State v. Vanin Dell McKinnon

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.
October 13, 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. 2021AP2070-CR Cir. Ct. No. 2017CF834

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VANIN DELL MCKINNON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
La Crosse County: ELLIOTT M. LEVINE, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Graham, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP2070-CR

¶1 PER CURIAM. Vanin McKinnon appeals a judgment convicting
him of repeated sexual assault of the same child and an order denying his
postconviction motion for a new trial. McKinnon argues that his trial counsel
provided constitutionally ineffective assistance in three respects: (1) failing during
voir dire to ask follow-up questions of a prospective juror, who ultimately sat on
the jury, after she said that she knew the prosecutor “as a family friend;”
(2) failing to object to or move to strike the forensic interviewer’s testimony that
she believed what the child, A.B., told her;1 and (3) failing to properly object to
the testimony of A.B.’s grandmother that she had been convicted of child neglect
for failing to protect A.B. from McKinnon’s sexual assaults alleged in this case.
For the reasons set forth below, we conclude that McKinnon was not denied his
right to the effective assistance of counsel. We affirm.

BACKGROUND

¶2 The State charged McKinnon with repeated sexual assault of the
same child between 2014 and 2017, when A.B. was between five and nine years
old, and the case proceeded to a jury trial in September 2019. During voir dire, a
prospective juror said that she knew the prosecutor representing the State in this
case “as a family friend.” In response to questioning by the circuit court, the
prospective juror said that she could set aside the fact that she knows the
prosecutor as a family friend and “listen to [the] evidence fairly.” She was
empaneled on the jury. The court asked counsel if there were “[a]ny concerns
about the jury selection at all,” and neither counsel indicated any concerns.

1
To protect the identity of the child, we refer to her as “A.B.” See WIS. STAT.
RULES 809.19(1)(g) and 809.86. All references to the Wisconsin Statutes are to the 2019-20
version unless otherwise noted.

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No. 2021AP2070-CR

¶3 During the course of the trial, forensic interviewer Jeanne Meyer
testified regarding her interview of A.B. in August 2017, and portions of a video
recording of that interview were played for the jury. After the video was played,
McKinnon’s trial counsel cross-examined Meyer with regard to how she
conducted interviews. Meyer testified that her job “isn’t to determine whether
something’s happened or not,” and that as a forensic interviewer she is “neutral in
that situation.” Trial counsel then asked Meyer if she knew whether or not A.B.
had experienced the sexual assaults she described, and Meyer testified, “A.B. told
me she experienced those things, so, yes, I believe her.” Trial counsel then asked,
“Yes, you know she experienced them?” Meyer testified, “I believed what she
told me.” Trial counsel did not question Meyer further after that exchange.

¶4 A.B.’s grandmother also testified during the trial. She testified that
A.B. lived with her since A.B. was three months old, and that she observed several
incidents between McKinnon and A.B. that she considered to be inappropriate,
including: McKinnon caressing A.B.’s shoulders and kissing her neck; McKinnon
and A.B. being in their bedroom with A.B. naked and kneeling in front of
McKinnon; and McKinnon caressing A.B.’s breast. On redirect examination by
the prosecutor, A.B.’s grandmother testified that she was convicted of child
neglect for failing to protect A.B. from sexual abuse, which the grandmother
testified “[s]pecifically related to incidents that we are talking about” at the trial.

¶5 The other witnesses who testified at trial were the detective who
investigated the allegations and interviewed McKinnon (and portions of a video
recording of that interview were played for the jury), A.B., and McKinnon.
McKinnon testified that he acknowledged in the interview with the detective that
there were times when he touched A.B.’s vagina and butt, including once when
she was in the bathtub; that the touching in the bathtub was a mistake; that he had

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No. 2021AP2070-CR

A.B. sit on his lap and rocked in the chair with her in his lap; that he had
previously been confronted by A.B.’s mother about inappropriate touching of A.B.
and ultimately moved out of their shared residence because “there had been one
too many instances”; and that he did not recall ever touching or putting his mouth
on A.B.’s nipples.

¶6 The jury found McKinnon guilty of repeated sexual assault of a
child.

¶7 In February 2021, McKinnon filed a postconviction motion alleging
ineffective assistance of counsel and seeking a new trial. Specifically, McKinnon
alleged that trial counsel was ineffective for: (1) failing during voir dire to ask
follow-up questions of the prospective juror in order “to develop the facts
regarding [her] relationship with” the prosecutor; (2) failing to object to or move
to strike Meyer’s twice-repeated testimony that she believed what A.B. told her,
on the grounds that the testimony was non-responsive and in violation of the
Haseltine rule;2 and (3) failing to properly object to the testimony of A.B.’s
grandmother regarding her conviction for child neglect for failing to protect A.B.
from McKinnon’s sexual abuse. In June 2021, the circuit court held an
evidentiary Machner3 hearing, at which the juror and trial counsel testified. We
present the details of their testimony as pertinent to our discussion below.

2
State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (1984) (stating that the
credibility of a witness is for the jury to decide, and that “[n]o witness … should be permitted to
give an opinion that another mentally and physically competent witness is telling the truth.”).
3
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (when a
defendant claims he or she received the ineffective assistance of trial counsel, a postconviction
hearing “is a prerequisite … on appeal to preserve the testimony of trial counsel.”).

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No. 2021AP2070-CR

¶8 In November 2021, the circuit court denied the motion. The court
determined that trial counsel did not perform deficiently with respect to counsel’s
questioning of the prospective juror or counsel’s failure to object to Meyer’s
testimony. The court also determined that McKinnon was not prejudiced by the
grandmother’s testimony about her conviction, given the other trial evidence,
particularly the grandmother’s observations and A.B.’s testimony. McKinnon
appeals.

DISCUSSION

¶9 McKinnon renews his claims of ineffective assistance of trial
counsel on appeal.

¶10 Under both the Wisconsin and United States Constitutions, to prevail
on an ineffective assistance of counsel claim, the defendant must show that
counsel’s actions or inaction constituted deficient performance and that, as a result
of that deficient performance, the defendant was prejudiced. Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Love, 2005 WI 116, ¶30, 284
Wis. 2d 111, 700 N.W.2d 62; State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d 571,
665 N.W.2d 305.

¶11 To prove deficient performance, “the defendant must establish that
counsel’s conduct [fell] below an objective standard of reasonableness.” Love,
284 Wis. 2d 111, ¶30. The defendant must show that, under all of the
circumstances, counsel’s specific acts or omissions were “outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690. To prove
prejudice, the defendant must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been

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No. 2021AP2070-CR

different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.

¶12 The defendant bears the burden of proving both of these elements.
State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111. If we
conclude that the defendant has not proved one prong, we need not address the
other. Strickland, 466 U.S. at 697; State v. Nielsen, 2001 WI App 138, ¶27, 246
Wis. 2d 648, 630 N.W.2d 752.

¶13 Whether counsel’s actions were deficient or prejudicial is a mixed
question of law and fact. Strickland, 466 U.S at 698. We will uphold the circuit
court’s findings of fact unless they are clearly erroneous. State v. Thiel, 2003 WI
111, ¶21, 264 Wis. 2d 71, 665 N.W.2d 305; State v. Kimbrough, 2001 WI App
138, ¶27, 246 Wis. 2d 648, 630 N.W.2d 752. “Findings of fact include ‘the
circumstances of the case and the counsel’s conduct and strategy.’” Thiel, 264
Wis. 2d 571, ¶21 (citation omitted). Whether counsel’s conduct violated the
defendant’s right to effective assistance of counsel is a legal determination, which
this court decides de novo. Kimbrough, 246 Wis. 2d 648, ¶27.

I. Failure to question prospective juror further

¶14 “The United States Constitution and Wisconsin’s Constitution
guarantee an accused an impartial jury.” State v. Lepsch, 2017 WI 27, ¶21, 374
Wis. 2d 98, 892 N.W.2d 682 (internal quotation marks and quoted source
omitted). “To be impartial, a juror must be indifferent and capable of basing his or
her verdict upon the evidence developed at trial.” State v. Faucher, 227 Wis. 2d
700, 715, 596 N.W.2d 770 (1999). There are three types of prospective juror bias:
(1) statutory bias; (2) subjective bias; and (3) objective bias. Faucher, 227
Wis. 2d at 716.

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No. 2021AP2070-CR

¶15 McKinnon argues that trial counsel was ineffective by failing to ask
follow-up questions about the nature of the relationship between the prospective
juror and the prosecutor in order to determine whether their relationship was such
that it rendered her objectively biased. “The concept of objective bias relates to
the question of ‘whether [a] reasonable person in the individual prospective juror’s
position could be impartial.’” Lepsch, 374 Wis. 2d 98, ¶24 (quoting Faucher, 227
Wis. 2d at 718). A juror “should be viewed as objectively biased if a reasonable
person in the juror’s position could not avoid basing his or her verdict upon
considerations extraneous to evidence put before the jury at trial.” State v. Tody,
2009 WI 31, ¶36, 316 Wis. 2d 689, 764 N.W.2d 737, abrogated in part as stated
in State v. Sellhausen, 2012 WI 5, ¶73, 338 Wis. 2d 286, 809 N.W.2d 14 (Ziegler,
J., concurring). Exclusion of a prospective juror for objective bias requires either:
“(1) some direct or personal connection between the challenged juror and some
important aspect of the particular case, or (2) a firmly held negative predisposition
by the juror regarding the justice system that precludes the juror from fairly and
impartially deciding the case.” State v. Jimmie R.R., 2000 WI App 5, ¶19, 232
Wis. 2d 138, 606 N.W.2d 196. Pertinent here, the question is whether the
relationship with the prosecutor was “close enough to have biased a reasonable
person” in the position of the prospective juror. State v. Beck, No. 2010AP872,
unpublished slip op. at ¶28 (WI App Oct. 20, 2011).4

¶16 “Whether a juror is objectively biased is a mixed question of fact
and law.” Faucher, 227 Wis. 2d at 720. The circuit court’s factual findings will
be upheld unless they are clearly erroneous. Id. “Whether those facts fulfill the

4
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished
opinions issued after July 1, 2009, for their persuasive value).

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No. 2021AP2070-CR

legal standard of objective bias is a question of law.” Id. Because the circuit
court’s conclusion on objective bias is intertwined with its factual findings, “it is
appropriate that [the appellate] court give weight to the circuit court’s conclusion.”
Id.

¶17 “A failure to object or to further question a juror may be raised as a
claim of ineffective assistance of counsel.” State v. Carter, 2002 WI App 55, ¶14,
250 Wis. 2d 851, 641 N.W.2d 517. In the context of an ineffective assistance of
counsel claim, the prejudice prong in a claim concerning juror bias presents as a
question of whether counsel’s performance resulted in the seating of a biased
juror. See State v. Koller, 2001 WI App 253, ¶14, 248 Wis. 259, 635 N.W.2d 838
(stating that, when a defendant asserts trial counsel was ineffective for failing to
sufficiently question a prospective juror, “[t]he prejudice issue here is whether
[defendant’s] counsel’s performance resulted in the seating of a biased juror”).
“[C]ounsel’s failure to act to remove a biased juror who ultimately sat on the jury
constitutes deficient performance resulting in prejudice” to the defendant. Carter,
250 Wis. 2d 851, ¶15.

¶18 To recap, during voir dire, the prospective juror said, “I know [the
prosecutor] as a family friend.” In response to questioning by the circuit court, she
said, “I can set that aside and listen to evidence fairly.”

¶19 We assume, without deciding, that it was deficient performance
during voir dire for counsel to fail to question the prospective juror further about
the nature of her relationship with the prosecutor to determine whether their
relationship was such that it rendered her objectively biased. See Beck, ¶¶17-18
(WI App Oct. 20, 2011) (ruling that defense counsel was deficient in not probing
more deeply into prospective juror’s relationship with the district attorney, whom

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No. 2021AP2070-CR

she had known “for several years,” and into her relationship with the assistant
district attorney, whom she knew “on a social basis”). We turn to whether that
deficient performance resulted in prejudice to McKinnon, that is, whether
McKinnon has met his burden of showing that the juror was objectively biased.
We first review the juror’s testimony at the postconviction hearing along with the
circuit court’s ruling and then explain our conclusion that McKinnon fails to show
that the juror was objectively biased.

¶20 At that hearing, the juror offered the following testimony.

¶21 She and the prosecutor both volunteered at a dog rescue program.
She and the prosecutor had different roles and levels of involvement in the rescue
organization, and were not “partners” in it. She saw the prosecutor only at public
adoption events focused on dogs. She volunteered at adoption events for two
hours each month for two to three years, always with a group of four or more
people, never only with the prosecutor.

¶22 The juror had known the prosecutor for more than five years and
considered the prosecutor “an acquaintance, someone I trust.” They were not
close and they did not talk to each other outside of the rescue work. She did not
have personal conversations on the phone with the prosecutor and did not call the
prosecutor to go to dinner. She did contact the prosecutor once before the trial in
this case to ask some “process questions” regarding her then pending divorce. She
respected attorneys and had the opportunity to assess the prosecutor’s credibility
before trial, but she “was told to put all feelings and relations aside, and I did.”
She had no discussions with the prosecutor about this case before the trial, and
during trial they had no communications that were not on the record.

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No. 2021AP2070-CR

¶23 The circuit court rejected McKinnon’s claim that counsel was
ineffective in not further questioning the prospective juror during voir dire about
her relationship with the prosecutor. The court found that the “prosecutor was
someone [whom the juror] worked with periodically, not someone she was closely
tied with,” and that the juror “didn’t describe a relationship at a level showing
objective bias.”

¶24 We conclude that the juror’s testimony at the Machner hearing, and
the circuit court’s factual findings based on that testimony, establish that her
relationship with the prosecutor was “not close enough to have biased a reasonable
person.” Beck, No. 2010AP872, ¶28 (WI App Oct. 20, 2011) (concluding from a
reading of the voir dire transcript that three jurors challenged by defendant were
not objectively biased because their relationships with the district attorney were
sufficiently distant such that a reasonable person in the position of each of the
jurors would be able to remain fair and impartial). The record supports the circuit
court’s findings that the juror and the prosecutor interacted only occasionally and
did not have a close personal relationship. As in Beck, the interactions between
the two were sufficiently sporadic and their relationship was sufficiently distant
that a reasonable person in the juror’s position would be able to remain fair and
impartial. See id. at ¶28. Because the juror was not objectively biased, trial
counsel’s failure during voir dire to question her further about her relationship
with the prosecutor did not prejudice McKinnon. Accordingly, McKinnon fails to
show that trial counsel was constitutionally ineffective.

¶25 McKinnon argues that the juror was objectively biased because of
her friendship with the prosecutor. McKinnon characterizes that friendship as a
“very substantial relationship” between two people who shared the same charitable
goal, who “saw each other frequently over a lengthy period of time,” and who

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No. 2021AP2070-CR

shared “significant social ties.” This characterization exaggerates the record
reviewed above, which shows that she saw the prosecutor only occasionally and as
part of larger groups and did not see the prosecutor individually or socially; it is
also inconsistent to a significant degree with the circuit court’s findings that the
two worked together only periodically and were not socially close.5

¶26 McKinnon also points to the juror’s testimony that she considered
the prosecutor to be fair and honest when she dealt with the prosecutor.
McKinnon analogizes this situation to that in Faucher, in which our supreme
court concluded that a prospective juror was objectively biased based on his
statements that a witness was his former next-door neighbor, who he knew to be
“a girl of integrity” who “wouldn’t lie.” Faucher, 227 Wis. 2d at 708, 735.
However, the court in Faucher stressed that it was the juror’s “strongly held
beliefs” and “strongly held initial assurances” as to the witness’s credibility, not
their relationship as neighbors, which was the basis for its determination of
objective bias. Id. The court noted that on three occasions the juror expressed the
view that the witness’s credibility was unimpeachable. Id. at 732-33. By contrast,
McKinnon fails to show that the juror in this case possessed such “strongly held
beliefs” or made such “strongly held” unequivocal assurances as to the
prosecutor’s credibility.

¶27 McKinnon also argues that, because the juror did not disclose a
similar relationship with defense counsel, she “would have been more inclined to

5
McKinnon supports his argument with a citation to Montgomery v. Commonwealth,
819 S.W.2d 713 (Ky. 1991). That case does not help McKinnon not only because it is a non-
Wisconsin case that is not binding, but also because the language McKinnon cites presumes bias
only when a sufficiently close relationship is established, id. at 717, which is not the case here.

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No. 2021AP2070-CR

side with” the prosecutor. However, when asked if she “would have been more
inclined to respect [the prosecutor’s position] than [a position held by] somebody
else,” the juror testified, “I respect all attorneys,” and that “we were asked to put
all feelings and relations aside, which I did.” We conclude that, taking into
account the juror’s testimony as a whole, it was reasonable for the circuit court to
conclude that a reasonable person in the juror’s position could set aside her
opinion and be impartial. See Faucher, 227 Wis. 2d at 718-19 (the emphasis of
the assessment of whether a juror is objectively biased is “on the reasonable
person in light of” the facts and circumstances surrounding the juror’s statements).

¶28 In sum, McKinnon fails to provide a basis for us to disturb the
circuit court’s reasonable determination that the prospective juror was not
objectively biased. See Faucher, 227 Wis. 2d 700 at 731-2, ¶56 (the appellate
court will reverse the circuit court’s conclusion that a prospective juror is not
biased “only if as a matter of law a reasonable judge could not have reached such a
conclusion.”); see also Lepsch, 374 Wis. 2d 98, ¶37 (defendant failed to
demonstrate he was prejudiced by counsel’s deficient performance at voir dire
when he failed to provide “sufficient reason to upset the circuit court’s
determination” that prospective jurors who sat on jury were not biased).

II. Failure to object to Meyer’s testimony that she believed A.B.

¶29 McKinnon argues that trial counsel rendered ineffective assistance
by failing to object to or move to strike Meyer’s twice-repeated testimony that she
believed what A.B. told her, on the grounds that the testimony violated the
Haseltine rule. We decide this issue based on a failure to show prejudice. See
Strickland, 466 U.S. at 697 (stating that if the court concludes that the defendant
has not proved one prong, it need not address the other).

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No. 2021AP2070-CR

¶30 In State v. Krueger, 2008 WI App 162, ¶¶9-13, 314 Wis. 2d 65, 762
N.W.2d 114, this court reviewed opinions addressing the admissibility of expert
opinion in cases involving allegations of child sexual assault. We began with
State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), in which this
court concluded that “no expert should be permitted to give an opinion that
another mentally and physically competent witness is telling the truth.” Krueger,
314 Wis. 2d 65, ¶9 (citing Haseltine, 120 Wis. 2d at 96). Citing Haseltine, 120
Wis. 2d at 96, we stated, “An opinion that a complainant was sexually assaulted or
is telling the truth is impermissible. The credibility of a witness is ordinarily
something a lay juror can knowledgeably determine without the help of an expert
opinion.” Krueger, 314 Wis. 2d 65, ¶9.

¶31 We then cited State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913
(1988), in which our supreme court similarly ruled that “‘the expert witness must
not be allowed to convey to the jury his or her own beliefs as to the veracity of the
complainant with respect to the assault.’” Krueger, 314 Wis. 2d 605, ¶12 (quoting
Jensen, 147 Wis. 2d at 256-57).

¶32 In Krueger, we addressed the defendant’s claim that his trial counsel
was constitutionally ineffective for failing to object to testimony by the social
worker who conducted a forensic interview of the alleged child sexual assault
victim. Krueger, 314 Wis. 2d 605, ¶¶1-3. After the jury viewed the videotaped
interview and the child testified, the social worker was called as a witness and was
asked about methods she used to determine whether the child was subject to
coaching or suggestibility. Id. at ¶5. She was then asked whether she formed an
opinion as to whether the child’s incriminating statements were the product of any
coaching or suggestibility. Id. The social worker testified that the child was not
sophisticated enough to maintain a fabricated story and, therefore, could not have

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No. 2021AP2070-CR

consistently recounted the details of the alleged incident “unless it was something
that she had experienced.” Id. at ¶¶1, 5. We determined that “the social worker
effectively offered expert opinion testimony that the child was telling the truth,
which is impermissible under State v. Haseltine.” Id. at ¶¶1, 19 (“Haseltine and
Jensen make clear that opinion testimony as to a particular child may not cross the
line by including a subjective determination as to the credibility of the
complainant.”). Accordingly, we concluded that it was deficient performance for
trial counsel to fail to object to the testimony; we also concluded that, based on the
facts of that case, the defendant was prejudiced by counsel’s failure. Id. at ¶¶1,
17-18.

¶33 Here, as stated, after portions of a video recording of the forensic
interview of A.B. were played for the jury, McKinnon’s trial counsel cross-
examined Meyer with regard to how she conducted interviews. Trial counsel then
asked Meyer if she knew whether A.B. had experienced the sexual assaults she
described, and Meyer testified, “A.B. told me she experienced those things, so,
yes, I believe her.” Trial counsel then asked, “Yes, you know she experienced
them?” Meyer testified, “I believed what she told me.”6

¶34 Assuming without deciding that Meyer “effectively offered expert
opinion testimony that the child was telling the truth, which is impermissible
under State v. Haseltine,” id. at ¶¶1, 19, we conclude that counsel’s failure to
object to that testimony, based on the facts of this case, did not prejudice
McKinnon. Unlike in Krueger, in which the child’s account of the one sexual

6
The parties do not identify, and we do not discern, any significance in Meyer’s use of
first the present tense (“believe”) and then the past tense (“believed”) in response to trial
counsel’s series of related questions.

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No. 2021AP2070-CR

assault was not corroborated by independent evidence, id. at ¶18, here A.B.’s
grandmother testified that she witnessed several of the sexual assaults described
by A.B. In the face of such eye-witness corroboration, we cannot conclude that
without Meyer’s testimony—that she believed what A.B. told her about the
assaults that A.B.’s grandmother testified she witnessed—there is a reasonable
probability that the result of the trial would have been different.

¶35 McKinnon argues that trial counsel’s failure to object to this
testimony was prejudicial because the testimony unfairly bolstered A.B.’s
credibility. Specifically, the argument is that it raised the unreasonable risk that
the jury would have believed that Meyer’s training allowed her to determine, and
that Meyer had access to information not presented at trial that showed, that A.B.
was truthful and McKinnon was guilty. We observe that the risk identified by
McKinnon is not great—Meyer’s testimony that she believed what A.B. told her
was conclusory in nature, Meyer specifically testified that her job “isn’t to
determine whether something’s happened or not,” and Meyer did not in any way
allude to any special training or information not presented at trial that would give
her special insight or ability to determine truthfulness. But in any event, this
argument ignores the corroborating evidence, missing in Krueger, in the form of
the grandmother’s testimony that she witnessed certain of the sexual assaults that
A.B. described.

¶36 In sum, McKinnon does not persuade us that, had Meyer’s testimony
that she believed what A.B. told her been excluded, there is a reasonable
probability that the jury would have acquitted McKinnon.

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No. 2021AP2070-CR

III. Failure to object to testimony about grandmother’s conviction

¶37 McKinnon argues that trial counsel rendered ineffective assistance
by failing to properly object to the testimony of A.B.’s grandmother regarding her
conviction for child neglect for failing to protect A.B. from the sexual assaults
alleged in this case. We also decide this issue on the prejudice prong. See
Strickland, 466 U.S. at 697.

¶38 McKinnon argues that admission of this testimony “allowed the jury
to infer [that the grandmother’s] sentencing court had already concluded defendant
McKinnon had in fact sexually assault[ed]” A.B. McKinnon argues that this
inference was reinforced when the prosecutor referenced this testimony in closing
argument. However, McKinnon acknowledges that this error, alone, is not
sufficiently prejudicial to warrant a new trial. We agree. Had the evidence of the
grandmother’s conviction been excluded, we conclude that it is not reasonably
probable that the jury would have acquitted McKinnon of committing the sexual
assaults that A.B. described and that the grandmother testified she witnessed.

IV. Cumulative Prejudice

¶39 McKinnon argues that, taken together, trial counsel’s two errors—
the Haseltine error and the erroneous admission of A.B.’s grandmother’s
conviction—are sufficiently unfairly prejudicial as to warrant a new trial.

¶40 In State v. Thiel, 264 Wis. 2d 571, ¶59, our supreme court directed
that “prejudice should be assessed based on the cumulative effect of” trial
counsel’s errors even when “the specific errors, evaluated individually, do not
satisfy the prejudice standard in Strickland.” The court noted that, “in most cases
errors, even unreasonable errors, will not have a cumulative impact sufficient to

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No. 2021AP2070-CR

undermine confidence in the outcome of the trial, especially if the evidence
against the defendant remains compelling.” Id. at ¶61. Our focus in the analysis
is on “the totality of the circumstances at trial” and “the overall reliability of the
trial.” Id. at ¶62.

¶41 We conclude that McKinnon does not show that trial counsel’s
failure to object to Meyer’s testimony that she believed what A.B. told her and the
grandmother’s testimony about her conviction undermines confidence in the
outcome of the trial. McKinnon disregards the compelling evidence comprising
A.B.’s testimony describing the details of the sexual assaults and the
grandmother’s testimony that she witnessed several of the assaults that A.B.
described. Given this compelling evidence, McKinnon fails to show that, had
Meyer’s testimony that she believed what A.B. told her and the grandmother’s
testimony about her conviction been excluded, there is a reasonable probability
that the result of the trial would have been different.

CONCLUSION

¶42 For the reasons explained above, we affirm.

By the Court.—Judgment and order affirmed.

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

17