State v. Daniel J. Coughlin

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.
March 2, 2023
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. 2021AP1416 Cir. Ct. No. 2011CF78

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANIEL J. COUGHLIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Juneau County: JOHN PIER ROEMER and STACY A. SMITH, Judges.
Affirmed in part; reversed in part and cause remanded.

Before Blanchard, P.J., Fitzpatrick, and Nashold, 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. 2021AP1416

¶1 PER CURIAM. After two mistrials were declared, a jury at a third
trial returned verdicts finding Daniel Coughlin guilty on five counts of child
sexual assault. Four counts alleged assaults on the same child in 1989, 1990,
1991, and 1992; the fifth alleged an assault on a different child in 1990. Coughlin
argued in a direct appeal that the Double Jeopardy Clause barred successive
prosecutions. This court rejected that argument and affirmed in a summary order.
State v. Coughlin, No. 2017AP1394-CR, unpublished op. and order (WI App
June 13, 2018).

¶2 In 2020, Coughlin filed a postconviction motion under WIS. STAT.
§ 974.06 (2021-22) that raised new claims, which are the subjects of this appeal.1
Coughlin appeals the postconviction court’s denial of the motion in its entirety
without holding a Machner hearing.2 The State argues that Coughlin is
procedurally barred from raising the new issues under § 974.06 because he did not
raise them in the direct appeal. We conclude that he is not procedurally barred.

¶3 Turning to the merits, Coughlin contends that a new trial is required
on Counts 1 - 4 because the trial court did not instruct the jury that it had to be
unanimous in finding specific modes of sexual assault (sexual contact or sexual
intercourse) and in finding specific acts of sexual assault (nature of touching or

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

Separately, the Honorable John Pier Roemer (“the trial court”) presided over the trial and
entered the judgment of conviction and the Honorable Stacy A. Smith (“the postconviction
court”) addressed the postconviction motion at issue in this appeal.
2
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979)
(describing need for a circuit court hearing at which evidence can be adduced bearing on claims
of ineffective assistance of counsel).

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intrusion). However, because trial counsel did not object to the jury instructions
on unanimity grounds, Coughlin’s potential relief on this issue is limited to an
opportunity to attempt to prove the following at a Machner hearing: that he is
entitled to a new trial on Counts 1 - 4 because trial counsel was constitutionally
ineffective in failing to object to the jury instructions and appellate counsel was
constitutionally ineffective in failing to raise the issue. We conclude that a
Machner hearing is required to address Coughlin’s claims of ineffective assistance
of both counsel on the unanimity issue.

¶4 One of Coughlin’s challenges to the Count 5 conviction is that a new
trial is required because the evidence is insufficient to show a violation of WIS.
STAT. § 948.02(1). We conclude that the evidence was sufficient. Separately
regarding Count 5, Coughlin points out (and the State does not dispute) that the
jury instruction on this count omitted a key feature of one element of the offense,
although this omission was not objected to by trial counsel. The parties disagree
about whether this instructional error was harmless. We conclude that the State
has failed to show that it is clear beyond a reasonable doubt that a rational jury
would have found Coughlin guilty on Count 5 absent the error and therefore this
issue must also be addressed at a Machner hearing.

¶5 Referencing all five counts, Coughlin argues that trial counsel was
ineffective for failing to do each of the following, and that appellate counsel was
ineffective for not addressing these failures of trial counsel: challenge or seek
exclusion of highly prejudicial allegations, made by the mother of the victims in
this case, that Coughlin sexually assaulted other children in addition to the two
alleged victims in this case; object to references to sexual assault-related conduct

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of Coughlin’s brother, Donald Coughlin, and to Donald Coughlin’s convictions for
sexual assault;3 and impeach witnesses called by the prosecution, including one of
the two alleged victims in this case, with available impeachment material. We
conclude that the circuit court on remand should also address the performance of
both trial counsel and appellate counsel on these issues at the Machner hearing.

¶6 Accordingly, we affirm the postconviction court on the sufficiency
issue but reverse its order denying Coughlin’s postconviction motion without
conducting a Machner hearing and remand for further proceedings consistent with
this opinion.

BACKGROUND

¶7 The two alleged victims in this case are Coughlin’s nephews, born
two years apart (“the older nephew,” “the younger nephew,” collectively “the
nephews”). As children, the nephews both worked at Coughlin’s farm, including
during the late 1980s and early 1990s. As adults, in 2009, the nephews told police
that Coughlin had sexually assaulted them at the farm.

¶8 The operative criminal information charged the following offenses,
each alleged to have been committed by Coughlin in the Town of Lyndon, Juneau
County:

 Count 1: Summer 1989, “sexual contact … with” the older nephew
when he was younger than 13, in violation of WIS. STAT. § 948.02(1).4

3
We refer to Donald Coughlin by his full name and to his brother, the defendant in this
case, by last name alone.
4
First degree sexual assault of child is defined to include “sexual contact or sexual
intercourse with a person who has not attained the age of 13 years.” WIS. STAT. § 948.02(1)(e).

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 Count 2: Summer 1990, “sexual contact … with” the older nephew
when he was under 16, in violation of § 948.02(2).5

 Count 3: Summer 1991, “sexual contact … with” the older nephew
when he was under 16, in violation of § 948.02(2).

 Count 4: Summer 1992, “sexual contact … with” the older nephew
when he was under 16, in violation of § 948.02(2).

 Count 5: Summer 1990, “sexual contact … with” the younger nephew
when he was under 13, in violation of § 948.02(1).

¶9 After two mistrials, the jury at the third trial found Coughlin guilty
of “sexual assault of a child” on each of the five counts.

¶10 The older nephew testified in part to the following. Coughlin, on
multiple occasions during the time periods for Counts 1 - 4, directed the older
nephew to masturbate Coughlin, performed oral sex on the older nephew, had “sex
[between the older nephew’s] legs,” and then would “reward” him with
experiences like a trip to a water park.

¶11 The younger nephew testified in pertinent part that on one occasion
Coughlin tied the younger nephew to the railing of a farm pen in which there were
calves, pulled down the younger nephew’s pants and underwear, “dribbled” milk
on the younger nephew’s penis, and allowed calves that were attracted to the milk
to “suck[]” on the younger nephew’s penis (“the alleged calf-pen incident”).

¶12 The prosecution gave the following as its theory in opening
statement. Having been sexually abused extensively in their home by their
stepfather, Donald Coughlin, and conditioned by him not to report abuse, the

5
Second degree sexual assault of a child is defined as “sexual contact or sexual
intercourse with a person who has not attained the age of 16 years.” WIS. STAT. § 948.02(2).

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nephews were then groomed and sexually abused by Donald Coughlin’s brother,
the defendant here, at Coughlin’s farm. The nephews did not contemporaneously
report Coughlin’s abuse, but they came forward in 2009 after learning that a
cousin had reported being sexually assaulted by Donald Coughlin (after initially
thinking that the cousin said that Coughlin had committed the sexual assault). In
closing argument, the prosecution emphasized the lack of motive for the nephews
to falsely accuse Coughlin, and also emphasized their motives to refrain from
reporting and from lifting the “veil of secrecy” that hid the sexual assaults.

¶13 The defense in opening emphasized: the passage of time that made
it difficult for the jury to be sure about events in the late 1980s and early 1990s,
including difficulty being sure in which years the alleged assaults had occurred;
inconsistent statements by the nephews; continuing cordial social relationships
between the nephews and Coughlin and his wife in the years after the alleged
sexual assaults; and evidence that the defense submitted would support a finding
that alleged “grooming” by Coughlin had actually been non-sexual “locker room”-
style “horseplay.” In closing argument, trial counsel again argued that there was
not consistent evidence regarding the timing of long-ago events and contended in
part that “this prosecution started … as a result of blackmail and revenge,” as
reflected in a letter written by the mother of the nephews, which is discussed
below. Trial counsel at times asserted that the nephews “lied,” but at other times
suggested that their alleged false statements “might be intentional,” “but also …
some of it might be unintentional.”

¶14 After Coughlin was convicted and sentenced, appellate counsel
(different from trial counsel) filed a direct appeal. Appellate counsel raised one
argument: Coughlin’s retrial after the first mistrial violated the Double Jeopardy
Clause because the first mistrial was intentionally caused by a police detective

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who delayed in producing video recordings to the defense. Coughlin,
No. 2017AP1394-CR. This court rejected that argument on the ground that
Coughlin’s allegation that the detective had the improper motive to delay
production of the recordings “rests entirely on speculation”; this court also noted
that Coughlin attempted to attribute blame only to the detective, and not to the
prosecution. Id.

¶15 Current counsel for Coughlin (different from trial counsel or
appellate counsel) filed a motion under WIS. STAT. § 974.06 for postconviction
relief, making the same claims now made on appeal. The postconviction court
denied the motion in its entirety without holding an evidentiary hearing under
Machner.

¶16 Coughlin appeals, seeking reversal of the order denying the
postconviction motion and as relief primarily seeking a remand for an evidentiary
hearing or a new trial.

DISCUSSION

I. PROCEDURAL BAR

¶17 As he must, Coughlin acknowledges that, because appellate counsel
failed in the direct appeal to raise any of his current claims, the procedural bar
under WIS. STAT. § 974.06 that we describe below applies to each claim, unless
Coughlin provides a sufficient reason to explain that failure. See State v. Balliette,
2011 WI 79, ¶36, 336 Wis. 2d 358, 805 N.W.2d 334 (“claims that could have been
raised in the defendant’s direct appeal or in a previous § 974.06 motion are barred
from being raised in a subsequent § 974.06 motion absent a showing of a
sufficient reason why the claims were not raised on direct appeal or in a previous

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§ 974.06 motion”); § 974.06(4). As an alleged sufficient reason, Coughlin argues
that appellate counsel was constitutionally ineffective in failing to include his
current claims in the direct appeal.6 See Balliette, 336 Wis. 2d 358, ¶37. The
State argues that the procedural bar applies unless Coughlin demonstrates that his
current claims are “clearly stronger” than the single claim that appellate counsel
made on direct appeal and that Coughlin has failed to make this showing. See
State v. Romero-Georgana, 2014 WI 83, ¶¶45-46, 360 Wis. 2d 522, 849 N.W.2d
668 (performance of appellate counsel is not constitutionally ineffective for failure
to bring claims unless the claims are “clearly stronger” than the claims brought by
appellate counsel). Coughlin contends that the current claims are clearly stronger
than the claim we rejected in the direct appeal. We assume without deciding, in
favor of the State, that the “clearly stronger” test applies to Coughlin’s current
claims. However, we conclude that as the test is applied here Coughlin’s claims
are not procedurally barred, as we explain further below.7

¶18 When a motion filed under WIS. STAT. § 974.06 is sufficient on its
face, the circuit court must hold an evidentiary hearing, unless the record as a
whole conclusively demonstrates that the defendant is not entitled to relief.
Balliette, 336 Wis. 2d 358, ¶¶18, 50. Whether a § 974.06 motion merits an
evidentiary hearing—including whether there is a sufficient reason to overcome

6
As summarized in more detail below, to demonstrate that assistance of legal counsel
was constitutionally ineffective, a defendant must establish both that counsel’s performance was
deficient and that the deficient performance was prejudicial. State v. Breitzman, 2017 WI 100,
¶37, 378 Wis. 2d 431, 904 N.W.2d 93.
7
Coughlin alleges that his appellate counsel entirely failed to consider Coughlin’s
current claims—as opposed to considering them and then deciding not to pursue them—and that
as a result the clearly stronger test does not apply. The State disagrees. However, we need not
resolve this dispute, given our assumption that the test applies and our determination that the
claims in this appeal are clearly stronger, as explained in the text.

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the procedural bar—is a question of law that we review de novo. Romero-
Georgana, 360 Wis. 2d 522, ¶30. If, on the other hand, the motion does not raise
sufficient facts, “‘or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief,’” then the
circuit court has the discretion to grant or deny an evidentiary hearing. Balliette,
336 Wis. 2d 358, ¶18 (quoted source omitted). In that case, we review for an
erroneous exercise of discretion. Romero-Georgana, 360 Wis. 2d 522, ¶30.

¶19 Here, on the procedural bar issue the postconviction court said,
without elaboration, “the court does not find sufficient reason for the failure” by
Coughlin to raise the current issues in the direct appeal.

¶20 We turn to our application of the “clearly stronger” test, first
addressing the claim brought in the direct appeal. In our summary opinion
resolving the direct appeal we essentially concluded that the double jeopardy
claim was meritless. See Coughlin, No. 2017AP1394-CR. Our summary order
explained that Coughlin’s core argument rested “entirely on speculation.” See id.
Further, we suggested that, even if that were not the case, Coughlin failed to
explain how the allegedly improper motivation of the detective could be or should
be attributed to the prosecution for purposes of double jeopardy analysis. See id.
Moreover, as Coughlin now aptly notes, the State on appeal does not provide a
developed argument regarding the merits of the direct appeal.8 In effect, the State
concedes that the direct appeal lacked merit.

8
The State makes one general point but it is not apt. Its point is that effective appellate
advocacy involves “precision attack[s]” as opposed to “kitchen-sink approach[es],” and for this
proposition the State accurately cites Knox v. United States, 400 F.3d 519, 521 (7th Cir. 2005).
But the State fails to develop an argument that the direct appeal here could be described as a
“precision attack” with potential merit. We conclude that it was not.

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¶21 Regarding the current claims, as reflected in our discussion below,
Coughlin prevails on appeal. It is true that we reject some specific arguments
Coughlin makes, most notably his sufficiency challenge to Count 5, but Coughlin
prevails on arguments entitling him to an evidentiary hearing that could establish a
basis for a new trial on Counts 1 – 4, on Count 5, or on all counts.

¶22 In arguing that the clearly stronger test is not met, the State briefly
asserts two points of comparison between the direct appeal and this one. But
neither helps the State’s position given the lack of merit in the direct appeal. First,
the State contends that it is significant that trial counsel preserved the basis for the
double jeopardy claim through a contemporaneous objection (i.e., moving at the
first trial for a mistrial), while the current claims are all based on issues for which
there was no contemporaneous objection. Of course, all other things being equal,
a preserved claim of error is typically stronger than an unpreserved claim. But
here the mistrial and follow-up motions in the trial court based on the Double
Jeopardy Clause did the defense no good in the direct appeal because the claim
brought in that appeal was meritless. In contrast, today we grant forms of relief to
Coughlin in this appeal despite the lack of objections at trial.

¶23 Second, the State argues that the remedy sought in the direct
appeal—dismissal of the case with prejudice—was more “substantial” than any
remedy sought in the current motion. The remedy of dismissal with prejudice
would indeed be substantial. Further, in a given case the value of the relief sought
could bolster the relative strength of an issue. But here, given that Coughlin had
no chance of obtaining this relief, the potential value of the relief sought counts for
little.

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¶24 In sum on this issue, we conclude that the procedural bar does not
apply to preclude Coughlin from bringing the current claims challenging his
convictions.

¶25 We emphasize that our application of the clearly stronger test in
Coughlin’s favor resolves only the procedural bar issue, and not the separate
issues of whether trial counsel or appellate counsel were in fact constitutionally
ineffective. Given the absence of a Machner hearing, there is no factual record
across issues in this appeal as to whether trial counsel or appellate counsel might
have had “good reasons for not pursuing” the claims that Coughlin now raises.
See Romero-Georgana, 360 Wis. 2d 522, ¶¶46, 62.

II. UNANIMITY INSTRUCTIONAL ERROR (Counts 1 - 4)

¶26 Coughlin argues that a new trial is required on Counts 1 - 4 because
the trial court did not instruct the jury that it was obligated to reach a unanimous
consensus regarding the specific modes and the specific acts of sexual assault
alleged for each count. Coughlin does not dispute that his trial counsel did not
make a contemporaneous objection that the jury instructions failed to require
unanimity and that this generally constitutes a forfeiture of the issue. See WIS.
STAT. § 805.13(3) (failure to object at jury instruction conference “constitutes a
waiver of any error in the proposed instructions or verdict”). But Coughlin
contends that we should reverse based on our discretionary authority under WIS.
STAT. § 752.35, or in the alternative that we should require the circuit court to
conduct an evidentiary hearing addressing the claim of ineffective assistance of
trial counsel for failing to make a contemporaneous objection, compounded by
ineffective assistance of appellate counsel for not raising trial counsel’s failure in
the direct appeal.

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¶27 On this issue, the postconviction court said, without elaboration, that
it “does not find any violation of due process.”

¶28 We now provide additional background on this issue, followed by
pertinent legal standards regarding ineffective assistance of counsel and error in
instructing a jury. Then we explain our conclusion that Coughlin is entitled to a
Machner hearing in the circuit court following remand because he alleges
sufficient facts on the unanimity issue which, if true, could entitle him to relief
based in part on points that the State does not dispute. See State v. Sholar, 2018
WI 53, ¶50, 381 Wis. 2d 560, 912 N.W.2d 89 (citing Machner). More
specifically, having considered the arguments now presented by the parties, we
conclude that Coughlin has shown that his due process rights were violated, which
constituted prejudice under the proper test, but that a Machner hearing is required
to determine whether either trial counsel or appellate counsel had a strategic
reason or other proper reasons not to pursue this issue, such that the performance
of that attorney was not deficient.

A. Additional Background

¶29 To recap, Count 1 charged first degree sexual assault of the older
nephew, with elements that include “sexual contact or sexual intercourse with a
person who has not attained the age of 13 years,” under WIS. STAT. § 948.02(1)(e).
Counts 2 – 4 charged second degree sexual assault of the older nephew, with
elements that include “sexual contact or sexual intercourse with a person who has
not attained the age of 16 years,” under § 948.02(2).

¶30 In the jury instructions, the trial court accurately defined these
elements. The court further accurately defined for the jury the terms “sexual

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contact” and “sexual intercourse,” which are different. See WIS JI—CRIMINAL
2101A and 2101B.9

¶31 However, Coughlin argues that his right to a unanimous verdict was
violated because the jurors were not properly instructed and also not given verdicts
that directed them to unanimously agree, for each of Counts 1 - 4, whether
Coughlin had sexual contact or instead sexual intercourse with the older nephew,
or required them to unanimously agree on a specific act that he committed with

9
Consistent with WIS. STAT. § 948.01(5), the instruction defining “sexual contact”
stated:

Sexual contact is an intentional touching of the buttock,
groin, or penis of [the older nephew] by [Coughlin]. The
touching may be of the buttock, groin, or penis directly or it may
be through the clothing. The touching may be done by any body
part or by any object, but it must be an intentional touching.

Sexual contact also requires that [Coughlin] acted with
intent to become sexually aroused or gratified.

Sexual contact is a touching by [the older nephew] of the
buttock, groin, or penis of [Coughlin], if [Coughlin] intentionally
caused or allowed [the older nephew] to do that touching. The
touching may be of the buttock, groin, or penis directly or it may
be through the clothing.

Sexual contact also requires that the defendant acted
with intent to become sexually aroused or gratified.

Consistent with WIS. STAT. § 948.01(6), the instruction defining “sexual intercourse” stated:

Sexual intercourse means any intrusion, however slight,
by any part of a person’s body or object, into the genital or anal
opening of another. Emission of semen is not required.

Meaning of “Sexual Intercourse”

“Sexual intercourse” includes fellatio.

Fellatio means oral contact with the penis.

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respect to the older nephew that constituted sexual contact or sexual intercourse.
Coughlin bases this argument on a combination of three factors that he contends
contributed to “a perfect storm of error” on the unanimity issue. We introduce and
address these three factors below.

B. Legal Standards Governing Ineffective Assistance, Instructional
Error, And Juror Unanimity

¶32 This court has summarized pertinent standards regarding ineffective
assistance in the context of a claimed jury instruction error:

[A] defendant claiming ineffective assistance must
establish both deficient performance and prejudice, … and
a claim predicated on a failure to challenge a correct trial
court ruling cannot establish either.

Similarly, because a defendant claiming ineffective
assistance of postconviction counsel must establish
postconviction counsel’s failure to challenge trial counsel’s
performance, no such claim can succeed if predicated upon
trial counsel’s failure to challenge a correct trial court
ruling. Thus, to establish that postconviction or appellate
counsel was ineffective, a defendant bears the burden of
proving that trial counsel’s performance was deficient and
prejudicial.

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.
Whether a jury instruction is appropriate, under the given
facts of a case, is a legal issue subject to independent
review. On review, the challenged words of jury
instructions are not evaluated in isolation. Rather, jury
instructions “must be viewed in the context of the overall
charge.” Relief is not warranted unless the court is
“persuaded that the instructions, when viewed as a whole,
misstated the law or misdirected the jury.” Whether a jury
instruction violated a defendant’s right to due process is a
legal issue subject to de novo review.

State v. Ziebart, 2003 WI App 258, ¶¶14-16, 268 Wis. 2d 468, 673 N.W.2d 369
(emphases in original) (cited authority omitted). In addition, the test for deficient

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No. 2021AP1416

performance is whether counsel’s representation fell below objective standards of
reasonableness, and prejudice is shown if our confidence in the outcome is placed
in such doubt that the conviction is fundamentally unfair or unreliable. Strickland
v. Washington, 466 U.S. 668, 687-88 (1984).

¶33 Also notable here, given the fact that Coughlin has raised multiple
allegations of ineffective assistance of trial counsel, is the following consideration
regarding the prejudice prong. “[T]he cumulative effect of several deficient acts
or omissions may, in certain instances, also undermine a reviewing court’s
confidence in the outcome of a proceeding.” State v. Thiel, 2003 WI 111, ¶60,
264 Wis. 2d 571, 665 N.W.2d 305. That is, a court may consider “the effects of
multiple incidents of deficient performance in determining whether the overall
impact of the deficiencies satisfied the standard for a new trial under Strickland.”
Thiel, 264 Wis. 2d 571, ¶60.

¶34 Regarding the requirement of juror unanimity, our supreme court has
explained the following:

The Wisconsin Constitution’s guarantee of a right
to trial by jury includes the right to a unanimous verdict
with respect to the ultimate issue of guilt or innocence.
WIS. CONST., art. I, §§ 5 and 7; Holland v. State, 91 Wis.
2d 134, 138, 280 N.W.2d 288 (1979); Vogel v. State, 138
Wis. 315, 332-33, 119 N.W. 190 (1909); Boldt v. State, 72
Wis. 7, 14-16, 38 N.W. 177 (1888). “The principal
justification for the unanimity requirement is that it ensures
that each juror is convinced beyond a reasonable doubt that
the prosecution has proved each essential element of the
offense.” State v. Lomagro, 113 Wis. 2d 582, 591, 335
N.W.2d 583 (1983); see also Holland, 91 Wis. 2d at 138
(requirement of jury unanimity linked to due process
requirement of proof of each element of the offense beyond
a reasonable doubt, citing In Re Winship, 397 U.S. 358
(1970)).

State v. Derango, 2000 WI 89, ¶13, 236 Wis. 2d 721, 613 N.W.2d 833.

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¶35 Further, if a jury is allowed to treat separately charged acts that must
be found unanimously as merely alternative means of committing a charged
offense and is given vague verdict forms that only exacerbate the problem, then
the Sixth Amendment and the Fifth Amendment have been violated, and the
defendant has been prejudiced. See State v. Marcum, 166 Wis. 2d 908, 923-25,
480 N.W.2d 545 (Ct. App. 1992).

¶36 Putting these standards together in the current context, if the jury
instructions here did not deprive Coughlin of the right to juror unanimity, there is
not a viable claim of ineffective assistance by trial counsel or by appellate counsel.
But if the jury instructions did deprive him of that right, he is entitled to a
Machner hearing in the circuit court to attempt to prove that he is entitled to relief.
See Balliette, 336 Wis. 2d 358, ¶¶36, 79 (hearing merited if the allegations in a
WIS. STAT. § 974.06 motion provide sufficient material facts that, if proven,
demonstrate an entitlement to the relief sought). More specifically, while the
prejudice prong of the ineffective assistance test would be met, the hearing would
give the parties an opportunity to present evidence and arguments on the
deficiency prong: specifically, whether the relevant performance of trial counsel
and of appellate counsel, under the respective circumstances they faced, fell below
objective standards of reasonableness.

C. Analysis

¶37 We now address in turn the three factors that Coughlin contends
together deprived him of his right to a unanimous verdict for each of Counts 1 - 4:
ambiguity about the modes of sexual assault alleged; the fact that three separate
types of acts of sexual assault were alleged for each count; and the trial court’s
modification of WIS JI—CRIMINAL 517.

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¶38 Modes of sexual assault alleged. The jury instructions used the
ambiguous conjunction “sexual contact and/or intercourse” regarding each count,
instead of either specifying “sexual contact” or “sexual intercourse” for each or
specifying particular acts within each count as constituting an act of alleged
“sexual contact” or “sexual intercourse.” Coughlin argues that use of this
ambiguous conjunction invited jurors to think that they did not need to
unanimously agree on the mode of sexual assault corresponding to each count:
sexual contact or sexual intercourse.

¶39 In addition, the verdict form asked the jury to determine only
whether—as to each count, 1 - 4, with its specified time period and identified
victim—Coughlin was guilty of the generic conduct of “sexual assault of a child,”
not whether he had engaged in “sexual contact” or “sexual intercourse” with that
child during the specified time period.

¶40 Coughlin argues that the jury here had to reach unanimity on each
count as to whether an act of sexual contact occurred or, instead, an act of sexual
intercourse. Stated in case law terms, Coughlin’s position is that the charged acts
of sexual intercourse and the charged acts of sexual contact were “conceptually
distinct,” and therefore the trial court erred in failing to instruct the jury that
unanimity was required as to which of these two modes of sexual assault the jury
was finding occurred beyond a reasonable doubt. See Lomagro, 113 Wis. 2d at
592-93 (concluding that circuit court did not err in failing to instruct jury that
unanimity required as to the specific act constituting charged sexual assault based
on evidence of multiple acts that could constitute the offense; and stating, “If there
is only one crime, jury unanimity on the particular alternative means of
committing the crime is required only if the acts are conceptually distinct.”
(emphasis added)). It is not disputed in this appeal that, as discussed further

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below, Counts 1 - 4 involved allegations of individual incidents of sexual contact
or of sexual intercourse, alleged to have occurred for each count at different times
over the course of an entire summer. Cf. Lomagro, 113 Wis. 2d at 583-86, 598
(guarantee of jury unanimity not violated when numerous acts of sexual violence
were alleged over a two-hour period and were presented to the jury as one count of
sexual assault, deemed by our supreme court to have been a single encounter
involving “one continuing criminal episode and properly chargeable as one
offense”); see also State v. McMahon, 186 Wis. 2d 68, 82, 519 N.W.2d 621 (Ct.
App. 1994) (noting the absence of case law concluding that the allegation of
multiple sexual acts occurring over the course of more than one month could
amount to a single, continuous transaction.).

¶41 The State does not dispute any aspect of Coughlin’s arguments on
these points regarding the alternative modes of sexual assault alleged. Thus, the
State implicitly concedes that the set of ambiguous conjunction instructions and
verdict forms could have, at least standing alone, misled the jury as to the
unanimity requirement for Counts 1 - 4.

¶42 Three types of specific acts of sexual assault alleged. The State
also does not dispute Coughlin’s position that there was evidence at trial that
Coughlin committed each of the following acts during each charged time period:
(1) rubbed his penis between the older nephew’s legs (a form of sexual contact);
(2) masturbated the older nephew or had the older nephew masturbate him (forms
of sexual contact); or (3) performed oral sex on the older nephew (a form of sexual
intercourse). Coughlin argues that the evidence and argument at trial would have
led the jury to believe that, in order to return guilty verdicts as to each count, it
was not required to unanimously agree as to which of these three acts Coughlin
committed regarding that count. For example, according to Coughlin, there is the

18
No. 2021AP1416

possibility that, for any given count, some jurors found that sexual contact in the
form of penis touching leg occurred (but the other acts of alleged assault did not),
and other jurors found that sexual intercourse in the form of oral sex occurred (but
not the other acts). In fact, Coughlin argues, the range of possible failures to
unanimously agree was broad because the prosecution presented evidence of “far
more than twelve separate acts of assault—three different types, each occurring
during all four charging periods, multiple times in each period.”

¶43 Coughlin relies on Marcum for the proposition that it violates a
defendant’s right to due process to, in the words of Marcum, leave “the door open
to the possibility of a fragmented or patchwork verdict” in which jurors might fail
to reach unanimous agreement as to an act of sexual assault for a given count. See
Marcum, 166 Wis. 2d at 920. In Marcum, three counts of alleged sexual assault
through “sexual contact” on the verdict form were worded identically, even though
the evidence supporting each count was distinct, and we concluded that it was
problematic that a conviction on a given charge might have occurred even if all
jurors did not agree regarding the particular incident relating to that charge. Id. at
913, 919-223.

¶44 While the court’s reasoning in Marcum turned in part on the fact
that the jury in Marcum acquitted on two counts, see id. at 919-20, the State does
not make any argument based on that fact. Instead, as with the first factor
regarding modes of sexual assault, the State implicitly concedes the point
regarding the three types of sexual assaults by not contesting it. Specifically, it
implicitly concedes that the presentation of evidence of the three types of acts,
together with related arguments of the parties, at least considered in isolation,
could have misled the jury regarding the need for unanimity.

19
No. 2021AP1416

¶45 To repeat, the State does not argue that all, or some subsets of, the
multiple acts of sexual assault alleged here were “part of ‘one continuous criminal
transaction,’” so that it would “not matter that multiple acts occurred.” See
McMahon, 186 Wis. 2d at 82 (quoting Lomagro, 113 Wis. 2d at 589). Nor does
the State more generally argue that what was at issue here were merely multiple
different modes of committing the offense charged in each count, as opposed to
multiple offenses. See State v. Derango, 2000 WI 89, ¶¶13-14, 236 Wis. 2d 721,
613 N.W.2d 833 (explaining that “[t]he threshold question in a unanimity
challenge … is whether the statute creates multiple offenses or a single offense
with multiple modes of commission”).

¶46 Further, we see no room for any potential arguments along these
lines based on the evidence introduced at trial and the nature of Counts 1 – 4. The
older nephew testified that the three types of sexual contact or sexual intercourse
occurred on separate days and in separate locations, and in closing the prosecutor
argued that each of the three types of alleged sexual assault occurred during each
of the four charging periods. The State does not dispute that this mirrors the
problem described in Marcum nor does the State attempt to analogize the facts
here to the facts in cases, such as Lomagro, in which a unanimity instruction was
not required.

¶47 Trial court’s modification of WIS JI—CRIMINAL 517. The State’s
substantive argument on the unanimity issue is that the two factors just
summarized and relied upon by Coughlin did not create a unanimity violation
because WIS JI—CRIMINAL 517, as modified, provided the required unanimity
guidance. In contrast, Coughlin argues that the modification of this instruction
was a third factor that contributed to a unanimity violation because it was not only
insufficient, but it also served to “exacerbate[]” the unanimity problem. As we

20
No. 2021AP1416

explain below, we conclude that the trial court omitted the portion of the
instruction that actually conveys the requirement of unanimity, that what remains
is ambiguous regarding unanimity, and that this, together with the other two
factors cited by Coughlin, contributed to create a due process violation on
Counts 1 - 4.

¶48 By way of additional background, WIS JI—CRIMINAL 517 is entitled
“Jury Agreement: Evidence Of More Than One Act Introduced To Prove One
Charge.” Unmodified, it states:

The defendant is charged with one count of
[offense]. However, evidence has been introduced of more
than one act, any one of which may constitute [offense].

Before you may return a verdict of guilty, all 12
jurors must be satisfied beyond a reasonable doubt that the
defendant committed the same act and that the act
constituted the crime charged.

The trial court’s modification omitted the first two sentences and changed the
remaining sentence, giving the following instructions for Count 1 and then for
Counts 2 - 4:

Before you may find the defendant guilty of
Count 1 of the amended information you must be satisfied
beyond a reasonable doubt that the defendant committed
the same act during the charging period, and that act
constituted the charged crime.

….

Before you may find the defendant guilty of second
degree sexual assault of a child who has not attained the
age of 16 years, as contained in count 2 of the amended
information, as contained in count 3 of the amended
information, and as contained in count 4 of the amended
information, you must be satisfied beyond a reasonable
doubt that the defendant committed the same act during the
charging period and the act constituted the charged crime.

21
No. 2021AP1416

Thus, the trial court omitted the phrase “all 12 jurors must be satisfied” from the
pattern instruction and substituted the phrase “you must be satisfied” to produce
the following: “Before you may find the defendant guilty … you must be satisfied
beyond a reasonable doubt that the defendant committed the same act during the
charging period and that the act constituted the charged crime.”

¶49 The State essentially argues that the only reasonable interpretation of
the modified instruction is that the word “you” in the phrase “you must be
satisfied” meant words to the effect of, “you, all 12 jurors,” and therefore the jury
was correctly and sufficiently instructed on the unanimity issue. For support, the
State directs us to various uses of the word “you” in instructions other than WIS
JI—CRIMINAL 517, when “you” means “the jury,” including in the final paragraph
of the opening instruction that the trial court gave here:

If any member of the jury has an impression of my
opinion as to whether the defendant is guilty or not guilty,
disregard that impression entirely and decide the issues of
fact solely as you view the evidence. You, the jury, are the
sole judges of the facts, and the court is the judge of the law
only.

(Emphasis added.) From these references, the State’s argument proceeds, the jury
would have understood that the “you” in the modified fragment of WIS JI—
CRIMINAL 517 stating, “[b]efore you may find the defendant guilty … you must be
satisfied,” meant, “you, all 12 jurors.”

¶50 As part of its argument, the State contends that it would be illogical
to interpret the language at issue—“you must be satisfied … that the defendant
committed the same act during the charging period, and that act constituted the
charged crime”—to mean that, as the State puts it, each juror “must agree with

22
No. 2021AP1416

herself about the specific act that constituted the crime charged.” (Emphasis in
original.)10

¶51 We now explain why we reject these arguments by the State
regarding the likely effect of the modified WIS JI—CRIMINAL 517 and further
conclude that the combined effects of the three factors cited by Coughlin deprived
him of his due process right to a trial at which each juror was convinced beyond a
reasonable doubt that the prosecution proved each essential element of each
offense.

¶52 We conclude that the modified instruction is ambiguous. One
possible interpretation, consistent with the State’s argument, would be the
following. “You” would refer to the jury acting collectively, and one feasible
inference from that collective meaning is that all of the jurors had to agree on a
particular mode and act of sexual assault for each count. There is possible
support, as the State argues, in the existence of the earlier instruction referring to
“You, the jury.” Considered together with all of the language of the modified WIS
JI—CRIMINAL 517 this additional clue makes this one feasible interpretation.

¶53 But there is at least one other feasible interpretation, one that did not
clarify that unanimity was required and in fact could have misled the jury to think
that unanimity was not required, particularly in light of the other two factors
discussed above. This interpretation would be that “you,” a single juror, must be

10
The State also directs us to the use of “you” in the burden-of-proof instruction, WIS
JI—CRIMINAL 140, which states, “Before you can return a verdict of guilty, the evidence must
satisfy you beyond a reasonable doubt that the defendant is guilty.” But the terms of this
instruction do not unambiguously give “you” a collective meaning, so it does not add to the
analysis.

23
No. 2021AP1416

certain in finding that a single act occurred and that the other jurors must also be
certain in finding single acts, even if those might be different acts from the one
“you” found. We disagree with the State that this is an illogical interpretation
because it would require a juror to “agree with herself.” Instead, this wording
would be one way of emphasizing the necessity that each juror, independently, be
certain that one act in fact occurred during the charging period and that this act in
fact constituted the charged crime. Under this interpretation, each juror must him
or herself “be satisfied” regarding the occurrence of “the same act,” as opposed to
each juror being allowed to take a “where there’s smoke, there must be fire”
approach of convicting Coughlin on a count based on the mere existence of
multiple allegations during the pertinent time period. The State seems to assume
that jurors would necessarily latch onto the phrase “same act,” in the way that an
attorney might think to do, and deduce from that phrase that all 12 jurors have to
agree. We conclude that this would be an unreasonable assumption.

¶54 We observe that the jury here, like the jury in Marcum, received the
general unanimity instruction, WIS JI—CRIMINAL 515: “This is a criminal, not a
civil, case; therefore, before the jury may return a verdict which may legally be
received, the verdict must be reached unanimously. In a criminal case, all 12
jurors must agree in order to arrive at a verdict.” See Marcum, 166 Wis. 2d at
917-18. But to say that each verdict must be reached unanimously does not
address the specific issue raised by Coughlin; Coughlin does not question that all
jurors agreed to guilty verdicts of “sexual assault” for each of Counts 1 - 4.

¶55 As for the wording of the opening instruction that the trial court
gave, now relied on by the State, we note that it undercuts the State’s specific
point that this phrase—“You, the jury, are the sole judges of the facts”—addresses

24
No. 2021AP1416

the jurors as a collection of individuals. They are not addressed as a single
“judge” of the facts; they are addressed as individual “judges” of the facts.

¶56 Although the parties do not note this, WIS JI—CRIMINAL 517 is
offered by the Criminal Jury Instructions Committee as optional; it “should be
considered for use when a defendant is charged with multiple counts and evidence
of more than one act is offered as proof of one or more of those counts.” 11 WIS
JI—CRIMINAL 517-C. Citing authority that includes Marcum, the committee
states that “there clearly are situations” in which giving the instruction “will cure
what may otherwise be reversible error.” WIS JI—CRIMINAL 517-C.

¶57 We need not decide whether the trial court’s modification of WIS
JI—CRIMINAL 517 alone deprived Coughlin of the right to juror unanimity,
without the additional two factors—involving the two modes of sexual assault and
the three types of sexual assault alleged—that the State concedes through silence
could have contributed to misunderstandings by the jury. Instead, we reject the
State’s only argument: as modified, WIS JI—CRIMINAL 517 correctly and
sufficiently directed the jury that it must be unanimous in deciding on the mode
and act at issue for each of the Counts 1 - 4, neutralizing the effects of the other
two factors. Having rejected the State’s only argument, we conclude that this was,
as in Marcum, “not only a sixth amendment unanimity problem, it is also a fifth

11
The trial court here modified the work of the committee, which we are to view as
“persuasive,” but “not infallible.” See State v. Waalen, 130 Wis. 2d 18, 26, 386 N.W.2d 47
(1986), abrogated on other grounds by State v. Hubbard, 2008 WI 92, ¶¶45-47, 313 Wis. 2d 1,
752 N.W.2d 839. While circuit courts have “wide discretion in developing the specific language
of jury instructions,” it is prudent for circuit courts to consider whether variations from pattern
instruction are necessary “because they do represent a painstaking effort to accurately state the
law and provide statewide uniformity.” See State v. Foster, 191 Wis. 2d 14, 26-27, 528 N.W.2d
22 (Ct. App. 1995).

25
No. 2021AP1416

amendment due process problem,” due to lack of direction to the jury about the
need for unanimity and the vague verdict forms. See Marcum, 166 Wis. 2d at
923.

¶58 In sum on this issue, we conclude that Coughlin has shown that he
was deprived of his right to unanimous verdicts with respect to Counts 1 - 4. As
we have explained, our conclusion on this issue establishes the prejudice prong of
ineffective assistance for both trial counsel and appellate counsel. What remains
to be determined, based on evidence presented at a Machner hearing, is whether
either or both counsel performed deficiently in failing to raise this issue.12

III. COUNT 5

¶59 Coughlin raises three objections to his conviction on Count 5 which,
to repeat, alleged a violation of WIS. STAT. § 948.02(1) involving the younger
nephew. We first identify and address Coughlin’s two objections to the

12
Coughlin argues that we should order a new trial on Counts 1 - 4 in the interest of
justice using our discretionary authority under WIS. STAT. § 752.35. Section 752.35 provides:

In an appeal to the court of appeals, if it appears from the
record that the real controversy has not been fully tried, or that it
is probable that justice has for any reason miscarried, the court
may reverse the judgment or order appealed from, regardless of
whether the proper motion or objection appears in the record and
may direct the entry of the proper judgment or remit the case to
the trial court for entry of the proper judgment or for a new trial,
and direct the making of such amendments in the pleadings and
the adoption of such procedure in that court, not inconsistent
with statutes or rules, as are necessary to accomplish the ends of
justice.

We decline to exercise our discretion in this manner because we cannot say that “the real
controversy has not been fully tried, or that it is probable that justice has … miscarried,” so that
this case belongs to the category of “most exceptional cases” that call for this unusual remedy.
See State v. Schutte, 2006 WI App 135, ¶62, 295 Wis. 2d 256, 720 N.W.2d 469.

26
No. 2021AP1416

sufficiency of the evidence and then turn to his objection based on a missing
feature of an element of the jury instruction. We reject the sufficiency arguments.
But we agree with Coughlin that omitting the instruction feature was an error that
we cannot conclude is harmless. Therefore, Coughlin is entitled to attempt to
prove deficient performance of both trial counsel and appellate counsel at a
Machner hearing.

¶60 As background to all three of Coughlin’s arguments on Count 5, it is
relevant that the trial court gave the following instruction as part of its charge:

Sexual contact means any intentional touching by
the defendant, either directly or through the clothing by the
use of any object, if that intentional touching is either for
the purpose of sexually degrading or sexually humiliating
the complainant, or sexually arousing or gratifying the
defendant.

See also WIS. STAT. § 948.01(5)(a)2. (defining in part “sexual contact”).

A. Sufficiency

¶61 Coughlin argues that appellate counsel was constitutionally
ineffective in failing to raise a claim of ineffective assistance of trial counsel for
not challenging the sufficiency of the evidence on Count 5. On this issue, the
postconviction court said, “I believe that there was sufficient evidence.”

¶62 We conclude that Coughlin has not shown that he is entitled to have
the sufficiency of the evidence on Count 5 addressed as an issue at the Machner
hearing.

¶63 An appellate court reviewing whether the evidence is sufficient to
support a conviction “may not substitute its judgment for that of the trier of fact
unless the evidence, viewed most favorably to the state and the conviction, is so

27
No. 2021AP1416

lacking in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d
493, 507, 451 N.W.2d 752 (1990). “If any possibility exists that the trier of fact
could have drawn the appropriate inferences from the evidence adduced at trial to
find the requisite guilt, an appellate court may not overturn a verdict even if it
believes that the trier of fact should not have found guilt based on the evidence
before it.” Id. If Coughlin were to ultimately prevail on this issue, the Double
Jeopardy Clause would apply and no retrial on Count 5 would be possible. See
State v. Henning, 2004 WI 89, ¶22, 273 Wis. 2d 352, 681 N.W.2d 871 (“[D]ouble
jeopardy principles prevent a defendant from being retried when a court overturns
his [or her] conviction due to insufficient evidence.”).

¶64 Coughlin contends that the evidence is insufficient to show “sexual
contact” under either of the two theories that the prosecution offered for this
count.13 Those two theories were based on testimony of the younger nephew. The
13
We agree with the State that a sufficiency-of-the-evidence claim is subject to analysis
under the procedural bar of WIS. STAT. § 974.06 and reject Coughlin’s argument to the contrary.
See State v. Kaster, 2006 WI App 72, ¶9, 292 Wis. 2d 252, 714 N.W.2d 238. Coughlin’s reliance
on State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, is misplaced. In Miller,
this court treated the procedural bar issue as forfeited by the State, and the discussion was about
whether sufficiency of the evidence claims have a constitutional dimension so that they may be
raised in § 974.06 motions and did not address the procedural bar. See id., ¶¶23-30.

However, we reject the State’s only argument for applying the procedural bar to
Coughlin’s sufficiency challenge to Count 5. The State’s argument is that Coughlin cannot now
contend that a sufficient reason for failure to raise the sufficiency arguments is that appellate
counsel was constitutionally ineffective in failing to raise the arguments based on the failure of
Coughlin to bring in this court a petition for habeas corpus under State v. Knight, 168 Wis. 2d
509, 484 N.W.2d 540 (1992). As Coughlin points out, the record establishes that he brought such
a petition and we issued an order explaining that Coughlin could use this appeal to address the
issue.

This resolves the only arguments on this point. The State does not argue that the current
sufficiency arguments are not clearly stronger than the issue raised in the direct appeal, and
therefore we deem the State to have forfeited any such argument.

28
No. 2021AP1416

younger nephew testified that Coughlin: (1) directed the younger nephew to
masturbate the younger nephew himself (as Coughlin puts the concept, “directed
self-masturbation”); and (2) engaged in the alleged calf-pen incident, described
above. Coughlin argues that—assuming the jury was properly instructed on
Count 5 despite an omitted element, an issue separately discussed in the next
subsection—neither of these alleged acts constitutes “sexual contact” and that
therefore there was insufficient evidence to support the conviction.

¶65 The State now concedes one of Coughlin’s arguments regarding the
directed self-masturbation theory. The concession is that, because the jury was
instructed on Count 5 that “[s]exual contact means any intentional touching by the
defendant,” the jury could not have relied on this theory because the alleged
touching would have been by the younger nephew himself.

¶66 This leaves Coughlin’s argument that the alleged calf-pen incident
could not have constituted “sexual contact.” He contends that this prosecution
theory had to fail, regardless of the facts found by the jury. This is the case, he
contends, because use of a calf cannot constitute “the use of any object” as that
phrase is used in the following portion of the Count 5 instruction, quoted above:
“intentional touching by the defendant, either directly or through the clothing by
the use of any object.” (This is an accurate quotation of part of the definition of
“sexual contact” in WIS. STAT. § 948.01(5)(a)2.)

¶67 Coughlin’s argument ignores the meaning of the phrase “any
object.” Instead, it rests entirely on the fact that the legislature has criminalized
sexual acts involving animals under statutory subparts explicitly addressing
“bestiality,” and from this fact Coughlin argues that it would be “surplusage” or
“redundant” to interpret “any object” in the definition of “sexual contact” in WIS.

29
No. 2021AP1416

STAT. § 948.01(5)(a)2. to include a “live animal.”14 See WIS. STAT.
§§ 944.18(2)(h) (criminalizing “forc[ing], coerc[ing], entic[ing], or encourag[ing]
a child who has not attained the age of 13 years to engage in sexual contact with
an animal”); 944.18(1)(d) (providing a definition of “sexual contact” specific to
human-animal contacts); 948.01(7)(b) (defining “[s]exually explicit conduct” to
include “actual or simulated” “[b]estiality”). As part of this argument, Coughlin
notes that a violation of § 944.18(2)(h) is a Class F felony, see § 944.18(3)(a),
while WIS. STAT. § 948.02(1)(e) provides that its violation is a Class B felony.
Based on these statutory references, Coughlin argues that the legislature has
implicitly treated “bestiality” as “separate and distinct conduct” from child sexual
assault, with the result that the definition of “any object” must exclude all live
animals.

¶68 The State does not dispute that there was no evidence at trial that
could have supported a guilty verdict on Count 5 regarding the alleged calf-pen
incident if contact between a calf and the younger nephew’s penis could not
constitute “sexual contact” allegedly caused by Coughlin.15 Further, if the State
intends to dispute the merits of Coughlin’s argument that a calf cannot be “any
object,” its effort is slight at best; the State merely implies that the argument lacks

14
Presumably Coughlin uses the phrase “live animal” to acknowledge the possibility of a
legislative intent in WIS. STAT. § 948.01(5)(a)2. to treat parts of dead animals as “any object” in
this context.
15
For example, the State does not argue that the milk that Coughlin allegedly “dribbled”
onto the younger nephew’s penis as part of the alleged calf-pen incident could be considered “any
object,” and we do not address this as a potential issue.

30
No. 2021AP1416

merit.16 Nevertheless, given the lack of merit to Coughlin’s argument, we reject it
on that basis.

¶69 First, as noted above, Coughlin does not even attempt to account for
the meaning of “any object,” which is a vastly expansive phrase. “Object” is not
defined in WIS. STAT. § 948.01, but a common dictionary definition is “anything
visible or tangible; a material product or substance; as, he saw an object in the
dark and felt it.” Object, WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY
(2d ed. 1979).17 Further, the determiner “any” serves to expand “object” to cover
every type of “object” whatsoever. A live animal such as a calf easily fits this
definition.

¶70 Second, Coughlin fails to support the argument that he does make:
that there is a bright (albeit merely implied) line in the Wisconsin Statutes between
all forms of “bestiality” and all forms of child sexual assault that involve live
animals. It is true that the legislature has decided to criminalize certain conduct,
such as “[s]exual exploitation of a child,” WIS. STAT. § 948.05; and “[p]ossession
of child pornography,” WIS. STAT. § 948.12; based in part on a definition of
“[s]exually explicit conduct” that includes “[b]estiality,” WIS. STAT.

16
The State’s argument on this issue is that trial counsel and appellate counsel could not
have performed deficiently because there was no settled law on the issue at the time of trial. See
State v. Lemberger, 2017 WI 39, ¶¶18, 33, 374 Wis. 2d 617, 893 N.W.2d 232 (counsel’s failure
to pursue argument that “require[s] the resolution of unsettled legal questions generally does not
render” counsel’s performance deficient; “the law or duty” must be “clear such that reasonable
counsel should know enough to raise the issue”) (quoted sources omitted). Coughlin counters in
part that we should treat the relative perspectives of trial counsel and appellate counsel differently
and that this sufficiency issue was not unsettled at least for purposes of the direct appeal. We do
not rely on the rule from Lemberger and instead resolve this issue, as explained in the text, based
on the lack of support for Coughlin’s argument and the obvious reasons that his argument fails.

“We may use a dictionary to establish the common meaning of a word.” Lemmer v.
17

Schunk, 2008 WI App 157, ¶10, 314 Wis. 2d 483, 760 N.W.2d 446.

31
No. 2021AP1416

§ 948.01(7)(b). But we see no logic in the argument that those legislative choices
should be interpreted to mean that “any object” in § 948.01(5)(a)2. cannot include
a live animal, contrary to the very broad meaning of “any object.”

¶71 Regarding Coughlin’s argument about the differing penalty schemes
in WIS. STAT. §§ 948.02 and 944.18(2)(h), he fails to show how this could be
pertinent, much less how it could drive the analysis regarding a distinction that
could at best be merely implied in the statutes. Coughlin does not explain how the
fact that some child sex crimes involving live animals could be charged at
different levels of severity under alternative statutes supports the alleged implied
distinction. Our legislature is presumed to be aware of existing laws and the
courts’ interpretations of the laws. See Schill v. Wisconsin Rapids Sch. Dist.,
2010 WI 86, ¶103, 327 Wis. 2d 572, 786 N.W.2d 177. Therefore, we presume
that the legislature is aware of the settled precedent that nondiscriminatory
prosecutorial discretion is broad and that due process permits prosecutions under
statutes that have identical substantive elements but different penalty schemes.
See State v. Cissell, 127 Wis. 2d 205, 215, 378 N.W.2d 691 (1985); United States
v. Batchelder, 442 U.S. 114 (1979).

¶72 In sum on this issue, we reject Coughlin’s argument that there was
not sufficient evidence to support a conviction on Count 5 under the prosecution
theory involving the alleged calf-pen incident. Therefore, he is not entitled to
have this topic addressed at the Machner hearing for at least the reasons that trial
counsel could not have been ineffective for failing to raise an argument that would
have had no effect on the trial and, by extension, appellate counsel could not have
been ineffective for failing to raise the issue.

32
No. 2021AP1416

B. Missing Feature Of Element

¶73 As a separate challenge to Count 5, Coughlin points out that, when
one compares the language of WIS. STAT. § 948.01(5)(a)2. to the jury instruction
actually given to define “sexual contact,” the trial court omitted the phrase that we
now show in strike-through mode:

Sexual contact means any intentional touching of
the complainant’s or defendant’s intimate parts by the
defendant, either directly or through the clothing by the use
of any object, if that intentional touching is either for the
purpose of sexually degrading or sexually humiliating the
complainant, or sexually arousing or gratifying the
defendant.

However, even though the reference to “intimate parts” was omitted from this
passage, the passage was, without explanation to the jury, followed by this
sentence: “Intimate part means penis of a human being.”

¶74 The State does not dispute that the omission of the phrase shown
above in strike-out mode was error.18 Instead, the State argues that the error was
harmless and that therefore Coughlin cannot establish that trial counsel was
ineffective for not raising this issue and that appellate counsel was also ineffective
for not raising it. Coughlin argues that it was not harmless.

¶75 On this issue, the postconviction court concluded that the error was
harmless because the trial court “skimmed over and did not read [the omitted

18
As with Coughlin’s challenge to the instructions regarding the mode and acts of sexual
assaults, Coughlin did not object to this instruction and, for the reasons we have discussed in the
text above, he relies on the argument that it was constitutionally ineffective for trial counsel to
fail to object and constitutionally ineffective for appellate counsel to fail to raise the issue. The
State briefly asserts that Coughlin has failed to develop ineffective assistance arguments on this
issue on appeal. We disagree.

33
No. 2021AP1416

phrase] for some reason” and “the complete instructions were given to the jury” in
writing.19

¶76 For reasons we now explain, we agree with Coughlin. Accordingly,
we direct that this is also a proper subject of a Machner hearing to determine
whether trial counsel and appellate counsel performed deficiently on this issue. If
both counsel did perform deficiently on this issue, the error was sufficiently
prejudicial to require a new trial on Count 5, under legal standards that we now
summarize.

¶77 “Jury instructions that have the effect of relieving the State of its
burden of proving beyond a reasonable doubt every element of the offense charged
are unconstitutional under the Fifth and Sixth Amendments.” State v. Draughon,
2005 WI App 162, ¶13, 285 Wis. 2d 633, 702 N.W.2d 412. “‘A constitutional or
other error is harmless if it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.’” Id., ¶15 (quoted source
omitted). In such a case, the “judgment should be reversed unless we can be sure
that the error did not contribute to the conviction.” Id., ¶18.

¶78 Coughlin makes two categories of arguments on the harmless error
topic. First, he points out that the facts surrounding the alleged calf-pen incident

19
The postconviction court was incorrect if the court was referring to the written
instructions provided to the jury, as opposed to the repetition of the correct definition of sexual
contact contained in the instructions on other counts. The record item reflecting the written jury
instructions of the trial court shows that the element was missing from that version.

On a related note, for multiple reasons that we need not detail, the cause of the omission
strongly appears to have been a scrivener’s error, not a conscious choice of the trial court.
However, this apparent inadvertence does not count in the analysis. We assess what a reasonable
jury would have thought, not how the record now strikes us with the benefit of hindsight and also
not how the trial court might have subjectively dealt with the issue

34
No. 2021AP1416

involving the younger nephew were sharply disputed at trial and that they were
different in kind from the allegations of sexual assaults for Counts 1 - 4. Without
repeating here all details cited by Coughlin, he points out that there were multiple
disputes between the parties at trial, which were highlighted in arguments by
counsel, about whether any part of a calf touched the younger nephew’s penis.
This included the issue whether a calf “sucking” on a human penis, as the younger
nephew testified, would typically or perhaps necessarily cause physical injury of a
severity for which there was no evidence. Second, Coughlin emphasizes that the
jury was specifically instructed to consider each count independently from
consideration of other counts:

It is for you, ladies and gentlemen of the jury, to
determine whether the defendant is guilty or not guilty of
each of the offenses charged. You must make a finding as
to each count of the information. Each count charges a
separate crime, and you must consider each one separately.
Your verdict for the crime charged in one count must not
affect your verdict on any other counts.

For these reasons, Coughlin argues, it does not matter that the jury was given the
correct definition of “sexual contact” in connection with the separate acts charged
in the separate Counts 1 - 4.

¶79 The State does not dispute Coughlin’s first point about the contested
and unusual nature of the acts alleged in Count 5. Instead, on this issue the State
makes the following arguments.

¶80 The State references the nature of the factual allegations and then
asserts that the jury “obviously still would have convicted Coughlin” on Count 5 if
it had been given the correct instruction and that therefore we should conclude that
the error is harmless based on our supreme court’s opinion in State v. Williams,
2015 WI 75, 364 Wis. 2d 126, 867 N.W.2d 736. The State fails to develop this

35
No. 2021AP1416

argument in at least two respects and we reject the argument on that basis. First,
the State fails even to note, much less come to grips with, the extremely high
standard stated in Williams: It must be “clear beyond a reasonable doubt that the
jury still would have convicted the defendant had the correct instruction been
provided.” See id., ¶53. Second, the State fails to recognize that the instructional
error at issue in Williams that was deemed harmless involved the prosecution
proving at trial one additional element than was required to convict the defendant,
which bears no resemblance to the facts here. See id., ¶¶71-72; see also id., ¶62
(“[I]f an erroneous jury instruction omits an element or instructs on a different
theory, it will often be difficult to surmise what the jury would have done if
confronted with a proper instruction,” because the jury’s verdict could not have
addressed statutory elements or factual theories of guilt that the jury was not asked
to consider.).

¶81 The State makes two additional points that could have weight for the
proposition that the jury might have understood the element properly. First, the
State notes that, as summarized above, the instruction included the sentence,
“Intimate part means penis of a human being.” This raises the possibility that the
jury might have mentally back-filled into the omitted spot the phrase “of the
complainant’s or defendant’s intimate parts.” Otherwise, why would the jury be
instructed: “Intimate part means penis of a human being”?

¶82 Second, the State relies on the fact that the jury was properly
instructed on the definition of “sexual contact” in connection with Counts 1 - 4.
This could add to the possibility that the jury would have decided that “sexual
contact” should be defined the same way in all five counts.

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No. 2021AP1416

¶83 Even after taking those points into account, we cannot conclude
beyond a reasonable doubt that a rational jury would have found Coughlin guilty
of Count 5 absent the error. Our lack of certainty arises from considerations that
include the following. First, the factual issue was disputed as to precisely what
part, if any, of the younger nephew was touched by a calf. Therefore, jurors could
have reasonably thought that something about the alleged calf-pen incident called
for a different legal standard on the “sexual contact” element than they were to
apply for the other four counts. Second, the jury was directed by the trial court
that “[e]ach count charges a separate crime, and you must consider each one
separately”; jurors could have reasonably thought that drawing on the similar
instruction in the other counts would have violated this direction. Third, omitting
the phrase “of the complainant’s or defendant’s intimate parts” did not result in an
incoherent instruction that would have, on its face, alerted the jurors to a defect;
the instruction could be literally applied as given, with the erroneous meaning. In
other words, the jury was not invited by an obvious omission to mentally back-fill
the omitted phrase. Fourth, and more generally, none of the clues for the jury that
the State now relies on were clear and unambiguous, either individually or
collectively.

¶84 In sum on this issue, having determined that what the State admits
was an instructional error in defining an element was not harmless, we conclude
that Coughlin has shown the prejudice prong of ineffective assistance.
Accordingly, he is entitled to an opportunity to prove that trial and appellate
counsel performed deficiently in not objecting to the omitted portion of the
instruction on Count 5.

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No. 2021AP1416

IV. ADDITIONAL CLAIMS OF INEFFECTIVE ASSISTANCE
OF TRIAL COUNSEL

¶85 Coughlin argues that, in addition to the topics addressed above, trial
counsel was also constitutionally ineffective when he: (1) did not properly address
the prosecution’s introduction and use of a letter containing what Coughlin
submits were provably false allegations that Coughlin molested or “probably”
molested more than three other children, in addition to molesting the nephews;
(2) failed to object to prejudicial evidence and arguments regarding conduct of and
child sexual assault convictions of Coughlin’s brother, Donald Coughlin; (3) failed
to impeach witnesses called by the prosecution with evidence supporting the
defense theory that the mother of the nephews prompted her sons to falsely accuse
Coughlin; and (4) failed to impeach the older nephew regarding “drastic
differences in the number and location of assaults [against the older nephew]
alleged [by the older nephew] over time.”

¶86 Regarding these claims of ineffective assistance of trial counsel, the
postconviction court said, without elaboration, that it had reviewed the record
from the trial and that “I cannot find where counsel was insufficient.”

¶87 We now address these issues in turn, concluding that Coughlin has
shown sufficient possible deficiency and prejudice on these issues to be entitled to
a Machner hearing. As will be seen, these issues are interrelated.

A. The Letter

¶88 The letter viewed by the jury, dated June 19, 2008, was slightly
longer than one type-written page. It was from the mother of the nephews to

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No. 2021AP1416

Coughlin (calling him “Danny”).20 It accused Coughlin of “molesting” or
“probably” “molesting” the following: “your own children”; the mother’s “sons”
(the two nephews of Coughlin who are the alleged victims in this case); and three
other boys. The letter was described by the defense at trial as an attempt at
“blackmail” that was allegedly part of a “vendetta” by the mother against both
Coughlin and Donald Coughlin in 2008-09 involving a church dispute. The letter
to Coughlin stated in part:

I am telling you to stop attacking this priest and you
convince everyone else you know who is involved to stop
or I will go to the District Attorney and DHS [presumably
referring to county child protection workers]. It will be a
public investigation and you will be ruined.

It further stated that Coughlin “could go to prison for a very long time for what
you have done already” and that he would “burn” in “Hell” “for molesting
children.” The defense argued at trial that the letter showed a strong motivation
by the mother to, in the words of the letter, “ruin” Coughlin, to the point of
encouraging false accusations of child sexual assault against both the nephews and
other children.

¶89 To clarify, while the letter alleged that Coughlin had molested the
nephews identified as the victims in this case, which in itself has to be considered
a prejudicial accusation, the thrust of Coughlin’s argument on appeal is that trial
counsel was ineffective in failing to address the letter’s allegations that he had
molested more than three other children, which Coughlin contends is in the nature
of inadmissible “other acts” evidence. See WIS. STAT. § 904.04.

20
The jury was informed that the mother of the nephews was the former wife of Donald
Coughlin, and therefore the former sister-in-law of Coughlin.

39
No. 2021AP1416

¶90 The State argues that trial counsel did not perform deficiently in
addressing the highly prejudicial contents of the letter because counsel
characterized the letter to the jury, in his opening statement, as part of a “really
crazy” and “frankly bizarre” attempt to “blackmail” Coughlin. The State also
asserts that the trial court “could have” excluded witnesses that Coughlin now
asserts would have proven the allegations related to other alleged victims in the
letter to be false under WIS. STAT. § 904.03 on the grounds of confusion or waste
of time. The State separately asserts briefly only the following as a lack-of-
prejudice argument: that the record reflects that “no emphasis was placed on” the
allegations regarding other victims in the letter.21

¶91 We conclude that Coughlin is entitled to the opportunity to show at
the Machner hearing that trial counsel was ineffective on this issue and that
appellate counsel was ineffective in failing to raise it. The allegations in the letter
identified particular children in addition the two nephews and unambiguously
alleged that Coughlin had “molest[ed]” or probably molested the identified
children. Further, it came from someone close to Coughlin, who claimed to have
direct knowledge of acts that made him deserving of a long prison term, as well as
banishment to “Hell.” Thus, these direct and serious allegations of sexual assaults
against other children carried a great potential for prejudice.

21
The State also apparently means to suggest that, because the trial court ruled in
advance of trial, based on an agreement of the parties, that “neither party is going to be utilizing
character evidence,” this undermines Coughlin’s current position that trial counsel should have
attempted to demonstrate the falsity of the molestation allegations in the letter. But the record
reflects that the trial court simply accepted the stipulation and that does not shed light on the
potential for trial counsel to have demonstrated the falsity of the allegations involving the
children other than the two nephews.

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No. 2021AP1416

¶92 The State’s arguments on this issue are conclusory and limited. It
emphasizes that trial counsel told the jury in opening statement that these highly
prejudicial allegations were “really crazy.” But this is a far cry from either
convincing the trial court to require redactions to the allegations or proving them
false, if trial counsel could have accomplished either option. The State does not
support its suggestions that the record shows that the trial court would have
declined a defense request to redact the letter or else excluded evidence offered by
the defense that the allegations were false. Further, and critically, the trial strategy
or strategies that trial counsel employed in dealing with issues related to these
highly prejudicial allegations are unclear from the record. It is true that courts
may not “‘second-guess the trial counsel’s considered selection of trial tactics or
the exercise of a professional judgment in the face of alternatives that have been
weighed by trial counsel.’” State v. Hunt, 2014 WI 102, ¶55, 360 Wis. 2d 576,
851 N.W.2d 434 (citation and alteration omitted). But here, in the absence of a
Machner hearing, we could only guess at what “considered selection of trial
tactics” or “exercise of a professional judgment in the face of alternatives” might
have been weighed by trial counsel that could have been non-deficient. That is,
we cannot tell from the record what possible strategies trial counsel considered
and rejected, even if trial counsel’s choices made after reasonably considering the
relevant law and facts might be “virtually unchallengeable.” See Strickland, 466
U.S. at 690.

¶93 On the prejudice issue, the State fails to address the fact that the
letter was blown up for jury scrutiny and also that the jury requested to see it
during deliberations. That is, the record reflects at least sufficient interest in the
letter for the jury to request to see it. This lends support to the prejudice argument.

41
No. 2021AP1416

¶94 In sum on this issue, taking all these factors into account, the
potential for the unredacted letter to prejudice the jury was sufficiently high that,
when considered in a cumulative manner with the prejudicial effects of other
problems addressed in this opinion, our confidence in the outcome is placed in
doubt, assuming that deficient performance of both trial and appellate counsel on
this issue can be shown at a Machner hearing. Coughlin has made a sufficient
showing that he is entitled to examine trial and appellate counsel regarding their
strategies, or the possible absence of strategies, regarding the topics of evidence
and argument presented at trial involving the letter and its highly prejudicial
contents regarding the alleged sexual assaults of other children.

B. Donald Coughlin’s Conduct, Convictions

¶95 As our supreme court explains in State v. Coughlin, 2022 WI 43,
402 Wis. 2d 107, 975 N.W.2d 179, Donald Coughlin was convicted on 15 counts
of child sexual assault in Juneau County after three individuals gave statements as
adults in 2009 alleging that Donald Coughlin had repeatedly sexually abused them
over the course of their childhoods. See id., ¶¶1, 6, 54 (affirming convictions;
rejecting sufficiency-of-the-evidence challenges). In this separately prosecuted
case against Coughlin, the jury learned that the nephews who are the alleged
victims here were two of Donald Coughlin’s child victims in the case against him,
and that Donald Coughlin was Coughlin’s brother and the nephews’ stepfather.

¶96 Coughlin argues that trial counsel performed deficiently by failing,
in multiple ways, to prevent the prosecution from effectively smearing him at trial
through guilt-by-association with Donald Coughlin and by giving the prosecution
the benefit of the implication that, because the testimony of the nephews in the
Donald Coughlin case resulted in convictions, their testimony in this case should

42
No. 2021AP1416

result in convictions. Coughlin argues that avoidable prejudice occurred in part
because trial counsel did not object when the prosecution presented evidence of
sexual assaults by Donald Coughlin that went beyond what was permitted under a
motion in limine filed by the prosecution. On this issue, the State does not argue
that the prosecution did not exceed the scope of the evidence regarding conduct of,
and convictions of, Donald Coughlin that was allowed by the trial court.

¶97 Coughlin provides numerous examples of potentially highly
prejudicial evidence and argument. Notably, the jury learned of Donald
Coughlin’s child sexual assault convictions, without any record being made of the
substance of a defense objection. In addition, the prosecutor told the jury in
opening statement, without objection by the defense, that Donald Coughlin
subjected the nephews to hard blows to their genitals, which they would return in
kind, “because that’s how they were taught, that’s how they were raised by Donald
Coughlin and by the defendant,” and also told the jury that the nephews would
testify at trial that “[t]hey had been groomed to be the perfect sexual assault
victims by Donald and the defendant.” (Emphases added.) Similarly, the
prosecutor told the jury that “something that was done regularly by” both
Coughlin and Donald Coughlin was to grab the genitals of the nephews,
“squeezing hard,” “from the time they were young boys,” and also said that
Coughlin and Donald Coughlin both commented on the size of the older nephew’s
penis. These statements by the prosecutor could reasonably be interpreted as
describing the brothers as criminal co-actors who victimized the same children in
the same ways. We need not belabor the deeply prejudicial effect that such an
argument could have once the jury learned that the other alleged co-actor had been
convicted for the same type of conduct during roughly the same time period. It is
prejudice sufficient to undermine our confidence in the outcome at trial.

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No. 2021AP1416

¶98 The State points out that the trial court gave the jury a cautionary
instruction explaining that testimony by the nephews about Donald Coughlin’s
physical and sexual assaults of them should be considered solely as an explanation
of why the nephews worked on Coughlin’s farm during the summers.22 We do not
question the State’s position that, in itself, this instruction regarding the allegations
of assaultive conduct by Donald Coughlin weighs against a determination that trial
counsel performed deficiently.

¶99 But the instruction on its face addressed only one piece of the
problem. It did not address the testimony and argument about Donald Coughlin’s
convictions. Nor did it address, as a notable example, the statements of the
prosecutor that, in effect, described the brothers as criminal co-actors. As a result,
the prosecutor was allowed to make prejudicial comments that served to undercut
whatever value the limited instruction might have had.

¶100 The State argues that we should assume that trial counsel relied on
his considered selection of tactics and professional judgment, see Hunt, 360
Wis. 2d 576, ¶55, simply from the fact that trial counsel took the general position
on the record at trial that, when it came to evidence or argument regarding Donald

22
Immediately before the older nephew testified, the circuit court instructed the jury:

Evidence will be presented regarding the other conduct
of Donald Coughlin, the defendant’s brother, for which the
defendant is not on trial. The evidence concerning Donald
Coughlin is only offered for the limited purpose of explaining
why [the nephews] spent their summers at Daniel Coughlin’s
farm. Specifically, evidence will be presented that Donald
Coughlin engaged in physical and sexual abuse of [the nephews].
You may consider this evidence only for the purposes I have
described, giving it the weight you determine it deserves.

The same instruction was given again before deliberations.

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No. 2021AP1416

Coughlin, trial counsel would “object[] at reasonable times” and that trial counsel
would not let evidence or argument “get too far into Donny,” meaning, too
extensively into the conduct of Donald Coughlin. This vague commitment to
making “reasonable” objections adds little to the analysis. Without a Machner
hearing, we cannot discern from the record, for example, why trial counsel did not
point out to the trial court that the rationale supporting the admission of the
potentially highly inflammatory fact that Donald Coughlin was convicted—to
provide the prosecution with an impeachment opportunity in examining a defense
witness—might have been hollow for multiple reasons, including because there
was no dispute about the substance of what the defense witness testified to. The
State does not refute these points, but merely directs us to contemporaneous
statements made by trial counsel regarding the topic of Donald Coughlin’s
convictions, as if trial counsel’s statements reflected the execution of a clear
strategy, but they do not.

¶101 In sum on this issue, Coughlin has made a sufficient showing that he
is entitled to examine trial and appellate counsel on the topics of evidence and
argument regarding Donald Coughlin’s conduct and his convictions.

C. Witness Impeachment Regarding Disclosures Of Assaults And
Witness Motivations

¶102 Coughlin argues that trial counsel was ineffective by failing, in the
course of generically pursuing one defense theory, to make use of impeachment
material that Coughlin now contends would have made the theory much more
plausible. The argument is that trial counsel should have impeached various
witnesses with identified materials, with the result that the jury would have had a
more accurate understanding of when and why the nephews, primarily the older
one, reported that Coughlin, as opposed to Donald Coughlin, had sexually

45
No. 2021AP1416

assaulted them and regarding motives of various witnesses to lie, in particular the
mother of the nephews. These failures, the argument proceeds, deprived the jury
of evidence bearing on the defense theory that the nephews’ mother caused the
older nephew to falsely accuse Coughlin to police and that the nephews—who had
both been sexually assaulted by Donald Coughlin—stuck with incriminating
accounts against Coughlin, in addition to giving incriminating accounts against
Donald Coughlin. Coughlin makes three closely related arguments that we
summarize in turn, below. We then explain why, while it may present a close
issue, we conclude that failures by trial counsel on this issue, when considered
cumulatively with other failures noted in this opinion, establish prejudice, so that
evidence regarding the decision-making of counsel at a Machner hearing is
required.

¶103 As brief background for the three related arguments, it was
undisputed at trial that in 2009 the nephews’ mother told the older nephew the
following: a cousin of the nephews had reported that Coughlin, the mother’s
former brother-in-law, had sexually assaulted the cousin—when in fact the cousin
had reported that Donald Coughlin, the mother’s former husband, had sexually
assaulted the cousin. The following timing element is also undisputed: this
conversation between the mother and the older nephew occurred just before the
older nephew first made the disclosures about both Coughlin and Donald Coughlin
to police. The mother testified that she simply made a mistake when she told her
son that the cousin made allegations against her former brother-in-law as opposed
to against her former husband.

¶104 We note at the outset that the theory that the defense pursued to a
degree at trial—that the older nephew, as an adult, was motivated to falsely accuse
Coughlin of child sexual assault based on his mother’s statements against

46
No. 2021AP1416

Coughlin in 2009—might seem implausible on its face. The theory would seem to
require assumptions about unusually strong influence of the nephews’ mother over
her adult son, or an unusual ability to manipulate him. But this could be where a
reasonable jury, based on all of the evidence, might decide to give weight to the
highly unusual letter that the mother wrote to Coughlin, summarized in part above.
That is, a jury could construe the letter as reflecting a fierce determination by the
mother at a critical point in time to, using her own word, “ruin” Coughlin with
false molestation allegations because of her deep animosity arising from the
church dispute.

¶105 With that context as background, Coughlin’s first argument on this
issue is that trial counsel should have impeached the nephews’ mother and the
older nephew on the topic of when the older nephew first told his mother that
Coughlin had sexually assaulted him. Coughlin argues that this impeachment
would have helped the jury understand that the mother “tricked” the older nephew
in 2009 “into making allegations against [Coughlin] by falsely telling” the older
nephew that a cousin of the older nephew had reported that Coughlin had molested
the cousin, when in fact the mother knew that the cousin had reported that Donald
Coughlin had molested the cousin.

¶106 The State contends that this argument rests in part on the false
premise that trial counsel did not have to account for evidence, which was
presented at trial, that the older cousin disclosed sexual assaults by Coughlin to the
mother before 2009. This evidence came primarily in the form of testimony by
both the mother and the older nephew, about events that allegedly occurred nearly
ten years earlier in which the older nephew allegedly told his mother that he had
been sexual assaulted by Coughlin and Donald Coughlin. Coughlin replies in part
by noting that there was no documentary corroboration of this testimony, and

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No. 2021AP1416

points to statements given by the mother and the older nephew to police and at the
second trial that could undermine a finding that the two had this earlier
conversation, while the State points to contrary evidence.

¶107 Coughlin’s second closely related argument on this issue is that trial
counsel should have made use of evidence that could have supported the theory
that the nephews’ mother was not mistaken about the cousin’s allegations in 2009
and that the mother intentionally told the older nephew the falsehood that the
cousin had reported that Coughlin had assaulted the cousin, when she knew that
the allegation was against Donald Coughlin. Again, the thrust of the State’s
argument in response is that this fails to take into account the testimony by the
mother and the older nephew that the older nephew disclosed sexual assaults by
Coughlin to his mother years earlier.

¶108 The third closely related argument is that trial counsel failed to
present evidence to the jury that could have shown that the older nephew reported
allegations against Coughlin to the police on the same day in 2009 on which his
mother told him that Coughlin had sexually assaulted the cousin and that the older
nephew talked to police before he learned that the cousin had not said that
Coughlin sexually assaulted the cousin. The State points out that this particular
argument omits a significant fact: the older nephew specifically testified that he
learned, before talking to police, that the cousin had alleged assaults by Donald
Coughlin, not Coughlin. Further, we note that this testimony was corroborated by
a statement that the older nephew gave police. Coughlin replies by pointing to
statements the older nephew made that could have been used to impeach this
testimony.

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No. 2021AP1416

¶109 To repeat, we view these three related issues, standing alone, as
presenting a close question as to whether prejudice has been shown. Supporting
the State’s position, if trial counsel had presented this theory as vigorously and in
the ways that Coughlin now argues he should have, it would have required the jury
to give great weight to the personal motivations of the mother and to her potential
influence over her adult son as compared with the core evidence at issue in this
case: the testimony of the nephews, as adults, about Coughlin’s alleged sexual
assaults of them when they were children. As the State points out, even assuming
that Coughlin could have proven conclusively that the mother intentionally falsely
accused Coughlin (at least in part by way of the cousin’s misquoted statement) to
the older nephew in 2009, a jury might reasonably find that this did not matter,
given the older nephew’s testimony as a whole, including his testimony that he
disclosed abuse by Coughlin to his mother well before 2009.

¶110 However, it is not for this court to assess the credibility of witnesses
or weigh the evidence. See State v. Jackson, 2023 WI 3, ¶¶8, 18, 405 Wis. 2d
458, 983 N.W.2d 608 (“If the defendant’s motion alleges sufficient and non-
conclusory facts which would entitle the defendant to relief and the record does
not conclusively establish otherwise, then the circuit court must hold a Machner
hearing.”). Further, as we have explained, evidence that could have supported the
defense theory was out of the ordinary, particularly the nephews’ mother’s
accusation-filled, threatening letter. The State argues that the prosecution at trial
presented “overwhelming evidence” that the older nephew disclosed sexual
assaults by both of the Coughlin brothers well before “the so-called blackmail
letter that supposedly led to the false allegations,” but it would be for a factfinder
to determine whether the testimony given was “overwhelming.”

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No. 2021AP1416

¶111 In sum on this issue, Coughlin shows that he is entitled to an
evidentiary hearing to determine whether trial counsel was deficient in failing to
impeach witnesses regarding disclosures to police of alleged sexual assaults by
Coughlin, and to determine whether appellate counsel was deficient in not raising
the issue.

D. Witness Impeachment Regarding Frequency And Locations Of
Assaults

¶112 Coughlin argues that trial counsel was ineffective in failing to
impeach the older nephew regarding what Coughlin characterizes as “drastic
differences in the number and location of assaults alleged over time,” in particular
regarding alleged instances of oral sex. The State does not dispute that there were
drastic differences among statements given by the older nephew on these topics
and that there was no impeachment on these topics. Instead of disputing the
premise, or arguing that trial counsel had an obviously good reason reflected in the
record not to impeach on these topics, the State’s only position on this issue is that
trial counsel’s performance was not deficient because trial counsel impeached the
older nephew on topics other than the drastic inconsistencies. We conclude that
Coughlin has shown the possibility of ineffective assistance on this issue that
should be one subject of a Machner hearing.

¶113 As Coughlin notes, the older nephew initially told police in a
recorded interview that the following was the sexual activity that Coughlin had
with him, all of which occurred during the second summer he worked on
Coughlin’s farm, 1989: Coughlin put his penis between the older nephew’s legs,
and the older nephew either masturbated Coughlin or Coughlin masturbated him
about once a month for each activity, and had oral sex “only like twice in the
shower,” with the result that about two times per month that summer Coughlin had

50
No. 2021AP1416

some sort of sexual activity with him. However, at the third trial in this case, the
older nephew testified that Coughlin would perform oral sex on him or have some
other sexual activity with him “every other week, or weekly even,” starting during
the second summer (1989) and performed oral sex on him during the summers of
1990, 1991, and 1992, in the shower and also in other locations, such as in each of
their bedrooms.23

¶114 These are significant differences, as the State implicitly
acknowledges by failing to address them. They are arguably contrary to what the
prosecutor told the jury in opening statement, namely, that the older nephew
“consistently describe[d]” the sexual assaults by Coughlin. Particularly striking is
the difference between the representation of two incidents of oral sex in one
summer and the later representation of multiple incidents of oral sex over four
summers. Further, the frequency-and-locations topics go to the heart of the
allegations; if the older nephew was lying, exaggerating, or not accurately
recalling these particular details, this could readily provide reasonable doubt to
convict on one or more counts. Given how central this testimony was to
prosecution theories of guilt on Counts 1 – 4, Coughlin has shown prejudice.

¶115 Regarding the alleged deficiency of trial counsel on this issue, the
State in essence suggests that trial counsel’s performance could not have fallen
below the objective standard of reasonableness because it involved a reasonable
concern that other, more significant, areas of impeachment of the older nephew
required counsel’s full attention. But, lacking relevant testimony by trial counsel

23
Coughlin asserts on appeal that the older nephew testified at trial that the oral sex
never happened in the shower, but the trial transcript is ambiguous on this point. If anything, it
may suggest that oral sex occurred in the shower and also other locations.

51
No. 2021AP1416

that could shed light on this concept, we reject the suggestion by the State that the
record establishes that other areas of impeachment that trial counsel did pursue
were necessarily more significant than these topics and that impeachment
regarding these inconsistencies would have diminished other impeachment efforts.
The State does not address an obvious point: if trial counsel thought that counsel
was able to raise doubts about the older nephew’s testimony through impeachment
on other topics, why then did he leave off impeachment on these core issues of
guilt or innocence, which at least on its face could have served only to reinforce or
amplify doubts about the older nephew’s testimony? No doubt, the cross
examination of an alleged victim of child sexual assault (even as an adult)
necessarily calls for difficult choices by defense counsel and, as we have noted,
courts must defer to feasible strategy choices. But trial counsel here was willing
to challenge the veracity of the older nephew on some issues—why not on these
issues that go to the core of the allegations? Without the benefit of evidence from
a Machner hearing, we are left to speculate about whether any strategic
considerations were in play and whether all relevant facts satisfy the objective
standard of reasonableness.

¶116 In sum on this issue, Coughlin shows that he is entitled to an
evidentiary hearing to determine whether trial counsel’s performance was
deficient in failing to impeach the older nephew regarding the frequency and
locations of the alleged sexual assaults and whether appellate counsel was
deficient in failing to raise the issue.

¶117 We close with a set of observations regarding the topic of prejudice
alleged by Coughlin across his claims of ineffective assistance. We have
addressed prejudice issues throughout this opinion, including the limited
arguments on the topic offered by the State on each issue. The State concludes its

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No. 2021AP1416

brief by making a cursory argument to the apparent effect that, even if Coughlin
has alleged sufficient, non-conclusory facts that could show deficient performance
by trial counsel on one or more of the above issues, he cannot show prejudice on
any or all issues, given the incriminating testimony given by the nephews and
what the State calls the “completely far-fetched” defense theory that the nephews’
mother could have successfully encouraged the nephews to make exaggerated or
inaccurate allegations against Coughlin. This broad brush argument does not
come to grips with our various conclusions above. Further, the State essentially
invites us to substitute our assessments on issues of credibility and the weight of
evidence for the assessments of a jury, which we cannot do. Coughlin has shown
how he was prejudiced by the alleged deficiencies that we identify above, and the
State does not develop a supported argument that prejudice could not be shown
from any of the individual problems that Coughlin has identified in his
postconviction motion, or any combination of the problems.

CONCLUSION

¶118 For all of these reasons, we affirm some specific rulings of the
postconviction court but reverse the order denying Coughlin’s postconviction
motion and remand to the circuit court for further proceedings consistent with this
opinion.

By the Court.—Judgment and order affirmed in part; reversed in part
and cause remanded.

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

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