State v. Jasmine J. Lanier

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.
July 13, 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. 2019AP2344-CR Cir. Ct. No. 2018CF2602

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASMINE J. LANIER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JANET C. PROTASIEWICZ, Judge. Affirmed.

Before Dugan, Graham and White, 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. 2019AP2344-CR

¶1 PER CURIAM. Jasmine J. Lanier appeals her judgment of
conviction for felony intimidation of a witness by force or violence, substantial
battery, and battery or threat to a witness, all as a party to a crime, and the trial
court’s order denying her postconviction motion without a hearing. On appeal,
Lanier argues that the evidence was insufficient to convict her of felony
intimidation of a witness and battery or threat to a witness. She also argues that
the prosecutor failed to disclose an informant agreement that the Milwaukee
Police Department (MPD) had with the victim, that the trial court erred in granting
the State’s motion to join her trial with the trials of her father and her cousin and
erred by denying her motion for severance, and that her trial counsel was
ineffective.

¶2 We conclude that there is sufficient evidence to support Lanier’s
convictions for felony intimidation of a witness and battery or threat to a witness.
Additionally, we conclude that, even assuming without deciding that the jury
instructions for felony intimidation of a witness were erroneous, any error was
harmless, and that the jury instruction for battery or threat to a witness did not
result in a conviction for an uncharged offense or improperly modify the amended
information. We further conclude that Lanier is not entitled to disclosure of any
informant agreement and that she conceded her arguments that the trial court erred
in granting the State’s motion for joinder and denying Lanier’s motion for
severance, and her argument that trial counsel provided ineffective assistance of
counsel because she failed to refute the State’s arguments regarding these issues in
her reply brief. Accordingly, we affirm.

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No. 2019AP2344-CR

BACKGROUND

¶3 Jared Lanier-Cotton, Lanier’s cousin, was arrested on May 24, 2018,
and charged with drug-related offenses. N.W., a confidential informant with the
MPD, introduced an undercover officer to Jared, and Jared sold heroin and cocaine
to the officer.1 On May 29, 2018, five days after Jared’s arrest and on the same
day as his release from custody, N.W. was beaten by a group of people who
approached her outside of her home when she was getting out of her car.

¶4 Lanier, Jared, and Lanier’s father, Jan Lanier, were all charged in a
subsequent criminal complaint dated June 7, 2018, for N.W.’s beating.2 In total,
the criminal complaint included eleven counts against Lanier and her co-
defendants. Lanier was specifically charged in Count 10 with felony intimidation
of a witness, as a party to a crime, contrary to WIS. STAT. §§ 940.43(1) and 939.05
(2019-20),3 and charged in Count 11 with aggravated battery, as a party to a crime,
contrary to WIS. STAT. §§ 940.19(5) and 939.05.4

1
As alleged and as based on the testimony at trial, Jared sold heroin and cocaine to the
undercover officer on multiple occasions. N.W. was only present for the initial introduction and
was not present at each transaction or at the time of Jared’s arrest. In fact, Jared’s arrest took
place at the same time the police executed a search warrant at Jared’s address in which the police
recovered drugs and weapons. There were several others, identified as Jared’s family members,
present at the time of the search who were also arrested. One of the officers who executed the
search warrant also testified that Lanier was one of the family members who gathered “in the
crowd” at the time the search warrant was executed.
2
The criminal complaint also charged Khristopher Lanier in connection with the beating
of N.W. Khristopher is not a part of this appeal, nor was he a part of the proceedings below.
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
4
The charge of aggravated battery was amended in a subsequent information to a charge
of substantial battery, as a party to a crime, contrary to WIS. STAT. §§ 940.19(2) and 939.05.

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No. 2019AP2344-CR

¶5 In an amended information dated November 8, 2018, Lanier was
additionally charged with battery or threat to a witness, as a party to a crime and
with use of a dangerous weapon, contrary to WIS. STAT. §§ 940.201(2)(a), 939.05,
and 939.63(1)(b). This charge was designated as Count 13, and it stated that
Lanier “did intentionally cause bodily harm to [N.W.], a person whom she had
reason to know was likely to be called as a witness.” In an amended information
filed the following day, Count 13 was changed to state that Lanier did
intentionally cause bodily harm to N.W., who was “a person whom she had reason
to know was a witness by reason of the person having attended as a witness.” This
same language was repeated in the final amended information dated December 3,
2018, and there were no further amendments to the information.

¶6 The State moved to try all the charges against Lanier, Jared, and Jan,
including the charges in Jared’s underlying drug case, jointly because the evidence
in Jared’s drug case was intertwined with the evidence for the charges brought for
N.W.’s beating and the defendants were alleged to have participated in the beating
together. The trial court granted the motion. However, Jared subsequently pled
guilty to the charges in his underlying drug case, and the defendants were
ultimately tried together in a jury trial in December 2018 only for the charges
resulting from the beating of N.W.

¶7 At trial, the State called N.W. and multiple police officers to testify
about the events of May 29, 2018, and the events leading up to it. As the
testimony at the trial reflected, N.W. was a confidential informant for the MPD
who was provided compensation to introduce undercover officers to individuals
who sold illegal drugs. As N.W. described it, she would do “buys and intros.”

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No. 2019AP2344-CR

¶8 As noted, based on this arrangement with the MPD, N.W. introduced
an undercover officer to Jared, and Jared subsequently sold heroin and cocaine to
the officer. Jared was arrested and charged as a result of his selling illegal drugs
to the officer. On the day of his release from custody on May 29, 2018, N.W. was
approached by Jared, Lanier, and several other individuals outside of her home
and beaten for introducing an undercover officer to Jared. At the time Jared was
released from custody on May 29, there had been no proceedings in his case, such
as naming of witnesses by the State or any evidentiary hearings where testimony
was given.

¶9 In particular, N.W. testified at trial that, during the beating, Jared
accused her of “setting him up” and being “the one who told on him got him in
trouble for the dealing and stuff.” She further testified that after Jared had her on
the ground, a woman started hitting her, and she heard Jared call the name
“Jasmine.” She further testified that the woman who hit her said, “[W]hat did you
do to my brother?”5 Following the beating, N.W. identified Lanier as the woman
who was hitting her.

¶10 The State also introduced phone calls made by Jared to several
individuals during the five days he spent in custody in which Jared identified N.W.
as responsible for his arrest and expressed his anger over N.W.’s role in his arrest.
As one of the officers testified, some of these phone calls were to a phone number
later identified as belonging to Lanier’s cell phone and the voice on the other end
of the call was identified as a woman’s voice that sounded similar to Lanier.

5
N.W. testified that she knows Lanier as Jared’s sister, but Lanier and Jared are in fact
cousins.

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No. 2019AP2344-CR

During one of these phone calls, Jared is heard telling the person on the other end
of the call “to tell Markey that [N.W.] did it; [N.W.] did it.”6

¶11 On December 6, 2018, the jury found Lanier and Jared guilty on all
counts, but it found Jan not guilty. Lanier was subsequently sentenced to
concurrent sentences of thirty months of initial confinement and sixty months of
extended supervision on Count 10, twelve months of initial confinement and
twelve months of extended supervision on Count 11, and twelve months of initial
confinement and twelve months of extended supervision on Count 13.

¶12 Lanier filed a motion for postconviction relief and a motion for
postconviction discovery. In her motion for relief, Lanier first argued that the
State failed to prove its case for felony intimidation of a witness (Count 10) and
battery or threat to a witness (Count 13) because the State failed to prove that
N.W. was a witness. Lanier additionally argued that the State failed to disclose
N.W.’s informant agreement, that her trial was improperly joined with the trials of
her father and her cousin, and that her trial counsel was ineffective in multiple
ways. In her motion for discovery, Lanier requested N.W.’s agreement, and any
related documents, with the MPD describing the nature of N.W.’s role as an
informant. The trial court denied Lanier’s motions, and this appeal follows.

DISCUSSION

¶13 On appeal, Lanier renews her same arguments raised below in her
postconviction motion related to the sufficiency of the evidence for Counts 10

6
We use N.W. in this quote, but note that the officer said that Jared used N.W.’s
nickname, rather than her name. We insert her initials in compliance with WIS. STAT. § 809.86.

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No. 2019AP2344-CR

and 13, disclosure of documents related to N.W.’s role as a confidential informant
for the MPD, the joinder of her trials with the trials of her cousin (Jared) and
father (Jan), and ineffective assistance of counsel. We address each argument in
turn.

I. Sufficiency of the Evidence for Counts 10 and 13

¶14 A challenge to the sufficiency of the evidence to support a criminal
conviction is a question of law that we review de novo. State v. Smith, 2012 WI
91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. State v. Poellinger establishes the
standards that we apply when reviewing the sufficiency of the evidence to support
a conviction as follows:

[We] may not substitute [our] judgment for that of the trier
of fact unless the evidence, viewed most favorably to the
[S]tate and the conviction, is so lacking in probative value
and force that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt. 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., 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (citations omitted).

A. Lanier’s Conviction for Count 10: Felony
Intimidation of a Witness

¶15 Lanier was charged in Count 10 with felony intimidation of a
witness, contrary to WIS. STAT. § 940.43(1). Intimidation of a witness is defined
as “whoever knowingly and maliciously prevents or dissuades, or who attempts to
so prevent or dissuade any witness from attending or giving testimony at any trial,
proceeding or inquiry authorized by law.” WIS. STAT. § 940.42. As is relevant

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No. 2019AP2344-CR

here, when accompanied by force or violence, or attempted force or violence, the
act of intimidation is considered a felony. Sec. 940.43(1).

¶16 For purposes of WIS. STAT. § 940.43(1), witness is defined in WIS.
STAT. § 940.41(3) as:

[A]ny natural person who has been or is expected to be
summoned to testify; who by reason of having relevant
information is subject to call or likely to be called as a
witness, whether or not any action or proceeding has as yet
been commenced; whose declaration under oath is received
as evidence for any purpose; who has provided information
concerning any crime to any peace officer or prosecutor;
who has provided information concerning a crime to any
employee or agent of a law enforcement agency using a
crime reporting telephone hotline or other telephone
number provided by the law enforcement agency; or who
has been served with a subpoena issued under s. 885.01 or
under the authority of any court of this state or of the
United States.

¶17 During the closing instructions, the trial court instructed the jury
that, in order to find Lanier guilty of intimidation of a witness, it would have to
find that N.W. was a witness. Despite the broader definition of a witness provided
in the statute, the trial court instructed the jury that “[w]itness means any person
who has been called to testify or who is expected to be called to testify.”7 The trial
court further instructed that the jury would have to find that “the defendant or

7
The definition of a witness as provided by the trial court in the closing instructions is
the standard definition provided in WIS JI—CRIMINAL 1292. As reflected in the comments to this
jury instruction, this definition of a witness is “a simplified version of the definition provided in
[WIS. STAT.] § 940.41(3)” and was intended to “be suitable for most cases.” We note that WIS
JI—CRIMINAL 1238, which relies on the same statutory definition of a witness, inserts two
options in the jury instruction for defining witness. The first option is the same simplified version
of the definition of a witness provided in WIS JI—CRIMINAL 1292. The second option is to insert
the “proper term from the definition in § 940.41(3).” We note that this second option provided in
WIS JI—CRIMINAL 1238 would be an appropriate option to include in WIS JI—CRIMINAL 1292
when confronted with a situation in which the simplified version is not suitable.

8
No. 2019AP2344-CR

another person attempted to dissuade [N.W.] from attending or giving testimony at
a proceeding authorized by law” and “the defendant or another person acted
knowingly and maliciously.”

¶18 Relying on the definition of a witness provided in the jury
instructions, Lanier argues that there was insufficient evidence that N.W. was a
witness and there was insufficient evidence that Lanier knew that N.W. was a
witness on May 29, 2018. Therefore, she argues that her conviction must be
reversed. We disagree.

¶19 N.W. testified that she had knowledge of Jared’s illegal drug dealing
activities, provided that information to the MPD, and then introduced an
undercover officer to Jared. N.W.’s information then led to Jared’s arrest and
criminal charges prior to the date of the beating. Given N.W.’s role in providing
information to the MPD that led to Jared’s arrest, the jury could reasonably infer
that N.W. was “expected” to testify in any criminal proceedings that resulted from
the information she provided. Indeed, even though N.W. was a confidential
informant, Officer Christopher Navarette with the MPD explained that
confidential informants can be “pertinent” in the subsequent criminal proceedings
and, therefore, he further testified, “She is a witness. She’s one of the witnesses.”

¶20 There was also sufficient evidence from which the jury could
reasonably infer that Lanier knew that N.W. was a witness. The State introduced
evidence at trial that Jared called Lanier while he was in custody just prior to the
beating, that Jared identified N.W. as responsible for his arrest and criminal
charges, and Lanier was aware of this connection at the time of the beating
because she asked N.W. what N.W. did to her brother.

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No. 2019AP2344-CR

¶21 Lanier’s reliance on the lack of a formal prosecutorial decision to
call N.W. as a witness, primarily in the form of the terms of N.W.’s informant
agreement and the State’s witness list filed in October, is misplaced. The
definition of a witness “recognizes putative witnesses as well as actual witnesses.”
State v. Mendez, 157 Wis. 2d 289, 296, 459 N.W.2d 578 (Ct. App. 1990). At the
time N.W. provided information to the MPD, there was an expectation that N.W.
could be summoned to testify, regardless of any terms that may or may not have
been contained in her informant agreement and despite any lack of a formal
witness list being filed in Jared’s case. Thus, the evidence introduced at trial
allowed the jury to make a reasonable inference that there was an expectation that
N.W. could be summoned to testify. See id.

¶22 Even assuming that the definition of a witness in the jury instruction
was erroneously restricted considering the facts of this case, harmless error
applies. Lanier cites State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), for
the proposition that we measure her sufficiency of the evidence argument against
the jury instruction. However, Lanier’s argument fails to recognize that Wulff
predated the adoption of the harmless error analysis. See State v. Williams, 2015
WI 75, ¶63 n.11, 364 Wis. 2d 126, 867 N.W.2d 736. Thus, if Wulff were to be
decided today, it would be analyzed using a harmless error framework. Id. Thus,
we ask whether “it is clear beyond a reasonable doubt that the jury would have
convicted the defendant had the proper instruction been given.” Id., ¶6.

¶23 Based on the evidence provided, it is clear beyond a reasonable
doubt that the jury would have convicted Lanier had it been provided with the full
definition of a witness provided by WIS. STAT. § 940.41(3). N.W. testified that
she provided information to the MPD that Jared was selling illegal drugs and
introduced an undercover officer to Jared. Consequently, N.W. clearly falls within

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No. 2019AP2344-CR

the additional categories of a witness that the jury could have been instructed on.
Specifically, N.W. had relevant information about Jared’s drug dealing that made
her subject to call as a witness. She also provided information concerning Jared’s
criminal activities to the MPD, as peace officers. Thus, any error in the definition
of a witness provided in the jury instructions is harmless. See Williams, 364
Wis. 2d 126, ¶¶60-63.

B. Lanier’s Conviction for Count 13: Battery or
Threat to a Witness

¶24 Lanier was charged in Count 13 with battery or threat to a witness
contrary to WIS. STAT. § 940.201(2)(a), which defines the offense as whoever

[i]ntentionally causes bodily harm or threatens to cause
bodily harm to a person who he or she knows or has reason
to know is or was a witness by reason of the person having
attended or testified as a witness and without the consent of
the person harmed or threatened.

Pursuant to § 940.201(1)(b), witness is then given the same meaning as that
provided in WIS. STAT. § 940.41(3), which is defined above.

¶25 As with the intimidation of a witness charge, the trial court
instructed the jury on this charge that it was required to find, as one of the
necessary elements of the crime, that N.W. “was a witness.” The trial court then
instructed the jury by listing the more specific categories of a witness from WIS.
STAT. § 940.41(3) saying,

Witness means any person who has been or is
expected to be summoned to testify[;] who by reason of
having relevant information is subject to call or likely to be
called as a witness[;] or who has provided information
concerning any crime to any peace officer, prosecutor,
whether or not any action or proceeding has yet been
commenced.

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No. 2019AP2344-CR

The trial court further instructed the jury on the fourth element of the offense that
it must find that “the defendant or another person caused bodily harm to [N.W.]
because the person was a witness.”8

¶26 Lanier again argues that there is insufficient evidence for N.W. to be
considered a witness. As to this charge for battery to a witness, Lanier argues that
there is insufficient evidence because the definition of a witness provided in the
amended information was one who had “attended as a witness.” She further
argues that the trial court’s instruction to the jury on the broader definition of a
witness included in WIS. STAT. § 940.41(3) silently amended the information and
her subsequent conviction on this charge resulted in her being convicted for an
uncharged offense.

¶27 In response, the State argues that Lanier’s conviction should be
upheld despite any alleged mismatch between the definition of a witness in the
amended information and the definition as provided to the jury by the trial court
during the closing instructions. The State argues that the definition as provided in

8
The jury instruction applicable here, WIS JI—CRIMINAL 1238, defines a witness as
“any person who has attended a proceeding to testify or who has testified.” The comments
instruct:

In [McLeod v. State], 85 Wis. 2d 787, 271 N.W.2d 157
(Ct. App. 1978), the Wisconsin Court of Appeals held that the
predecessor to § 943.201—§ 940.26, 1975 Wis. Stats.—also
applied where the victim has not yet attended or testified but is
expected to be summoned to testify. For that type of case, the
definition of “witness” in the second element should be modified
to refer to “a person who is expected to be summoned to testify.”

The comments further note that the element listed in the instruction as the fourth element
“is drafted for a case where the person has attended or testified. If that statement does not fit the
status of the victim, the statement must be modified” in accordance with McLeod.

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No. 2019AP2344-CR

the jury instructions did not change the criminal offense with which Lanier was
charged or alter the elements of the offense that the State was required to prove.

¶28 For many of the same reasons noted above, we conclude that the
State introduced sufficient evidence from which the jury could reasonably infer
that N.W. was a witness. However, having so concluded, we further address
Lanier’s argument that her conviction on this charge resulted in her being
convicted for an uncharged offense and her additional argument that the
information was silently amended by the jury instruction.9

¶29 In this case, the information consistently charged Lanier with battery
or threat to a witness contrary to WIS. STAT. § 940.201(2)(a), the jury was
instructed on the elements necessary for a conviction under this statute, and
Lanier’s conviction is under the same statutory offense. There was, therefore, no
conviction for an uncharged offense or a silent amendment of the information by
the jury instruction. See State v. Duda, 60 Wis. 2d 431, 439-42, 210 N.W.2d 763
(1973) (addressing an amendment to the charge of bribery of a witness to
solicitation of perjury).

¶30 Nevertheless, we recognize that the amended and final information,
using the language provided in the statutory offense, stated that N.W. “was a
witness by reason of the person having attended as a witness.” A cursory reading
of the information and the charged offense would seem to indicate that a witness is
accordingly limited to a person who has attended a proceeding as a witness.

9
We do not address the additional argument raised by Lanier that the verdict forms
omitted necessary language because Lanier fails to provide legal authority. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

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No. 2019AP2344-CR

However, when taken in its proper context, a witness within the meaning of this
offense is not limited in such a manner.

¶31 Rather, when read in context, witness in the charged offense is
defined in WIS. STAT. § 940.201(1)(b), which in turn defines witness using WIS.
STAT. § 940.41(3). This definition is precisely what the jury was instructed on,
and we discern no error in the instruction for using this definition. To limit the
definition to a “person having attended as a witness” would be to ignore the
definition of a witness provided by the legislature in § 940.201(1)(b) and render
this provision superfluous. See State ex rel. Frederick v. McCaughtry, 173
Wis. 2d 222, 226, 496 N.W.2d 177 (Ct. App. 1992). Indeed, we addressed the
same interplay in McLeod v. State, 85 Wis. 2d 787, 271 N.W.2d 157 (Ct. App.
1978), where we defined “witness” in the predecessor to § 940.201 using the
predecessor to § 940.41(3).10

¶32 The jury instruction, therefore, appropriately defined a witness
consistent with the charged offense, and we reject Lanier’s arguments that her
conviction on Count 13 amounts to a conviction for an uncharged offense or a
silent amendment to the information.

II. Disclosure of N.W.’s Informant Agreement

¶33 Lanier argues that the State was required to disclose the agreement,
and any documentation of the relationship, between the MPD and N.W. pursuant
to Brady v. Maryland, 373 U.S. 83 (1963), because any agreement or other

10
In response to the State’s argument raising McLeod, Lanier argues that McLeod was
wrongly decided. We “may not overrule, modify or withdraw language from a previously
published decision.” Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997).

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No. 2019AP2344-CR

documentation about the relationship between N.W. and the MPD is evidence
favorable to Lanier by way of its impeachment value. We disagree.

¶34 “In Brady, the United States Supreme Court held that ‘the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecutor.’” State v.
Harris, 2004 WI 64, ¶12, 272 Wis. 2d 80, 680 N.W.2d 737 (quoting Brady, 373
U.S. at 87). We review independently whether a Brady violation has occurred.
State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468.

¶35 “In order to establish a Brady violation, the defendant must, in
addition to demonstrating that the withheld evidence is favorable to him, prove
that the withheld evidence is ‘material.’” Harris, 272 Wis. 2d 80, ¶13 (quoting
Giglio v. United States, 405 U.S. 150, 154 (1972)). “Evidence is favorable to an
accused, when, ‘if disclosed and used effectively, it may make the difference
between conviction and acquittal.’” Id., ¶12 (quoting United States v. Bagley, 473
U.S. 667, 676 (1985)). “The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Id., ¶14 (quoting Bagley, 473
U.S. at 682).

¶36 In this case, N.W. was testifying in her capacity as a victim of a
crime and not in her capacity as an informant for the MPD, and we fail to see how
any agreement between N.W. and the MPD for “buys and intros” would have been
favorable or material to the criminal proceedings here. Lanier does not provide
any reason to believe that N.W. was provided any incentive under her agreement

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No. 2019AP2344-CR

with the MPD to accuse, identify, or testify against Lanier in this case. Even
assuming that N.W.’s agreement included compensation for her testimony at
subsequent criminal proceedings related to drug charges, the agreement would not
undermine the confidence of the outcome because there is no reason to believe
that N.W. was provided any incentive to testify against Lanier in these
proceedings. Thus, we conclude that Lanier has failed to establish a Brady
violation requiring the State to turn over any agreement or documentation about
the relationship between N.W. and the MPD.

III. Joinder of Lanier’s Trial and Denial of Lanier’s
Motion for Severance

¶37 Lanier argues that the trial court erred in granting the State’s motion
to join Lanier’s trial with the trials of her cousin and her father and erred in
denying her motion for severance because the “spillover effect” from her being
associated with them as felons was unduly prejudicial.

¶38 In its responsive brief, the State addressed both the joinder and
severance arguments that Lanier made in her opening brief. The State cited
statutory and case law authority in support of its arguments that the trial court did
not err in granting the State’s motion for joinder and denying Lanier’s motion for
severance.

¶39 In her reply brief, Lanier did not even mention, let alone address, the
State’s arguments regarding joinder and severance. Therefore, we conclude that
Lanier failed to refute the argument raised by the State and has conceded her
argument. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304
Wis. 2d 750, 738 N.W.2d 578 (stating that the failure to refute a proposition
asserted in a response brief may be taken as a concession). We, therefore, decline

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No. 2019AP2344-CR

to address the merits of Lanier’s arguments pertaining to joinder and severance.
Also, to the extent that Lanier argues that her trial was improperly joined because
of references to additional acts of intimidation and drug dealing, we reject these
arguments as undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992).

IV. Ineffective Assistance of Counsel

¶40 Lanier argues that her trial counsel was ineffective for failing to
move for dismissal of the battery to a witness charge based on the prejudicial
amendment to the charge in Count 13; failing to demand production of N.W.’s
informant agreement or any documentation connected to it; failing to request
midtrial curative instructions to ameliorate the prejudicial effects of the joinder of
her trial with that of her father and her cousin; and failing to object to opinion
testimony from police officers that testified at the trial.

¶41 In its response brief, the State addressed each of the ineffective of
assistance arguments that Lanier made in her opening brief. The State cited
applicable case law authority in support of its arguments that the trial court did not
err in each of Lanier’s arguments that trial counsel provided ineffective assistance
of counsel.

¶42 In her reply brief, Lanier did not even mention, let alone address, the
State’s arguments regarding ineffective assistance of counsel. Therefore, Lanier
has conceded her arguments that her trial counsel was ineffective because she
failed to include an argument in her reply brief to refute the arguments raised by
the State in its response brief. See United Coop., 304 Wis. 2d 750, ¶39 (stating
that the failure to refute a proposition asserted in a response brief may be taken as

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No. 2019AP2344-CR

a concession). We, therefore, decline to address the merits of Lanier’s arguments
for ineffective assistance of counsel.

¶43 However, we note that many of Lanier’s arguments lack merit as a
result of our conclusions above, and trial counsel’s performance cannot be
considered deficient, for failing to bring a meritless motion. See State v.
Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110 (concluding
that trial counsel was not ineffective for failing to make a motion that would have
been appropriately denied). Furthermore, Lanier makes an argument for prejudice
based on the cumulative effect of trial counsel’s errors. Again as a result of our
above conclusions, Lanier is unable to show prejudice from non-existent
cumulative errors. See State v. Thiel, 2003 WI 111, ¶¶58-63, 264 Wis. 2d 571,
665 N.W.2d 305. Thus, we do not address Lanier’s arguments for ineffective
assistance of counsel further.

CONCLUSION

¶44 In sum, we conclude that there was sufficient evidence introduced at
trial to support Lanier’s convictions for intimidation of a witness and battery or
threat to a witness. Further, we conclude, assuming without deciding, that if the
jury instructions for felony intimidation of a witness were erroneous, any error
was harmless, and that the jury instruction for battery or threat to a witness did not
result in a conviction for an uncharged offense or improperly modify the amended
information. Additionally, Lanier has not established a Brady violation as it
relates to N.W.’s informant agreement. Lastly, we conclude that Lanier conceded
her arguments that the trial court erred in granting the State’s motion for joinder
and denying Lanier’s motion for severance, and that trial counsel provided
ineffective assistance of counsel, and regardless, Lanier’s ineffective assistance of

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No. 2019AP2344-CR

counsel arguments lack merit given our above conclusions. Consequently, we
affirm the judgment and the trial court’s denial of Lanier’s postconviction motion.

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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