State v. Terrance L. Curtis

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.
September 12, 2019
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. 2018AP882-CR Cir. Ct. No. 2015CF359

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TERRANCE L. CURTIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Jefferson County: RANDY R. KOSCHNICK and JENNIFER L. WESTON,
Judges. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, 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. 2018AP882-CR

¶1 PER CURIAM. A jury found Terrance Curtis guilty of first-degree
reckless homicide for causing the death of his five-month-old son, R.C. Curtis
raises four issues on appeal: (1) whether he received ineffective assistance of
counsel when his trial counsel failed to timely produce his expert witness’s report,
resulting in a sanction limiting the expert’s testimony at trial; (2) whether the
circuit court erred by declining to exclude from the courtroom during trial R.C.’s
maternal grandmother, D.O., when Curtis’s theory of defense was that D.O. was
the third-party perpetrator of the crime; (3) whether the court erred by admitting
testimony by a law enforcement officer regarding nonverbal behavior by Curtis
during an interview, which Curtis asserts amounted to impermissible opinion
testimony as to Curtis’s truthfulness; and (4) whether Curtis is entitled to a new
trial in the interest of justice and whether he received a constitutionally fair trial as
a result of these errors.

¶2 As to the first issue, we conclude that Curtis’s ineffective assistance
of counsel claim fails because Curtis has not shown that he was prejudiced by trial
counsel’s failure to timely produce the expert report. As to the second issue, we
conclude that Curtis has not shown that the circuit court erroneously exercised its
discretion by permitting D.O. to remain in the courtroom during the trial. We do
not address the third issue, based on Curtis’s concession that he has forfeited it.
Finally, we conclude that, because Curtis’s arguments regarding the first three
issues fail, he has not shown either that his trial was constitutionally defective or
that he is entitled to a new trial in the interest of justice. Accordingly, we affirm.

BACKGROUND

¶3 On the evening of October 22, 2015, five-month-old R.C. was found
dead in a residence where he had been living with multiple family members,

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including his father, Curtis, and his maternal grandmother, D.O. Medical
examination revealed that R.C. died of blunt force trauma to his head. Following
a police investigation, the State charged Curtis with one count of first-degree
reckless homicide, alleging that Curtis caused R.C.’s death.

¶4 Prior to the jury trial, Curtis sought and received permission from
the circuit court to introduce evidence and argue that D.O. was responsible for
R.C.’s death, pursuant to State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct.
App. 1984). At trial, Curtis argued to the jury that law enforcement had not
adequately investigated the scene, specifically the back deck of the house where
D.O. had been at the time of R.C.’s death. We will present the trial evidence
pertinent to the issues on appeal in the discussion section that follows. The jury
found Curtis guilty as charged.

¶5 Curtis filed a postconviction motion for a new trial, alleging that he
had received ineffective assistance of trial counsel and that he was entitled to a
new trial in the interest of justice. The circuit court held an evidentiary hearing at
which it heard testimony from trial counsel and from Curtis’s trial expert, Gary
Rini. Following the hearing, the court denied Curtis’s motion for a new trial.
Curtis appeals.1

DISCUSSION

¶6 As stated, Curtis raises four issues on appeal. We address each issue
in turn.

1
The Honorable Randy R. Koschnick presided over trial and entered the judgment of
conviction. The Honorable Jennifer L. Weston entered the order denying Curtis’s postconviction
motion.

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No. 2018AP882-CR

I. Ineffective Assistance of Trial Counsel

¶7 Curtis first argues that he is entitled to a new trial because he
received ineffective assistance of trial counsel when trial counsel failed to timely
produce Curtis’s expert witness’s report, resulting in a sanction limiting the
expert’s testimony at trial. We first set out the law related to claims of ineffective
assistance of counsel. We next present the facts pertinent to the content and
production of the expert’s report. We then explain that Curtis’s claim fails
because he has not shown that he was prejudiced by trial counsel’s failure to
timely produce the expert report.

A. Legal Principles

¶8 The Wisconsin Supreme Court has summarized the standards for
claims of ineffective assistance of counsel as follows:

Whether a defendant was denied effective assistance of
counsel is a mixed question of law and fact. The factual
circumstances of the case and trial counsel’s conduct and
strategy are findings of fact, which will not be overturned
unless clearly erroneous; whether counsel’s conduct
constitutes ineffective assistance is a question of law,
which we review de novo. To demonstrate that counsel’s
assistance was ineffective, the defendant must establish that
counsel’s performance was deficient and that the deficient
performance was prejudicial. If the defendant fails to
satisfy either prong, we need not consider the other.

Whether trial counsel performed deficiently is a
question of law we review de novo. To establish that
counsel’s performance was deficient, the defendant must
show that it fell below “an objective standard of
reasonableness.” In general, there is a strong presumption
that trial counsel’s conduct “falls within the wide range of
reasonable professional assistance.” Additionally,
“[c]ounsel’s decisions in choosing a trial strategy are to be
given great deference.”

Whether any deficient performance was prejudicial
is also a question of law we review de novo. To establish

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No. 2018AP882-CR

that deficient performance was prejudicial, the defendant
must show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.”

State v. Breitzman, 2017 WI 100, ¶¶37-39, 378 Wis. 2d 431, 904 N.W.2d 93
(quoted sources and citations omitted).

B. Pertinent Facts

¶9 On May 13, 2016, the circuit court entered a scheduling order
requiring, among other things, that the parties file with the court their disclosures
of expert witnesses, “along with any required statements, reports[,] or summaries,”
by July 22, 2016. On July 22, trial counsel filed a document entitled “Notice of
Expert Testimony,” which offered a “summary” of testimony to be given by
Curtis’s expert, Gary Rini. The summary stated that “Mr. Gary A. Rini … will
testify as to proper investigative techniques and protocols for death crime scene
investigations and offer his opinion regarding the practices and procedures in the
instant case.”

¶10 Following trial counsel’s submission of the Notice of Expert
Testimony, the State sent trial counsel two separate communications asking trial
counsel to produce a copy of Rini’s expert report or a summary of Rini’s findings.
When trial counsel did not respond to these requests, the State filed a motion to
compel discovery. At a hearing on the motion on August 24, 2016, the circuit
court ordered trial counsel to produce a written summary of Rini’s anticipated
testimony by August 26. The court also ordered trial counsel to produce “either a
report from [Rini] or a supplemental letter … containing the information” trial

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No. 2018AP882-CR

counsel anticipated that Rini would offer by September 2. The court stated that it
was “inclined to exclude” any anticipated testimony produced after September 2.

¶11 On September 2, 2016, the State moved to exclude Rini’s testimony
on the grounds that trial counsel had not produced either a copy of Rini’s report or
a written summary of his findings. At a subsequent hearing, the State and trial
counsel agreed that trial counsel did not produce a copy of a report until
September 9—one week after the September 2 deadline.2 At a subsequent
hearing, trial counsel advised that Rini would testify to crime scene processing
issues and to “manner of death” issues. Trial counsel noted that “the manner of
death is obviously blunt force trauma. The question is, who, what, where, when,
why?” The State responded that it could be prepared to address Rini’s testimony
as to crime scene processing but not Rini’s testimony as to his opinion regarding
the question of the manner of death.

¶12 The circuit court ultimately determined that trial counsel had
violated the court’s scheduling order without good cause. The court ordered that
Rini could “testify and render opinion testimony as it relates to crime scene
investigation and procedures as discussed and written in his report,” but not
“concerning the manner of [R.C.’s] death because that would be unfairly
prejudicial to the State.”

¶13 Rini testified at trial. His testimony centered on what he opined
were mistakes in law enforcement’s handling of the crime scene, such as law

2
In his briefing on appeal, Curtis states that “the State acknowledged receiving a report
by Rini on August 9.” However, the portion of the transcript cited by Curtis establishes that the
State represented that it received the report on September 9, not August 9.

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No. 2018AP882-CR

enforcement’s alleged failures to control access to the scene or to separate
witnesses for individual questioning. Rini also testified that there were three
“possibilities” including the grandmother, the father, or a third party. Rini
testified that law enforcement did not properly photograph and document the deck
area and the ground below and that, as a result, investigators failed to discern “a
possibility that the baby was dropped” from the deck.

¶14 Rini again testified at the postconviction hearing. There, he gave
testimony that, as we discuss below, was similar in content to his trial testimony.
We present further details concerning Rini’s testimony at the trial and at the
postconviction hearing in the discussion that follows.

C. Whether Curtis Received Ineffective Assistance of Counsel

¶15 Curtis argues that he received ineffective assistance of counsel when
trial counsel failed to timely produce a copy of Rini’s report, resulting in the
sanction prohibiting him from testifying about the manner of R.C.’s death. We
assume, without deciding, that trial counsel performed deficiently by failing to
timely provide a copy of Rini’s report. However, we conclude that Curtis has not
shown that he suffered any prejudice as a result of trial counsel’s deficient
performance; therefore, his claim of ineffective assistance of counsel fails.

¶16 As best we can tell, Curtis argues that he was prejudiced by the
sanction limiting Rini’s testimony in two ways. First, he argues that the sanction
prevented Rini from testifying that R.C.’s injuries might have been caused by a
fall from the back deck, where D.O. was standing. Stated another way, Curtis
argues that, but for trial counsel’s deficient performance, Rini would have
“affirmed trial counsel’s theory that a fall from the deck could have been one

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No. 2018AP882-CR

possible source of R.C.’s injuries[,] given the deck’s height and topography below
it.”

¶17 This first argument fails because, as we now explain, Curtis
concedes that Rini was not qualified to give an opinion regarding whether R.C.’s
injuries were consistent with a fall from the deck and, therefore, Rini’s testimony
on that topic would have been inadmissible. In its response brief, the State argues
that “Rini lacked the necessary qualifications” to offer an opinion that R.C.’s
injuries could have been caused by a fall from the back deck. To support its
argument, the State cites Rini’s testimony at the postconviction hearing, in which
Rini agreed that the “cause, manner, and mechanism of death were outside of [his]
purview as an expert.” The State contends that “because Rini was unqualified to
opine if [R.C.] could have sustained these injuries by being tossed off the deck,
counsel’s failure to timely disclose this opinion did not prejudice Curtis.”

¶18 In his reply brief, Curtis concedes that although Rini was “qualified
to render an opinion as to law enforcement’s processing of the back deck and how
it was deficient,” Rini was not “qualified to render an opinion as to the cause of
the child’s death from a medical standpoint....” Moreover, Curtis does not dispute
the State’s argument that because Rini was not qualified to render an opinion
regarding the cause of death, exclusion of his testimony on the topic of whether
R.C.’s injuries were consistent with a fall from the deck was not prejudicial. We
consider the State’s argument to be conceded. See State v. Chu, 2002 WI App 98,
¶41, 253 Wis. 2d 666, 643 N.W.2d 878 (argument raised in State’s response brief
not disputed in defendant’s reply may be deemed admitted).

¶19 Curtis’s second argument concerning prejudice is that, as a result of
the sanction, Rini was prevented from testifying at trial about “law enforcement’s

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No. 2018AP882-CR

processing of the back deck,” with the result that Curtis was less able to “support[]
… the overall defense theory that there was an alternate manner of death and an
alternate suspect.” As we now explain, we reject this argument because it rests on
the incorrect premise that Rini was prevented from testifying on this topic at trial.

¶20 Curtis specifically argues that the sanction prevented Rini from
giving at trial testimony that he gave at the postconviction hearing concerning the
processing of the back deck area. However, the testimony that Rini gave at the
postconviction hearing regarding alternate suspects and law enforcement’s
processing of the deck was substantially similar to the testimony he had already
offered at trial.

¶21 At the postconviction hearing, Rini testified that the law
enforcement investigation of the deck was inadequate because D.O. was standing
on the deck around the time that the incident occurred and because officers did not
return to the scene to investigate and photograph the deck area in daylight, did not
take comprehensive measurements of the deck area, and did not document the
consistency of materials on and around the deck. At trial, as stated above, Rini
testified that there was a “possibilit[y]” that D.O. was responsible for R.C.’s death,
and that law enforcement’s investigation and processing of the deck area were not
adequate. Specifically, he testified that law enforcement should have “take[n] a
picture of the deck and the surface below the deck and see[n] if there’s a
possibility that the baby was dropped”; that law enforcement should have looked
at “the condition of that area beneath the deck”; and that law enforcement should
have “memorialized [the scene] inside and out” before allowing others to access it.

¶22 As stated, Rini’s testimony at both the trial and the postconviction
hearing addressed the same topic, namely, whether law enforcement properly

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No. 2018AP882-CR

processed and investigated the back deck area. Moreover, the testimony at both
proceedings suggested that Rini considered D.O. a “possibilit[y]” and that law
enforcement had erred by failing to properly photograph and document the back
deck area, to investigate the types of materials on and beneath the deck, and to
control access to the scene.

¶23 Given the substantial overlap between Rini’s trial testimony and
Rini’s postconviction testimony, we cannot conclude that there is a “reasonable
probability that … the result of the proceeding would have been different” had the
postconviction testimony been presented at trial. See Breitzman, 378 Wis. 2d 431,
¶39 (quoted source omitted).

¶24 Curtis contends that while Rini did testify at trial “regarding some
crime scene processing issues, such testimony failed to bolster the defense theory
as to an alternate manner of death caused by an alternate suspect.” However,
Curtis does not explain why Rini’s testimony at the postconviction hearing was
any more supportive of Curtis’s theory of defense than his trial testimony, and we
do not consider this argument further. See State v. Pettit, 171 Wis. 2d 627, 646-
47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider undeveloped
arguments).

¶25 In sum, Curtis fails to show that he was prejudiced by trial counsel’s
untimely filing of Rini’s report. Therefore, he has not shown that he received
ineffective assistance of counsel. See Breitzman, 378 Wis. 2d 431, ¶37.

II. Exclusion of D.O. from Trial Proceedings

¶26 Curtis argues that the circuit court erred by failing to exclude D.O.
from the courtroom during the presentation of testimony by the other witnesses.

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No. 2018AP882-CR

¶27 WISCONSIN STAT. § 906.15 (2017-18)3 provides the framework
governing the circuit court’s decision as to the exclusion of witnesses. It provides,

(1) At the request of a party, the judge … shall
order witnesses excluded so that they cannot hear the
testimony of other witnesses. The judge … may also make
the order of his or her own motion.

(2) Subsection (1) does not authorize exclusion of
any of the following:

…

(d) A victim, as defined in s. 950.02 (4), in a
criminal case or a victim, as defined in s. 938.02 (20m), in
a delinquency proceeding under ch. 938, unless the judge
or circuit court commissioner finds that exclusion of the
victim is necessary to provide a fair trial for the defendant
or a fair fact-finding hearing for the juvenile. The presence
of a victim during the testimony of other witnesses may not
by itself be a basis for a finding that exclusion of the victim
is necessary to provide a fair trial for the defendant or a fair
fact-finding hearing for the juvenile.

(3) The judge or circuit court commissioner may
direct that all excluded and non-excluded witnesses be kept
separate until called and may prevent them from
communicating with one another until they have been
examined or the hearing is ended.

Sec. 906.15. The statute is consistent with the Wisconsin Constitution, which
provides that a “victim” has the opportunity “to attend court proceedings unless
the [circuit] court finds sequestration is necessary to a fair trial for the defendant.”
WIS. CONST. art. I, § 9m.

¶28 Whether to exclude a witness under WIS. STAT. § 906.15 is within
the circuit court’s discretion. State v. Evans, 2000 WI App 178, ¶7, 238 Wis. 2d

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP882-CR

411, 617 N.W.2d 220. “We review a discretionary decision only to determine
whether the [circuit] court examined the facts of record, applied a proper legal
standard, and, using a rational process, reached a reasonable conclusion.” State v.
Pittman, 174 Wis. 2d 255, 268, 496 N.W.2d 74 (1993) (quoted source omitted).
The party asserting that the circuit court erroneously exercised its discretion has
the burden of establishing that assertion. Colby v. Colby, 102 Wis. 2d 198, 207-
08, 306 N.W.2d 57 (1981).

¶29 As stated, prior to trial Curtis sought and received permission to
introduce evidence and argue that D.O. was responsible for R.C.’s death, pursuant
to Denny. The following is additional pertinent background. After the circuit
court’s Denny ruling and prior to trial, Curtis moved to exclude D.O. from the trial
proceedings, including voir dire, opening statements, and witness testimony, on
the grounds that D.O. would be a witness and was the subject of the Denny
motion. The court denied Curtis’s motion to exclude D.O. because D.O. is a
“victim” as that term is defined in WIS. STAT. § 950.02(4),4 and Curtis had not
provided any “specifics” showing that exclusion of D.O. was “necessary to
provide a fair trial for the defendant.” WIS. STAT. § 906.15(2)(d). In addition, the
court ordered every witness, including D.O., to refrain from discussing his or her
testimony with other witnesses and determined that “allowing [D.O.] to be present
but directing her not to discuss testimony with any other witnesses” would
“accommodate” Curtis’s right to a fair trial and the victim’s right to be present.

4
A “victim” includes “a person who resided with the person who is deceased.” WIS.
STAT. § 950.02(4)(a)4. It is undisputed that D.O. lived in the same house with R.C., and the
parties agree she is therefore a victim as defined by the statute.

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No. 2018AP882-CR

¶30 Curtis makes four arguments supporting his challenge to the circuit
court’s decision not to exclude D.O., none of which is persuasive. Curtis’s first
argument is that Curtis’s right to a fair trial was compromised because D.O., by
remaining in the courtroom, would be able to “observe and hear evidence prior to
her giving her own testimony, and then to shape her own testimony in light of such
evidence.” Specifically, Curtis argues that D.O. would be able to craft answers to
rebut other witnesses’ testimony that she was intoxicated and uncooperative with
law enforcement on the night of R.C.’s death. As stated above, the court rejected
this argument as lacking in specifics sufficient either to show that Curtis’s right to
a fair trial would be compromised or to override D.O.’s right to be present during
the trial, and determined that both rights could be accommodated by the court’s
order that D.O. and the other witnesses not discuss their testimony with other
witnesses.

¶31 The problem with Curtis’s argument on appeal is that it overlooks
our standard of review. Curtis made this argument to the circuit court, and the
court rejected it. The question presented on appeal is not whether we would reach
the same decision were we to engage in an independent analysis. Rather, the sole
question is whether, in rejecting this argument, the court acted within its
discretion. Evans, 238 Wis. 2d 411, ¶7. Curtis fails to develop any argument that
the court applied the wrong legal standard or relied on facts not of record or
reached a conclusion that no reasonable judge could reach, and his argument fails
as a result. See Colby, 102 Wis. 2d at 207-08 (party alleging erroneous exercise of
discretion has the burden of establishing that assertion).

¶32 While our analysis could stop there, for the sake of completeness we
explain that our review of the record indicates that the circuit court acted well
within its discretion in rejecting Curtis’s first argument. In ruling on whether D.O.

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No. 2018AP882-CR

should be excluded, the court relied on WIS. STAT. § 906.15 and WIS. CONST.
art. I, § 9m and correctly stated the question presented as whether exclusion of
D.O. was “necessary … to give the defendant a fair trial.” In response to Curtis’s
argument that D.O. might change her testimony in response to other witnesses’
testimony, the court stated that it did not “see much wiggle room in [D.O.’s]
story” and did not “see what she could change.” The court reasoned that if D.O.
did change her testimony to be inconsistent with statements she had previously
given to law enforcement, Curtis would be able to impeach her on cross-
examination; thus, any such testimony from D.O. would help, not hurt, Curtis and
his right to a fair trial would not be compromised. The court also reasoned that
ordering D.O. and the other witnesses not to discuss their testimony with other
witnesses would “guard[] against her comparing notes … with other witnesses,”
and that it could “accommodate the defendant’s [right to a fair trial] and the
victim’s right to be present by allowing [D.O.] to be present but directing her not
to discuss testimony with any other witnesses.” Based on this reasoning, the court
stated that it did “not find [that exclusion] is necessary to a fair trial for the
defendant.”

¶33 From this record, we conclude that the circuit court applied the
correct legal standard and, using a rational process based on facts of record,
reached a reasonable conclusion. It therefore acted within its discretion. See
Pittman, 174 Wis. 2d at 268.

¶34 The second argument is that Curtis’s right to a fair trial was
compromised because D.O.’s presence in the courtroom “communicated to the
jury nonverbal information” such as her “demeanor, physicality, expressions, and
mannerisms.” According to Curtis, the jury’s ability to assess D.O. off the witness
stand necessarily benefited the State’s case by undermining the possibility that

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No. 2018AP882-CR

D.O. had committed the crime.5 This argument suffers from the same defect as
the first argument, in that it was made to and rejected by the circuit court, and
Curtis does not explain how the court misused its discretion. Moreover, in his
postconviction motion, Curtis fails to identify any specific expressions or
demeanor by D.O. that were of concern.

¶35 Curtis’s third argument is that D.O.’s presence in the courtroom
“constituted an implicit message that the prosecutor did not believe that D.O. was
responsible for [R.C.’s] death.” This, Curtis asserts, runs afoul of what he asserts
to be the rule that a “prosecutor may not express his or her personal belief in a
defendant’s guilt[].” See State v. Jackson, 2007 WI App 145, ¶22, 302 Wis. 2d
766, 735 N.W.2d 178 (“it is a violation of the lawyer’s code of ethics for a lawyer
to tell a jury what he or she believes is the truth of the case…”). This argument is
defeated by the State’s response, not contested by Curtis, that regardless of D.O.’s
presence, “the jury could reasonably conclude that the [prosecutor] believed Curtis
was solely responsible for [R.C.’s] death based on [her] closing argument
synopsizing the evidence against Curtis.” Because Curtis has not replied to the
State’s response, he has conceded that it is correct and his third argument lacks
merit. See Chu, 253 Wis. 2d 666, ¶41.

¶36 Curtis’s fourth argument is that because D.O. was “a third-person
suspect under Denny, the circuit court had to exclude her to ensure a fair trial.” In
effect, Curtis appears to suggest that this court should create a new, blanket rule

5
Relatedly, Curtis argues that “D.O.’s presence in the courtroom evoked sympathy and
other emotional appeal,” such that the jury was less likely to believe she was responsible for
R.C.’s death. This appears to be a variant of the argument that the State gained an unfair
advantage by virtue of the jury observing D.O. off the witness stand. We do not see sufficient
independent merit to this argument to warrant separate discussion.

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No. 2018AP882-CR

that exclusion of a third-party Denny suspect is required in all instances in order
for a defendant to receive a fair trial. We decline Curtis’s invitation to institute
such a sweeping rule because he has failed to support it with relevant legal
authority. See Pettit, 171 Wis. 2d at 646-47 (we need not consider undeveloped
arguments or arguments unsupported by legal authority).

¶37 In sum, Curtis fails to show that the circuit court erroneously
exercised its discretion by declining to exclude D.O. from the courtroom during
the presentation of testimony.

III. Testimony Related to Curtis’s Nonverbal Conduct

¶38 Curtis argues that the circuit court erred by admitting testimony from
a law enforcement witness, Detective Daniel Horvatin, concerning Curtis’s
nonverbal conduct at an interview. Curtis asserts that Horvatin’s testimony
amounted to an impermissible opinion that Curtis was lying at the interview, in
contravention of State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App.
1984). The State responds that Curtis forfeited this issue by not objecting to either
the questions or the testimony, and Curtis concedes the forfeiture issue in his reply
brief.

¶39 We generally do not consider issues raised for the first time on
appeal. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d
727 (“Issues that are not preserved at the circuit court … generally will not be
considered on appeal.”). We conclude that Curtis has both forfeited his right to
raise this argument on appeal and failed to provide a persuasive reason that we
should entertain the argument despite his failure to preserve it in the circuit court.

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No. 2018AP882-CR

IV. New Trial in the Interest of Justice and Right to a Fair Trial

¶40 Curtis argues that he is entitled to a new trial in the interest of justice
because the real controversy has not been fully tried, and, accordingly, asks us to
exercise our power of discretionary reversal under WIS. STAT. § 752.35. In
addition, Curtis cites the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section Seven of the Wisconsin Constitution and argues
that the “cumulative effect” of the alleged errors deprived him of his constitutional
right to a fair trial. However, we have already explained why the alleged errors
that form the basis of both arguments are not problematic. We therefore decline to
exercise our discretion to reverse his conviction in the interest of justice, and we
also see no reason to conclude that Curtis’s right to a fair trial was compromised.

CONCLUSION

¶41 For the reasons stated, we affirm.

By the Court.—Judgment and order affirmed.

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

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