State v. Steven A. Peterson

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 3, 2022
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. 2021AP364-CR Cir. Ct. No. 2017CF128

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEVEN A. PETERSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Clark
County: NICHOLAS J. BRAZEAU, JR., Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP364-CR

¶1 PER CURIAM. Steven Peterson was convicted after a jury trial on
four counts: (1) intimidation of a victim; (2) battery; (3) disorderly conduct; and
(4) strangulation and suffocation. Peterson appeals his conviction on counts one
and four only, and also appeals the circuit court’s order denying postconviction
relief as to those counts. Peterson raises five issues: (1) whether there was
insufficient evidence of guilt with respect to count one; (2) whether the circuit
court erred in amending count one after the close of evidence at trial; (3) whether
Peterson was denied his right to effective assistance of counsel with respect to
count one when his trial counsel failed to object to the State’s “misleading”
closing argument and an inaccurate jury instruction; (4) whether the circuit court
erred by granting the State’s motion to amend count four on the morning of trial;
and (5) whether Peterson was denied his right to effective assistance of counsel
with respect to count four when his trial counsel failed to impeach the victim with
prior statements and advocate for the jury’s request to have testimony read back.

¶2 We affirm as to all issues.

BACKGROUND

¶3 This case arose after Peterson physically attacked his wife, J., in
their home while their son, L., was present.1 The criminal complaint charged
Peterson with three counts: (1) felony intimidation of a witness; (2) battery; and
(3) disorderly conduct. J. was the alleged victim for each count. The State

1
We use initials to refer to Peterson’s wife as a victim of the charged crimes, and to her
son and, below, the other minor witness, as provided in WIS. STAT. RULE 809.86 (2019-20).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP364-CR

subsequently filed an information that added a fourth count which charged
Peterson with attempted strangulation and suffocation of J.

¶4 The jury trial took place in December 2017. On the morning of trial,
the circuit court granted a motion by the State to amend count four, attempted
strangulation and suffocation, to strangulation and suffocation, without the
“attempt” qualifier. At the close of evidence at trial, the circuit court additionally
granted the State’s motion to amend count one from intimidation of a witness to
intimidation of a victim.

¶5 The jury returned guilty verdicts on all four counts.

¶6 Peterson filed a postconviction motion raising three issues: (1) the
State’s evidence was insufficient to support a conviction on count one;
(2) Peterson was denied his right to effective assistance of counsel on count one;
and, (3) Peterson was denied his right to effective assistance of counsel on count
four.2

¶7 The circuit court entered a decision and order in February 2020,
denying Peterson’s first claim, regarding sufficiency of the evidence on count
one.3 The court held a Machner hearing on Peterson’s ineffective assistance of

2
Peterson did not raise his objections to the court’s amendments of counts one and four
in his postconviction motion because those issues were preserved by contemporaneous objection.
3
Peterson filed a motion to reconsider the decision to deny his sufficiency of the
evidence claim, which the circuit court summarily denied in June 2020.

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counsel claims and, in February 2021, entered a written decision and order
denying those claims.4

¶8 This appeal follows.

DISCUSSION

¶9 As stated, Peterson raises five issues on appeal: (1) whether there
was insufficient evidence of guilt with respect to count one; (2) whether the circuit
court erred in amending count one after the close of evidence at trial; (3) whether
Peterson was denied his right to effective assistance of counsel with respect to
count one by failing to object to the State’s “misleading” closing argument and an
inaccurate jury instruction; (4) whether the circuit court erred by granting the
State’s motion to amend count four on the morning of trial; and (5) whether
Peterson was denied his right to effective assistance of counsel with respect to
count four when counsel failed to impeach the victim with prior statements and
failed to advocate for the jury’s request to have testimony read back.

¶10 We address each issue in turn below.

I. Insufficient Evidence of Guilt With Respect To Count One

¶11 Peterson argues that there was insufficient evidence to support his
conviction on count one, felony intimidation of a victim.

4
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) (setting forth
requirement for an evidentiary hearing to permit trial counsel to explain alleged errors).

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No. 2021AP364-CR

¶12 We first state the applicable law and standard of review and next
provide additional background. We then explain why we conclude that there was
sufficient evidence of guilt with respect to count one and reject Peterson’s
arguments to the contrary.

A. Applicable Law and Standard of Review

¶13 Count one charged Peterson with felony intimidation of a victim
“[w]here the act is accompanied by any express or implied threat of force,
violence, injury or damage.” WIS. STAT. §§ 940.44(1); 940.45(3). A person
violates these statutes when he or she “knowingly and maliciously prevents or
dissuades, or [] attempts to so prevent or dissuade, another person who has been
the victim of any crime … from … [m]aking any report of the victimization,” WIS.
STAT. § 940.44(1) (intimidation of victims; misdemeanor base offense), “[w]here
the act is accompanied by any express or implied threat of force, violence, injury
or damage described in sub. (1) or (2),” § 940.45(3) (felony circumstances).

¶14 Whether the jury had sufficient evidence to convict Peterson of
count one, felony intimidation of a victim, is a question of law that we review de
novo. State v. Cavallari, 214 Wis. 2d 42, 47, 571 N.W.2d 176 (Ct. App. 1997).
The contours of our review are well established:

[I]n reviewing the sufficiency of the evidence to support a
conviction, an appellate court may not substitute its
judgment for that of the trier of fact unless the evidence,
viewed most favorably to the state and the conviction, is so
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.

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No. 2021AP364-CR

State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (citation
omitted).

B. Additional Background

¶15 The State presented four witnesses at trial: L.; L.’s friend, C.; C.’s
father, who is a detective in the Clark County Sheriff’s Department; and J.

¶16 L. testified as follows. On the night of the incident, L. was in his
room and playing video games on Xbox with his friend C., who was playing from
C.’s home but talking to L. through headsets. J. was down the hall in the kitchen.
While L. was in his room, Peterson “came down the hallway yelling because he
heard a ding on [J.]’s phone” and discovered that J. had deleted a text message
before he could read it. Peterson swore at J., hit her with his hand and a belt, and
choked her. J. “was gasping for air” and L. had the impression that J. was having
trouble breathing so L. “put [Peterson] in a choke hold” to get him to stop.
Peterson also “pulled a knife” on J. J.’s sister called J. during the incident and said
she was going to call the police, at which point Peterson told both J. and L. to go
to bed, turned off all the lights, and shut the curtains. After all the lights were
turned off and the curtains were shut, Peterson “kept pacing in [L.’s] room, and he
kept looking out the window.” The window in L.’s room faced the driveway that
led toward the road. Peterson “got in [L.’s] face and he told [L.], if you ever tell
anybody, I’m going to give you a slow, painful death.”

¶17 L. would “often” talk about incidents between Peterson and J. to his
friend C., who, on the night of this latest incident and in the past, had been talking
to L. through Xbox headsets during incidents between Peterson and J.

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No. 2021AP364-CR

¶18 C. testified that on the night in question, C. and L. were on Xbox
together when C. heard “a lot of screaming” through the headset, including
Peterson telling J. that he will “[expletive] kill her.” C. told his father, a detective
in the Clark County Sheriff’s Department, about the incident.

¶19 The detective testified that when C. told him about the incident at
issue, he relayed the information to others within the Sheriff’s department, which
commenced the investigation that resulted in the charges filed in this case.

¶20 J. testified as follows. On the day of the incident at issue, J. received
a text from her niece, which she read, responded to, and then deleted. Peterson
heard the notification from the text message and “became very angry.” He started
“coming at” J. and “started hitting [her] with a belt.” J. was down on her hands
and knees when Peterson started hitting her with a wound-up rope and put his
hands around her throat. J. then saw her son’s legs approach and Peterson’s hands
came off of her neck. Around this time, J.’s niece and sister each called but
Peterson would not let either of them talk to J. J.’s sister then threatened to call
the police. “The next thing [J.] remember[ed],” was “just laying in bed.”

¶21 J. also testified about five prior incidents between her and Peterson:
an incident when Peterson choked her until she “went black” and Peterson had to
revive her; Peterson hitting and choking J. after seeing an unknown caller on J.’s
phone; Peterson hitting her on both sides of the head causing ringing in her ears;
Peterson becoming angry that he had not been invited to J.’s older son’s wedding
and then putting his hands around J.’s throat, only releasing her when they were
falling off the bed onto the floor; and, lastly, another incident a few days before
the incident at issue, when Peterson had his hands around her throat and held her
against the wall. J. also testified that the weekend before Peterson got arrested for

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No. 2021AP364-CR

this incident, while they were lying in bed together, Peterson stated that “if I had a
gun, I would take you and me out.”

¶22 J. did not report any of the incidents to the police. Regarding the
present case, J. testified that she declined to talk to the police about it and told C.’s
father that she was “fine” and denied that she was strangled. She said that despite
the fact that Peterson was in custody when she was asked about the incident, she
denied anything happened “[b]ecause [she] did not want to deal with it when
[Peterson] got home,” and that she “would be in the house alone with him and
[she] could honestly tell him that [she] didn’t say nothing.”

¶23 On cross-examination, J. testified that she did not see a knife and
that she did not recall whether she was able to breathe. She also testified that she
could not have called the police on her own the night of the incident because
Peterson had her cell phone and she did not get it back that night. J. did have her
phone the next day when she went shopping with L.

¶24 Peterson filed a postconviction motion in which he argued that
“there was no evidence presented to support the State’s claim that Peterson
attempted to prevent or dissuade [J.] from reporting the battery or strangulation to
law enforcement, or that while he attempted to prevent or dissuade her, Peterson
threatened to use force or violence, or to injure or damage property.”

¶25 The circuit court denied Peterson’s postconviction motion, stating:

[I]t certainly appears that when Mr. Peterson believed the
police may be on their way to his house (after the victim’s
sister said she was going to call the police about this
incident), Mr. Peterson shuts off the lights, shuts the
curtains, and tells the parties to go to bed. This court finds
that the jury could certainly find that to be an attempt to
prevent or dissuade [J.] from reporting the crime to law

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No. 2021AP364-CR

enforcement if the jury believed Mr. Peterson thought
police were coming to his residence, which is a reasonable
assumption based on the victim’s sister threatening to call
police.

It goes hand in hand with the above explanation that
if the jury believed that by closing up and darkening the
house and ordering the parties to bed, Mr. Peterson was
attempting to prevent/dissuade [J.] from reporting to law
enforcement, it would make sense that he was acting
knowingly and maliciously, that is with the intent to
prevent communication with the police. When taken in the
light most favorable to the State and the conviction, it is
reasonable that the jury could find that element beyond a
reasonable doubt.

C. Analysis

¶26 The elements of felony intimidation of a victim are set forth in WIS
JI—CRIMINAL 1296: (1) J. was a victim of a crime; (2) Peterson did or attempted
to prevent or dissuade J. from reporting the crime to a law enforcement agency;
(3) Peterson acted knowingly and maliciously; and (4) the act was accompanied by
any express or implied threat of force, violence, injury or damage. See also WIS.
STAT. §§ 940.44 and 940.45(3).

¶27 Peterson focuses on elements two, three, and four, arguing that “the
State failed to prove that Mr. Peterson knowingly and maliciously attempted to
prevent or dissuade [J.] from reporting to law enforcement … or that while he
attempted to prevent or dissuade, he threatened force or violence, or injury to
property.”

¶28 To repeat, the second and third elements are that Peterson did or
attempted to prevent or dissuade J. from reporting the crime to a law enforcement
agency, and did so knowingly and maliciously. See WIS JI—CRIMINAL 1296;
WIS. STAT. §§ 940.44 and 940.45(3). As to these elements, the jury heard

9
No. 2021AP364-CR

testimony that Peterson, after committing the battery and strangulation against J.
and hearing that J.’s sister threatened to call the police, and while holding a knife,
ordered J. and L. to go to bed, kept J.’s phone in the kitchen, and then shut the
curtains and turned off the lights. Peterson then proceeded to pace in L.’s room
and watch out the front-facing window, at one point saying to L. that if he “ever
told anybody, I’m going to give you a slow, painful death.” Although J. did not
hear that threat, it provides context to explain Peterson’s motivations for darkening
the house and shutting the curtains and contributes to the inference that Peterson’s
actions were knowingly aimed at also preventing J. from reporting the battery and
strangulation to the police. J.’s testimony about declining to report the attack to
the police contributes to that inference. A jury could reasonably infer from all of
this testimony, in the light most favorable to the conviction, that Peterson believed
that the police were called to his house and that he was attempting to prevent J.
from communicating with the police by instructing her to go to bed, retaining her
phone, and making the house appear as though the occupants were sleeping, thus
satisfying the second and third elements.

¶29 The fourth element is that the act was accompanied by an express or
implied threat of force, violence, injury or damage. See WIS JI—CRIMINAL 1296;
WIS. STAT. §§ 940.44 and 940.45(3). Given L.’s and J.’s testimony about
Peterson’s violent attack against J. for merely deleting a text from her phone and
his pattern of violence against her, L.’s testimony that Peterson had a knife
towards the end of the attack when he ordered J. to go to bed, and J.’s testimony
that Peterson then kept her phone in the kitchen and that she did not want to report
the incident to police because she feared his response when he was released from
custody, a jury could reasonably infer that Peterson implicitly threatened violence

10
No. 2021AP364-CR

or injury should J. report the incident to police. Accordingly, we conclude that
there was sufficient evidence to support the jury’s finding of guilt on count one.

¶30 Peterson argues that the State could not prove that he attempted to
prevent or dissuade J. from reporting the battery or strangulation because “[t]he
State did not present any evidence that [J.] ever attempted or intended to report
these crimes to the police,” and that there was no testimony that “Mr. Peterson told
[J.] not to go to the police or asked or encouraged her not to report the incident.”
However, the State was not required to prove that J. actually attempted or intended
to report the crimes to the police or that Peterson explicitly told J. not to go to the
police. Neither the victim’s attempt or intention to report the crime, nor the
perpetrator’s explicit direction not to report are elements of this offense. See WIS.
STAT. §§ 940.44 and 940.45(3).

¶31 Peterson also makes the conclusory assertion that the threat to harm
J. during the physical assault “had nothing to do with reporting the crime” and
thus “there was no evidence that Mr. Peterson made an express or implied threat
of force or violence towards [J.] if she reported.” However, this argument ignores
the implied threat of force following this attack that could reasonably be inferred
from the following evidence: J.’s testimony of Peterson’s pattern of violent
conduct against her, including this attack in response to her deleting a text from
her phone; L.’s testimony that Peterson had a knife at the end of the attack when
he told J. to go to bed; and J.’s testimony that she declined to report the attack for
fear of his response.

¶32 In sum, we conclude that sufficient evidence supported Peterson’s
conviction on count one.

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No. 2021AP364-CR

II. Amendment of Count One

¶33 Peterson argues that the circuit court erred in granting the State’s
motion to amend count one after the close of evidence.

¶34 We summarize the applicable law and standard of review for
amending a charge and next provide additional pertinent background. We then
explain why we conclude that the circuit court did not err in amending count one
at the close of evidence at trial and we address and reject Peterson’s arguments to
the contrary.

A. Applicable Law and Standard of Review

¶35 We review the circuit court’s amendment of the criminal complaint
for an erroneous exercise of discretion. State v. Malcom, 2001 WI App 291, ¶23,
249 Wis. 2d 403, 638 N.W.2d 918. “At the trial, the [circuit] court may allow
amendment of the complaint, indictment or information to conform to the proof
where such amendment is not prejudicial to the defendant.” WIS. STAT. § 971.29.
“[T]he State must satisfy two tests for an amendment to be sustained: the ‘wholly
unrelated test’ and the ‘constitutional notice test.’” Malcom, 249 Wis. 2d 403, ¶26
(quoting State v. Neudorff, 170 Wis. 2d 608, 619, 489 N.W.2d 689 (Ct. App.
1992)).

¶36 Under the “wholly unrelated test,” the State may amend an
information “as long as the additional counts are not wholly unrelated to the
transactions or facts considered or testified to at the preliminary hearing.”
Malcom, 249 Wis. 2d 403, ¶26. Specifically, “[t]he charges must be ‘related in
terms of parties involved, witnesses involved, geographical proximity, time,

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No. 2021AP364-CR

physical evidence, motive and intent.’” Neudorff, 170 Wis. 2d at 616-17 (quoted
source omitted).

¶37 Under the “constitutional notice test,” “the issue is whether [a
defendant] received constitutional notice of the new charge such that he [or she]
could prepare and defend against it.” Id. at 617. “[A] charge may be undeniably
related to the transaction or facts considered at the preliminary hearing and yet, if
there is no adequate notice of that charge, the prosecution cannot be legally
sustained.” Id. “Notice to the defendant of the nature and cause of the
accusations is a key factor in determining whether an amended charging document
has prejudiced a defendant.” Id. at 619.

¶38 In evaluating whether a defendant had constitutional notice of the
new charge, courts look to whether the defendant was able to prepare a defense to
the new charge, or, whether “preparation for the new charge would be no different
than the preparation for the old charge.” Malcom, 249 Wis. 2d 403, ¶30; see also
Neudorff, 170 Wis. 2d at 619-21 (concluding that while the original and amended
charges were undoubtedly related, the differences between them required a
different defense theory for the amended charge that the defendant could not have
prepared due to the lack of notice; accordingly, the defendant was prejudiced by
the amendment); State v. Frey, 178 Wis. 2d 729, 737, 505 N.W.2d 786 (Ct. App.
1993) (stating that “[b]ecause Frey’s defense theory was not affected by the
amendment and the record does not support his claim that he would have
[presented a different defense], we conclude that Frey was not prejudiced by the
amendment.”); Malcom, 249 Wis. 2d 403, ¶¶29-30 (concluding that, based upon
the same reasoning as in Frey, the defendant was not denied his constitutional

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right to defend himself because “preparation for the new charge would be no
different than the preparation for the old charge.”).

¶39 Accordingly, the relevant inquiry regarding constitutional notice is
whether the charges are “so related to the transaction and facts adduced at the
preliminary hearing that a defendant cannot be heard to say that he or she is
surprised by the new charge since the preparation for the new charge would be no
different than the preparation for the old charge.’” Id., ¶30 (citing Neudorff, 170
Wis. 2d at 617-18).

B. Additional Background

¶40 Count one in the information charged Peterson with intimidation of a
witness under WIS. STAT. §§ 940.42 (misdemeanor base offense) and 940.43(1)
(felony circumstances), alleging that Peterson “knowingly and maliciously did
attempt to dissuade a witness, [J.], from attempting or giving testimony at a trial,
proceeding or inquiry authorized by law, where the act is accompanied by force or
violence.” “Witness” is defined as “any natural person who has been or is
expected to be summoned to testify.” WIS. STAT. § 940.41(3). The day before
trial, the State filed a motion to amend count one from felony intimidation of a
witness under § 940.43(1), “act accompanied by force or violence,” to
§ 940.43(3), “act accompanied by express or implied threat of force or violence.”
However, at the hearing on the morning of trial, the State withdrew its request to
amend count one.

¶41 After the jury was sworn, trial counsel asked the State to clarify
which statute it was proceeding under for count one. Trial counsel stated,

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No. 2021AP364-CR

in count one in [the] Amended Information, it states
940.43(3) is the statute that the State is proceeding under,
that is, intimidation of a witness, and I just would note that
I would object to any entrance of any evidence intended for
a conviction under 940.44, which is intimidation of victims;
so that would be my objection now that the jury has been
sworn.”

The State replied that it would be proceeding under WIS. STAT. § 940.43(1),
intimidation of a witness.

¶42 At the close of evidence, trial counsel moved for acquittal on count
one. Trial counsel argued that the State failed to present evidence to support the
charge of intimidation of a witness because there was no evidence that, at the time
of the alleged intimidation, J. had been called to “giv[e] testimony at a trial,
proceeding, or inquiry authorized by law.” The State responded that the elements
were satisfied by the evidence presented, but in the alternative, the State requested
that the circuit court amend count one to charge intimidation of a victim under
WIS. STAT. § 940.45(3), where the act is accompanied by any express or implied
threat of force, violence, injury or damage, in order to conform to the evidence
presented at trial. The State clarified that J. was the alleged victim for both the
intimidation of a witness and the intimidation of a victim charges, and that the
State “would be relying on [L.’s] statement that the defendant had a knife
afterwards as well as instructions the defendant gave for him to go to bed and
general behavior from that evening.”

¶43 Trial counsel objected to the amendment, stating that this issue had
been raised prior to trial and that “[p]robably the time to ask for an amendment
would have been back then before we went all the way through this, but I think
this one needs to be dismissed.”

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No. 2021AP364-CR

¶44 The circuit court allowed the amendment in order to conform count
one to the facts presented at trial.

¶45 During closing argument, regarding amended count one, trial
counsel highlighted J.’s testimony on cross examination about her possession of a
cell phone the day following the incident when she went shopping with L. and was
no longer in Peterson’s presence. Counsel argued that, because J. then had access
to her phone, “[t]here is no evidence here that she ever wanted anything to be
reported” and that “she never said at all she planned on calling the cops or making
any sort of a report.”

¶46 Peterson filed a postconviction motion regarding count one raising
ineffective assistance of counsel and insufficiency of evidence grounds. A
Machner hearing was granted for the ineffective assistance claim (which we
address further below) and, at the hearing, the topic of the amendment and trial
counsel’s strategy to defend against count one arose. Trial counsel testified that,
based on his trial notes,

I had prepared to go and argue kind of the same way to
either [charge], whether it be a victim or a witness in my
closing argument there, so strategy-wise, it would have
been the same type of closing argument that I would have
made and the same types of questions I would have asked,
and it looks like I was asking questions there about phone
access, trying to call, things like that; so really, the victim,
witness was really more of a how you define the person
there as compared to … the actual arguments I would have
made about what they could or could not do.

C. Analysis

¶47 Peterson argues that the circuit court erred in allowing the State to
amend count one because the State could not meet the “wholly unrelated test” and

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No. 2021AP364-CR

the “constitutional notice test.” See Malcom, 249 Wis. 2d 403, ¶26. We address
each test in turn.

1. Wholly Unrelated Test

¶48 In this case, both the original and amended counts involved the same
parties (Peterson and J.), the same witnesses (J. and L.), and the same location,
date, and time. The record reveals no difference as to Peterson’s motive and intent
whether J. was a witness or a victim, or whether Peterson acted with force of
violence or with the threat of force of violence. Compare WIS. STAT. §§ 940.42-
.43 and 940.44-.45, and 940.43(1) and 940.45(3). See Neudorff, 170 Wis. 2d at
616-17 (to satisfy the wholly unrelated test, “[t]he charges must be ‘related in
terms of parties involved, witnesses involved, geographical proximity, time,
physical evidence, motive and intent.’” (quoted source omitted)). Given these
similarities, we cannot conclude that the original and amended counts failed the
wholly unrelated test.

¶49 Peterson appears to argue that the original and amended counts were
wholly unrelated, thus failing this test, because “the elements of the offense of
felony intimidation of a witness and felony intimidation of a victim are completely
different.” However, Peterson fails to cite any legal authority to support his
assertion that merely having different elements in the original and amended counts
suffices to make the counts “wholly unrelated” when both charges have the same
“parties involved, witnesses involved, geographical proximity, time, [and] …
evidence.” Id. at 616-17. Accordingly, we reject this argument on that basis. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we may
disregard arguments unsupported by references to legal authority). Moreover, we
observe that the law is to the contrary. See Frey, 178 Wis. 2d at 735-37

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No. 2021AP364-CR

(upholding an amendment to the information at the close of evidence where the
amended charge contained a mental state element that the original charge did not).

2. Constitutional Notice Test

¶50 Nor did the amendment fail the constitutional notice test. Peterson
had notice of the nature and cause of the amended count. In addition to the
similarities stated above, the basis of the charge against Peterson did not change.
The evidence relied upon by the State in an attempt to prove the original count
was the same evidence that supported the amended count: L.’s testimony
regarding Peterson’s possession of a knife towards the end of the attack and
Peterson’s ordering L. and J. to go to bed once they were told the police might be
called and Peterson’s turning off the lights and shutting the curtains; and J.’s
testimony regarding Peterson’s pattern of violence, Peterson’s engaging in the
attack in response to her deleting a text from her phone, Peterson’s retention of her
phone the night of the attack, and her declining to report the attack for fear of
Peterson’s response.

¶51 Further, the evidence does not show or suggest that Peterson would
have presented different witnesses or a different defense theory in defense of the
amended charge. The facts relevant to Peterson’s defense to the original count
were equally relevant to his defense to the amended count: J.’s possession of a
phone the next day and her ability to call the police outside of Peterson’s presence
if she wanted to. Trial counsel testified at the Machner hearing that he would
have prepared the same, asked the same questions of the witnesses, and made the
same closing argument with respect to the original and the amended counts.
Accordingly, there is no basis on which to conclude that Peterson was prejudiced
by the late amendment due to an inability to prepare a defense to the amended

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No. 2021AP364-CR

count. See Neudorff, 170 Wis. 2d at 619-20 (defendant was prejudiced by the
amendment because the lack of notice as to the factual basis of the new charge
prevented the defendant from preparing a “coherent theory of defense to present to
the jury.”); see also Malcom, 249 Wis. 2d 403, ¶28 (defendant was not prejudiced
by an amendment where the evidence relied upon by the State to prove both
counts was the same, both counts had the same factual basis, and the record did
not show or suggest that the defendant would have presented different witnesses to
the amended count.).

¶52 Peterson appears to argue that his defense theory would have
changed had the amendment been made with adequate time before trial because
trial counsel was relying solely on the State’s failure to meet its burden as to count
one and therefore did not present a complete defense. In support of this argument,
Peterson points to the fact that the State moved to amend count one only after trial
counsel moved for acquittal on that count. In addition, we note that, during his
Machner testimony, trial counsel testified that his “[g]eneral strategy” for the
whole trial “was to rely on the burden of proof.”

¶53 However, the record contradicts Peterson’s assertion that trial
counsel solely relied on the State’s failure to satisfy its burden of proof and,
therefore, did not present a defense. As stated, trial counsel also testified at the
Machner hearing that, as to count one, he had prepared the same and would have

19
No. 2021AP364-CR

asked the same questions and made the same arguments regardless of whether the
count was as originally charged or as amended.5

¶54 Peterson alternatively argues that “[h]ad defense counsel been able
to sufficiently prepare for the [amended count], it is likely that he would have been
better prepared to object to the errors set forth next in Argument II” regarding
Peterson’s ineffective assistance of counsel claims based upon the State’s closing
argument and the jury instruction for count one. However, as we next explain,
trial counsel was not ineffective in his representation as to count one.

¶55 In sum, we conclude that the circuit court did not err in granting the
State’s motion to amend count one after the close of evidence.

III. Ineffective Assistance of Counsel as to Count One

¶56 Peterson argues that his trial counsel rendered constitutionally
ineffective assistance with respect to count one by failing to object to the State’s
“misleading” closing argument and an inaccurate jury instruction.

¶57 We first state the standard of review and general legal principles
governing ineffective assistance of counsel claims. We next address the closing
argument and jury instruction issues in turn. As to each issue, we state specific
legal principles and provide additional background, explain our conclusion that

5
Peterson cites two cases, State v. Frey, 178 Wis. 2d 729, 505 N.W.2d 786 (Ct. App.
1993), and State v. Malcom, 2001 WI App 291, 249 Wis. 2d 403, 638 N.W.2d 918, as examples
of cases in which the court upheld an amendment where the only change was a different mode of
commission rather than a different statute, but he does not develop any argument about how those
cases apply to invalidate the amendment here.

20
No. 2021AP364-CR

Peterson was not denied effective assistance of counsel, and address and reject
Peterson’s arguments to the contrary.

A. Standard of Review and General Legal Principles for Ineffective Assistance of
Counsel Claims

¶58 “Whether a defendant received ineffective assistance of counsel is a
mixed question of law and fact.” State v. Maday, 2017 WI 28, ¶25, 374 Wis. 2d
164, 892 N.W.2d 611. The circuit court’s findings of fact will not be disturbed
unless those findings are clearly erroneous. Id., ¶25. “‘The circumstances of the
case and … counsel’s conduct and strategy’ are considered findings of fact.” Id.
(quoted source omitted). However, whether those facts constitute deficient
performance and whether such deficient performance was prejudicial are questions
of law that we review independently. See State v. Tulley, 2001 WI App 236, ¶5,
248 Wis. 2d 505, 635 N.W.2d 807.

¶59 A defendant claiming ineffective assistance of counsel must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“[T]here is no reason for a court deciding an ineffective assistance claim … to
address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697. The defendant bears the burden on both of these
elements. State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d
111.

¶60 Counsel’s performance is “constitutionally deficient if it falls below
an objective standard of reasonableness.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305. “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’

21
No. 2021AP364-CR

not whether it deviated from best practices or most common custom.” Harrington
v. Richter, 562 U.S. 86, 105 (2011). In other words, professionally competent
assistance encompasses a “wide range” of conduct, and a reviewing court starts
with the presumption that counsel’s assistance fell within that wide range.
Strickland, 466 U.S. at 689. “A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. A defendant’s burden is to
show that counsel “made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

¶61 Counsel’s deficient performance is constitutionally prejudicial if
“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.” Thiel, 264
Wis. 2d 571, ¶20 (quoted source omitted). “[A] defendant need not prove the
outcome would ‘more likely than not’ be different in order to establish prejudice
in ineffective assistance cases.” State v. Sholar, 2018 WI 53, ¶44, 381 Wis. 2d
560, 912 N.W.2d 89 (citing Strickland, 466 U.S. at 693). “Accordingly, a
defendant need not prove the jury would have acquitted him [or her], but he [or
she] must prove there is a reasonable probability it would have, absent the error.”
Id., ¶46. In other words, the prejudice component asks “whether it is ‘reasonably
likely’ the result would have been different.” Harrington, 562 U.S. at 111. “The
likelihood of a different result must be substantial, not just conceivable.” Id. at
112.

22
No. 2021AP364-CR

B. Failure to Object to the State’s Closing Argument

¶62 Peterson argues that he was denied effective assistance of counsel
because his trial counsel failed to object to a “misleading” closing argument by the
State as to count one.

1. Additional Legal Principles

¶63 Failing to object to the State’s closing argument is not deficient
“unless the State’s trial commentary was improper.” State v. Bell, 2018 WI 28,
¶14, 380 Wis. 2d 616, 909 N.W.2d 750; see also State v. Cameron, 2016 WI App
54, ¶27, 370 Wis. 2d 661, 885 N.W.2d 611 (“Because the prosecutor’s remarks
were not improper, an objection would not have been sustained. It is not deficient
performance for counsel not to make a pointless objection.”).

¶64 “Although there are boundaries on what prosecutors may say during
trial, we leave them plenty of room to address the facts and law. ‘Counsel is
allowed considerable latitude in closing arguments, with discretion given to the
trial court in determining the propriety of the argument.’” Bell, 380 Wis. 2d 616,
¶39 (quoting State v. Burns, 2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d
166). “[I]t is impossible to describe in detail the outer parameters of proper trial
commentary. However … those boundaries extend at least far enough to
encompass fair characterizations of the law and the state of evidence.” Id., ¶40;
see also State v. Neuser, 191 Wis. 2d 131, 137, 528 N.W.2d 49 (Ct. App. 1995) (a
prosecutor’s closing argument is improper if it misstates the law.).

23
No. 2021AP364-CR

2. Additional Background

¶65 Count one as amended charged Peterson with felony intimidation of
a victim under WIS. STAT. §§ 940.44 (misdemeanor base offense) and 940.45(3)
(felony circumstances), alleging that Peterson “knowingly and maliciously did
attempt to dissuade [J.], who has been the victim of a crime, from making a report
of the victimization to a law enforcement agency, where the act is accompanied by
any express or implied threat of force, violence, injury or damage.” The element
that elevates misdemeanor intimidation of a victim to the felony offense charged
here is the “express or implied threat of force, violence, injury or damage.” Sec.
940.45(3).

¶66 The State argued as follows during its closing argument:

The defendant attempted to dissuade [J.] from
reporting the crime to any law enforcement agency[,] from
making a police report. He clearly didn’t want her talking
to anyone about this incident. When he thought her sister
was calling the police, it’s time for everyone to go to bed.
The defendant acted knowingly and maliciously. This just
means that it was his intent, his mental purpose that it not
be reported, that [J.] not talk, that justice be obstructed.

Was the defendant’s act accompanied by an express
or implied threat of force or violence upon [J.]? He just
finished strangling her. He then has a knife out. He has
also told her that he will [expletive] kill her ….

….

When he believes that law enforcement might be called, he
is telling them to go to their rooms, he is shutting off all the
lights, he is watching out the blinds, and he tells [L.] that if
he tells anyone, he would die a slow and painful death.

¶67 Trial counsel did not object to the State’s closing argument.
Peterson filed a postconviction motion that included a claim of ineffective

24
No. 2021AP364-CR

assistance of counsel as to count one based on trial counsel’s failure to object to
the State’s closing argument. At the Machner hearing, trial counsel was asked
whether he “recall[s] that the State argued that the physical altercation itself was
an implied threat of harm[.]” Trial counsel responded,

I think in this case not only was there strangulation and
battery, but I think—I believe the boy testified about a
knife and a threat to kill and also that everybody needed to
go to bed is the potential threat, so again, I—that didn’t
send off any bells at that point when [the prosecutor] said
that.

¶68 Trial counsel additionally testified that

I’m probably one who doesn’t like to object in openings or
closings any more than what I might absolutely have to
because, one, you know, it calls attention to something, and
actually, what was said there didn’t quite, you know, hit me
at the time that there was something off with it, so even
looking at it now, I don’t think I would have objected to
it[.]

¶69 The circuit court denied Peterson’s postconviction motion as to this
ineffective assistance of counsel claim. In its denial, the circuit court pointed to
Peterson’s failure to cite any legal authority to support his assertion that the
closing argument was “misleading” because “the act making a person a victim and
the act of intimidation must be separate acts and cannot be folded into one
another.” The court stated that the defendant did not show that trial counsel acted
ineffectively by failing to object, or that the choice to not object, “even if deemed
below professional standards, deprived the defendant of a fair trial with a reliable
result.”

25
No. 2021AP364-CR

3. Analysis

¶70 As we now explain, the State mischaracterized neither the law nor
the evidence and, therefore, trial counsel’s failure to object to the State’s closing
does not constitute ineffective assistance of counsel. See Cameron, 370 Wis. 2d
661, ¶27 (“It is not deficient performance for counsel not to make a pointless
objection.”).

¶71 Peterson contends that the State was arguing that “because Mr.
Peterson committed a violent crime against [J.] that included a threat to injure, any
subsequent attempt to dissuade her from reporting was automatically accompanied
by an implied threat of violence,” which would “essentially eliminate[] the
misdemeanor offense.” However, the State’s argument, read in context, was not
that the conduct supporting the battery or strangulation charges alone would be
“sufficient to constitute felony intimidation of a victim.” Rather, this court
reasonably reads the State’s argument in its entirety to mean that the immediately
preceding acts of violence against J., coupled with Peterson’s actions directed at
preventing J.’s communication with the police immediately after those acts of
violence, created an implied threat of future violence and demonstrated Peterson’s
capacity for such future violence if J. attempted to contact the police to report the
immediately preceding violent acts committed against her. This is not an
improper argument.

¶72 To the extent that Peterson argues that prior acts of violence cannot
as a matter of law form a basis for a subsequent “express or implied threat of force
[or] violence,” WIS. STAT. § 940.45(3), we also reject that argument as
unsupported by legal authority. See Pettit, 171 Wis. 2d at 646 (arguments
unsupported by references to legal authority need not be considered).

26
No. 2021AP364-CR

¶73 In sum, Peterson cannot show that his trial counsel was deficient for
failing to object to the portion of the State’s closing argument referring to count
one because that portion of the argument was not objectionable. Therefore, his
ineffective assistance of counsel claim as to this alleged error fails.

C. Failure to Object to an Erroneous Jury Instruction

¶74 Peterson argues that his trial counsel was constitutionally ineffective
for failing to object to an inaccurate jury instruction for count one. Specifically,
Peterson argues that the jury instruction given on count one failed to adequately
define the fourth element of felony intimidation of a victim and probably misled
the jury.

1. Additional Background

¶75 The pattern jury instruction tells the jury to answer the following
question regarding the fourth element of count one: “Was the defendant’s act
accompanied by any express or implied threat of (name of harm described in sub.
(1) or (2) of [WIS. STAT.] § 940.45)?” WIS JI—CRIMINAL 1296. Subsections (1)
and (2) identify two distinct types of harm: “force or violence or attempted force
or violence upon the victim, or the spouse, child … or any person sharing a
common domicile with the victim;” and “injury or damage to … real or personal
property.” Sec. 940.45(1) and (2).

¶76 The circuit court instructed the jury to answer this question: “Was
the defendant’s act accompanied by any express or implied threat of harm to the
victim.” The circuit court did not name a harm as described in WIS. STAT.
§ 940.45(1) or (2). Trial counsel did not object to this instruction.

27
No. 2021AP364-CR

¶77 Peterson filed a postconviction motion in which he raised an
ineffective assistance of counsel claim based upon trial counsel’s failure to object
to the instruction. At the Machner hearing on the motion, trial counsel testified
that he did not “believe” that he considered objecting to the instruction. Trial
counsel testified, “I think that one just came at us fast. … [F]or me, the charge
changed … and I went through [th]em, I just didn’t catch it.”

¶78 The circuit court denied Peterson’s postconviction motion as to the
jury instruction on count one, stating that because “[t]he State charged [count one]
under WIS. STAT. § 940.45(3), indicating an express or implied threat of harm …
the instruction which would have been given would have read, ‘[w]here the act is
accompanied by any express or implied threat of force, violence, injury or damage
upon the victim, or the spouse, child or any person sharing a common domicile
with the victim.’” Further, the only violence or threat testified to at trial was
towards J. (the victim) or L. (her son), and therefore, “the instruction given and the
instruction prayed for by the defendant are functionally equivalent.”

2. Analysis

¶79 Peterson argues that by neglecting to insert one of the “definitions of
harm,” the instruction was “erroneous because it failed to provide a complete
statement of the applicable law,” “probably misled the jury” and allowed the jury
to find guilt on this element for a harm not provided in the statute, like
psychological harm. Accordingly, Peterson argues that his trial counsel was
ineffective for failing to object to the jury instruction.

¶80 The State appears to concede that the instruction was erroneous, and
the State “assumes deficient performance” based on trial counsel’s testimony at

28
No. 2021AP364-CR

the Machner hearing that he did not object to the instruction because he “just
didn’t catch” the omission of the language specifying a type of harm. We accept
the State’s concession and turn to whether that deficient performance was
prejudicial.

¶81 According to the law as stated above, in this case we examine
whether there was a “substantial, not just conceivable,” Harrington, 562 U.S. at
112, likelihood that the jury would have acquitted Peterson on count one if the
jury instruction had stated “force or violence or attempted force or violence upon
the victim, or the spouse, child … or any person sharing a common domicile with
the victim” instead of simply “harm.” Given the facts of the case, we conclude
that Peterson cannot meet his burden to show that it was “reasonably likely” that
the jury would have acquitted him had the jury instruction for count one specified
the type of harm. We agree with the circuit court that the only evidence of harm
that the jury heard was evidence of physical force and violence, actual and
threatened, against J. and her son, L.

¶82 We also note that during the State’s closing argument, the prosecutor
went through the elements of each charge, including the four elements of felony
intimidation of a victim. Regarding the fourth element, the prosecutor used the
language from the pattern jury instruction, stating, “[w]as the defendant’s act
accompanied by an express or implied threat of force or violence upon [J.]? He
just finished strangling her. He then has a knife out. He also told her that he will
[expletive] kill her.” Because the State used the language in its closing argument
that Peterson asserts should have been used in the instruction, and then described
specific acts of violence that would support the charge, it is unlikely that the jury
convicted Peterson based upon a non-statutory type of harm.

29
No. 2021AP364-CR

¶83 In sum, viewing the jury instruction in the context of the entire trial,
Peterson was not prejudiced by trial counsel’s performance because there is no
reasonable likelihood that the jury would have acquitted had the instruction
specified “force or violence or attempted force or violence upon the victim, or the
spouse, child … or any person sharing a common domicile with the victim.” WIS.
STAT. § 940.45(1).

¶84 Peterson argues that “[b]y failing to define a key element, the
instruction relieved the Sate of its burden of proof on element four,” and that the
instruction “‘probably misled the jury’ by telling them that they did not have to
specifically find a threat of force, violence, and/or injury or damage to property.”
However, we first emphasize that the State was not relieved of its burden of proof
as to element four simply because the instruction stated “harm” instead of “force
or violence.” The instruction required that the jury find a threat of harm to the
victim, and Peterson does not persuade us that a finding of such “harm” here is not
sufficient to satisfy the statute, which specifies physical harm to the victim or her
child, given that the only evidence of “harm” presented to the jury was evidence of
physical force and violence, actual and threatened, against J. and her son, L., and
that the State articulated the proper standard in its closing.

¶85 Peterson argues that he was prejudiced by counsel’s failure to object
to the jury instruction because the jury may have found some “undefined
colloquial ‘harm’” that includes “psychological damage or injury” as well as
“immoral or unjust effects,”6 rather than a type of harm as stated in WIS. STAT.

6
Peterson cites The American Heritage Dictionary of the English Language (5th ed.
2011) for this definition.

30
No. 2021AP364-CR

§ 940.45(1) and (2). We disagree. Peterson fails to make a persuasive argument
that the jury might have been considering psychological damage or injury or
immoral or unjust effects as the kind of harm being threatened. To repeat, there
was no testimony about any kind of actual or threatened harm to J. aside from
physical violence, and the State in closing made no argument that psychological
harm would suffice and, in fact, directed the jury to consider the proper standard,
i.e., whether the evidence established an express or implied threat of force or
violence.

¶86 Peterson further argues that “it does make sense” that the jury might
have convicted on the premise that Peterson threatened psychological harm,
because threatening such harm “is a recognized offense,” in the State of
Wisconsin, Department of Administration, Human Resources Handbook, which
defines as a rule violation, “[t]hreatening or attempting to inflict, or inflicting
bodily harm to or mental anguish to another person.”7 However, Peterson fails to
explain how a State of Wisconsin Human Resources rule violation has any
relevance to a criminal jury trial for battery, strangulation, disorderly conduct, and
intimidation of a victim, or explain why the jury was likely to be considering rule
violations for State employees during its deliberation.

¶87 In sum, Peterson does not meet his burden of showing that he was
prejudiced by trial counsel’s failure to object to the jury instruction, because it was
not “reasonably likely” that the jury would have acquitted him of count one had
“harm” been properly specified as “force or violence or attempted force or

7
State of Wisconsin, Department of Administration, Human Resources Handbook
Ch.410, at 3 (2021), https://dpm.wi.gov/Hand%20Book%20Chapters/WHRH_Ch_410.pdf.

31
No. 2021AP364-CR

violence upon the victim, or the spouse, child … or any person sharing a common
domicile with the victim” in the instruction. See Harrington, 562 U.S. at 111;
WIS. STAT. § 940.45(1).

IV. Amendment to Count Four

¶88 Peterson argues that the circuit court erred by granting the State’s
motion to amend count four on the morning of trial.

¶89 We first state the standard of review and applicable legal principles.
We then apply those principles and provide additional background. We then
explain our conclusion that the court did not err in allowing the State to amend
count four on the morning of trial and address and reject Peterson’s arguments to
the contrary.

A. Standard of Review and Applicable Legal Principles

¶90 The standard of review and applicable legal principles for amending
a count in an information are stated in full in ¶¶35-39 above. For convenience, we
summarize that law briefly here.

¶91 “Whether to allow amendment of the information … is within the
discretion of the trial court and will not be reversed absent an erroneous exercise
of discretion.” Malcom, 249 Wis. 2d 403, ¶23. The State may, pursuant to the
circuit court’s discretion, amend any information prior to trial if the defendant’s
rights are not prejudiced. Whitaker v. State, 83 Wis. 2d 368, 373, 265 N.W.2d
575 (1978). The State may amend an information “as long as the additional
counts are not wholly unrelated to the transactions or facts considered or testified
to at the preliminary hearing.” Malcom, 249 Wis. 2d 403, ¶26. Specifically,

32
No. 2021AP364-CR

“[t]he charges must be ‘related in terms of parties involved, witnesses involved,
geographical proximity, time, physical evidence, motive and intent.’” Neudorff,
170 Wis. 2d at 616-17. In addition, the record must show that the defendant
“received constitutional notice of the new charge such that he [or she] could
prepare and defend against it.” Id. at 617.

B. Additional Background

¶92 Count four of the information charged Peterson with attempted
strangulation and suffocation, under WIS. STAT. §§ 939.32(3) (attempt) and
940.235(1) (strangulation and suffocation). The day before trial, the State filed a
letter and a motion requesting to amend count four to strangulation and suffocation
without the “attempt” qualifier. The State sought the amendment because L.
stated in an interview in preparation for trial that he intervened between Peterson
and J. because he heard J. gasp as Peterson had his hands around her neck.

¶93 Trial counsel filed a letter objecting to the State’s motion to amend
the information, stating, “[c]ount [four] is now a more serious strangulation and
suffocation charge. The Defendant had no notice that he would have to defend
against [the] more severe charge. The elements of the charges are different.”

¶94 During the pretrial hearing on the morning of trial, the circuit court
heard the party’s arguments as to the amendment and asked trial counsel to
explain his objection to the amendment to count four given that it “in fact, rais[es]
the bar for the State[.]” Trial counsel stated, “besides the penalty … I wrote out
questions today with respect to an attempt both for the witnesses of the State and
for Mr. Peterson.”

33
No. 2021AP364-CR

¶95 The circuit court responded that it was “having a hard time …
understanding” why trial counsel would not be ready to defend against the
completed strangulation charge if he was ready to defend against the attempted
strangulation charge because “the facts are basically the same …. If he prevails in
preventing a conviction for an attempted strangulation, I would think that he
would prevail in the same manner in preventing a conviction for a strangulation as
that bar is higher again.” Trial counsel responded that “we are just not on notice
of the higher penalties.”

¶96 The circuit court granted the State’s request to amend count four,
stating,

I don’t think that there is prejudice here to amend that
charge, and I am going to give defense counsel and the
defendant an opportunity to discuss that increased penalty,
which is really the only difference when we get through
this thing, in the [c]ourt’s mind.

Obviously, there is a difference between attempt
and the consummation of the actual crime, but in preparing
a defense, I don’t find that there is any prejudice in this
case with the State raising the bar .… [T]hey are just
setting a higher bar for themselves here.

The facts are the same, and I think it makes sense to
do that, so I will allow that, so you may have an
Information drafted that amends … attempted strangulation
to strangulation.

C. Analysis

¶97 As we now explain, Peterson fails to show that the circuit court
erred. The amended count four (strangulation and suffocation) is identical to the
original count four (attempted strangulation and suffocation) in terms of “parties
involved, witnesses involved, geographical proximity, time, … evidence, motive

34
No. 2021AP364-CR

and intent.” See Neudorff, 170 Wis. 2d at 616-17 (to satisfy the wholly unrelated
test, “[t]he charges must be ‘related in terms of parties involved, witnesses
involved, geographical proximity, time, physical evidence, motive and intent.’”
(quoted source omitted)).

¶98 Further, Peterson also had notice of the nature and cause of the
added count “such that he could prepare and defend against it.” See id. The
amended count is charged under the same statute as the original count, WIS. STAT.
§ 940.235(1), and the sheriff deputy’s report entered as an exhibit at the
preliminary hearing detailed Peterson’s conduct that formed the basis of both the
original and amended counts. In addition, “the evidence does not show or suggest
that [Peterson] would have presented different witnesses in defense of the
amended charge,” Malcom, 249 Wis. 2d 403, ¶28, and Peterson does not develop
any argument to the contrary.

¶99 Accordingly, the record does not indicate that the amendment on the
morning of trial prevented Peterson from preparing a defense to the amended
count and, therefore, Peterson was not prejudiced by the amendment. See
Malcom, 249 Wis. 2d 403, ¶¶28-30 (defendant was not prejudiced by the
amendment where both counts were charged under the same statute, he was aware
of the facts underlying the added count, the evidence relied upon by the State for
both counts was the same, and the evidence does not show the defendant would
have presented different witnesses in defense of the amended count). The charges
are “so related to the transaction and facts adduced at the preliminary hearing that
[Peterson] cannot be heard to say that he … is surprised by the [amended] charge
since the preparation for the [amended] charge would be no different than the

35
No. 2021AP364-CR

preparation for the [original] charge.” Id., ¶30 (quoting Neudorff, 170 Wis. 2d at
617-18).

¶100 Peterson appears to argue he was prejudiced by the amendment to
count four for three separate reasons. First, Peterson states “[trial] counsel …
prepared questions for the witnesses based on the original charge.” However,
Peterson does not explain how a successful defense to attempted strangulation and
suffocation would not also serve as a successful defense to the completed offense
and does not develop any argument that the amended count four required a
different defense theory for which he was unable to prepare. Moreover, as stated
above, the record does not show or suggest that the pretrial amendment prevented
Peterson from presenting a “coherent theory of defense” to the jury. See
Neudorff, 170 Wis. 2d at 620.

¶101 As part of this first reason, Peterson states that “[r]emoving the
attempt meant that the State no longer simply had to prove that Mr. Peterson
attempted to impede [J.]’s breathing but that he actually did so;” and that
“removing the attempt doubled the maximum penalty Mr. Peterson was facing.”
However, Peterson does not develop any argument or cite any legal authority to
support his assertion that raising the State’s burden or the maximum penalty
makes the amendment prejudicial. We reject his argument for this reason. See
Pettit, 171 Wis. 2d at 646 (we may disregard arguments unsupported by references
to legal authority).

¶102 Second, Peterson argues that defense counsel was unable to
effectively defend against the amended count four due to the morning-of-trial
amendment, based on counsel’s failure to impeach J. with a prior inconsistent
statement and failure to advocate for the jury’s request for a portion of J.’s

36
No. 2021AP364-CR

testimony regarding her ability to breathe to be read back. However, as we
explain below, trial counsel was not ineffective as to his representation on count
four.

¶103 Third and last, Peterson argues that the amendment violated
Peterson’s right to a speedy trial because the State requested that the circuit court
grant a continuance in the event that trial counsel was not prepared to proceed to
trial under the amended information, which Peterson asserts was “not a fair
remedy.” Whether or not a continuance was appropriate is not the test to evaluate
whether the circuit court erred in allowing an amendment at trial. Rather, we
evaluate “whether the new charge is ‘so related to the transaction and facts
adduced at the preliminary hearing that a defendant cannot be … surprised by the
new charge since the preparation for the new charge would be no different than the
preparation for the old charge.’” Malcom, 249 Wis. 2d 403, ¶30 (citing Neudorff,
170 Wis. 2d at 617-18). As explained above, we conclude that it was, and
therefore the circuit court did not err in allowing the amendment.

V. Ineffective Assistance of Counsel as to Count Four

¶104 Peterson argues that his trial counsel was constitutionally ineffective
for failing to impeach the victim with prior statements and failing to advocate for
the jury’s request to have testimony read back.

¶105 The standard of review and general legal principles governing
ineffective assistance of counsel claims are well established and stated above in
full in ¶¶58-61. We proceed to address each of the ineffective assistance issues as
to count four in turn. For each issue, we first provide additional pertinent
background, we next explain our conclusion that Peterson was not denied effective

37
No. 2021AP364-CR

assistance of counsel, and we address and reject Peterson’s arguments to the
contrary.

A. Failing to Impeach the Victim with Prior Statements

¶106 Peterson argues that his trial counsel provided ineffective assistance
as to count four because he failed to impeach J. at trial with a prior statement that
contradicted her trial testimony.

1. Additional Background

¶107 Count four of the amended information charged Peterson with
strangulation and suffocation in violation of WIS. STAT. § 940.235, alleging that
Peterson “did intentionally impede the normal breathing by applying pressure on
the throat or neck of another person.”

¶108 Prior to trial, J. discussed this incident and other incidents between
her and Peterson with the prosecutor and a detective, and her statements were
documented in a police report that was subsequently provided to trial counsel.
According to the report, J. told the detective and prosecutor that she could always
breathe when Peterson choked her because Peterson would put his hands high up
under her chin and not lower on her neck.

¶109 At trial, J. testified that during the incident, Peterson put his hands
on her throat, but that she could not remember whether or not she was able to
breathe. While trial counsel did ask about J.’s statement to the detective leading
up to trial, counsel did not impeach J. with her prior statement:

[Trial counsel]: [H]ave you recently … talk[ed] to
a Detective Kirn?

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No. 2021AP364-CR

….

[J.]: Yes.

….

[Trial counsel]: And you also told him that you
didn’t recall not being able to breathe?

[J.]: No. Everything happened so fast, and like I
said, I don’t pay attention to detail. I am just going into my
[protective] mode until it’s over.

[Trial counsel]: Did [Peterson] choke you?

[J.]: Yes

[Trial counsel]: Were you able to breathe?

[J.]: I don’t recall.

¶110 Trial counsel then moved on to asking J. about whether or not she
had access to her phone that night and the next day.

¶111 In his postconviction motion, Peterson argued that trial counsel
performed deficiently by failing to impeach J. at trial with her prior statement that
she was able to breathe while Peterson had his hands around her neck.

¶112 At the Machner hearing, trial counsel was asked whether he
considered calling the detective as a witness to impeach J. with her pretrial
statement that she could always breathe while Peterson choked her. Counsel
testified that “it probably went through [his] head” but that he was satisfied with
her testimony that she was unsure about whether or not she could breathe.
Counsel also testified that “I did consider it, but it was just for a moment, and it
was never anything I really wanted to do…. [I]n eighty jury trials, I have never
done anything like that, and when I got close to doing something like that, it’s
always backfired on me.” Specifically, counsel testified that he was hesitant to

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No. 2021AP364-CR

call the detective to introduce J.’s pretrial statement because afterwards “the
prosecutor would be able to ask questions to bolster the officer at that point and
[be] able to say what was she acting like when she said this … which I think could
easily backfire on me.”

¶113 Counsel further testified that he did not impeach J. with her pretrial
statement that she could always breathe because “after [L.] testified [that he heard
J. ‘gasping for air’ and had the impression that J. had trouble breathing] … no one
would have believed something like that.” Counsel also testified that “when you
compare” J.’s and L.’s conflicting statements, “it was clear that … [t]he mom was
trying to cover somewhat the best she could, you know, for Mr. Peterson,” and
that “it’s a typical pattern you see in a domestic abuse case.” Counsel testified that
J.’s mannerisms indicated to him that she was “somewhat scared,” so he “wanted
to handle mom with some kid gloves, and if I could get her to the point where she
said she didn’t remember or didn’t know if she had been, you know, losing air, I
was happy with that going into closing arguments, and that was more than enough
for me to at least make an argument to the jury that they should come back not
guilty on the strangulation.”

¶114 Last, counsel noted the risk of drawing attention to unfavorable facts
by impeaching J. with her pretrial statement. Specifically, J. testified on direct
examination about a prior incident where Peterson choked her until she “went
black” and Peterson had to resuscitate her. As to the conflict between that other
acts evidence and J.’s pretrial statement that she could always breathe when
Peterson choked her, trial counsel testified that there is “always a risk … [t]he
more you push and the more I push as a defense lawyer, the more things that can
come out which could be detrimental to our case as well.”

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No. 2021AP364-CR

¶115 The circuit court denied Peterson’s postconviction motion as to this
issue, stating that this other acts evidence regarding the incident where J. “went
black” after Peterson choked her “contradicts her statement to police” that she
could always breathe when he choked her. The court stated that it

believes that [trial] counsel’s choice to not cross examine
[J.] about this inconsistent statement was reasonable, given
the other facts of the trial, and the defendant has not shown
[trial] counsel’s performance fell below professional
standards. This [c]ourt further finds that even if counsel’s
performance were found to fall below professional
standards, the defendant has not shown that he was
deprived of a fair trial with a reliable result.

2. Analysis

¶116 We conclude that Peterson fails to meet his burden to show that trial
counsel’s decision to not impeach J. was deficient.

¶117 We agree with the circuit court that it was reasonable trial strategy to
not impeach J. with her prior statement that she could breathe while Peterson
choked her. The only way to introduce J.’s prior statement was through calling the
detective as a defense witness, which, as trial counsel noted during his testimony
at the Machner hearing, would allow the State to bolster its case by asking the
detective about J.’s mannerisms and the broader context of J.’s pretrial statements.
For example, during the pretrial interview with the detective, J. also stated that she
initially denied that Peterson choked her at all because if he did come home from
jail she would be able to tell him she did not tell the police anything. This
additional statement could indicate to the jury that J. was willing to lie to protect
Peterson or to protect herself from Peterson. Trial counsel himself testified at the
Machner hearing that he believed that J.’s statements were inconsistent because
she “was trying to cover … for Mr. Peterson.”

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No. 2021AP364-CR

¶118 In addition, J.’s pretrial statement that she was “always” able to
breathe when Peterson choked her was contradicted by both her trial testimony
about the incident when Peterson choked her until she “went black” and L.’s trial
testimony that he intervened because he heard J. gasping for air. Given this
conflicting testimony, J.’s pretrial statement could provide little benefit to
Peterson’s defense. When also considering the risk associated with calling the
detective as a defense witness, it was reasonable trial strategy to decide against
impeaching J. on this point.

¶119 Peterson argues that “counsel did not articulate a reasonable strategy
for not introducing [J.]’s8 statements,” and that “[c]ounsel’s reasoning is too
generalized and speculative to be probative.” However, the Machner hearing
transcript refutes this argument. Trial counsel explained why he was “satisfied”
with J.’s testimony, why he did not want to risk highlighting the conflict between
J.’s pretrial statement and her trial testimony, and why calling a police officer to
impeach a victim “could easily backfire.”

¶120 In sum, it was reasonable trial strategy to not impeach J. with her
pretrial statement regarding her ability to breathe during the incident and,
therefore, Peterson’s ineffective assistance of counsel claim fails.

8
Peterson writes “L.[]” instead of “J.[]” in this sentence; however, the argument
Peterson makes is about J.’s statements that he argues should have been introduced, not L.’s, and
thus we replace L. with J.

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No. 2021AP364-CR

B. Failing to Advocate for the Jury’s Request to Have Testimony Read Back

¶121 Peterson’s second ineffective assistance of counsel claim as to count
four arises out of the jury’s request to have a portion of J.’s testimony read back
during its deliberation, which the circuit court denied. Peterson asserts that his
trial counsel’s failure to advocate for the jury’s request was deficient and
prejudicial so as to constitute ineffective assistance of counsel.

1. Additional Background

¶122 During deliberation, the jury requested “clarification of [J.]’s
testimony during the struggle when [Peterson] had his hands on her throat.” The
circuit court immediately denied the request, stating, “I think the answer to that is
they have to rely on their memories and their notes that they may have taken.”
Trial counsel and the State both agreed.

¶123 Peterson argued in his motion for postconviction relief that trial
counsel’s failure to advocate in support of the jury’s request “was not based [on] a
reasonable strategic decision,” and therefore constituted ineffective assistance of
counsel.

¶124 At the Machner hearing, trial counsel testified that he did not
advocate for the jury’s request because he “was satisfied with the jurors just
relying upon their own recollections.” Counsel also testified that he had only had
such a request granted once in eighty jury trials, and that the “typical response” to
requesting testimony to be read back is that jurors should rely upon their
recollections. Counsel added that this trial only lasted for one day as opposed to a
week-long trial where it may have been a long time since the witness testified.
Here, because it had been “a matter of hours” since J. had testified, trial counsel’s

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No. 2021AP364-CR

practice “has always been, if they ask for read back, [to] … tell the judge rely
upon your recollections.”

¶125 The circuit court denied Peterson’s postconviction motion on this
issue and stated that not advocating for the jury’s request was not deficient
performance because “defense counsel exercised professional judgment in
agreeing with the [c]ourt to have the jury rely on their collective memories and
notes. As noted by the State, this is a standard practice in jury trials.”

2. Analysis

¶126 It is within a circuit court’s discretion to allow the jury to have
testimony read back to it during deliberations. See Kohlhoff v. State, 85 Wis. 2d
148, 159, 270 N.W.2d 63 (1978). Here, the circuit court made clear to the jurors
and the parties prior to trial that the jury “will not have a copy of the written
transcript of the trial testimony” and that the jury “must rely on [its] memory of
the evidence and testimony introduced during the trial.” Further, when the jury
made its request to have testimony read back during deliberations, the circuit court
immediately indicated that it would deny the request. “An attorney does not
perform deficiently by failing to make a losing argument.” State v. Jacobsen,
2014 WI App 13, ¶49, 352 Wis. 2d 409, 842 N.W.2d 365.

¶127 Peterson argues that trial counsel’s performance was deficient
because “[h]ere, the [circuit] court failed to exercise its discretion when
determining whether to read the requested testimony back to the jury,” and trial
counsel consented to that erroneous decision “for no strategic reason.” However,
the transcript refutes this argument. Trial counsel explained why his decision to
not oppose the circuit court’s denial of the jury’s request was consistent with his

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No. 2021AP364-CR

professional experience as a trial lawyer and why he was “satisfied” with the
jurors relying on their recollections in this one-day trial during which they were
allowed to take notes.

¶128 The transcript also refutes Peterson’s conclusory assertion that had
“trial counsel … requested that the testimony be read back to the jury, the court …
would have allowed the jury to hear the testimony.” Peterson cites no part of the
record, or any legal authority, that supports such an assertion.

¶129 In sum, Peterson fails to meet his burden to show that trial counsel’s
performance on count four constitutes ineffective assistance of counsel.

CONCLUSION

¶130 For the reasons stated above, we conclude that there was sufficient
evidence for a jury to convict on count one, that the circuit court did not err in
allowing the State to amend counts one and four, and that Peterson was not denied
his right to effective assistance of counsel as to counts one and four. Accordingly,
we affirm the circuit court on all issues.

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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