State v. Paul M. Bardwell

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 23, 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. 2019AP168-CR Cir. Ct. No. 2015CF846

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PAUL M. BARDWELL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: MARC A. HAMMER, 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. Paul Bardwell appeals from a judgment convicting
him of second-degree sexual assault of a child and from an order denying his
No. 2019AP168-CR

postconviction motion. Bardwell claims he is entitled to a new trial based upon
ineffective assistance of counsel because his trial counsel: (1) failed to timely
object to expert witness testimony regarding delayed reporting by children in
sexual assault cases; and (2) failed to request a jury instruction on Bardwell’s alibi
defense. We conclude the State’s expert witness was qualified to offer an expert
opinion on the issue of the child’s delayed reporting, and, therefore, counsel did
not perform deficiently by failing to challenge that testimony. We also conclude
that Bardwell has not demonstrated prejudice arising from counsel’s failure to
request an alibi defense jury instruction. We therefore affirm.

BACKGROUND

¶2 The sexual assault in this case was alleged to have occurred during a
sleepover hosted by Bardwell’s stepdaughter in the Bardwell home. The victim, a
twelve-year-old girl who attended the sleepover, did not report the assault until
two years later. Further details of the assault are not relevant to the issues on
appeal.

¶3 Prior to trial, the State provided notice that it planned to call
psychotherapist Susan Lockwood-Knaus—the director of the Sexual Assault
Center for Brown, Door, Oconto and Marinette counties and Willow Tree
Cornerstone Child Advocacy Center in Green Bay—as an expert witness “to
provide testimony regarding delayed reporting”. At a pre-trial status conference,
Bardwell’s trial counsel advised the court that Bardwell did not intend to file a
Daubert motion. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993). On the morning of trial, however, Bardwell filed a motion in limine
seeking to exclude Lockwood-Knaus’s testimony under Daubert. The court
denied the motion as being untimely.

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¶4 At trial, Lockwood-Knaus testified, to a reasonable degree of
professional certainty, that it is common for children who are sexually abused to
delay reporting the assault. Lockwood-Knaus further explained that the most
common reasons for delayed reporting are fear of not being believed, fear of
losing relationships, embarrassment, shame, and an inability to talk about the
abuse. Lockwood-Knaus based her opinions on her own clinical experience as a
psychotherapist who had worked with child sexual assault victims since 1987, her
training, conversations with her staff and other therapists, and her review of
professional literature and research.

¶5 Also prior to trial, Bardwell filed a notice of alibi claiming that he
had been at the Mader News Agency at the time the assault was alleged to have
occurred. Bardwell’s alibi became a key contested issue at trial. Bardwell’s wife
Alicia testified that she worked nights at the Mader News Agency and that
Bardwell was there with her on the night of the sleepover. Alicia said that
Bardwell would come to work with her on the night shift almost every Saturday
during the time frame around the assault to help her stuff advertising packets into
newspapers because she had an injured neck. Bardwell would punch in by signing
the back of Alicia’s timecard. Alicia claimed the newspaper’s owner allowed her
to have someone help her because she was a subcontractor.

¶6 Valerie Calhoun, a co-worker of Alicia’s, testified that she drove
Alicia and Bardwell to work the night of the sleepover, and that Bardwell’s name
would be written on the back of either her own timecard or Alicia’s to record that
he had worked that night. However, another employee of the newspaper,
Melissa Gillis, testified that Bardwell’s name did not appear on either Alicia’s or
Calhoun’s timecards. Gillis further testified that, to her knowledge, only
employees would be allowed to stuff newspapers.

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¶7 At the close of the trial, the circuit court gave the jury the standard
general instruction on the burden of proof. See WIS JI—CRIMINAL 140 (2019).
Bardwell’s trial counsel did not request, and the court did not give, an additional
special instruction on Bardwell’s alibi defense. See WIS JI—CRIMINAL 775
(2005). The jury subsequently convicted Bardwell of second-degree sexual
assault of a child.

¶8 Following his conviction, Bardwell moved for a new trial on the
grounds of ineffective assistance of trial counsel. He claimed that his trial counsel
should have timely moved to exclude Lockwood-Knaus’s testimony under
Daubert and should also have requested the special jury instruction for his alibi
defense. The circuit court denied the motion, and Bardwell now appeals.

DISCUSSION

¶9 A claim of ineffective assistance of counsel requires the defendant to
show 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 test if the
defendant fails to make a sufficient showing on one of them. Swinson, 261
Wis. 2d 633, ¶58.

¶10 In order to demonstrate deficient performance, a defendant must
overcome a presumption that counsel’s actions fell within a wide range of

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acceptable professional conduct. Strickland v. Washington, 466 U.S. 668, 689
(1984). Counsel does not perform deficiently by failing to bring a meritless
motion. State v. Sanders, 2018 WI 51, ¶29, 381 Wis. 2d 522, 912 N.W.2d 16.

¶11 A defendant proves prejudice by demonstrating there is a reasonable
probability that, but for counsel’s unprofessional conduct, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. 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; Harrington v. Richter, 562 U.S. 86,
112 (2011) (citation omitted).

1. Expert Testimony

¶12 Bardwell claims his trial counsel should have brought a timely
motion to exclude the State’s expert witness’s testimony. The admissibility of
expert testimony is governed by WIS. STAT. § 907.02 (2017-18),1 which
incorporates the federal standard under Daubert. State v. Jones, 2018 WI 44, ¶7,
381 Wis. 2d 284, 911 N.W.2d 97. Before admitting expert testimony, a circuit
court must determine: (1) whether the scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or determine a
fact in issue; (2) whether the witness is qualified as an expert by knowledge, skill,

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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experience, training or education; (3) whether the testimony is based upon
sufficient facts or data; (4) whether the testimony is the product of reliable
principles and methods; and (5) whether the witness has applied the principles and
methods reliably to the facts of the case. Id., ¶29. A court may consider a variety
of factors in addressing the reliability of the expert’s methods for reaching a
conclusion, including whether the evidence can (and has been) tested, whether the
theory or technique has been subjected to peer review and publication, the known
or potential error rate, the existence and maintenance of standards controlling the
technique’s operation, and the degree of acceptance within the relevant scientific
or other expert community. Id., ¶8.

¶13 Bardwell contends that Lockwood-Knaus’s testimony regarding
delayed reporting in child sexual assault cases failed to satisfy the Daubert test for
reliability because it was not based upon “hard science” subject to objective
testing with verifiable error rates. The Daubert factors, however, are not the
exclusive means for determining the reliability of expert testimony under WIS.
STAT. § 907.02. Seifert v. Balink, 2017 WI 2, ¶¶64-65, 372 Wis. 2d 525, 888
N.W.2d 816. The reliability test is flexible, and other factors may be more
relevant when an expert is offering an opinion based upon personal experience in a
practice-based field. Id., ¶¶66-72, 78.

¶14 For instance, in State v. Smith, 2016 WI App 8, ¶¶9-10, 366 Wis. 2d
613, 874 N.W.2d 610 (2015), this court held that expert testimony by a social
worker about behaviors exhibited by child sexual assault victims had been
properly admitted. Similar to the expert witness in this case, the social worker in
Smith served as the director of the Walworth County Child Advocacy Center and
had spent more than two decades working with child victims and training others to
do so. Id. We concluded the circuit court had properly determined that the social

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worker’s experience-based expert opinion satisfied the reliability test because it
was generally accepted within her discipline and was not the product of
ungrounded speculation. Id., ¶9.

¶15 Smith controls the outcome here. Our determination that
Lockwood-Knaus’s experience-based expert testimony was admissible under
Smith compels the conclusion that Bardwell’s trial counsel did not perform
deficiently in failing to bring a timely motion to challenge that testimony.

2. Jury Instruction

¶16 Bardwell claims his trial counsel should have requested a jury
instruction regarding Bardwell’s alibi defense. Bardwell asserts that a defendant is
entitled to a jury instruction on a theory of defense when: (1) the defense relates
to a legal theory as opposed to a mere interpretation of evidence; (2) the request is
timely made; (3) the defense is not adequately covered by other instructions; and
(4) the defense is supported by sufficient evidence. See State v. Coleman, 206
Wis. 2d 199, 212-13, 556 N.W.2d 701 (1996). We conclude the third element of
this test was not satisfied here.

¶17 The jury instruction regarding alibi defense provides:

There is evidence in this case that at the time of the
commission of the offense charged, the defendant was at a
place other than that where the crime occurred.

It is not necessary for the defendant to establish that he was
not present at the scene of the crime or that he was at some
other place. The burden is upon the State to convince you
beyond a reasonable doubt that the defendant committed
the offense as charged.

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No. 2019AP168-CR

WIS JI—CRIMINAL 775 (2005). Bardwell cites a Maryland case for the
proposition that the failure to provide such an alibi instruction violates a
defendant’s constitutional rights because, without it, a jury could erroneously
assume that the defendant who has introduced an alibi bears some burden of
proving it. See State v. Mann, 207 A.3d 653, 661 (Md. App. 2019), rev’d and
remanded, 221 A.3d 965 (Md. 2019).

¶18 The Maryland case Bardwell cites is neither binding nor persuasive.
The circuit court in this case advised the jury that the law presumes every person
charged with the commission of an offense to be innocent; that the presumption of
innocence requires a finding of not guilty unless overcome by evidence
establishing the defendant’s guilt beyond a reasonable doubt; and that “[t]he
burden of establishing every fact necessary to constitute guilt is upon the State.”
WIS JI—CRIMINAL 140 (2019). The alibi instruction may have added additional
emphasis on the State’s burden of proof, but it provided no new legal concepts for
the jury to consider. See WIS JI—CRIMINAL 775 (2005), cmt. note i (observing
that the alibi instruction is generally unnecessary because if the State proves the
defendant committed every element of the crime, it is obvious it has proved he or
she was not somewhere else).

¶19 In sum, Bardwell’s alibi theory of defense was adequately covered
by other jury instructions. Therefore, Bardwell was not prejudiced by his trial
counsel’s failure to request an alibi instruction.

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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