” S.L. had told the police that she saw some paperwork at Garrett’s home
regarding a prior charge of sexual assault of a minor, for which he was acquitted.
That charge involved an allegation that the victim had contracted herpes, but a
doctor at that trial testified that Garrett did not have herpes at that time. Counsel
sought to present a theory of defense that S.L. was angry with Garrett for denying
her request to live with him on a long-term basis, and, in retaliation, she
manufactured the current sexual assault allegation using the same pretense as the
earlier charge against Garrett.

1
Garrett’s first trial was before the Honorable Daniel L. Konkol; his second trial was
before the Honorable Mark A. Sanders. We refer to both of them as the trial court.
2
Garrett’s trial counsel for the second trial was a different attorney.

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No. 2021AP519-CR

¶7 The trial court denied counsel’s request. The court acknowledged that
this line of questioning was relevant; however, because of the prior ruling on the
State’s motion in limine which precluded any testimony relating to M.L.T.’s herpes
diagnosis, counsel was not allowed to “get into that part.” Therefore, the court
excluded that line of questioning, finding that there was a “low level” of relevance
without the herpes information, and further, there would be a “high risk” of
broaching that excluded evidence with such testimony.

¶8 S.L. testified that M.L.T. told her about the assault by Garrett after
S.L. noticed that her lip was “swollen.” On cross-examination, trial counsel asked
S.L. about the timing of M.L.T. telling her about the assault: that S.L. “noticed a
bump on your daughter’s lip that looked like herpes, so then you asked her what
happened … ?”

¶9 Additionally, the police officer who conducted a forensic interview of
M.L.T. testified. The officer stated that M.L.T. had described the assault to her
during that recorded interview, using a diagram and anatomically correct dolls; the
video of the interview was played for the jury. On cross-examination, Garrett’s trial
counsel again asked about the “bump” on M.L.T.’s lip, and whether M.L.T.
“associated” it with the assault. The officer indicated that M.L.T. told her that the
bump was from Garrett “kiss[ing] her and put[ting] his stuff in her mouth.” The
officer described the bump as “some sort of abrasion” that “looked like a cold sore,”
but the officer stated that she did not know exactly what it was.

¶10 Also testifying was the pediatrician who examined M.L.T. after the
assault, Dr. Kelly Hodges. Dr. Hodges testified that M.L.T. had no physical injuries
besides the bump on her lip, which “appear[ed] to be a cold sore[.]” Furthermore,

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No. 2021AP519-CR

Dr. Hodges stated that there was nothing that indicated that the cold sore was the
result of a sexual assault.

¶11 Garrett testified in his own defense. He stated that on the night of the
assault, S.L. had come to his home with her daughters and “five or six bags,” as
opposed to just an overnight bag. Furthermore, he said that prior to that night, S.L.
had told him that he “need[ed] to put a roof over her head,” which he told her he
could not do. Garrett denied assaulting M.L.T., stating that he heard of the sexual
assault allegations from S.L. a few days after that overnight stay. He said that when
S.L. accused him of the assault, he asked her, “What are you trying to do, blackmail
me?”

¶12 The jury convicted Garrett of first-degree sexual assault of a child
under the age of thirteen and exposing his genitals to a child; it acquitted him on the
charge of child enticement. He was sentenced to fifteen years of initial confinement
and five years of extended supervision for the sexual assault conviction, and
eighteen months of initial confinement followed by twenty-four months of extended
supervision for the exposing of his genitals charge, to be served consecutively.

¶13 Garrett filed a postconviction motion arguing that his trial counsel was
ineffective for failing to introduce evidence that M.L.T. had a history of cold sores.
The postconviction court3 held an evidentiary hearing in February 2021, where his
trial counsel testified regarding the claim. Counsel explained that the trial court’s
earlier ruling regarding M.L.T.’s herpes diagnosis “precluded [him] from putting on
the defense [he] wanted to put on,” and thus his trial strategy had to “shift.”

3
Garrett’s postconviction motion and evidentiary hearing were before the Honorable
Stephanie Rothstein; we refer to her as the postconviction court.

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No. 2021AP519-CR

¶14 The postconviction court found that counsel testified “clearly and
unequivocally” about the effect of the pretrial ruling regarding M.L.T.’s herpes
diagnosis on his trial strategy, and that “it was with the [trial] [c]ourt’s pretrial ruling
firmly in mind that he went forward.” In particular, the postconviction court noted
Dr. Hodges’ testimony that she was unable to link the “bump” on M.L.T.’s lip to a
sexual assault. Furthermore, the postconviction court found that counsel’s strategy
“very well could have been affected by” M.L.T.’s young age. Thus, the court did
not find counsel’s strategic decisions to be “unreasonable or unprofessional,” and
therefore not deficient. Moreover, the court indicated that even if counsel’s
performance could be deemed deficient, it was “cured” by Dr. Hodges’ testimony,
and further, the record demonstrates that at no time was it “implied that the sore was
anything other than a cold sore.”

¶15 Therefore, the postconviction court denied Garrett’s motion. This
appeal follows.

DISCUSSION

¶16 On appeal, Garrett maintains that his trial counsel was ineffective for
failing to introduce evidence of M.L.T.’s history of suffering from cold sores prior
to the assault “to counter the clear implication of the testimony” that the bump on
M.L.T.’s lip “was the result of and evidence of a sexual assault” by Garrett. To
prove ineffective assistance of counsel, a defendant must show that his trial
counsel’s performance was deficient and that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant “must prevail
on both parts of the test to be afforded relief.” State v. Allen, 2004 WI 106, ¶26,
274 Wis. 2d 568, 682 N.W.2d 433. We review de novo “‘the legal questions of
whether deficient performance has been established and whether it led to prejudice

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No. 2021AP519-CR

rising to a level undermining the reliability of the proceeding.’” State v. Roberson,
2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation omitted). However,
“[a] court need not address both components of this inquiry if the defendant does
not make a sufficient showing on one.” State v. Smith, 2003 WI App 234, ¶15, 268
Wis. 2d 138, 671 N.W.2d 854.

¶17 Based on the record before us in this case, we choose to focus on the
prejudice prong of the Strickland test. See id., 466 U.S. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”). To demonstrate
prejudice, the defendant must show that “counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
However, a defendant “cannot meet this burden by simply showing that an error had
some conceivable effect on the outcome.” State v. Koller, 2001 WI App 253, ¶9,
248 Wis. 2d 259, 635 N.W.2d 838. Rather, establishing prejudice “means showing
that counsel’s alleged errors actually had some adverse effect on the defense.” Id.

¶18 Garrett argues that he was prejudiced by his trial counsel’s failure to
present evidence to eliminate him as the cause of the cold sore on M.L.T.’s lip,
because the jury was left to infer from the testimony that the sexual assault by
Garrett was the source of the sore. However, Garrett has not established that any
error by his trial counsel “actually had some adverse effect on the defense.” See id.
In the first place, the record indicates there was other evidence relating to the sexual
assault that was sufficient to support Garrett’s conviction. Specifically, the jury
heard M.L.T.’s testimony regarding the assault, as well as hearing the testimony of
the officer who conducted her forensic interview and viewing the video from that
interview. The jury also heard S.L.’s testimony regarding her discussion with
M.L.T. about the assault.

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No. 2021AP519-CR

¶19 Furthermore, the jury heard evidence that could have offset any
perceived link between M.L.T.’s cold sore and the assault. Specifically, the jury
heard Dr. Hodges’ testimony that she discovered no physical evidence of a sexual
assault during her examination of M.L.T., and that the source of M.L.T.’s cold sore
was unknown. M.L.T. also testified that she often suffered from cold sores,
although there was no time frame attached to that statement.

¶20 Additionally, the jury heard evidence relating to Garrett’s culpability.
Garrett denied assaulting M.L.T. during his testimony; he also claimed that the
assault allegations were in retaliation for his refusal to allow S.L. to move in with
him. Furthermore, the jury heard an admission by M.L.T. that her memory of the
assault at the time of the trial was “a little fuzzy,” although she stated that she had
told “the truth” to the officer who conducted the forensic interview. It is up to the
jury to “determine the credibility of the witnesses and the weight to be afforded their
testimony,” see Nowatske v. Osterloh, 201 Wis. 2d 497, 511, 549 N.W.2d 256 (Ct.
App. 1996), and we are bound to accept the reasonable inferences that the jury drew
from that evidence, see State v. Forster, 2003 WI App 29, ¶2, 260 Wis. 2d 149, 659
N.W.2d 144.

¶21 Therefore, because the jury heard evidence beyond the issue of
M.L.T.’s cold sore that was sufficient to support Garrett’s conviction, we conclude
that the outcome of Garrett’s trial was not unreliable. See Strickland, 466 U.S. at
687. As a result, he has not established that he was prejudiced by any potential
deficiencies in his trial counsel’s performance. See id. Accordingly, we affirm his
judgment of conviction and the order denying his postconviction motion.

By the Court.—Judgment and order affirmed.

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No. 2021AP519-CR

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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