State v. Sergio Moises Ochoa

2022 WI App 35

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP1981-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SERGIO MOISES OCHOA,

DEFENDANT-APPELLANT.†

Opinion Filed: June 30, 2022
Submitted on Briefs: February 24, 2022
Oral Argument:

JUDGES: Gundrum, P.J., Neubauer and Grogan, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Steven Roy, Law Office of Steven Roy.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of John A. Blimling, assistant attorney general, and Joshua L.
Kaul, attorney general.
2022 WI App 35

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 30, 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. 2020AP1981-CR Cir. Ct. No. 2017CF478

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SERGIO MOISES OCHOA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Sheboygan County:
REBECCA L. PERSICK, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

¶1 GROGAN, J. Sergio Moises Ochoa appeals from a judgment entered
after a jury found him guilty of two counts of first-degree reckless homicide,
No. 2020AP1981-CR

contrary to WIS. STAT. § 940.02(1) (2019-20).1 Ochoa argues the trial court violated
his constitutional right to present a defense when it: (1) excluded evidence about
the victims’ past violent acts; (2) excluded three of his proposed expert witnesses;
and (3) limited his testimony about why he returned to the home of one of the
victims in the middle of the night. He further contends the trial court erroneously
exercised its discretion when it refused to modify WIS JI—CRIMINAL 1016 to
include within it a portion of WIS JI—CRIMINAL 805. We affirm.

I. BACKGROUND

¶2 In August 2017, the State charged Ochoa with two counts of first-
degree intentional homicide arising out of an incident that occurred in the early
morning hours of July 30, 2017. The victims were Luis Garcia, who was Ochoa’s
cousin, and a friend, Fernando Lopez. Ochoa pled not guilty and asserted at trial
that he shot both men in self-defense when an argument arose about why Ochoa
changed his mind about having Garcia act as the godfather for Ochoa’s son’s First
Communion. As a part of his self-defense case, Ochoa argued that the combination
of the alcohol and cocaine in Garcia’s and Lopez’s blood caused them to act
erratically and threaten Ochoa, which caused Ochoa to believe he needed to shoot
them to survive.2

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
The toxicology reports run as part of the autopsies showed Garcia’s blood alcohol
concentration was .108 and showed he had both cocaine and THC in his system. Lopez’s blood
alcohol concentration was .16 and showed he had cocaine in his system.

2
No. 2020AP1981-CR

¶3 Ochoa filed thirty-eight motions in limine. As material here, in
support of his self-defense theory, Ochoa filed a motion seeking to introduce
evidence that “related to past acts of violence” of both victims, which is commonly
referred to as McMorris evidence.3 The State objected to Ochoa’s McMorris
evidence, asserting that Ochoa had failed to provide sufficient information to
establish its relevance and that even, if it was relevant, it should be excluded under
WIS. STAT. § 904.03 because any probative value was outweighed by its unfairly
prejudicial nature. The trial court allowed Ochoa “to introduce reputation evidence”
“regarding the decedents’ reputation for violence” but excluded “testimony
regarding specific instances of violent conduct.” Ochoa filed a motion asking the
trial court to reconsider its decision denying the McMorris evidence. The trial court
denied the motion for reconsideration as untimely and for failing to meet the legal
standard for reconsideration.

¶4 Ochoa also filed a notice of his intent to present the testimony of ten
expert witnesses.4 In response, the State filed a motion seeking to exclude seven of
Ochoa’s expert witnesses because each witness was either irrelevant or unreliable
“under the Daubert[5] Standard” set forth in WIS. STAT. § 907.02(1), and it later
submitted a brief laying out its objections to five of Ochoa’s expert witnesses. After
conducting a three-day Daubert hearing, the trial court excluded three of Ochoa’s

3
See McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973). “Evidence of a victim’s
violent character and past violent acts is often referred to as McMorris evidence.” State v. Head,
2002 WI 99, ¶24 n.5, 255 Wis. 2d 194, 648 N.W.2d 413.
4
The ten witnesses were: (1) Lorrine Edwards; (2) Amy Miles; (3) William Johnson;
(4) Michelle Burns; (5) Glenn Hardin; (6) Alfonso Villaseñor; (7) Dr. Phillip Trompetter, Ph.D.,
ABPP; (8) William Wilson; (9) Conrad Zvara; and (10) Marty Hayes.
5
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

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No. 2020AP1981-CR

proffered expert witnesses—Marty Hayes, Alfonso Villaseñor, and Conrad Zvara—
based on concerns about relevance and/or reliability.

¶5 Ochoa’s jury trial took place over the course of seventeen days in
October 2019. On days thirteen and fifteen, Ochoa testified in his own defense.
During his testimony, Ochoa described his friendship with his cousin Garcia over
the years, including how Garcia allowed Ochoa to live with him in California when
Ochoa first moved to the United States from Mexico in 1997 or 1998 and how after
visiting Garcia in Oostberg, where Garcia had relocated, Ochoa moved his family
to Oostburg in 2011. Garcia allowed Ochoa’s family to live with him in Oostburg
for six-to-eight weeks until Ochoa found an apartment. Ochoa testified that at that
time, his relationship with Garcia was “[v]ery good[,]” and they were “more than
cousins”—they “were brothers”—and that Garcia was his closest friend. They
continued to have a good relationship when Ochoa moved away from Oostberg for
a period of time before ultimately returning to the area.

¶6 Ochoa testified that he asked Garcia to be his son’s godfather prior to
his son’s April 2017 First Communion and that Garcia was “very joyful” about this
request. In March 2017, while Garcia and his family were at Ochoa’s house to plan
for the First Communion celebration, Ochoa believed Garcia and Lopez, who was
also present, were consuming cocaine at his house. Ochoa, upset because his son
almost saw the drug use, asked Garcia and Lopez to leave. There was no “big
argument or fight”—Garcia understood Ochoa’s concern, gathered his family, and
left.

¶7 Ochoa testified that after the March 2017 incident, he decided to
choose a different godfather; however, Ochoa did not have a chance to tell Garcia
about the change at that time because Garcia “went to live [in] Milwaukee.” In May

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No. 2020AP1981-CR

2017, Ochoa and Garcia were hanging out together, and Ochoa planned to tell
Garcia that a different family member was chosen to be his son’s godfather at the
April First Communion. However, Ochoa did not get a chance to do so because
Garcia was “really sad” and “crying and telling [Ochoa] about this personal
problem.” Ochoa testified he did not tell Garcia “[b]ecause [Garcia] was really
worried about something serious, so compared with what he was facing, [the
godfather change] was really insignificant.” Ochoa testified his son’s First
Communion had occurred in April 2017 without Garcia and that after May 2017, he
did not see Garcia again until July 2017.

¶8 Ochoa told the jury that on July 29, 2017, his sister and her husband
were visiting from Mexico and had brought asthma inhalers from Mexico. At about
10:30 or 11:00 p.m., Ochoa and his brother-in-law went over to Garcia’s house to
deliver some of the inhalers. Ochoa also brought a bucket of beer and rum as a gift
for Garcia. Ochoa, his brother-in-law, Garcia, and Lopez all had a beer together.
After about twenty or thirty minutes, Ochoa told Garcia he needed to get back home.
Ochoa testified that he went home and slept for about two or three hours and then
woke up because he remembered that his cousin Garcia “had been very insistent”
about wanting to talk to Ochoa that night. The parties then argued about whether
Ochoa could testify about statements Garcia had made to Ochoa that caused him to
return to Garcia’s home when Ochoa woke up at 2:00 a.m. that morning. Ultimately,
the trial court allowed Ochoa to testify about his reason for returning to Garcia’s
home in the middle of the night.

¶9 Ochoa also told the jury he had recently obtained his concealed carry
permit and had grown up learning how to use guns. The jury also learned that Ochoa
did not take his gun into Garcia’s home when he went there with his brother-in-law,
but he did take the gun into the Garcia home when he went back at 2:00 a.m. on July

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No. 2020AP1981-CR

30th. Ochoa testified this was out of concern about a recent robbery in the area
since he was going alone. Ochoa told the jury that when he first arrived at the Garcia
home at 2:00 a.m., Garcia and Lopez were happy to see him but that things got
heated when they began to argue about Ochoa’s decision to not have Garcia as his
son’s First Communion godfather. Ochoa said Lopez had a pocketknife that he
opened and closed “[m]aybe four or five times” and made threats that Ochoa felt
meant they were going to kill him. The threats, spoken in Spanish, were interpreted
as “you are so screwed,” but Ochoa testified that he had interpreted them to be death
threats, more like, “I’m going to kill you. You’re going to die” or “[y]ou’re gonna
get screwed.”6

¶10 Ochoa also testified that he began walking into the kitchen and then
looped back through the living room about five times. He then tried to open the
back door once but testified Garcia came up behind him with a knife and said he
was not leaving. Ochoa walked back to the living room where he felt that he was
about to be attacked. Ochoa shot Lopez first and then Garcia when Garcia lunged
at him. Ochoa then left the home with the intent to go directly to the police
department but did not arrive at the Sheboygan Police Department until about an
hour after the shootings. During the drive, Ochoa tossed his gun holster out the
window.

¶11 Garcia’s son, J.G., was upstairs playing video games with two friends
at the time of the shooting. J.G. and his friends heard the shots and got scared. They
were afraid to go downstairs in case the shooter was still present, but eventually one

6
The Spanish words were: “Te va a llevar la verga” and “Ya te llevó la verga[.]” In his
“Summary of Expert Opinions of Alfonso Villaseñor,” one of the excluded experts, Ochoa posited
that Villaseñor would testify that these phrases meant “[y]ou’re gonna get fucked up” or “[y]ou’re
fucked, now[.]” Spanish interpreters were utilized throughout the course of the trial.

6
No. 2020AP1981-CR

of J.G.’s friends went out through the window and jumped down to the ground. The
friend saw Garcia and Lopez lying on the living room floor, presumably shot to
death, and then called J.G. to report what he saw before driving home. J.G. and the
remaining friend then went downstairs, and J.G. woke up his uncle who lived with
them and had been sleeping in his bedroom located on the main floor of the house.
The uncle attempted CPR and called 911 because J.G. had not already done so.

¶12 When EMTs arrived, they determined both Garcia and Lopez were
deceased. The Sheboygan Sheriff’s Department and Police Department conducted
an investigation. They located multiple bullets and multiple casings that were
eventually connected to Ochoa’s gun. Both Garcia and Lopez were shot multiple
times. The police did not find any weapons in the living room at the Garcia home
aside from the pocketknife recovered from a pocket in Lopez’s cargo shorts.

¶13 When Ochoa arrived at the Sheboygan Police Department, he asked
for a Spanish-speaking officer, but one was not immediately available. Ochoa told
police that he was “sad” and that he “didn’t mean to hurt anybody,” that he had done
something “bad,” and that the gun was in his car. Police impounded Ochoa’s car,
retrieved the gun, and obtained a search warrant for Ochoa’s home. Police
recovered additional handguns and ammunition from Ochoa’s home.

¶14 After the close of testimony, the trial court determined which jury
instructions would be given to the jury. The only jury instruction issue Ochoa raises
on appeal is whether the trial court erred in denying his request that pattern jury
instruction WIS JI—CRIMINAL 1016 be modified to include language from WIS JI—
CRIMINAL 805, which incorporates the definition of “reasonably believes” found in
WIS. STAT. § 939.22(32).

7
No. 2020AP1981-CR

¶15 The trial court expressed its preference to use the pattern jury
instructions without modifications but explained that if Ochoa’s counsel provided it
with authority to make the modification to the pattern instruction, it would consider
doing so. Ochoa’s counsel pointed to the statutory definition of “reasonably
believes,” but the trial court gave the pattern jury instruction to the jury without
adding the modification.

¶16 The jury returned guilty verdicts on the lesser-included crime of first-
degree reckless homicide on both counts.7 The trial court sentenced Ochoa to twelve
years and six months’ initial confinement followed by five years’ extended
supervision on each count, to run consecutively for a total of twenty-five years’
initial confinement and ten years’ extended supervision. Ochoa appeals.

II. STANDARD OF REVIEW

¶17 Although a trial court’s admission or exclusion of evidence is
reviewed for an erroneous exercise of discretion, we analyze de novo whether a trial
court’s exclusion of evidence deprived a defendant in a criminal case of his
constitutional right to present a defense. State v. Wilson, 2015 WI 48, ¶47, 362
Wis. 2d 193, 864 N.W.2d 52.

¶18 “[A] trial court has wide discretion in instructing the jury based on the
facts and circumstances of each case.” State v. Wenger, 225 Wis. 2d 495, 502, 593

7
The jury was instructed that first-degree reckless homicide requires the jury to find that
the defendant caused death by criminally reckless conduct and that “[c]riminally reckless conduct
means the conduct created a risk of death or great bodily harm to another person, and the risk of
death or great bodily harm was unreasonable and substantial, and the defendant was aware that his
conduct created the unreasonable and substantial risk of death or great bodily harm.” See WIS JI—
CRIMINAL 1016. The jury was further instructed that it must find that the defendant acted recklessly
“under circumstances which show utter disregard for human life.” Id. As discussed later, the jury
was also instructed on the interplay between these charges and Ochoa’s assertion of self-defense.

8
No. 2020AP1981-CR

N.W.2d 467 (Ct. App. 1999). A “trial court has wide discretion in choosing the
language of jury instructions and if the instructions given adequately explain the law
applicable to the facts, that is sufficient and there is no error in the trial court’s
refusal to use the specific language requested by the defendant.” State v. Herriges,
155 Wis. 2d 297, 300, 455 N.W.2d 635 (Ct. App. 1990).

III. DISCUSSION

A. Constitutional Right to Present a Defense

¶19 Ochoa argues that three evidentiary exclusions violated his
constitutional right to present a defense. He contends the trial court: (1) should
have allowed him to introduce evidence about the victims’ prior violent acts;
(2) should have allowed him to call three additional expert witnesses; and (3) erred
in excluding testimony explaining his reasons for returning to the victim’s home in
the middle of the night. Ochoa contends the exclusion of this evidence violated his
constitutional right to present a defense under article I, section 7 of the Wisconsin
Constitution and the Sixth Amendment of the United States Constitution.8

¶20 “Every defendant in a criminal case has the right under the Sixth
Amendment to present his or her defense.” State v. Ward, 2011 WI App 151, ¶16,
337 Wis. 2d 655, 807 N.W.2d 23 (citing Washington v. Texas, 388 U.S. 14, 18-19
(1967)). The right is not absolute, however, as the evidence the defendant seeks to

8
Article I, section 7 of the Wisconsin Constitution provides as relevant: “In all criminal
prosecutions the accused shall enjoy the right ... to meet the witnesses face to face; [and] to have
compulsory process to compel the attendance of witnesses in his behalf[.]” WIS. CONST. art. I, § 7.

The Sixth Amendment of the United States Constitution provides as relevant: “In all
criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him; [and] to have compulsory process for obtaining witnesses in his favor[.]” U.S. CONST.
amend. VI.

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No. 2020AP1981-CR

introduce must be relevant. See Crane v. Kentucky, 476 U.S. 683, 689-90 (1986);
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (“mere absence of
testimony” is insufficient to establish constitutional violation; defendant must show
the excluded “testimony … would have been relevant and material, and … vital to
the defense” (citation omitted; second omission in original)). The admission of
evidence is subject to “the application of evidentiary rules that themselves serve the
interests of fairness and reliability—even if the defendant would prefer to see that
evidence admitted.” Crane, 476 U.S. at 690. Trial courts have “‘wide latitude’ to
exclude evidence that is ‘repetitive …, only marginally relevant,’ or poses an undue
risk of ‘harassment, prejudice, [or] confusion of the issues.’” Id. at 689-90 (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (alteration and omission in
original)). The relevance of the proffered evidence must not be “substantially
outweighed by its prejudicial effect.” State v. Pulizzano, 155 Wis. 2d 633, 646, 456
N.W.2d 325 (1990). For the reasons explained below, the trial court did not violate
Ochoa’s constitutional right to present a defense.

1. Victims’ Prior Acts of Violence—McMorris Evidence

¶21 Ochoa’s first contention is that the trial court erred in refusing to allow
him to introduce evidence about the victims’ prior specific acts of violence—namely
McMorris evidence. As noted, the trial court did allow testimony that the victims
had a reputation for being violent. Our review is therefore limited to whether the
exclusion of testimony regarding specific acts of violence was error.

¶22 In his motions in limine, Ochoa asked the trial court to allow the
McMorris evidence if Ochoa chose to testify. Ochoa filed a brief in support of his
motion, which specifically asserted that he “wishes to introduce evidence of his

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No. 2020AP1981-CR

knowledge of prior specific acts of violence committed by” the victims to show that
the victims “were the first and primary aggressors.” His brief provided the
following information about these prior specific acts of violence:

[B]etween the years of 1993 and 1998 or 1999, Mr. Ochoa
personally observe[d] approximately three-to-four instances
of [Garcia and Lopez] engaging jointly in what he learned to
be pre-emptive, violent and brutal attacks against third
parties that involved kicking and punching the third parties
to the ground during a night of drinking alcohol at Plaza
Santa Maria de Torres in their home community in Mexico
during rodeo events. During the same period of time and
place, Mr. Ochoa personally observed [Garcia] in two-to-
three separate instances launch similar style of attacks
against third parties. Mr. Ochoa observed third parties,
including the relatives of the owners of the Plaza Santa
Maria de Torres, Chino Morales, intervene to break up the
fights, and red cross workers attend to the injured third
parties, whose faces were often cut and who were sometimes
left unconscious, after [Garcia and/or Lopez]
fled. Mr. Ochoa was aware that [Garcia and Lopez] would
provoke the fights by intervening with a male who was
dancing with his girlfriend to provoke him to fight, or threw
Model beer cans at one or more males. In one instance, Mr.
Ochoa recalls that [Garcia] stole a <<chicharra>>, or an
electrical wire used to shock bulls that would sometimes be
used by those trying to break up fights, and used it to shock
the person who he was fighting to inflict additional carnage.
Mr. Ochoa would indicate that although other males in his
peer group would also pick fights at these types of events, he
was aware of [Garcia and Lopez’s] reputation for behaving
extremely violently and aggressively when drinking. Mr.
Ochoa was also aware during the same relevant years that
[Garcia and Lopez] would fight with others at annual fiestas,
including festivals at San Sebastial el Grande in San Agustin
and in Santa Maria in Tlajomulco, as well as Santa Anita in
Tlaquepaque. Mr. Ochoa indicates that he was aware that
[Garcia and Lopez] would use unconventional weapons such
as rocks and broken beer bottles during these fights to inflict
maximum carnage. From 1999 through 2017, both [Garcia
and Lopez] on various occasions would reminisce in Mr.
Ochoa’s presence about their violent exploits in Mexico,
ganging up and beating people in tandem, as well as fights
they had been involved in while living in the United States,
including California and Wisconsin. Mr. Ochoa never
witnessed any of the fights in the United States, which
[Garcia and Lopez] described themselves as having been

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No. 2020AP1981-CR

violent and successfully ganging up on and beating up other
individuals in a manner similar to what Mr. Ochoa had
personally observed or been told about third hand.

¶23 The State objected to the admission of this McMorris evidence, noting
it is proper to exclude it when it is too remote, see McMorris v. State, 58 Wis. 2d
144, 151, 205 N.W.2d 559 (1973), or if the application of the WIS. STAT. § 904.03
balancing test shows the evidence should be excluded. See State v. McClaren, 2009
WI 69, ¶21, 318 Wis. 2d 739, 767 N.W.2d 550 (trial court has the “responsibility to
vet the evidence prior to admission to be sure it is valid McMorris evidence”).

¶24 The State asserted that:

[E]vidence of the decedent’s actions between 1993 and 1997
or 1998 is not relevant given the significant time that elapsed
between the dates and the charged offense in 2017. Further,
the claimed reminiscing testimony should be denied without
more explanation because the court is unable to identify the
dates, circumstances, frequency or other indicia of reliability
or reasonableness of the offered testimony. Without more
information the court is not in a position to evaluate the
probative value of the evidence as opposed to its danger of
unfair prejudice, nor to evaluate whether the offered
testimony would confuse the issues, mislead the jury, delay
the case, or waste the jury’s time.

In ruling on the McMorris motion, the trial court addressed the pertinent case law
and relied specifically on State v. Head, 2002 WI 99, ¶128, 255 Wis. 2d 194, 648
N.W.2d 413, which held that “[a]dmissibility is not automatic.” Head provides:

If the court determines that the [McMorris] evidence is
relevant, the [trial] court should admit it as it would any other
relevant evidence, excluding it only if its “probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” WIS. STAT. § 904.03.

Head, 255 Wis. 2d 194, ¶129.

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No. 2020AP1981-CR

¶25 The trial court then applied the precedential case law to Ochoa’s case.
It said:

In this case the defendant wants to introduce three to four
instances of [Garcia and Lopez] engaging in preemptive
violent attacks against someone else between the years of
1993 and 1998 or ‘99. He wants to introduce an additional
two to three similar acts by [Garcia] alone during that same
time period. All of those acts occurred in Mexico during a
night of drinking.

And then he further wants to introduce that between 1999
and 2017 both [Garcia and Lopez] would reminisce about
ganging up on people in Mexico as well as in the U.S., but
the defendant doesn’t provide any time frame for the
incidents which allegedly occurred in the U.S.

¶26 The trial court then addressed whether the McMorris evidence was
relevant, specifically “whether the evidence relates to a fact of consequence and
whether the other act makes the consequential fact more or less probable.” The trial
court noted that the case law provides “a way to measure the probative value,” which
“is to look at the similarity in time, place, and circumstance between the other act
and the current incident.” The trial court first looked at the three or four specific
acts of violence Ochoa claimed he personally observed in Mexico. First, the trial
court noted these acts occurred:

 “18 or more years prior to the homicides”;

 “in Mexico … in public places, such as rodeos or bars”;

 “None of them occurred in private homes or to family members”;
and

 “There’s no allegation that [Garcia and Lopez] in those prior
incidents ever threatened anyone with death or actually used
deadly force against anyone.”

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No. 2020AP1981-CR

¶27 The trial court ruled these prior acts of violence were “of questionable
probative value” because they were too remote, too dissimilar, and would not
“reasonably bear on the defendant’s apprehension of danger.” Even if these acts
were “arguably relevant,” the trial court found that “admitting them would be more
prejudicial than probative” under WIS. STAT. § 904.03.

¶28 With respect to admitting evidence about the victims bragging about
the specific violent Mexico acts and the alleged similar violent acts occurring in the
United States, the trial court found “there are no details provided about time, place,
or circumstance. Nor is there any detail about how often or at what intervals these
alleged recent attacks occurred.” The trial court said that “without that information,
there’s no way for me to determine the repeated admissions about new assaults
remained sufficiently constant over the years as alleged by
Mr. Ochoa.” Additionally, the trial court found there was insufficient specificity
from which “a reasonable jury could find by a preponderance of the evidence that
the other acts occurred.”

¶29 We conclude the trial court’s decision to exclude the McMorris
evidence was not erroneous. The trial court considered the applicable law, applied
the pertinent facts, and reached a reasonable determination. See State v. Payano,
2009 WI 86, ¶51, 320 Wis. 2d 348, 768 N.W.2d 832. The “three or four” Mexico
violent acts that Ochoa sought to admit were not relevant for the reasons expressed
by the trial court. First, the Mexico acts were too remote from the present act. These
were acts by the victims almost twenty years before the homicides—before Ochoa
and Garcia moved to the United States and lived together first in California and then
in Oostburg where they were raising their families. Ochoa, his wife, and three
children moved into (and shared) Garcia’s home multiple times, and Ochoa
described Garcia as “a brother.” Their families were close and celebrated birthdays

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No. 2020AP1981-CR

together where both Garcia and Ochoa drank, and although Ochoa argues that
Garcia’s drug use in front of his children distanced them in 2017, for almost twenty
years after the Mexico acts purportedly occurred, even Ochoa had no concerns about
the “three or four” violent incidents by Garcia and Lopez after these men moved to
the United States. Second, the Mexico acts were dissimilar to what transpired the
night Ochoa shot Garcia and Lopez. The Mexico events were at public places—not
Garcia’s home—the targeted subjects were strangers—not family—and there were
no threats to kill. The trial court’s decision to exclude the Mexico events was
reasonable.

¶30 The alleged United States-specific violent acts and Garcia and
Lopez’s alleged “bragging” were also properly excluded. Ochoa failed to provide
any specific information on these acts, and the trial court found that based on the
information Ochoa offered, a reasonable jury would not be able to find that those
acts occurred. McMorris evidence must be relevant and not unduly prejudicial. If
the jury had no basis to find the proffered acts occurred, then they could not be
relevant. Excluding McMorris evidence that was irrelevant does not violate
Ochoa’s right to present a defense.9

9
Ochoa asserts the trial court’s decision does not stand up against the five-factor test set
forth in State v. Pulizzano, 155 Wis. 2d 633, 656, 456 N.W.2d 325 (1990):

(1) that the prior acts clearly occurred; (2) that the acts closely
resembled those of the present case; (3) that the prior act is clearly
relevant to a material issue; (4) that the evidence is necessary to
the defendant’s case; and (5) that the probative value of the
evidence outweighs its prejudicial effect.

Id. at 656. The State points out that Pulizzano is not specifically a McMorris evidence case, but
instead addresses the rape shield law. See Pulizzano, 155 Wis. 2d at 638. The State is correct.
Pulizzano does not mention McMorris evidence and only addresses the constitutional right to

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No. 2020AP1981-CR

2. Excluded Expert Witnesses

¶31 Ochoa next complains that the trial court violated his right to put on a
defense when it excluded three of his expert witnesses: (1) Marty Hayes;
(2) Alfonso Villaseñor; and (3) Conrad Zvara. Ochoa asserted that Hayes would
offer his opinion about:

(1) the dynamics of violent encounters, including the risk of
an armed defender having his weapon disarmed when he is
outflanked; (2) the use of spent cartridge casings and other
physical evidence to infer shooter location; and (3) the
analysis of the trajectory of bullets, and other ballistic
evidence, to infer the manner in which the two deceased
individuals were shot.

At the Daubert hearing, Hayes testified that he is a firearms expert, he was retained
to review the crime scene photos and do a crime scene reconstruction, and that he
uses forensic mannequins to determine bullet trajectory. Ochoa indicated that
Alfonso Villaseñor “is a certified federal interpreter in Spanish-to-English and
English-to-Spanish” and would give his opinion as to the slang meaning of the
phrases Lopez used that Ochoa understood to be a death threat. Ochoa filed a
summary of Villaseñor’s anticipated testimony stating that Villaseñor would testify
that “Te va a llevar la verga” best translates to “You’re gonna get fucked up” or
“You’re gonna get fucked” and that Villaseñor would explain that “the speaker’s
emotion when using the tone can have an affect [sic] on how the listener interprets
the phrase, such as whether he or she may be joking or serious.” According to

present a defense in the context of “excluded evidence of a child complainant’s prior sexual conduct
for the limited purpose of proving an alternative source for sexual knowledge[.]” Pulizzano, 155
Wis. 2d at 656. Even if we applied the Pulizzano test, we would still uphold the trial court’s
rulings. The Mexico acts do not “closely resemble[] those of the present case[,]” and the prejudice
of admitting such testimony outweighs the probative value. See id. The alleged acts in the United
States and the “bragging” likewise do not satisfy the Pulizzano factors because there was
insufficient information to show that the prior acts clearly occurred. See id.

16
No. 2020AP1981-CR

Ochoa, Conrad Zvara “is a retired Lieutenant of the Milwaukee Police Department
and Captain in the United States Coast Guard who is a certified Self-Defense and
Deadly Force instructor.” Ochoa indicated that Zvara planned to testify about the
use of deadly force and help the jury assess the reasonableness of Ochoa’s actions
given the circumstances in the Garcia living room at the time of the shooting. Zvara
testified at the Daubert hearing that he relied on “some of the opinions” in other
“defense expert reports,” including Hayes’s, to write his report.

¶32 In determining whether the exclusion of a defendant’s expert witness
violated his constitutional right to present a defense, our supreme court has
established a two-part inquiry. See State v. St. George, 2002 WI 50, ¶53, 252
Wis. 2d 499, 643 N.W.2d 777. The first part requires that the defendant satisfy four
factors: (1) the expert’s testimony must meet the standards of WIS. STAT. § 907.02;
(2) the testimony must be “clearly relevant to a material issue”; (3) the testimony
must be “necessary to the defendant’s case”; and (4) “[t]he probative value of the
testimony of the defendant’s expert witness outweigh[s] its prejudicial effect.” St.
George, 252 Wis. 2d 499, ¶54. If the four factors of the first part are satisfied, then
the court moves on to the second part of the inquiry, namely “whether the
defendant’s right to present the proffered evidence is nonetheless outweighed by the
State’s compelling interest to exclude the evidence.” Id., ¶55. “[W]hether to admit
proffered expert testimony” “is within the [trial] court’s discretion[.]” State v.
Dobbs, 2020 WI 64, ¶27, 392 Wis. 2d 505, 945 N.W.2d 609. If the trial court’s
decision “‘had a reasonable basis’ and ‘was made in accordance with accepted legal
standards and in accordance with the facts of record[,]’” we will not reverse the trial
court’s decision. Id. (citation omitted). The trial court excluded these three
witnesses under § 907.02—the first factor of the first part of the St. George inquiry.

17
No. 2020AP1981-CR

Because we conclude the trial court’s decision was proper on that basis, we need
only address the first factor of part one of the St. George inquiry.

¶33 After the Daubert hearings, the trial court rendered an oral decision
excluding Hayes, Villaseñor, and Zvara under the first St. George factor because
these three experts did not meet the standards of WIS. STAT. § 907.02. Section
907.02(1) provides:

If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and methods,
and the witness has applied the principles and methods
reliably to the facts of the case.

The trial court acknowledged that its role is to act as “a gatekeeper” to determine
whether the expert testimony is both reliable and relevant. It noted that “a trial judge
is to determine whether an expert is proposing to testify to scientific knowledge that
will assist the trier of fact to understand or determine a fact of issue, whether the
reasoning or methodology underlying the testimony is scientifically valid, and
whether the reasoning or methodology can be applied to the facts in issue.”

¶34 The trial court explained why it was excluding Hayes. First, it “had
some real concerns about the basis of his opinions.” Although Hayes had “some
experience as a former member of law enforcement,” it was “very dated” and “didn’t
involve analysis of crime scenes to the degree he’s being called -- would be called
to testify in this case.” Second, the trial court had concerns that Hayes did not have
sufficient education to offer opinions about “crime scene reconstruction, forensic
pathology, or the movement of bullets in the human body,” as he based “a lot of his
conclusions on his own experiments firing weapons and using mannequins and rods

18
No. 2020AP1981-CR

to trace the trajectory of the bullets.” The trial court saw this as “troubling” “because
mannequins don’t have bone that can change the trajectory of bullets” and because
“people’s bodies may be moving as they’re being shot, unlike a mannequin’s, which
is stationary.” It concluded that Hayes’s methodology was unreliable because
“comparing how a bullet travels through a mannequin versus a human body” is
“vastly different. It’s comparing apples to oranges.”

¶35 The trial court’s decision as to Hayes was not erroneous because it
reached a reasonable determination after considering the specific facts and applying
the correct law. It had valid concerns about the reliability of Hayes’s opinions and
acted within its gatekeeper function to exclude this witness.

¶36 In addressing Villaseñor, the trial court explained that it found his
testimony to be irrelevant. It reasoned:

There’s no need for an expert to testify about meanings
of words or phrases because the only person the meaning
mattered to was Mr. Ochoa [who] was the hearer of those
statements. So it’s also excluded on relevance grounds.

I know the defense argued that it would help establish Mr.
Ochoa’s credibility if it re-enforced -- if this witness re-
enforced Mr. Ochoa’s perceptions of the words that were
used. But I don’t think that’s necessarily true because it
would require the jury to believe Mr. Ochoa was reciting the
words accurately. So they’re going to need to believe Mr.
Ochoa one way or the other anyway. And if they believe
him, then they’ll believe his take on those words. So I just
don’t think it’s relevant. I think it would be cumulative, and
it’s not necessary.

¶37 Excluding Villaseñor under WIS. STAT. § 907.02 as irrelevant was a
reasonable decision by the trial court. No one except Ochoa knew exactly what
Lopez said that night, and no one except Ochoa knew the tone or context of those
statements. The only relevance of the slang translation was what Ochoa understood

19
No. 2020AP1981-CR

the phrase to mean. Ochoa told the jury what the phrase Lopez used meant to him:
“With the tone of voice and the manner of which he was saying it, it was like a threat
to me. He said -- he was telling me I’m going to kill you. You’re going to die.”
The jury is charged with assessing credibility. It could have chosen to believe
Ochoa’s account of what happened. And if the jury believed Ochoa’s account, it
had no reason to doubt Ochoa’s testimony about the meaning of Lopez’s statements.
Presenting Villaseñor’s translation would have been a waste of time and potentially
created confusion. Moreover, the words “You’re gonna get fucked up” or “You’re
gonna get fucked” do not necessarily equate to “I’m going to kill you” or “You’re
going to die”—further supporting the trial court’s exclusion as reasonable.

¶38 The trial court made the decision to exclude Zvara’s testimony
because it was “based in part on information from Mr. Hayes,” which it had already
found to be unreliable. It therefore concluded that Zvara’s opinions based on that
information would likewise be unreliable. In addition, the trial court found Zvara’s
opinions to be irrelevant: “Mr. Zvara’s observations aren’t relevant to those of the
defendant and whether he was reasonable in his thoughts and actions. The jury
needs to consider the defendant’s thoughts and actions. So testimony about typical
use of force situations just isn’t relevant. So I’m going to exclude his testimony on
those grounds.”

¶39 The trial court’s decision on Zvara was reasonable. Zvara’s testimony
relied on Hayes’s opinion, which was excluded as unreliable. It logically follows
that any opinion Zvara formed based on Hayes’s opinion is also unreliable. As for
Zvara’s testimony that did not rely on Hayes’s opinion, the trial court saw it as
irrelevant. Zvara focused on use-of-force principles. Here, the jury was tasked with
assessing whether Ochoa’s thoughts and actions were reasonable. The trial court
acted reasonably in excluding testimony it found to be both unreliable and

20
No. 2020AP1981-CR

irrelevant. As noted, it had “wide latitude to exclude evidence that is repetitive …,
only marginally relevant or poses an undue risk of harassment, prejudice, [or]
confusion of the issues.” Crane, 476 U.S. at 689-90 (alteration and omission in
original; citation and internal marks omitted).

¶40 In summary, the trial court’s determination that three of Ochoa’s
expert witnesses did not meet the standard under WIS. STAT. § 907.02(1) was not
erroneous, and Ochoa has therefore failed to establish their exclusion was a violation
of his constitutional right to present a defense.

3. Reason-for-Returning Testimony

¶41 Ochoa also argues that the trial court improperly prohibited him from
testifying about the reason he returned to Garcia’s home when he awoke during the
middle of the night. Specifically, Ochoa wanted to tell the jury that Garcia made
statements asking Ochoa to return that night to talk about something important and
that it needed to be that night because Garcia was leaving for Milwaukee the next
day and did not know when he would be returning to Oostburg. Although the
admissibility of Garcia’s statements to Ochoa that prompted Ochoa’s return that
night was the subject of much debate, the record demonstrates that although the trial
court did not allow Ochoa to testify as to the specific content of Garcia’s request, it
nevertheless allowed Ochoa to explain that he returned to Garcia’s house in the
middle of the night specifically because Garcia had asked him to return to talk about
something important that night because Garcia was leaving for Milwaukee the next
day. We set forth exactly what the record reflects.

¶42 Ochoa testified that after returning home from his first visit to
Garcia’s house that evening, he slept for about two or three hours and then woke up
because he remembered that his cousin, Garcia, “had been very insistent” about

21
No. 2020AP1981-CR

something. At that point, the prosecutor objected on hearsay grounds, and after a
sidebar, the trial court sent the jury out of the courtroom. The trial court recounted
the sidebar discussion for the record, explaining that the defense “wanted to
introduce testimony of what the decedent, Luis Garcia, had said that led
Mr. Ochoa to return to the house that evening in the middle of the night or the middle
of the morning, early morning.”

¶43 Ochoa’s trial lawyer argued that “the jury is entitled to hear the actual
account of the person who was there and understand the reason why he returned to
the house[.]” The defense wanted to offer something to dispel the inference that
Ochoa “had some kind of intent to kill based on using a firearm and having it with
him and going back to a house late at night.” In response to the prosecutor’s concern
that testimony about what Garcia said would be inadmissible hearsay if offered for
the truth of the matter asserted, Ochoa’s trial lawyer argued that Ochoa had a
constitutional right “to explain his intent and motive, to explain the background why
that statement had an effect on him, enough to get him out of bed in the middle of
the night[.]”

¶44 The trial court did not make an immediate decision because it wanted
to research the issue. After considering relevant case law, the trial court ruled that
Ochoa could testify about his reason for returning to Garcia’s home in the middle
of the night. Specifically, the trial court concluded Ochoa could testify: “that when
he left the house, he was under the impression that Luis Garcia wanted him to return
that evening, later that evening. And he can certainly testify to his own statement
that he said he would if he could.” The trial court explained:

I am not trying to limit his defense. I am trying to follow the
law to the best of my ability, which is why I think it is fair to
allow some explanation of why he returned, but the entirety
of the conversation is nothing that the jury needs to hear. For

22
No. 2020AP1981-CR

you to present a complete defense, the jury needs to know
that your client was under the impression that Luis Garcia
wanted him to come back that evening and that he said he
wouldn’t be.

The trial court added:

And the other thing I just wanted to put on the record
regarding my decision on what can come out about why Mr.
Ochoa returned to the residence, is that he could have gone
over there for any number of reasons, none of which
involved the intent to commit a homicide.

What happened after he got there, I think, as I already
said, that would be relevant, but going over even at the
victim’s insistence isn’t in my opinion relevant, because
there are too many interceding possibilities for the intent to
commit a homicide to form after that to come into play.

¶45 Ochoa filed a motion to reconsider the trial court’s decision on what
Ochoa could testify to regarding Garcia’s statement instructing Ochoa to “come
back” to Garcia’s home the night of the shooting. In addressing Ochoa’s
reconsideration motion, the court clarified its ruling:

Most of my decision was based on the Wilson[10] case and
the Nieves[11] case and how I perceive these statements. I’m
having difficulty understanding why the defense keeps
asserting that I’m not allowing the defendant to testify to the
effect of these statements on him because I’ve already said
that he can certainly testify that he was under the impression
that he was to come back.

He can certainly testify as to Luis Garcia’s demeanor, that
he seemed upset or that he seemed however his demeanor
appeared because that's not hearsay. He can certainly testify
to his own statements. So I don’t understand where the
defense is coming from when they’re saying I’m denying the

10
State v. Wilson, 160 Wis. 2d 774, 777, 467 N.W.2d 130 (Ct. App. 1991) (a court may
properly admit statements, not for their truth, but rather to show their effect on the listener’s state
of mind).
11
State v. Nieves, No. 2014AP1623-CR, unpublished slip op. (Apr. 5, 2016), rev’d, 2017
WI 69, 376 Wis. 2d 300, 897 N.W.2d 363.

23
No. 2020AP1981-CR

defendant the ability to fully present his defense or to present
that part of the defense.

What I’m trying to do is comply with the law as I
understand it on hearsay. I don’t know that the specific
statement by the defendant has actually -- that the defendant
wants to offer that Luis Garcia made was ever specifically
imparted to me. What it says in the motion is that the
statement is come back, cousin. If that’s the statement, I
think that he can testify to that as to effect on listener, come
back, cousin. But to get into all the extra stuff, the discussion
about plans, et cetera, I think that would be a violation of the
hearsay rule for the reasons I already went into yesterday.

¶46 When Ochoa resumed his direct testimony, the following exchange
occurred between Ochoa and his trial counsel:

Q We talked about during the night you woke up during
the middle of the night because you were worried
about something?

A Yes.

Q What were you worried about?

A Well, because of my cousin Luis. Hours prior he had
insisted that I go to his house because he wanted to
talk about something with me.

¶47 After Ochoa’s answer, the prosecutor interrupted, stating: “Judge, the
State previously objected to hearsay.” Although the trial court responded by asking
Ochoa’s trial lawyer if he “need[ed] clarification on the decision[,]” the trial court
did not ultimately rule on the objection or strike Ochoa’s answer. Defense counsel
continued questioning Ochoa:

Q Sergio, did Luis tell you, cousin, come over to my
house?

A Yes. He insisted that I go back to him. And I was
under the impression that he had something really
important to tell me.

24
No. 2020AP1981-CR

Q Do you remember what time he insisted to you to
come back or where you were when he was with
you?

This drew another objection from the prosecutor as to “the first part of that multipart
question.” The trial court sustained the objection but did not direct the jury to
disregard any part of the question or the previous answer. The jury then heard the
following exchange:

Q Where was Luis when he told you to come back?

A We were at his house the first time that I went with
him.

Q And when you saw him, without saying more about
what he said to you, what kind of demeanor did he
have at the time? Was he joking, serious?

A Well, when he insisted me to go back later, he was
being serious.

Q When you woke up in the middle of the night, why
did it bother you so much that he said come back to
the house?

A I thought that he had something really important to
tell me.

The trial court then sustained an objection to defense counsel’s question about
whether Ochoa “[knew] why [Garcia] wanted [him] to come back to the house[,]”
but the trial court allowed the following:

Q Without using any words about what Luis has
previously said, had you ever seen your cousin make
a request with that type of serious demeanor before?

A No. I have never seen him.

Q Were you able to go back to sleep after you woke up?

A After? No.

Q What did you do?

25
No. 2020AP1981-CR

A I got dressed. I got out of my house and got going to
[Garcia’s] house.

¶48 During re-direct, Ochoa testified that Garcia wanted him to return to
his house that night because he (Garcia) “said that he wanted to talk with me because
the next day very early he was going back to Milwaukee” and that “he was gonna
be there for two or three weeks.” Ochoa also testified that Garcia did not live in
Oostburg anymore because he had moved to Milwaukee for work.12

¶49 Thus, although the jury did not hear what Garcia specifically said, the
statements that Ochoa asserts were erroneously excluded were not actually
excluded.13 The jury heard the reason why Ochoa returned to Garcia’s house in the
middle of the night and that Garcia had insisted that Ochoa come back that night
before Garcia left for Milwaukee. Accordingly, we cannot conclude that the trial
court’s rulings in this regard violated Ochoa’s constitutional right to present a
defense.

B. Jury Instruction

¶50 Ochoa’s final contention is that an error in the jury instructions
warrants a new trial. Specifically, he argues the trial court erroneously exercised its
discretion when it failed to modify WIS JI—CRIMINAL 1016 to include WIS. STAT.
§ 939.22(32)’s definition of “reasonably believes[.]” Ochoa points out that while

12
According to other testimony, Garcia “stayed” in Milwaukee during the week for his
job but came home to Oostburg on the weekends.
13
Ochoa does not develop any argument that what Garcia wanted to discuss was relevant,
nor does he provide substantive information as to what was allegedly erroneously excluded. In any
event, as the State points out, Ochoa later testified that they discussed why Ochoa had not visited
Garcia and why Ochoa did not want Garcia to be the godfather to his son.

26
No. 2020AP1981-CR

the definition of “reasonably believes” is present in WIS JI—CRIMINAL 805, the
definition is absent from WIS JI—CRIMINAL 1016.

¶51 As relevant here, Wisconsin law provides the following as to self-
defense:

A person is privileged to threaten or intentionally use force
against another for the purpose of preventing or terminating
what the person reasonably believes to be an unlawful
interference with his or her person by such other person. The
actor may intentionally use only such force or threat thereof
as the actor reasonably believes is necessary to prevent or
terminate the interference. The actor may not intentionally
use force which is intended or likely to cause death or great
bodily harm unless the actor reasonably believes that such
force is necessary to prevent imminent death or great bodily
harm to himself or herself.

WIS. STAT. § 939.48(1) (emphases added). WISCONSIN STAT. § 939.22 defines
“words and phrases” as used in WIS. STAT. chs. 939 to 948 and 951, and
subsection (32) provides: “‘Reasonably believes’ means that the actor believes that
a certain fact situation exists and such belief under the circumstances is reasonable
even though erroneous.” Sec. 939.22(32).

¶52 WISCONSIN JI—CRIMINAL 1016 is the pattern jury instruction used in
a case such as this involving first-degree intentional homicide, second-degree
intentional homicide, first-degree reckless homicide, and self-defense. See WIS JI—
CRIMINAL 1016 cmt. i. (“This instruction is for a case where first degree intentional
homicide is charged, there is evidence that the defendant acted in self-defense, and
the lesser included offenses of second degree intentional homicide and first degree
reckless homicide are to be submitted to the jury.”). WISCONSIN JI—CRIMINAL 805
is the general self-defense instruction and provides as relevant:

A belief may be reasonable even though mistaken. In
determining whether the defendant’s beliefs were

27
No. 2020AP1981-CR

reasonable, the standard is what a person of ordinary
intelligence and prudence would have believed in the
defendant’s position under the circumstances that existed at
the time of the alleged offense. The reasonableness of the
defendant’s beliefs must be determined from the standpoint
of the defendant at the time of the defendant’s acts and not
from the viewpoint of the jury now.

(Emphasis added; footnotes omitted.)

¶53 Because this case involved the charged first-degree intentional
homicides, the lesser-included offenses of second-degree intentional homicide and
first-degree reckless homicide, and Ochoa’s claim that he acted in self-defense, the
State requested WIS JI—CRIMINAL 1016 because it instructs the jury on the
elements of the charged crime (first-degree intentional homicide) and its
relationship to the two lesser-included offenses (second-degree intentional homicide
and first-degree reckless homicide). This instruction also explains the self-defense
privilege and sets forth how self-defense applies to each of these three homicide
offenses. Ochoa proposed modifying WIS JI—CRIMINAL 1016 to include the
portion of WIS JI—CRIMINAL 805 instructing the jury that “[a] belief may be
reasonable even though mistaken.”

¶54 The trial court considered both positions before deciding how to
instruct on the lesser-included offenses. It “looked at the proposed language that
was submitted by both parties” and concluded that “if the lesser included is
requested, my inclination would be to follow” the pattern instruction, WIS JI—
CRIMINAL 1016, as requested by the State, “because I think it does most closely
match the statutes and the case law.” The trial court also expressed that it was
“always leery to use any sort of instruction that is drafted by either party as opposed
to being a pattern instruction” because “[t]he pattern instructions have been very
well vetted.”

28
No. 2020AP1981-CR

¶55 At the final jury instruction conference, the State argued the evidence
supported instructing the jury on the lesser-included offenses of second-degree
intentional homicide and first-degree reckless homicide and therefore requested the
pattern jury instruction WIS JI—CRIMINAL 1016 because it addressed the original
charge, the lesser-included crimes, and self-defense. Ochoa objected to instructing
on the lesser-included crimes and proposed a modification of the pattern jury
instruction to include WIS. STAT. § 939.22(32)’s definition of “reasonably believes”
as set forth in WIS JI—CRIMINAL 805 (“A belief may be reasonable even though
mistaken.”).

¶56 The trial court agreed the evidence supported submitting the lesser-
included crimes to the jury. The State also argued against Ochoa’s request for an
instruction that added a definition of “reasonably believes”:

As far as the language of the instruction that would be
necessary, I have offered to the Court the pattern instruction.
The Court’s observation about using pattern instructions
because they have been vetted is very appropriate. The
instruction combines the three offenses with self-defense,
and I think it does an excellent job of being clear as to how
the jury is to consider self-defense and the definition of self-
defense for these offenses.

I do not see, much like the pattern instructions have not
seen the need, to add additional language including that
which the defense is offering. So I ask that you read the
standard pattern instruction for the offenses as drafted by the
instruction committee.

Ochoa’s lawyer responded:

The language that has been requested to be added is actually
language that comes from a different pattern instruction. I
think that when you look at what the law requires, you look
at the two statutory definitions; first, the affirmative
privilege of self-defense talking about what reasonable
beliefs mean under those circumstances and specifically the
statutory defined meaning by the legislature.

29
No. 2020AP1981-CR

And that was incorporated for some reason into 805 but
not into I believe it’s 1016. This is a substantive part of self-
defense whether there was a mistake. There’s been
testimony on that particularly from Dr. Trompetter that a
portion of cases of legitimate self-defense can be mistake,
can be mistaken beliefs of the actor. There is no reason other
than to undermine someone’s rights to keep out language
that’s statutory, not by a drafting committee, but that came
directly from the legislature.

So our position is that the Court should follow what the
legislative statutory language proscribes when presenting to
the jury as fact finder what they need to do to understand that
key term, reasonable belief. And part of that definition is
that that belief can be reasonable albeit mistaken. There is
only prejudice to someone to take away a portion of the
definition that relates to their rights for no good reason in
terms of prejudice to the other party.

I think that is a compelling reason to follow the statute
and not to follow what was done by a drafting committee in
this very long instruction and change what they previously
did that undermines and omits the statutory definition that
the Court and all the parties turn to when there’s any
ambiguity about an operational phrase on a key issue such as
self-defense.

¶57 The trial court asked Ochoa’s lawyer if he had “any case law to
support that because self-defense … is commonly used as a defense to homicide”
and noted that the modification Ochoa was requesting had not been added to WIS
JI—CRIMINAL 1016. Ochoa’s lawyer responded that “the plain language of the
statute speaks for itself” but that he would nevertheless “try and pull up additional
case law that stands for that proposition in the context of self-defense.” The trial
court replied: “All right. If you can provide any case law, I’ll take a look at that.
Otherwise my inclination is not to change the pattern instruction.”

¶58 After addressing other jury instructions, the trial court returned to WIS
JI—CRIMINAL 1016 and indicated it would accept 1016 “absent any case law in
support of defense’s argument.” Ochoa’s counsel responded that they were “still
looking for that. There’s only one case that talks about the instruction on self-

30
No. 2020AP1981-CR

defense being inappropriate, so we’re reviewing that.” The trial court eventually
adjourned the jury instruction conference and advised the parties that “it’s going to
take some time for my judicial assistant to try and assemble these packets.
Hopefully we can clean up any last-minute issues at that point. Anything else from
anybody?” Ochoa’s lawyer said he was “just going to keep looking at case law on
the issue of why the statutory language should be incorporated” and that he would
“let the Court know” if he found anything. Nothing was submitted, and the trial
court charged the jury with the pattern instruction WIS JI—CRIMINAL 1016.

¶59 “A trial court has broad discretion in instructing a jury but must
exercise that discretion in order to fully and fairly inform the jury of the applicable
rules of law.” State v. Ellington, 2005 WI App 243, ¶7, 288 Wis. 2d 264, 707
N.W.2d 907. “A circuit court properly exercises its discretion when it fully and
fairly informs the jury of the law that applies to the charges for which a defendant
is tried.” State v. Ferguson, 2009 WI 50, ¶9, 317 Wis. 2d 586, 767 N.W.2d 187.
“The purpose of a jury instruction is to fully and fairly inform the jury of a rule or
principle of law applicable to a particular case.” State v. Hubbard, 2008 WI 92,
¶26, 313 Wis. 2d 1, 752 N.W.2d 839 (citation omitted). Whether an instruction is
supported by the underlying facts is a legal question we review independently.
Ferguson, 317 Wis. 2d 586, ¶9. In reviewing a challenge to jury instructions, we
must view the instructions “‘in the context of the overall charge.’” Ellington, 288
Wis. 2d 264, ¶7 (citation omitted). “Relief is not warranted unless the court is
‘persuaded that the instructions, when viewed as a whole, misstated the law or
misdirected the jury.’” Id. (emphasis added).

¶60 Here, the trial court chose to give the pattern jury instruction that
specifically applies to the homicide crimes and self-defense assertions at issue here.
See WIS JI—CRIMINAL 1016, cmt. i. It is unclear why WIS. STAT. § 939.22(32)’s

31
No. 2020AP1981-CR

definition of “reasonably believes” was added to WIS JI—CRIMINAL 805 but
omitted from WIS JI—CRIMINAL 1016. What is clear, however, is that the trial
court’s decision to give the pattern instruction was not an erroneous exercise of
discretion because this instruction, as a whole, provided the jury with an accurate
instruction as to the law of self-defense under the facts of this case.

¶61 As set forth above, the statutory definition provides that “[r]easonably
believes” means that the “actor believes that a certain fact situation exists and such
belief under the circumstances is reasonable even though erroneous.” WIS. STAT.
§ 939.22(32). As the State points out in its Response brief, Ochoa did not provide
the trial court with any fact situation about which Ochoa claimed he had an
erroneous or mistaken belief that would make the modification applicable, nor did
he do so in his Appellant’s brief. It is only in his Reply brief that Ochoa points to
possible mistaken perceptions that he could have had, but his hypothetical examples
are devoid of any cite to the record identifying a fact about which he was mistaken,
either that he provided to the trial court or to this court on appeal. As the party
requesting it, Ochoa had the burden of production to show that the modification was
appropriate in the context of the facts of the case. See State v. Pettit, 171 Wis. 2d
627, 640, 492 N.W.2d 633 (Ct. App. 1992). He failed to do so.

¶62 As noted, even on appeal, Ochoa has not identified a mistake of fact
relating to his alleged belief in an unlawful interference with his person by the
others, a mistake of fact relating to his alleged belief that his actions were necessary
to prevent or terminate the interference, or a mistake of fact relating to his alleged
belief that the force used was necessary to prevent imminent death or great bodily

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No. 2020AP1981-CR

harm to himself.14 This is not a case, for example, in which a defendant testified to
a mistaken belief that a victim held a gun when she did not.

¶63 Thus, since there was no identified mistake of fact, the instruction
would have had no effect on the jury’s deliberation. Thus, it is clear that an
additional jury instruction advising the jury that a belief can be reasonable even if
mistaken would not have changed the outcome. See State v. Langlois, 2018 WI 73,
¶48, 382 Wis. 2d 414, 913 N.W.2d 812 (an erroneous jury instruction warrants
reversal only when the error is prejudicial).

¶64 As it stands, Ochoa’s examples of “mistaken” beliefs are not based on
mistakes of fact, but rather, present questions about whether his perception of the

14
Ochoa sets forth hypothetical examples based on arguments the State made in its closing
argument. For example, Ochoa argues he could have been mistaken about the need to return to
Garcia’s home that evening. Even if this somehow relates to his beliefs relating to the danger posed
or his use of force, Ochoa did not testify that he was mistaken about the need to return; rather, he
emphasized his belief about his need to return and indicated no uncertainty about his cousin’s
insistence. He also testified that he could not leave because Garcia was behind him with a knife,
and he could not open the back door. However, these examples present issues of fact, and his
conclusion that he was in danger is based on these facts. But there is no mistaken fact identified,
such as for example, that he could not open the door because it was locked when it actually was
not or that Garcia was behind him when he actually was not. His testimony that the door handle
spun and was “tricky to open” was undisputed, as was his testimony about Garcia’s location.

As another example, Ochoa contends he could have made a mistake of fact as to where
Lopez’s knife was or whether Lopez was reaching for a knife. But at trial, Ochoa testified that he
took out his gun and shot Lopez when Lopez reached toward his waist as though he were going to
draw a weapon. Ochoa never suggested that he was mistaken about Lopez’s movement, and he
argued that it was Lopez who was mistaken about where the knife was (counsel argued to the jury
that Ochoa testified that Lopez reached toward his left pocket when it was ultimately found to be
in his right pocket). In short, Ochoa did not testify that he was factually mistaken. These are issues
of credibility and Ochoa’s denial that his perception of the danger was unreasonable. Again, he
has not identified any mistake of fact that factored into that analysis.

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No. 2020AP1981-CR

danger was reasonable. To that end, the jury heard the following proper
instructions, given the facts of this case:15

 “The Criminal Code of Wisconsin provides that a person is
privileged to intentionally use force against another for the
purpose of preventing or terminating what he reasonably
believes to be an unlawful interference with his person by
the other person. However, he may intentionally use only
such force as he reasonably believes is necessary to prevent
or terminate the interference. He may not intentionally use
force which is intended or likely to cause death unless he
reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself.”

 That Ochoa was “not guilty of any homicide offense” if he
“reasonably believed that he was preventing or terminating
an unlawful interference with his person and reasonably
believed the force used was necessary to prevent imminent
death or great bodily harm to himself.”

 That “[t]he reasonableness of the defendant’s belief must be
determined from the standpoint of the defendant at the time
of his acts and not from the viewpoint of the jury now” and
that “[t]he standard is what a person of ordinary intelligence
and prudence would have believed in the position of the
defendant under the circumstances existing at the time of the
alleged offense.”

 How to consider the applicability of self-defense as it related
to each charge (first-degree intentional homicide, second-
degree intentional homicide, and first-degree reckless
homicide).

 That in regard to first-degree reckless homicide, it should
“consider the evidence relating to self-defense in deciding
whether the defendant’s conduct created an unreasonable
risk to another” and that if a defendant acts “lawfully in self-
defense, his conduct did not create an unreasonable risk to
another.”

 That it is the State’s burden to “prove beyond a reasonable
doubt that the defendant did not act lawfully in self-defense”
and that the jury “must be satisfied beyond a reasonable

15
For the purpose of brevity, we set forth only select parts of WIS JI—CRIMINAL 1016.
The trial court read this entire instruction to the jury.

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No. 2020AP1981-CR

doubt from all the evidence in the case that the risk was
unreasonable.” (Emphasis added.)

¶65 In summary, under the facts of this case the jury properly heard that
self-defense must be based on a reasonable belief, that whether Ochoa’s belief was
reasonable as to self-defense must be considered from the perspective of an
ordinary, reasonable person in Ochoa’s position at the time of the offense, and how
the self-defense privilege specifically applied to the charged and lesser-included
offenses. When viewed as a whole, and under the facts of this case, the instruction
given is in accord with the self-defense privilege codified in WIS. STAT. § 939.48(1).
Moreover, in addition to instructing the jury as to the circumstances in which the
self-defense privilege applies, the instruction it heard also accurately stated the law
of self-defense as it relates to first-degree intentional homicide, second-degree
intentional homicide, first-degree reckless homicide, and self-defense.

IV. CONCLUSION

¶66 The trial court’s evidentiary rulings did not violate Ochoa’s
constitutional right to present a defense. The right to present a defense is not
absolute and may be constrained by evidentiary rules that “serve the interests of
fairness and reliability—even if the defendant would prefer to see that evidence
admitted.” Crane, 476 U.S. at 690. Likewise, the trial court’s decision to give the
pattern jury instruction specifically applicable to the circumstances of this case did
not constitute an erroneous exercise of discretion.

By the Court.—Judgment affirmed.

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