State v. Cristian Daniel Nunez

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.
August 9, 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. 2020AP176-CR Cir. Ct. No. 2015CF417

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CRISTIAN DANIEL NUNEZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
St. Croix County: SCOTT R. NEEDHAM, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Cristian Nunez appeals a judgment convicting him
of several crimes, including two counts of first-degree intentional homicide and
No. 2020AP176-CR

one count of arson of a building. He also appeals orders denying him
postconviction relief and awarding restitution. A jury found Nunez guilty of the
charged crimes after the State established beyond a reasonable doubt that Nunez
killed his ex-girlfriend, Courtney Bradford; killed Courtney’s ten-year-old
daughter, Jasmine; started Courtney’s home on fire; and used Courtney’s vehicle
and debit card to flee to El Paso, Texas.

¶2 Nunez contends that his trial counsel provided ineffective assistance
by not objecting to, or seeking the suppression or exclusion of, certain evidence
introduced at trial. In addition, Nunez argues that the circuit court erroneously
exercised its discretion by admitting into evidence his statements about “hat[ing]”
Courtney and by admitting evidence of Jasmine’s “sexual injuries.” Finally,
Nunez asserts that the court erroneously exercised its discretion by awarding
restitution. We reject Nunez’s arguments and affirm.

BACKGROUND

¶3 On September 2, 2015, at around 12:30 p.m., police responded to a
report of smoke coming from a home. Upon arriving, police spoke with Adam
Norwig, Courtney’s ex-fiancé, who informed them that Courtney owned the home,
that Courtney had not answered Norwig’s phone calls, and that Jasmine had not
shown up for school that day. Police conducted a brief sweep of the home,
noticing the smell of smoke and gasoline in the home, and observed that “there
had been a fire of some sort, mostly in the basement.”

¶4 Shortly thereafter, the fire department searched the home and
discovered Courtney’s body, which had been buried under a pile of clothes in the
master bedroom. Courtney had a “substantial wound to the back of her head” that
appeared to be from “blunt force trauma.” Fire personnel then found Jasmine’s

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body in the basement underneath a pile of burnt blankets and clothing. A roll of
duct tape and a five-gallon gasoline container were also found near Jasmine’s
body.

¶5 Upon further investigation, police learned that Nunez was possibly
Courtney’s then-boyfriend and had lived with her “on and off again.” Police also
learned that Courtney’s vehicle, which had OnStar service, was missing. Police
began searching for Nunez. They spoke with Nunez’s employer, who eventually
acknowledged that Nunez was an employee and that Nunez had asked the day
before to have September 2 off from work so that Courtney could take him to get a
passport. Nunez’s employer also informed police that Nunez had been staying at a
nearby hotel. Police went to that hotel and spoke to hotel staff, but they were
unable to locate Nunez.

¶6 Police also contacted OnStar to locate Courtney’s vehicle via GPS.
After police obtained a court order permitting use of the vehicle’s GPS, OnStar
tracked Courtney’s vehicle to an area near an airport in Des Moines, Iowa. Law
enforcement in Des Moines later found Courtney’s vehicle in a parking lot at
Des Moines International Airport.

¶7 At some point before officials in Iowa found Courtney’s vehicle but
after police determined that Nunez could not be located, police submitted “an
emergency order” to Nunez’s cell phone provider, seeking to track the location of
his cell phone. Police determined that there were exigent circumstances at that
time “because there was a homicide that [had] occurred, and the public was in
danger.” Pursuant to the emergency order, police received information that
Nunez’s cell phone was located “in the area of O’Hare Airport in Chicago,

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Illinois.” Police also learned that Nunez’s phone was used to call a hotel in
El Paso, Texas.

¶8 Joseph Welsch, a special agent with the Wisconsin Department of
Justice, then called the hotel in El Paso and spoke to an employee, Martha Singh.
Singh informed Welsch that Nunez had not yet checked into the hotel but was
scheduled to do so later that night. Welsch spoke to Singh by phone again at
around 12:30 a.m. on September 3, 2015, and learned that Nunez had checked into
his room. Welsch subsequently contacted El Paso law enforcement, who then
arrested Nunez at around 6:30 a.m. that day.

¶9 Police also later obtained records detailing transactions on
Courtney’s debit card. Those records revealed that in the early morning of
September 2, 2015, Nunez had purchased, and then later cancelled, a Greyhound
Bus ticket in his name from Des Moines to El Paso. The records also showed that
Nunez used Courtney’s debit card on September 2 to reserve his hotel room in
El Paso and to purchase his plane ticket from Des Moines to El Paso, with a
layover at O’Hare International Airport.

¶10 On September 4, 2015, police searched Nunez’s Wisconsin hotel
room and the dumpster behind the hotel. In the dumpster, police found a clear
plastic bag containing “hardly worn” camouflage tennis shoes that matched a
description of the shoes Nunez typically wore. Police later determined that stains
on those shoes contained traces of blood and Courtney’s DNA. In addition, a
small digital voice recorder was found tucked inside one of the shoes. That device
contained nearly fifty hours of recordings, which included Courtney’s voice,
Matthew Kari’s voice (a man who spoke to Courtney by telephone), and a man’s
voice speaking “broken English.”

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¶11 Doctor Michael McGee performed autopsies on both of the victims’
bodies. McGee found that Courtney had been stabbed twenty-nine times near her
neck, which caused extensive hemorrhaging and eventually led to her death.
Similarly, Jasmine’s cause of death was determined to be four stab wounds around
her neck area. In addition, McGee noted other injuries on Jasmine’s body, such as
burns on her legs, “pinpoint hemorrhages” in her face, and “injuries to the external
genitalia.”

¶12 The State charged Nunez with two counts of first-degree intentional
homicide and one count each of operating a motor vehicle without the owner’s
consent, unauthorized possession of an individual’s personal identifying
documents, and arson of a building. The case proceeded to trial, whereupon a jury
found Nunez guilty of all counts. The circuit court subsequently sentenced Nunez
to consecutive life sentences without eligibility for extended supervision on the
first-degree intentional homicide counts, and it imposed other concurrent
sentences on the remaining counts. The court also ordered Nunez to pay a total of
$196,054.46 in restitution.

¶13 Nunez subsequently filed a postconviction motion seeking a new
trial based on several claims of ineffective assistance of counsel and on allegedly
erroneous evidentiary rulings. In particular, Nunez claimed that his trial attorneys
were ineffective for not objecting to: (1) the restitution award; (2) evidence from
the warrantless search of his cell phone location; (3) hearsay evidence;
(4) testimony about Nunez’s ability to speak English; (5) testimony regarding
Jasmine’s “sexual injuries”; and (6) testimony concerning the contents of the
digital recording. Nunez also challenged the circuit court’s decisions to permit
testimony regarding his statements to others concerning Courtney and testimony
regarding Jasmine’s “sexual injuries.”

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¶14 The circuit court held a Machner1 hearing on Nunez’s motion, at
which Nunez’s two trial attorneys and the prosecutor testified. The State noted at
the beginning of the hearing that it would not contest Nunez’s ineffective
assistance of counsel claim regarding restitution, and it agreed Nunez should
receive a restitution hearing. The court accepted the State’s concession and
scheduled a restitution hearing for a later date. Following the hearing, the court
issued a written decision denying all of Nunez’s remaining postconviction claims.
The court also later awarded restitution in the same amount previously awarded,
after a court commissioner held a hearing on the matter.

¶15 Nunez appeals, renewing his postconviction claims and challenging
the new restitution order. Additional facts will be noted as necessary below.

DISCUSSION

I. Ineffective assistance of counsel

¶16 A criminal defendant has the constitutional right to effective
assistance of counsel. State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912
N.W.2d 89. To prevail on an ineffective assistance of counsel claim, the
defendant bears the burden of proving: (1) that counsel’s performance was
deficient; and (2) that the deficient performance prejudiced the defense. Id. 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.

1
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2020AP176-CR

¶17 A defendant can establish deficient performance by showing that his
or her trial counsel’s performance fell below “an objective standard of
reasonableness.” State v. Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1, 951 N.W.2d
838 (citation omitted). “Courts afford great deference to trial counsel’s conduct,
presuming that it ‘falls within the wide range of reasonable professional
assistance.’” Id. (citation omitted). “An attorney does not perform deficiently by
failing to make a losing argument.” State v. Jacobsen, 2014 WI App 13, ¶49, 352
Wis. 2d 409, 842 N.W.2d 365 (2013).

¶18 To establish prejudice, “a defendant must show that there is a
reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Savage, 395 Wis. 2d 1, ¶32 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). A reasonable probability is
a probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694. However, “a defendant need not prove the outcome would ‘more
likely than not’ be different in order to establish prejudice in ineffective assistance
cases.” Sholar, 381 Wis. 2d 560, ¶44 (citing Strickland, 466 U.S. at 693).

¶19 Whether a defendant has been denied the effective assistance of
counsel is a mixed question of law and fact. Savage, 395 Wis. 2d 1, ¶25. We will
not overturn a circuit court’s findings of fact, including findings regarding the
factual circumstances of the case and trial counsel’s conduct and strategy, unless
those findings are clearly erroneous. Id. We review de novo whether counsel
performed deficiently and, if so, whether counsel’s deficient performance was
prejudicial to the defense. Id.

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¶20 For the reasons explained below, none of Nunez’s claims establish
deficient performance because his trial attorneys were not required to advance
losing arguments. See Jacobsen, 352 Wis. 2d 409, ¶49.

A. Evidence obtained from the search of Nunez’s cell phone location

¶21 Nunez argues that his trial attorneys were ineffective for not seeking
to suppress evidence obtained from the warrantless search of his cell phone
location. Nunez contends that at the time police tracked his cell phone’s location,
exigent circumstances and probable cause required to conduct a warrantless search
did not exist because police had no evidence connecting him to the homicides,
except for his prior relationship with Courtney.

¶22 Under the exigent circumstances exception, a warrantless search
does not violate a suspect’s Fourth Amendment rights if: (1) the government can
show that there is probable cause to believe that the evidence sought will aid in a
particular apprehension or conviction for a particular offense or “evidence of a
crime will be found”; and (2) there are exigent circumstances. State v.
Subdiaz-Osorio, 2014 WI 87, ¶¶70-71, 357 Wis. 2d 41, 849 N.W.2d 748 (citation
omitted). To establish probable cause for a search, the State must show that there
is a “‘fair probability’ that contraband or evidence of a crime will be found in a
particular place.” Id., ¶70 (citation omitted). In addition,

[e]xigent circumstances exist if, “measured against the time
needed to obtain a warrant,” and under the facts known at
the time, it was objectively reasonable for law enforcement
to conduct a warrantless search when: (1) law enforcement
was engaged in a “hot pursuit”; (2) there was a threat to the
safety of either the suspect or someone else; (3) there was a
risk of destruction of evidence; or (4) the suspect was likely
to flee. The objective exigent circumstances test asks
“whether a police officer, under the facts as they were
known at the time, would reasonably believe that delay in
procuring a search warrant would gravely endanger life,

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No. 2020AP176-CR

risk destruction of evidence, or greatly enhance the
likelihood of the suspect’s escape.”

Id., ¶73 (citation omitted).

¶23 Contrary to Nunez’s argument,2 the record supports a finding of
probable cause and the existence of exigent circumstances, which would excuse
any Fourth Amendment violation that might have occurred as a result of police
tracking Nunez’s cell phone location without a warrant. On September 2, 2015—
the day the victims were found dead—police knew several critical facts, including
that: (1) the victims had been murdered; (2) the fire was suspicious because of the
smell of gasoline and the presence of the five-gallon gasoline container; (3) no
murder weapon had been recovered from the scene; (4) Courtney’s vehicle was
missing from her residence; (5) Nunez was believed to be Courtney’s boyfriend
and had been living with her “on and off again”; (6) Nunez had told his employer
the day before that he would not be at work on September 2 because Courtney
would be taking him to get his passport; (7) Nunez was not in his hotel room; and
(8) Nunez had not otherwise been located.

2
We note that Nunez’s argument is not supported by appropriate record citations, in
violation of our Rules of Appellate Procedure. See WIS. STAT. RULE 809.19(1)(e) (2019-20). In
particular, Nunez asserts—in conclusory fashion—that prior to obtaining his phone records,
police had no evidence “connecting [him] to the homicides … and the fire.” He asserts, again
without any supporting record citation, that “[t]he only evidence the police had at this point was
information that [he] and [Courtney] had been boyfriend and girlfriend at one time.” Nunez has
made no attempt to establish what police knew and when they knew it. This is a high-volume
court, and we have no duty to scour the record to review arguments unaccompanied by adequate
record citations. See Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658,
741 N.W.2d 256. We admonish counsel that future violations of the Rules of Appellate
Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2) (2019-20).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP176-CR

¶24 Police could reasonably infer from these facts that Nunez and
Courtney had a romantic relationship, albeit unsteady; that Nunez had planned to
be, and likely was with, Courtney around the time of the homicides; that Nunez
likely was in possession of Courtney’s vehicle; and that he was actively fleeing
and seeking to avoid detection. At the time police tracked Nunez’s phone
location, police had not yet found Courtney’s vehicle, the weapon used to kill the
victims, or Nunez. Thus, there was a “fair probability” that if Nunez had his
phone, police would find him, the weapon used to commit the murders, and other
evidence connecting him to the homicides. See Subdiaz-Osorio, 357 Wis. 2d 41,
¶¶70-71, 74.

¶25 These facts also support the existence of exigent circumstances and
are similar to those in Subdiaz-Osorio. In that case, police tracked the defendant’s
cell phone location without a warrant after witnesses said that the defendant had
fatally stabbed his brother and then borrowed his girlfriend’s vehicle to possibly
flee to Mexico. Id., ¶¶3, 20, 22. At the time of the tracking, police had not found
the defendant or any weapons at the scene of the crime, and police questioned
whether the defendant was still armed. Id., ¶24. Our supreme court concluded
that “police arguably had their pick of three exigent circumstances. There was a
threat to safety, risk of destruction of evidence, and a likelihood that [the
defendant] would flee.” Id., ¶76.

¶26 The same three exigent circumstances at issue in Subdiaz-Osorio
were present in this case. There was a threat of safety to either Nunez or someone
else, a risk that evidence would be destroyed, and a likelihood that Nunez would
flee. Based on the facts known at the time, police would have reasonably believed
that there was a risk Nunez would attempt to destroy or dispose any or all of his
clothes, the weapon used to commit the homicides, and Courtney’s vehicle. Police

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would also have reasonably believed that Nunez was a substantial threat to the
safety of others because it appeared that he had killed both Courtney and Jasmine
and then attempted to cover up their deaths by starting Courtney’s home on fire,
and it seemed possible that he still had the weapon used to stab the victims.
Lastly, police would have reasonably believed that Nunez was attempting to flee
because he was not in his hotel room, Courtney’s vehicle was missing, he told his
employer the day before that he would not be at work that day, and he could not
otherwise be located.

¶27 Importantly, time was of the essence when police tracked Nunez’s
phone. Police were not sure when precisely the victims had been killed, but a
canvas of the neighborhood on September 2, 2015, revealed that a neighbor had
smelled smoke as early as 7:00 a.m. that day. Thus, Nunez would have had ample
time to flee and begin disposing of evidence before police had even reached the
crime scene at approximately 12:30 p.m. Under the facts known to police at the
time, a reasonable police officer would reasonably believe that delay in procuring
a search warrant would gravely endanger life, risk destruction of evidence, or
greatly enhance the likelihood of Nunez’s escape. See Subdiaz-Osorio, 357
Wis. 2d 41, ¶73.

¶28 Nunez attempts to distinguish Subdiaz-Osorio, arguing that there
were no eyewitnesses connecting him to the homicides and that there were no
witnesses suggesting that he was fleeing to Mexico. Nunez’s arguments are
misplaced. Although the evidence in Subdiaz-Osorio might have been, as Nunez
argues, “stronger and more direct,” that fact does not negate its similarity to the
facts and circumstances here and their support for the existence of probable cause
and exigent circumstances. As we have noted, police in this case knew, among
other things, that two victims had been killed, that Nunez lived with Courtney “on

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and off again,” that he told his employer he would be with Courtney on
September 2 getting a passport and would not be at work that day, that Courtney’s
vehicle was missing, and that Nunez was nowhere to be found. As discussed
earlier, the above gave law enforcement probable cause to believe that Nunez
committed crimes and exigent circumstances existed to permit a warrantless
search for him.

¶29 Nunez also contends that, irrespective of the foregoing, police
should have sought a telephonic warrant before tracking his cell phone location,
arguing, without any support, that “[t]here was more than enough time to apply for
a warrant.” We disagree with these notions. Police knew that Nunez likely had at
least five hours—if not more—to flee, hide and dispose of evidence before police
arrived at the scene. Thus, by the time police narrowed their focus to Nunez, they
would have reasonably believed that any delay in procuring a warrant—even a
telephonic warrant—would have gravely endangered life, risked the destruction of
evidence, and, most prominently, increased the likelihood of Nunez’s escape.

¶30 In addressing Nunez’s postconviction motion, the circuit court
recognized that if Nunez’s trial counsel had filed a motion to suppress evidence
obtained from police tracking his cellphone, “[the motion] would have been
denied.” The court concluded that Nunez’s trial counsel had not performed
deficiently. We agree with the court’s analysis because the existence of probable
cause and exigent circumstances would have provided a sufficient basis to deny
the motion to suppress. Nunez’s trial counsel therefore did not perform
deficiently.

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B. Hearsay testimony at trial

¶31 Nunez next argues that his trial attorneys were ineffective for not
objecting to testimony regarding certain out-of-court statements that violated his
Sixth Amendment right to confrontation and “the teaching of Crawford v.
Washington, 541 U.S. 36 (2004).” In particular, Nunez takes issue with
Investigator Shawn Demulling’s testimony regarding: (1) an OnStar employee’s
statement that, based on GPS tracking, Courtney’s vehicle was located near the
airport in Des Moines; (2) an out-of-state police officer’s statement that
Courtney’s vehicle had been located at the airport; and (3) a gym employee’s
statement that Courtney had attended a class the night of September 1, 2015.
Nunez also takes issue with Singh, the hotel employee in El Paso, testifying about
statements made to her over the phone by Agent Welsch and an unnamed woman.3

¶32 “Both the Sixth Amendment to the United States Constitution and
the Wisconsin Constitution guarantee a criminal defendant the right to confront
witnesses who testify against the defendant at trial.” State v. Mattox, 2017 WI 9,
¶20, 373 Wis. 2d 122, 890 N.W.2d 256. Under Crawford, “a defendant’s right to
confrontation is violated if the trial court receives into evidence out-of-court
statements by someone who does not testify at the trial if those statements are
‘testimonial’ and the defendant has not had ‘a prior opportunity’ to cross-examine
the out-of-court declarant.” Mattox, 373 Wis. 2d 122, ¶24 (emphasis added)
(citing Crawford, 541 U.S. at 68). However, “the Confrontation Clause ‘does not
bar the use of testimonial statements for purposes other than establishing the truth

3
The unnamed woman who spoke to Singh on the telephone was later determined to be
Maria Nunez, Nunez’s cousin.

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No. 2020AP176-CR

of the matter asserted.’” See State v. Hanson, 2019 WI 63, ¶19, 387 Wis. 2d 233,
928 N.W.2d 607 (quoting Crawford, 541 U.S. at 59 n.9).

¶33 Nunez’s argument that Singh’s testimony violated his right to
confrontation is a nonstarter. Singh’s testimony included references to
out-of-court statements made over the phone by Agent Welsch and Maria Nunez.
Nunez fails to recognize, however, that both Welsch and Maria Nunez testified at
trial regarding their conversations with Singh, and Nunez therefore had an
opportunity to cross-examine them. Accordingly, their out-of-court statements did
not violate Nunez’s confrontation right. See Mattox, 373 Wis. 2d 122, ¶24.

¶34 Nunez’s argument regarding Investigator Demulling’s testimony is
equally unavailing. The gym employee, Jennifer Williams, testified at trial
regarding her conversation with Demulling, and Nunez therefore had an
opportunity to cross-examine her. In addition, the out-of-court statements by the
OnStar employee and by the police officer in Des Moines were not offered for the
truth of the matter asserted—i.e., to prove the location of Courtney’s vehicle. See
Hanson, 387 Wis. 2d 233, ¶19. Rather, the record demonstrates that the State
used Demulling’s testimony to explain how police located Courtney’s vehicle
during the exigent circumstances of trying to locate a fleeing suspect in a double
homicide. Significantly, the State had no need to rely on any out-of-court
statements regarding the location of Courtney’s vehicle because Officer Kyle
Thies testified at trial that he personally located Courtney’s vehicle at Des Moines
International Airport. See id., ¶25 (“When the State proffers a statement for a
nonhearsay purpose, close attention should be paid to the relevancy of, and need
for, this use of the evidence.” (citation omitted)). Thus, Demulling’s testimony

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No. 2020AP176-CR

simply explained how Thies learned to look for Courtney’s vehicle at the airport.4
For those reasons, Demulling’s testimony did not violate Nunez’s right to
confrontation.

C. Testimony regarding the contents of the digital recording

¶35 Nunez also argues that his trial attorneys were ineffective for not
objecting to testimony regarding the contents of the digital recording. He
contends that the following testimony was irrelevant, speculative and unfairly
prejudicial: (1) Investigator Demulling’s testimony that the recording contained
arguments, the sound of what seemed to be “people … having sex,” the sound of a
car door opening and closing, and the sound of a man speaking “broken English”;
(2) Matthew Wiseman’s testimony that the recording did not contain his voice;
and (3) Matthew Kari’s testimony that the recording contained a conversation
between him and Courtney.5

¶36 The State argues—and we agree—that Nunez’s argument is largely
undeveloped. Nunez fails to provide any analysis explaining how the testimony
was irrelevant, speculative or unfairly prejudicial; he simply asserts those
conclusions. Nunez also did not respond to any of the State’s counterarguments

4
Even if we assumed that the State had offered the out-of-court statements to prove the
location of Courtney’s car and that Nunez’s trial attorneys were deficient for not objecting to
those statements, Nunez cannot establish a reasonable probability that, but for trial counsel’s
failure to object to these statements, the outcome of the proceedings would have been different.
See State v. Savage, 2020 WI 93, ¶32, 395 Wis. 2d 1, 951 N.W.2d 838. Again, the location of
Courtney’s vehicle was independently established by Officer Thies’s testimony.
5
Nunez also criticizes testimony that characterized one of the voices on the recording as
a person of “Latino descent.” However, the circuit court sustained trial counsel’s immediate
objection and instructed the jury to disregard that testimony. Thus, Nunez cannot show either
deficient performance or prejudice as a result of that testimony.

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No. 2020AP176-CR

regarding this issue. Accordingly, we need not consider his argument. See State
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not
address undeveloped arguments); United Coop. v. Frontier FS Coop., 2007 WI
App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in
reply brief to an argument made in response brief may be taken as a concession).

¶37 Regardless, the testimony was relevant to connecting Nunez to the
digital recorder and to the pair of shoes in which the recorder was found.
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” WIS. STAT. § 904.01. The State
argued at trial that Nunez committed the crimes because Courtney was seeing
other men. Thus, testimony establishing that the recording contained a
conversation between Courtney and another man, as well as the voice of a man
speaking “broken English” was relevant to show that Nunez was likely aware of
the recording and was aware of Courtney speaking to other men. The testimony
connecting Nunez to the recording also further increased the likelihood that Nunez
wore the shoes in which the digital recorder was found. Significantly, the State
presented evidence that blood and Courtney’s DNA were found on those shoes.

¶38 In addition, none of the testimony is speculative or unfairly
prejudicial. Relevant evidence may be excluded “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. Here, the
witnesses’ testimony appears to be rationally based on their perception when they
listened to the recording. See WIS. STAT. § 907.01; see also WIS. STAT.
§ 909.015(5). Although nearly all evidence is prejudicial to the party against

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whom it is offered, see State v. Murphy, 188 Wis. 2d 508, 521, 524 N.W.2d 924
(Ct. App. 1994), we cannot discern any unfair prejudice from the witnesses’
testimony here.

D. Evidence regarding Nunez’s ability to speak English

¶39 Nunez next argues that his trial attorneys were ineffective for not
objecting to testimony regarding his ability to speak English. He contends the
State introduced that evidence for no reason other than to “potentially capitalize on
negative sentiments toward Mexican[s] or people of Hispanic descent.” Nunez
further asserts that “[t]he unfairly prejudicial effect of such questioning
outweighed any probative value.”

¶40 In response, the State argues that it introduced evidence of Nunez’s
ability to speak English to debunk any misconception that Nunez could not speak
English. The State points out that Nunez had two court-appointed interpreters
assisting him at trial and that the circuit court, at Nunez’s request, explained the
roles of the interpreters to the jury. The State contends that Nunez’s ability to
speak English was therefore relevant to proving that Nunez had sent text messages
in English confronting Courtney about seeing other men and that Nunez had
spoken in “broken English” captured on the digital recorder.

¶41 The State’s questions and evidence at issue can be summed up as
follows. The State asked witnesses questions regarding Nunez’s ability to speak
English, including: (1) “Did he have any difficulty understanding English …?”;
(2) “Did he ever speak to you in Spanish?”; and (3) “[W]hat language were
[Nunez’s texts] in?” In addition, Investigator Demulling testified that he heard a
man’s voice on the digital recording speaking “broken English.”

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¶42 All of the State’s questions were relevant to its case. The State
introduced numerous text messages wherein Nunez accused Courtney—in
English—of seeing other men. Thus, testimony regarding Nunez’s ability to speak
English was probative of proving that Nunez had sent those text messages, which,
in turn, explained Nunez’s potential motive for committing the homicides. The
State also introduced evidence of a digital recording that purportedly contained
Courtney’s voice, the voice of another man, and the voice of a man speaking
“broken English.” That recording, as the State argued in closing arguments, was
probative of Courtney’s interactions with other men and Nunez’s potential motive
for committing the homicides, and the presence of a person speaking “broken
English” tended to increase the likelihood that Nunez was connected to and aware
of that recording.

¶43 Additionally, the State’s questions had little—if any—unfair
prejudicial effect. The questions were directly related to whether Nunez spoke
English, and none of them involved racial stereotypes, carried negative racial
connotations, or suggested racial bias. Moreover, as the circuit court aptly
observed, Nunez has not identified any evidence suggesting the State made “a
gratuitous effort to inject race into the trial.”6

6
Nunez also argues that the State’s sentencing argument contained improper racial
references and that “the [presentence investigation report (PSI)] contained blatant racial
stereotyping.” Notably, however, Nunez fails to explain or identify which part of the State’s
sentencing argument or the PSI contained the alleged improper references to race. His arguments
are therefore conclusory and undeveloped.

Even if we assumed that the State’s sentencing argument and the PSI did contain
improper racial references and that trial counsel should have objected to them, Nunez has made
no attempt to show that the circuit court improperly relied on those references or stereotypes at
sentencing. Accordingly, Nunez has not established prejudice. That is, he has not shown a
reasonable probability that, but for trial counsel’s failure to object to the State’s sentencing
argument or the PSI, his sentence would have been different. See Savage, 395 Wis. 2d 1, ¶32.

18
No. 2020AP176-CR

E. References to Jasmine’s potential “sexual injuries”

¶44 Finally, Nunez argues that his trial attorneys were ineffective for not
filing a motion in limine to exclude references to possible “sexual injuries” to
Jasmine. In particular, Nunez contends that the following references should not
have been permitted at trial: (1) the State’s comment in its opening statement that
“[Dr. McGee] sees evidence of possible injury in [Jasmine’s] vaginal area that
would have not been expected”; (2) McGee’s testimony that “[t]here was abraded
tissue to [Jasmine’s] posterior labial, to the posterior commissure, and injuries
surrounding the vaginal opening and just on the inside of the vaginal opening”;
(3) testimony noting the existence of a “sexual assault kit for Cristian Nunez”;
(4) testimony regarding oral, anal and vaginal swabs collected from Jasmine; and
(5) testimony about penile swabs and pubic hair collected from Nunez. Nunez
contends that these references were irrelevant and unfairly prejudicial because he
“was not charged with sexual assault.” He also argues that because his trial
counsel did not file a motion in limine, the circuit court could not engage in the
necessary other-acts evidence analysis under State v. Sullivan, 216 Wis. 2d 768,
576 N.W.2d 30 (1998).

¶45 As an initial matter, the State never introduced evidence that Jasmine
had suffered “sexual injuries.” Rather, Dr. McGee testified that Jasmine’s body
had several different injuries, including “injuries to the external genitalia.”
McGee never testified that Jasmine’s injuries were consistent with sexual assault,
nor did he refer to them as “sexual injuries.”

¶46 In any event, the testimony discussing Jasmine’s injuries and the
collection of forensic evidence was relevant. As the prosecutor explained at the
Machner hearing, the State needed “to show that [Jasmine] had a variety of

19
No. 2020AP176-CR

injuries” that “likely occurred prior to the fire,” and it needed to rebut Nunez’s
defense of “an incomplete investigation.” Indeed, the State needed to prove—
beyond a reasonable doubt—that Nunez had been the individual who killed the
victims and started the fire, see WIS. STAT. §§ 940.01(1)(a) and 943.02(1)(a), and
to rebut Nunez’s contention in his opening argument that “[t]here’s a ton of pieces
that are missing [from the State’s case].” The fact that the State had discovered
Jasmine’s numerous injuries, including both the stab wounds and the vaginal
injuries, demonstrated that the State had fully investigated what might have
happened to Jasmine before and after her death and that the State considered all of
the possible sources of Jasmine’s injuries. Ultimately, Dr. McGee opined that the
stab wounds, and not Jasmine’s other injuries, were the cause of her death. In
addition, testimony discussing the collection of all forensic evidence was
necessary to show that the State had conducted a complete investigation and to
demonstrate the absence of any forensic evidence indicating that another person
committed the crimes.

¶47 Furthermore, the probative value of this evidence is not substantially
outweighed by the danger of unfair prejudice. Again, none of the witnesses
testified that Jasmine’s injuries were consistent with sexual assault. The testimony
also arose in a germane context—i.e., testimony regarding Jasmine’s vaginal
injuries came about in a broader discussion of Jasmine’s other injuries and
testimony detailing the collection of forensic evidence from intimate body parts
was discussed with other forensic evidence collected. To the extent the jury might
have suspected that Nunez had been investigated for sexual assault, the jury
nonetheless knew that Nunez had not been charged with such an offense and that
the State was not arguing any sexual misconduct had occurred.

20
No. 2020AP176-CR

¶48 Finally, even if testimony regarding Jasmine’s vaginal injuries and
the collection of forensic evidence could be considered other-acts evidence under
WIS. STAT. § 904.04(2), as Nunez suggests, the circuit court would not have
erroneously exercised its discretion by admitting that testimony. The first step in
the other-acts analysis is to determine whether the other-acts evidence is offered
for a permissible purpose under § 904.04(2). Sullivan, 216 Wis. 2d at 783. As
alluded to earlier, evidence of the State’s investigation into Jasmine’s multiple
injuries and its collection of forensic evidence was necessary for the permissible
purpose of proving identity beyond a reasonable doubt—i.e., that Nunez, and not
someone else, committed the homicides. See § 904.04(2)(a). Although the
vaginal injuries and the forensic evidence with which Nunez takes issue do not
directly connect him to the crimes, the evidence demonstrated that the State
thoroughly inspected Jasmine’s body and examined all the available forensic
evidence and that no evidence suggested a third-party actor had committed the
crimes. This evidence also satisfies the final two steps of the other-acts analysis
because, as we already discussed, the evidence is relevant and its probative value
is not substantially outweighed by its prejudicial effect. See Sullivan, 216 Wis. 2d
at 785, 789. Accordingly, any motion in limine seeking to exclude this testimony
as other-acts evidence, as irrelevant, or as unfairly prejudicial would have been
meritless.7

7
We also note that Nunez’s trial counsel did, in fact, object to the introduction of
evidence that Jasmine had suffered vaginal injuries. The circuit court explained the objection and
its decision regarding the objection, stating on the record:

There was discussion in chambers relative to the injuries
described by Dr. McGee regarding the vaginal area. The
objection, I believe, was primarily because it could be
prejudicial, and there’s no claim to a sexual assault.

(continued)

21
No. 2020AP176-CR

II. Evidentiary issues

¶49 We review a circuit court’s decision to admit or exclude evidence
under an erroneous exercise of discretion standard. State v. Nieves, 2017 WI 69,
¶16, 376 Wis. 2d 300, 897 N.W.2d 363. We will uphold a court’s evidentiary
ruling if the court “examined the relevant facts, applied a proper standard of law,
used a demonstrated rational process and reached a conclusion that a reasonable
judge could reach.” State v. Marinez, 2011 WI 12, ¶17, 331 Wis. 2d 568, 797
N.W.2d 399 (citation omitted).

A. Other-acts evidence

¶50 Nunez argues the circuit court erroneously admitted other-acts
evidence, over trial counsel’s objections, by permitting witnesses to testify that
Nunez “would call [Courtney] a bitch,” said he “[h]ated her,” and said he wanted
“payback” and “[r]evenge” for her relationships with other men. He further
argues that this testimony was irrelevant and unfairly prejudicial.

¶51 In response, the State correctly recognizes that Nunez’s argument in
his brief-in-chief is undeveloped because he “fails to explain why the [circuit]
court erred in concluding that the statements did not qualify as other acts” and
“fails to explain how he was prejudiced by the statements.” Regarding the merits

The Court overruled the objection, indicating that they were part
of the autopsy examination. They were part of the injuries that
Dr. McGee found when he did the autopsy, and it’s simply a
matter of weight, if any, that the jury gives that.

Nunez fails to explain how the court’s decision would have been any different had his trial
counsel made the objection in a motion in limine, and he therefore has failed to show that his
defense was prejudiced by counsel not filing such a motion.

22
No. 2020AP176-CR

of Nunez’s argument, the State contends that the court properly determined
Nunez’s statements did not constitute other-acts evidence because they were not
bad acts.

¶52 WISCONSIN STAT. § 904.04(2)(a) states:

Except as provided in par. (b)2., evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show that the person acted in conformity
therewith. This subsection does not exclude the evidence
when offered for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.

Under certain circumstances, verbal statements might constitute other-acts
evidence under § 904.04(2). See State v. Jeske, 197 Wis. 2d 905, 913-14, 541
N.W.2d 225 (Ct. App. 1995). However, “simply because an act can be factually
classified as ‘different’—in time, place and, perhaps, manner than the act
complained of—that different act is not necessarily ‘other acts’ evidence in the
eyes of the law.” State v. Bauer, 2000 WI App 206, ¶7 n.2, 238 Wis. 2d 687, 617
N.W.2d 902; see also State v. Moore, No. 2009AP3167-CR, unpublished slip op.
¶19 (WI App Dec. 15, 2010) (concluding evidence of the defendant’s visits to a
gentlemen’s club were not “other acts” evidence because “it was not used to show
a similarity between those acts and the [homicide] crime [the defendant] was
accused of committing”).8 “When the State or the defense offers a ‘different’ act
to show a similarity between that other act and the act complained of, then it is
properly termed ‘other[-]acts evidence’ and the court should proceed pursuant to
WIS. STAT. § 904.04(2).” Bauer, 238 Wis. 2d 687, ¶7 n.2.

8
An unpublished opinion issued on or after July 1, 2009, that is authored by a member
of a three-judge panel may be cited for its persuasive value. WIS. STAT. RULE 809.23(3)(b).

23
No. 2020AP176-CR

¶53 The circuit court concluded that Nunez’s “references to the victim
and names that he may have called her [are not] other acts under the statute or
under the analysis.” We agree. Nunez’s statements—that Courtney was a “bitch,”
that he “[h]ated her,” and that he wanted “payback” and “[r]evenge”—are not
other-acts evidence under the circumstances here. Nunez’s statements were not
introduced to show a similarity between the act of making those statements and
the acts charged in the criminal complaint—i.e., the statements are not acts similar
to the acts involved in first-degree intentional homicide, arson of a building,
driving a vehicle without the owner’s consent, and unauthorized possession of an
individual’s personal identifying documents. See id. Accordingly, the act of
making those statements—in the context of this case—is not other-acts evidence
under WIS. STAT. § 904.04(2)(a).

¶54 Nunez attempts to further develop his argument in his reply brief,
arguing that his statements constitute the crime of disorderly conduct under WIS.
STAT. § 947.01 because his statements “are obscene and provoked a disturbance.”
Nunez’s efforts are unavailing. We need not address this argument because not
only did Nunez fail to make the argument in his brief-in-chief, but he also failed to
make the argument to the circuit court. See A.O. Smith Corp. v. Allstate Ins.
Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (we need not
address an issue raised for the first time in a reply brief); State v. Rogers, 196
Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) (“We will not … blindside
trial courts with reversals based on theories which did not originate in their
forum.”). Even so, Nunez has failed to show that his statements were made
“under circumstances in which the conduct tends to cause or provoke a
disturbance.” See § 947.01.

24
No. 2020AP176-CR

¶55 In addition, Nunez’s statements were highly probative to the charges
of first-degree intentional homicide and were not unfairly prejudicial. The fact
that Nunez said he “[h]ated” Courtney and wanted “payback” and “[r]evenge”
makes the fact that Nunez intentionally caused Courtney’s death more probable
and explains Nunez’s potential motive for committing the crimes. Nunez’s
statements also would not have a tendency to enflame a jury such that the jury
would base its decision on something other than the established propositions in
this case.

¶56 In sum, Nunez’s statements do not constitute “other acts” under WIS.
STAT. § 904.04(2)(a); they are relevant to the crimes charged; and any unfair
prejudice does not substantially outweigh the probative value of the statements.
Thus, the circuit court did not erroneously exercise its discretion by admitting
evidence of Nunez’s statements regarding Courtney.

B. Evidence of Jasmine’s injuries

¶57 Nunez next argues that the circuit court “erred by allowing irrelevant
testimony about [Jasmine’s] sexual injuries.” As in his related ineffective
assistance of counsel claim, Nunez contends that testimony about Jasmine’s
vaginal injuries and testimony about the collection of forensic evidence from
intimate body parts was irrelevant, unfairly prejudicial, and constituted
impermissible other-acts evidence of sexual assault.

¶58 For the same reasons we discussed above regarding Nunez’s related
ineffective assistance of counsel claim, we disagree. No witnesses testified that
Jasmine’s injuries were consistent with sexual assault or that they were sexual in
nature. The testimony was offered for the permissible purposes of proving
identity under WIS. STAT. § 904.04(2)(a), it was relevant, and its probative value

25
No. 2020AP176-CR

was not substantially outweighed by any danger of unfair prejudice. Thus, the
circuit court did not erroneously exercise its discretion by permitting this
testimony.

III. Restitution

¶59 Nunez argues that the circuit court erred in several respects by
awarding restitution. Nunez first contends that the court, in general, “failed to take
into account [his] indigency,” in violation of WIS. STAT. § 973.20(13)(a)2. Nunez
points out that he had no financial resources to pay restitution and that, given his
life sentences, he had no present or future earning capacity. Nunez also argues
that the court’s restitution award of $193,323.32 to Courtney’s insurer, AAA,
constitutes punishment, and it is therefore improper. Finally, citing State v. Ortiz,
2001 WI App 215, 247 Wis. 2d 836, 634 N.W.2d 860, Nunez asserts that the court
unlawfully awarded costs of $1,800 to the St. Croix County Sheriff’s Department
because those expenses were incurred in the ordinary course of investigating and
apprehending Nunez.

¶60 We review a circuit court’s restitution order for an erroneous
exercise of discretion. State v. Muth, 2020 WI 65, ¶14, 392 Wis. 2d 578, 945
N.W.2d 645. In determining whether to order restitution and the amount thereof, a
court must consider, among other factors, the financial resources of the defendant.
WIS. STAT. § 973.20(13)(a)2. Whether the circuit court has authority to order
restitution pursuant to § 973.20 under a certain set of facts is a question of law that
we review de novo. State v. Lee, 2008 WI App 185, ¶7, 314 Wis. 2d 764, 762
N.W.2d 431.

¶61 Contrary to Nunez’s arguments, the court commissioner and the
circuit court—by adopting the court commissioner’s decision—considered

26
No. 2020AP176-CR

Nunez’s financial resources in determining restitution. The court commissioner
recognized: “In terms of Nunez’ ability to pay such an award, he is serving a
lifetime sentence in prison and obviously has minimal assets. Nevertheless, a
nominal amount should be [taken from any earnings or gifts that he receives] and
is consistent with the sentencing rationale expressed by the Court at the sentencing
hearing ….” The court, in turn, ordered Nunez to pay twenty-five percent of his
prison wages and any other earnings or gifts toward restitution. Despite Nunez’s
minimal assets and lack of future earning capacity, the court could reasonably
conclude that Nunez could afford to pay twenty-five percent of his future prison
wages, earnings and gifts toward the restitution sum. Therefore, the court did not
erroneously exercise its discretion.

¶62 The circuit court also did not erroneously exercise its discretion by
awarding restitution to AAA in the amount of $193,323.32. A court may—“[i]f
justice so requires”—order a defendant to reimburse an insurer who has
compensated a victim for a loss otherwise compensable under WIS. STAT.
§ 973.20. See § 973.20(5)(d). Here, the State presented evidence that AAA paid
$193,323.32 to cover Courtney’s home and property damage that occurred as a
result of Nunez’s crimes. After acknowledging the correct legal standard under
§ 973.20(5)(d), the court commissioner concluded that it could not “think of
another case where the term ‘justice so requires’ rings truer and thus requires an
award to AAA under these facts. The horrific crimes committed by Nunez speak
for themselves, and a lifetime payment plan to AAA from Nunez’s prison wages is
warranted in this case.” In doing so, the court commissioner also recognized that
the victims’ family did not seek restitution because recurring nominal payments
“would likely only add insult to the [family’s] injuries.” Although Nunez
summarily contends that the restitution award to AAA was designed to punish, he

27
No. 2020AP176-CR

does not dispute that AAA had to pay $193,323.32 to cover damages to
Courtney’s home and property as a result of his crimes. The court therefore
reached a reasonable conclusion that justice required Nunez to reimburse AAA for
the insurance payment.

¶63 Finally, we reject Nunez’s argument that the circuit court erred by
awarding costs of $1,800 to the St. Croix County Sheriff’s Department.
WISCONSIN STAT. § 973.06(1)(a) authorizes costs and fees taxable against a
defendant for “[t]he necessary disbursements and fees of officers allowed by law
and incurred in connection with the arrest, preliminary examination and trial of the
defendant, including, in the discretion of the court, the fees and disbursements of
the agent appointed to return a defendant from another state or country.”
(Emphasis added.) On appeal, it is undisputed that the St. Croix County Sheriff’s
Department paid an agency $1,800 to transport Nunez back to Wisconsin from
Texas. Thus, that fee could be imposed as costs pursuant to § 973.06(1)(a). In
addition, Nunez’s reliance on Ortiz is inapt because that case involved restitution,
not the statutory costs that Nunez concedes were imposed upon him here.9 See
Ortiz, 247 Wis. 2d 836, ¶22.

9
Nunez concedes throughout his briefing that the circuit court “ordered costs in the
amount of $1,800.00 to the St. Croix County Sheriff’s Department.” (Emphasis added.) He
makes no argument, however, regarding whether this sum was actually restitution or whether it
could be awarded as restitution. We will not abandon our neutrality to develop Nunez’s
arguments for him, and we therefore do not address the issue further. See Industrial Risk
Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d
82.

28
No. 2020AP176-CR

By the Court.—Judgment and orders affirmed.

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

29