State v. Timothy J. Ogren

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.
February 9, 2021
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. 2019AP1406-CR Cir. Ct. No. 2016CF61

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIMOTHY J. OGREN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Price
County: ANN KNOX-BAUER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Timothy Ogren appeals from a judgment
convicting him of two counts of sexual assault of a child and an order denying his
No. 2019AP1406-CR

postconviction motion. Ogren claims his trial counsel rendered ineffective
assistance by failing to impeach a State’s witness with prior convictions, and by
failing to investigate and present exculpatory witnesses for the defense. We
conclude Ogren has failed to demonstrate prejudice from his counsel’s alleged
errors. Accordingly, we affirm.

BACKGROUND

¶2 The State charged Ogren with one count of first-degree sexual
assault of a child under the age of twelve by intercourse and two counts of
first-degree sexual assault of a child under the age of thirteen by sexual contact.
The charges were based on the allegations of a four-year-old girl, Tabitha, that
Ogren had put his “pee pee” in her mouth and in her “butt crack” while both were
staying at the house of Tabitha’s maternal grandparents, Rachel and James.1

¶3 At trial, the State played a video recording of a forensic interview
with Tabitha. When asked if there were certain parts of a girl’s body that other
people should not see or touch, Tabitha said, “the butt, and the dee-dee, and the
boobies.” Tabitha identified the “dee-dee” as the vaginal area on a drawing of a
female body.

¶4 Tabitha initially told the interviewer that no one had seen those parts
of her body. However, when asked if someone ever wanted to see her butt, she

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2017-18), we use
pseudonyms when referring to the victim, her mother and maternal grandparents, and another
child who testified to other acts evidence.

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

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No. 2019AP1406-CR

responded that Ogren “likes to wrestle with me” and added that “he likes to lick
my dee-dee and my butt.” She said, Ogren licked her like “a dragon,” or “a
dog” two times on the bed in her mother’s room at her grandparents’ house, while
her grandparents were downstairs watching television.

¶5 Tabitha also told the interviewer that, on the same two days that
Ogren licked her “dee-dee” and butt, he also told her to “drink the milk” from his
“pee-pee.” Tabitha identified the “pee-pee” as the crotch area on a drawing of a
male body. She said that Ogren got “sweaty and hot” when he asked her to “drink
the milk,” and that he also had her touch his “pee-pee.”

¶6 Tabitha said she had lived with her grandparents in Park Falls for
“one whole day.” She did not make any other assertion as to when the incidents
had occurred. She also had difficulty answering questions about the difference
between truth and lies.

¶7 Rachel testified that her daughter Nancy and granddaughter Tabitha
had come to live with Rachel and James at their house in Park Falls in
August 2015. According to Rachel, Ogren also stayed at their Park Falls house
“pretty much full time” between December 2015 and September 2016. Ogren
shared Nancy’s bedroom upstairs, while Tabitha either slept in the upstairs
bedroom with Ogren and her mother or in a downstairs bedroom with Rachel and
James. There were times when Ogren was alone in the house with Tabitha and
times when Ogren was alone with Tabitha upstairs while Rachel and James were
downstairs and Nancy was at work.

¶8 Nancy likewise testified that Ogren had lived with her at the
Park Falls house beginning in December 2015; that Ogren shared an upstairs
bedroom with her and sometimes Tabitha; and that Ogren was sometimes in the

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house with Tabitha, Rachel and James while Nancy was at work. Nancy further
testified that the upstairs bedroom was not visible from downstairs, and that
someone downstairs would have no idea what was going on in the upstairs
bedroom.

¶9 The State also presented the videotaped interview of a six-year-old
child, Natalie, who alleged that Ogren had assaulted her at the home of Ogren’s
mother, Jacqueline Burt, when Natalie was in kindergarten and both she and
Ogren were staying at Burt’s house in Sawyer County. Natalie said that on three
different occasions while Ogren was babysitting her, Ogren touched her private
area with his finger under her pajama bottoms and underwear.

¶10 Ogren took the stand in his own defense. He denied having ever
touched either Tabitha or Natalie inappropriately. He claimed that he had never
been alone in a house with Natalie, and that she was just “mixed up.”

¶11 Ogren also denied ever having been alone in the Park Falls house
with Tabitha. However, he did not deny having been alone with Tabitha in the
upstairs bedroom that he said he shared with Nancy and Tabitha “for at least three
months” while he bounced back and forth between his mother’s house and the
Park Falls house. To the contrary, Ogren corroborated Tabitha’s statement that he
would wrestle with her, and he said that the upstairs bedroom where they played
was where he spent “pretty much 90 percent of the time” that he was in the
Park Falls house. Sometimes, he would just be wearing his boxer shorts in the
bedroom due to the heat.

¶12 Ogren suggested that Tabitha’s reference to drinking his milk may
have come either from his attempts to get Tabitha to drink “actual milk that comes
from a cow,” or from a time when he used the bathroom while she was taking a

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bath. Ogren claimed Tabitha had seen his penis in the bathroom and asked him if
that was where milk came from. He testified that he had reported that incident to
James.

¶13 When asked why Tabitha would say that Ogren liked to lick her
vaginal area, Ogren said Tabitha liked to jump on him like he was a jungle gym
and thought it was funny to sit on his head once in a while. Ogren also claimed
that Tabitha might have seen Ogren and Nancy having sex one night because the
following morning Tabitha asked Nancy if Ogren could do to Tabitha what he had
done to Nancy.

¶14 On rebuttal, James denied that Ogren ever told him about an
exposure incident in the bathroom, and Nancy denied any conversation about
Tabitha asking whether Ogren could do to her what he did to her mother.

¶15 The jury found Ogren guilty on the count of sexual assault by
intercourse (based on Ogren performing an act of cunnilingus on Tabitha) and on
one of the two counts of sexual assault by sexual contact (based on Ogren causing
or allowing Tabitha to touch his penis). After the circuit court sentenced Ogren to
consecutive terms totaling thirty-five years’ initial confinement and thirty years’
extended supervision, Ogren moved for a new trial based upon ineffective
assistance of his trial counsel and/or newly discovered evidence. Ogren claimed
that his trial counsel was ineffective for failing to impeach Rachel with a known
prior conviction, failing to discover and impeach Rachel with a second prior
conviction, and failing to interview and produce Ogren’s parents as defense
witnesses.

¶16 At the postconviction hearing, Burt testified that her son was living
at her house in Sawyer County during the entire period of time over which he was

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alleged to have committed the assaults against Tabitha, except for a brief time
when he lived with Nancy in a mobile home in Fifield. Burt claimed that when
Ogren visited the Park Falls house, he and Nancy would go upstairs and Tabitha
would stay downstairs by her grandparents, so Ogren was never alone with
Tabitha. Burt accompanied her son on three or four such visits. Burt further
testified that Ogren was living with her during the period of time he was alleged to
have assaulted Natalie. She said she would not have allowed Ogren to have been
alone with Natalie in Sheboygan County (where Natalie primarily lived), because
that would have violated his bail or probation conditions of “house arrest,” and her
own “house was on the line for that.”

¶17 Ogren’s father, Gordon Ogren, testified that he believed Ogren had
been living with his mother during the time frame when he was alleged to have
assaulted Tabitha, but he thought Ogren had been going to Park Falls “fairly
often” to visit for three or four days at a time. Gordon did not know whether
Ogren would have been alone with Tabitha at the Park Falls house because he was
not there more than one time. Gordon also testified that a condition of his son’s
probation during the time he was alleged to have assaulted Natalie prohibited him
from leaving the county. He said Ogren would have no way and no reason to go
to Sheboygan County.

¶18 Counsel for both parties agreed that the circuit court had ruled
Rachel could be impeached with a 1993 conviction for sexual assault of a child,
but that neither party had asked Rachel at trial about prior convictions. The court
took judicial notice that Rachel had a second prior conviction for operating after
revocation (OAR) in 2005 that had not been discovered by the parties due to a date
of birth error listed in the record.

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No. 2019AP1406-CR

¶19 The circuit court denied the motion for a new trial. It first noted that
it probably would not have allowed the OAR conviction to be used for
impeachment because it was a low-level misdemeanor that did not involve truth or
veracity and was over twelve years old at the time of the trial. In any event, the
court concluded that impeaching Rachel with the sexual assault conviction would
not have changed the outcome of the trial because Rachel’s testimony about the
living arrangements in her house was corroborated by Nancy, James, and Ogren
himself. The court further concluded that the testimony of Ogren’s parents would
not have changed the outcome of the trial because they had no personal knowledge
about most of the time Ogren spent at the Park Falls house.

DISCUSSION

¶20 A claim of ineffective assistance of counsel requires the defendant to
demonstrate two things: (1) deficient performance by counsel; and (2) prejudice
resulting from that deficient performance. State v. Swinson, 2003 WI App 45,
¶58, 261 Wis. 2d 633, 660 N.W.2d 12. We will not set aside the circuit court’s
factual findings about what actions counsel took or the reasons for them unless
they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711
(1985). However, whether counsel’s conduct violated the constitutional standard
for effective assistance of counsel is ultimately a legal determination that this court
decides de novo. Id. We need not address both components of the ineffective
assistance test if the defendant fails to make a sufficient showing on one of them.
Swinson, 261 Wis. 2d 633, ¶58.

¶21 Here, we conclude that Ogren has failed to satisfy the prejudice
element of the test for ineffective assistance of counsel. A defendant demonstrates
prejudice by showing there is a reasonable probability that, but for counsel’s

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unprofessional conduct, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984). The “reasonable
probability” standard does not require a showing that it is “more likely than not”
that a jury would have acquitted the defendant. State v. Sholar, 2018 WI 53,
¶¶44-45, 381 Wis. 2d 560, 912 N.W.2d 89 (citing Strickland, 466 U.S. at 693).
Still, the “reasonable probability” standard is tied to the reviewing court’s
confidence in the outcome, and the “likelihood of a different result must be
substantial, not just conceivable.” Id., ¶45; see also Harrington v. Richter, 562
U.S. 86, 111-12 (2011) (citing Strickland, 466 U.S. at 693).

¶22 Counsel’s failure to impeach Rachel with her two prior convictions
does not undermine our confidence in Ogren’s convictions. As to Rachel’s OAR
conviction, the circuit court could properly have disallowed use of the conviction
for impeachment purposes pursuant to WIS. STAT. 906.09(2). Even if both
convictions had been introduced, there is no substantial likelihood that such
impeachment would have altered the outcome of the case, given that Rachel’s
testimony about the living arrangements in her house was corroborated by that of
several other witnesses, as described above.

¶23 Ogren contends that his parents’ testimony would have further
undermined Rachel’s testimony along with that of all the other witnesses who
testified that Ogren lived in the Park Falls house throughout the entire time period
when the assaults on Tabitha were alleged to have occurred. However, the
opinions of Ogren’s parents that Ogren was never alone with Tabitha in the
Park Falls house would not have carried much weight because neither of Ogren’s
parents spent much time in that house. Rather, both of Ogren’s parents admitted
that—at the very least—Ogren visited Tabitha there. Moreover, Tabitha did not
claim that she was alone in the house when the assaults occurred. She said her

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grandparents (that is, Rachel and James) were downstairs. In short, disputes about
whether Ogren was living in or just visiting the Park Falls house, and exactly how
often he was there, would not change the fact that—by his own admission—Ogren
had the opportunity to commit the assaults against Tabitha in the place she
described, and during the time period alleged.

¶24 Similarly, Ogren’s parents’ testimony that Ogren never went to
Natalie’s house in Sheboygan County was irrelevant because the assault against
Natalie was alleged to have taken place at Burt’s house in Sawyer County.
Ogren’s own testimony established that Ogren and Natalie stayed together in
Burt’s house for a period of time. We conclude that Ogren was not prejudiced by
his trial counsel’s failure to interview Ogren’s parents or present them as
witnesses. Accordingly, the circuit court properly denied Ogren’s motion for a
new trial.

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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