State v. James J. Cansler

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.
March 2, 2023
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. 2022AP115-CR Cir. Ct. No. 2018CF30

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES J. CANSLER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: SUSAN M. CRAWFORD, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, 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. 2022AP115-CR

¶1 PER CURIAM. The circuit court, on jury verdicts, entered a
judgment of conviction against James Cansler for several sexual assault-related
crimes against seventeen-year-old A.B. on one night in November 2017.1 On
appeal, Cansler challenges the court’s denial, after a hearing, of his motion for
postconviction relief. Cansler argues that he is entitled to a new trial based on the
erroneous admission of testimony by A.B.’s mother, C.D., that she believed her
daughter’s statements that her daughter was sexually assaulted. He also argues
that his trial counsel rendered constitutionally ineffective assistance by failing to
object to testimony: (1) that Cansler was on parole at the time of the crimes;
(2) about the effect of the assaults on A.B.; (3) that Cansler had declined to give a
statement to the investigating officers; and (4) about the relative seriousness of
A.B.’s injuries.2 For the reasons that follow, we reject Cansler’s arguments and
affirm.

BACKGROUND

¶2 The State charged Cansler with two counts of second degree sexual
assault and one count of sexual intercourse with a child, all as a repeater, based on
allegations that Cansler violently assaulted A.B. A jury trial commenced on
May 7, 2019.

To protect the identity of the minor victim, we refer to her as “A.B.” See WIS. STAT.
1

RULES 809.19(1)(g) and 809.86 (2021-22). For the same reason, as we indicate elsewhere in this
opinion, we refer to her mother as “C.D.,” to A.B.’s friend who accompanied her to the hospital
the morning after the assaults as “E.F.,” and to A.B.’s friend who drove her to Cansler’s house the
night of the assaults as “G.H.” All references to the Wisconsin Statutes are to the 2021-22
version unless otherwise noted.
2
In his reply brief Cansler withdrew a fifth ineffective assistance of counsel claim,
concerning counsel’s failure to consult with him on whether to request a lesser-included offense.
We do not discuss this claim further.

2
No. 2022AP115-CR

¶3 A.B. testified at the trial as follows. A.B.’s friend G.H. drove her to
Cansler’s residence on November 5, 2017. During the course of the evening, A.B.
told Cansler and the other men present that she was eighteen years old, when she
was actually seventeen. A.B. and Cansler engaged in some consensual sexual
acts. Cansler then grabbed A.B. by the hair and dragged her into a bathroom
where he performed non-consensual sexual acts on A.B. During the non-
consensual sexual acts, Cansler tore out tissue from A.B.’s vagina, penetrated her
anally and vaginally, and forced his penis into her mouth. A.B. was bleeding and
crying, said “oww,” asked Cansler to stop, and told Cansler she was going to be
sick. A.B. left the house a short time after the assaults and returned to her own
home. The next morning, A.B. told her friend E.F. about the assaults and A.B.,
E.F., and E.F.’s mother all went to the hospital where a Sexual Assault Nurse
Examiner examined A.B. and A.B. talked to police.

¶4 Other trial witnesses included A.B.’s mother C.D., her friend E.F.,
her friend G.H., two investigating officers, and the nurse who examined A.B. at
the hospital. We will relate details of these witnesses’ testimony as pertinent to
our discussion below.

¶5 At the conclusion of the three-day trial, the jury found Cansler guilty
of all three counts.

¶6 Cansler filed a motion for postconviction relief seeking a new trial
based on two grounds: (1) the erroneous admission of C.D.’s testimony that she
believed A.B.’s statements that A.B. had been assaulted by Cansler, on the ground

3
No. 2022AP115-CR

that the testimony violated the Haseltine rule;3 and (2) ineffective assistance of
trial counsel. The circuit court held a Machner hearing4 at which trial counsel and
Cansler testified. Counsel testified that the defense strategy at trial was that “this
was a buyer’s remorse situation,” meaning that A.B. told Cansler she liked “rough
sex,” the sex that followed was consensual, and then A.B. regretted the incident
and did not want to admit to anyone that it had been consensual. The court
subsequently entered a written decision and order denying the motion.

¶7 Cansler appeals.

DISCUSSION

I. Erroneous Admission of Evidence

¶8 Cansler argues that the circuit court erroneously admitted testimony
by A.B.’s mother, C.D., that C.D. believed A.B.’s statements to her that A.B. had
been sexually assaulted. After briefly stating the applicable law and standard of
review, we present additional pertinent background and explain our conclusion
rejecting Cansler’s argument.

¶9 As noted above, “[n]o witness, expert or otherwise, should be
permitted to give an opinion that another mentally and physically competent
witness is telling the truth.” State v. Haseltine, 120 Wis. 2d 92, 96 352 N.W.2d

3
State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984) (stating that
the credibility of a witness is for the jury to decide, and that “[n]o witness … should be permitted
to give an opinion that another mentally and physically competent witness is telling the truth”).
4
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (when a
defendant claims that the defendant received the ineffective assistance of trial counsel, a
postconviction hearing “is a prerequisite … on appeal to preserve the testimony of trial counsel”).

4
No. 2022AP115-CR

673 (Ct. App. 1984). Whether a witness improperly testified as to the credibility
of another witness in violation of the Haseltine rule presents a legal question that
this court reviews independently. State v. Krueger, 2008 WI App 162, ¶7, 314
Wis. 2d 605, 752 N.W.2d 114.

A. Additional Background

¶10 Before trial, Cansler filed a motion to allow trial counsel “to elicit
testimony about the character for truthfulness of [A.B.]” from A.B.’s mother, C.D.
The circuit court permitted the testimony about C.D.’s opinion as to her daughter’s
reputation for truthfulness.

¶11 C.D. testified on direct examination that A.B. came home on the
night of the assaults and “[A.B.] came in my room, and she didn’t say anything.
She just looked at me, and she had a look in her eyes of shock and fear, and I
recognized it, because it’s happened to me.” The circuit court admitted the
testimony over trial counsel’s objection. C.D. continued, “So after seeing the look
on her face and in her eyes especially, I said to her, did a boy hurt you, because I
knew. And she said no[.]” C.D. testified that A.B. “was lying when she said no.”
C.D. testified more generally that, during that time period, A.B. did not confide in
C.D. and would lie about her whereabouts and getting high.

¶12 C.D. testified that the next day A.B. called her when C.D. was at
work and told her that A.B. was at the Rape Crisis Clinic and had been “raped.”

¶13 In response to questioning during cross-examination by Cansler’s
trial counsel, C.D. testified that, in general, A.B. constantly lied to C.D. about her
activities and whereabouts, but that “quite often” C.D. “knew [A.B.] was lying to
me,” and that “I think I always knew when it was a lie.”

5
No. 2022AP115-CR

¶14 On redirect examination, C.D. testified that, when A.B. came home
on the night of the assaults, A.B. had a look in her eyes that showed that A.B. was
“[s]hocked, scared, hurt. Shocked mostly.” The prosecutor then asked, “[Trial
counsel] was asking a lot of questions about whether or not you believed at that
time that your daughter was a truthful person. Do you think she was truthful about
the fact that she was raped?” The circuit court overruled trial counsel’s objection,
and C.D. continued:

A. I do think she was truthful because she tried
to hide it at first and had to have her friend [E.F.] basically
drag her to Rape Crisis .… When [A.B.] told me, I know
[A.B.] didn’t want to tell me what was going on. It took 20
questions to get the, you know, the what happened out of
her. So do I think she was being truthful? Yes, because
she tried so hard to hide it from me.

….

Q. And you said you can always tell when she
was lying to you, right?

A. Yes.

Q. So you could have been able to tell if she
had lied about this, right?

A. Oh, yes.

B. Analysis

¶15 Cansler directs his Haseltine argument at two portions of C.D.’s
testimony: (1) her testimony on direct examination that, when A.B. came home
the night of the assaults, C.D. could tell from the look on A.B.’s face and in A.B.’s
eyes that A.B. had been sexually assaulted because “it [had] happened to [C.D]”;
and (2) her testimony on redirect examination that she thought that A.B. was
truthful when A.B. told her the next day that she had been raped and that C.D.
would have been able to tell if A.B. was lying at that time, because C.D. could

6
No. 2022AP115-CR

always tell when A.B. was lying on the many prior occasions when A.B. had lied
to her before on other topics.

¶16 We conclude that the circuit court properly admitted the first portion
of the challenged testimony as an expression of what C.D. felt and why she had
that feeling when she first saw A.B. upon A.B.’s return home the night of the
assaults. This court has concluded that similar testimony by a mother about “her
first conversation with” her daughter who had allegedly been sexually assaulted
did not violate the Haseltine rule. State v. Walker, No. 2018AP186, unpublished
slip op. ¶¶21-27 (WI App Nov. 27, 2018).5 As in that case, so here, C.D.’s
testimony was admissible to express C.D.’s “emotional reaction” when she first
saw A.B. upon A.B.’s return home on the night of the assaults. Id., ¶26. C.D.’s
testimony was about “her shock” and feelings “when she looked at her daughter’s
face,” not about her daughter’s truthfulness as a witness. Id.

¶17 As Cansler notes, regardless of C.D.’s emotional reaction based on
her own experience, A.B.’s demeanor could have reflected the “shame and
embarrassment” that A.B. felt in having willingly participated in “rough sex” with
Cansler. A.B.’s demeanor and how it could have been reasonably interpreted was
a legitimate topic for the jury’s determination of A.B.’s credibility based on all of
the evidence presented at trial. Her mother’s interpretation of what she testified to
regarding A.B.’s demeanor, based on the mother’s experience, did not usurp the

5
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished
opinions issued after July 1, 2009, for their persuasive value).

7
No. 2022AP115-CR

jury’s role as the “‘lie detector in the courtroom.’” Haseltine, 120 Wis. 2d at 96
(citation omitted).6

¶18 Turning to the second portion of C.D.’s testimony, we conclude that
the circuit court properly admitted this based on the State’s argument that Cansler
opened the door during cross-examination of C.D.—as to her opinion of A.B.’s
character for truthfulness generally, and her truthfulness in specific instances—to
redirect examination as to C.D.’s opinion of A.B.’s truthfulness in this instance.
Specifically, the State argues that, after Cansler elicited C.D.’s testimony about
A.B.’s character for not being truthful, the State was permitted to elicit testimony
rehabilitating A.B.’s character for truthfulness under WIS. STAT. § 906.08(1)(b).7
Cansler does not refute this statutory argument, and, therefore, we may deem
Cansler to have conceded the State’s argument based on § 906.08(1)(b). See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738

6
We reject the State’s implicit invitation to reach a broader conclusion that limits the
Haseltine rule only to testimony by expert witnesses, or only to testimony by one witness as to
the truthfulness of another witness’s in-court testimony.
7
WISCONSIN STAT. § 906.08(1) provides:

the credibility of a witness may be attacked or supported by
evidence in the form of reputation or opinion, but subject to the
following limitations:

(a) The evidence may refer only to character for
truthfulness or untruthfulness.

(b) Except with respect to an accused who testifies in
his or her own behalf, evidence of truthful character is
admissible only after the character of the witness for truthfulness
has been attacked by opinion or reputation evidence or
otherwise.

8
No. 2022AP115-CR

N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made in
response brief may be taken as a concession).8

¶19 In sum, Cansler fails to show that the circuit court erroneously
admitted C.D.’s testimony in violation of the Haseltine rule.

II. Ineffective Assistance of Counsel

¶20 Cansler argues that his trial counsel rendered constitutionally
ineffective assistance by failing to object to testimony at four points during the
trial. After a brief summary of the applicable legal principles and standard of
review, we address each asserted failure in turn.

¶21 The United States Constitution guarantees to criminal defendants the
right to effective assistance of counsel. State v. Balliette, 2011 WI 79, ¶21, 336
Wis. 2d 358, 805 N.W.2d 334; Strickland v. Washington, 466 U.S. 668, 686
(1984). To demonstrate that counsel’s assistance was ineffective, the defendant
must establish both “that counsel’s performance was deficient and that the
deficient performance was prejudicial.” State v. Breitzman, 2017 WI 100, ¶37,
378 Wis. 2d 431, 904 N.W.2d 93 (citing Strickland, 466 U.S. at 687). “[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; see also Breitzman, 378 Wis. 2d 431, ¶37 (“If the defendant fails to
satisfy either prong [under Strickland], we need not consider the other.”). The

8
Cansler asserts that the State should have objected to the cross-examination to the
extent that it was inappropriate. However, Cansler does not support this conclusory assertion
with legal authority and, therefore, we do not consider it further. See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App. 1992) (this court will generally not consider arguments that
not supported by references to legal authority or inadequately briefed).

9
No. 2022AP115-CR

defendant bears the burden on both of these prongs. State v. Roberson, 2006 WI
80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111.

¶22 We resolve this appeal based on the lack of a showing on the
deficient performance prong. 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,’ 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.

¶23 “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. “‘The circumstances of the case
and … counsel’s conduct and strategy’ are considered findings of fact.” Id.
(citation omitted). However, whether those facts constitute deficient performance
and whether such deficient performance was prejudicial are questions of law that

10
No. 2022AP115-CR

we review independently. See State v. Tulley, 2001 WI App 236, ¶5, 248 Wis. 2d
505, 635 N.W.2d 807.

A. Testimony That Cansler Was on Parole

¶24 Cansler argues that counsel was constitutionally ineffective by
failing to object to testimony that Cansler was on parole at the time of the assaults.
The testimony occurred during questioning by the prosecutor and trial counsel of
Detective Jason Walters.

¶25 Walters testified about his work as a detective on the case; he helped
gather evidence and take statements. In response to questioning by the prosecutor,
Walters testified that he encountered Cansler at a local hospital three days after the
assault. Walters testified that Cansler was at the hospital to report that he was a
sexual assault victim and he was requesting an examination. The prosecutor
asked, “And after the examination was done, what did you do?” Walters testified
that, “After he was done my partner, Detective Dosher and I, we arrested him on a
parole warrant.” Cansler’s trial counsel on cross-examination asked questions
directed at how soon Walters arrested Cansler after Walters talked to Cansler at
the hospital:

Q. Eight minutes later you arrested him?

A. He was arrested on a parole warrant.

Q. I understand that, but you arrested him eight
minutes after you talked to him, is that correct?

A. I had been in contact with him since I got to
the hospital at like 3:25.

Q. Well [your report] says 3:25, and then I’m
just saying eight minutes later you arrest him, right?

[Walters’ recollection is refreshed by reviewing his
report.]

11
No. 2022AP115-CR

Q. All right. So you arrested him eight minutes
later, didn’t you?

A. Yes.

¶26 During the jury instruction conference, the circuit court offered to
give a curative instruction to the jury not to consider any evidence regarding
Cansler’s parole status. Counsel advised the court that he would not request a
curative instruction if the State would not refer to Cansler’s parole status in its
closing argument. The State advised the court that it would not.

¶27 At the postconviction motion hearing, Cansler’s trial counsel
testified that he did not object after Walters first mentioned the parole warrant
because “[t]he statement came in so fast … if I object to it then, I’m going to cause
more focus about it than if I let it roll by” and “I didn’t think it was really an
important factor that would have some relationship to my client’s credibility as to
what happened …. I didn’t think that that was that important in the overall
strategy of my case.” Counsel testified that he did not object the second time that
Walters mentioned the parole warrant because the testimony showed that Cansler
was arrested for a parole violation, not for the sexual assaults involving A.B.; the
testimony showed that the arrest had nothing to do with that incident.

¶28 The circuit court found that counsel’s chosen strategy was not to
object, so as not to draw the jury’s attention to the reference to Cansler’s parole
status, and instead to elicit testimony to mitigate the possible prejudicial effect of
the reference on the jury. The court concluded that, while counsel may have
pursued other strategies, counsel’s chosen strategy “in the heat of the moment at
the trial … was reasonable under the circumstances.”

12
No. 2022AP115-CR

¶29 We conclude that counsel employed a consistent strategic decision,
from counsel’s perspective at the time, to mitigate any prejudicial effect of, and
redirect the jury’s attention away from, the reference to Cansler’s parole status:
(1) he did not object to the first, unexpected reference to Cansler’s parole status
because it did not affect his case strategy and may have called unwarranted
additional attention to it had he objected; (2) he followed up by eliciting testimony
that focused on the detective’s interactions with Cansler at the hospital and the
timing of the detective’s arrest of Cansler; and (3) he ensured that the State would
not re-raise the point in closing argument.

¶30 Cansler argues that “[t]here could be no strategic reason why [trial
counsel] would have wanted this evidence presented a trial.” However, that is not
the question under the law summarized above. Counsel himself testified that
testimony about Cansler’s parole status was “inadmissible.” The question is
whether counsel employed a reasonable strategy in response to the unexpected
testimony. Cansler does not address this question. Instead, he argues that counsel
should have done something different, such as filing a pretrial motion in limine or
objecting during trial. However, that counsel had other options does not overcome
the strong presumption that the options counsel chose fall within the “wide range”
of reasonable professional assistance given thereasons counsel gave for choosing
those options. See Strickland, 466 U.S. at 689. Accordingly, Cansler fails to
show that counsel’s performance was deficient. See Breitzman, 378 Wis. 2d 431,
¶65 (to show deficient performance, a defendant must “overcome the strong
presumption of reasonableness of [] defense counsel’s trial strategy by
demonstrating that [the strategy] was irrational or based on caprice”).

13
No. 2022AP115-CR

B. Testimony of Effects of Assaults on A.B.

¶31 Cansler argues that counsel was constitutionally ineffective by
failing to object to testimony about the effects of the assaults on A.B. The
testimony was offered by A.B.’s friend E.F., her mother C.D., and another friend
G.H.

¶32 E.F., the friend who took A.B. to the hospital the morning after the
assaults, testified that before the assaults, she and A.B. were quite close and “more
than sisters.” E.F. testified that before the assaults A.B. “was so smart and went to
school every day” and after the assaults A.B. “stopped showing up.” E.F. testified
that before the assaults A.B. was always happy and since the assaults she no
longer seems happy. Similarly, G.H., the friend who took A.B. to Cansler’s house
the night of the assaults, testified that the assaults “affected [A.B.] in a bad way, I
believe,” and that she was no longer “bubbly and fun.” C.D., A.B.’s mother,
testified that after the assaults A.B. “went into a downward spiral. [A.B.] hit rock
bottom. It’s been a very dark and painful time.” C.D. testified that A.B. withdrew
from family life and “[A.B.] suffers from depression, and she started using drugs,
worse drugs, to cope with her PTSD.”

¶33 At the postconviction motion hearing, Cansler’s trial counsel
testified that he did not object to this testimony because it was consistent with his
“buyer’s remorse” defense that A.B. had engaged in the sexual contact with
Cansler voluntarily and then regretted it and was ashamed, and her change in
demeanor reflected that regret and shame. Counsel testified:

I really thought that she couldn’t believe what she did, and
felt bad about it … and could not admit that to anyone. She
didn’t want to admit to her friends or her mother or anyone
else that she was promiscuous with people at a party—with
grown men at a party that were a number of years older

14
No. 2022AP115-CR

than her … that was the reason why she is feeling so bad …
that she felt this was a great big mistake, and could not
admit it, and that’s where depression comes in.

Counsel also testified that he introduced evidence to show that A.B.’s depression
after the assaults was a continuation of the depression that she suffered before the
assaults and was not due to the assaults.

¶34 The circuit court first concluded that the testimony about the effects
of the assaults on A.B. was admissible circumstantial evidence that she was
assaulted. Further, the court found that, even if the testimony was arguably
objectionable, counsel’s strategy was to reframe the evidence about how the
sexual assaults affected A.B. as reflecting her regret or remorse for engaging in
consensual sexual contact. The court concluded that Cansler failed to meet his
burden of showing that that strategy was objectively unreasonable.

¶35 First, we conclude that the testimony about the effects of the assaults
on A.B. was admissible because it was relevant and highly probative on the issue
of consent. State v. Lattimore, No. 2013AP911-CR, unpublished slip op. ¶27,
(WI App Sept. 11, 2014) (concluding that evidence of significant changes in the
victim’s demeanor after a sexual assault was “relevant and highly probative” to the
issue of consent particularly when there were no direct witnesses to the issue of
consent, and “would undermine the defense theory thatshe merely regretted her
decision to have consensual intercourse”). Accordingly, in light of the circuit
court’s postconviction ruling, counsel committed no error in not objecting to the
testimony because the circuit court would have allowed the testimony over
counsel’s objection. See State v. Reynolds, 206 Wis. 2d 356, 369, 557 N.W.2d
821 (Ct. App. 1996) (it is not deficient performance to fail to make an objection
that would have been unsuccessful). Moreover, Cansler does not address the

15
No. 2022AP115-CR

State’s arguments relying on this case in his reply brief, which we can take as a
concession that the State’s arguments are correct. See United Coop., 304 Wis. 2d
750, ¶39.

¶36 Second, even if the testimony were objectionable, we conclude that
counsel’s strategy, to reframe the testimony to support the defense, was reasonable
under the circumstances. Cansler does not directly address the reasonableness of
counsel’s strategy, but instead focuses on the prejudice of counsel’s asserted error.
Cansler fails to show that counsel’s chosen strategy, as explained in his testimony,
falls outside the “wide range” of reasonable professional assistance. See
Strickland, 466 U.S. at 689. Accordingly, Cansler fails to show that counsel’s
performance was deficient.

C. Testimony about Cansler’s Silence

¶37 Cansler argues that counsel was constitutionally ineffective by
failing to object to testimony about Cansler’s exercise of his Fifth Amendment
right to remain silent. The testimony at issue was given by Detective Walters and
Detective Todd Dosher.9

¶38 Walters testified that he spoke to Cansler when Cansler was at the
hospital for his own sexual assault examination three days after the assaults
involving A.B. Walters testified that “I asked him if he was willing to provide a

9
The parties dispute whether, based on the testimony we now present, Cansler’s silence
implicated his Fifth Amendment right to remain silent. We follow the State’s lead and assume,
without deciding, that it did, and that counsel could have successfully objected to the testimony
about his silence.

16
No. 2022AP115-CR

statement where I could investigate his allegations. And he was polite. He
respectfully said he didn’t want to provide us any information at all.”

¶39 Dosher testified that, after several contacts by phone with Cansler,
he also spoke to Cansler when Cansler was at the hospital. Dosher testified that
“[Cansler] told me that he wasn’t going to make a statement, and I explained that I
only knew one side of the story and it would be nice to hear his, and he reiterated
that he was not going to discuss the case with me.” Cansler’s trial counsel
followed up on cross-examination:

Q. Now, when you talked to Mr. Cansler this
last time he indicated he didn’t want to talk to you. He has
a constitutional right not to make a statement to you, isn’t
that correct?

A. Absolutely.

Q. There was nothing wrong with [] what he
said, was there?

A. Absolutely not.

Q. And that’s not taken [as an] indicia or
indication of guilt, is it?

A. No, it’s not.

¶40 Before moving on from this summary of trial events, we pause to
note that trial counsel would not ordinarily be expecting the prosecutor to ask a
question during trial that elicits an answer that directly violates a constitutional
right of the defendant. Cansler provides us with no reason to think that trial
counsel had a basis to think that this testimony would be sprung on the defense.

¶41 At the postconviction motion hearing, Cansler’s trial counsel
testified that he should have objected to this testimony that Cansler had invoked
his right to remain silent and had no strategy for not objecting. As to counsel’s

17
No. 2022AP115-CR

cross-examination, counsel testified that his questioning was “to put into context
what was going on, and why that couldn’t be held against him, simply because he
didn’t want to speak. And the officer had to admit that.”

¶42 The circuit court determined that “counsel employed a reasonable
trial strategy in how he chose to handle the testimony.” When confronted with
testimony that counsel had no reason to expect would be offered, that strategy was
to address the issue head-on by questioning the detective and putting the testimony
in the context of Cansler’s right to remain silent and that his silence could not be
held against him.

¶43 Cansler focuses in his briefing on the prejudicial nature of this
testimony and notes that counsel testified that he should have objected to Dosher’s
testimony. However, this was an unexpected development and the issue that
counsel was suddenly presented with called for a reasonable strategy in response,
which counsel followed. That is, we conclude that counsel chose a reasonable
strategy in this unusual and unexpected situation, and that Cansler fails to show
that counsel’s performance was deficient.

D. Testimony about A.B.’s Injuries

¶44 Cansler argues that counsel was constitutionally ineffective by
failing to object to testimony by the nurse who examined A.B. at the hospital
about A.B.’s injuries after the assaults.

¶45 The nurse testified that she had “seen” about 300 patients in the
course of her work, and that most of them were victims of sexual assault. The
nurse testified that A.B. told her about the details of the consensual sexual contact
with Cansler, which had turned into violent sexual contact when she no longer

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No. 2022AP115-CR

consented to sexual activity. The nurse testified about the injuries that she
observed to A.B.’s genital area. The prosecutor asked, “Based on your training an
experience of examining 300 patients, are these some of the most extreme injuries
that you have seen?” The nurse testified, “It is definitely in the upper number of
injuries that I’ve seen, yes.”

¶46 At the postconviction motion hearing, Cansler’s trial counsel
testified that he did not consider “this question and answer objectionable” because
the injuries the nurse observed “showed that she had rough sex that night” and
“showed the [e]ffects of” and “fit into [A.B.’s] partying that night with these
men.” Thus, he had no reason to object.

¶47 The circuit court first concluded that Cansler failed to explain why
the testimony regarding the number of injuries the nurse observed was
inadmissible. Even if the testimony were inadmissible, the court found that
counsel’s strategy, to let the testimony stand as consistent with his defense of
“buyer’s remorse” for consensual “rough sex,” was reasonable.

¶48 We conclude that counsel followed a reasonable strategy in letting
this testimony stand because it supported his defense. Cansler argues that
counsel’s explanation “failed to recognize the damaging nature of this evidence”
because what happened in the other patients the nurse had examined was
irrelevant. However, Cansler’s argument disregards the connection between
counsel’s decision not to object and the theory of the defense. Cansler fails to
show that it was unreasonable for counsel to make that connection in this
circumstance. Consequently, Cansler fails to show that counsel’s performance
was deficient.

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No. 2022AP115-CR

E. Cumulative Prejudice

¶49 Cansler argues that the cumulative effect of counsel’s errors entitles
him to a new trial. Because we have rejected his arguments of error in each
instance based on a lack of proof of deficient performance, there could be no
cumulative prejudice.

CONCLUSION

¶50 For the reasons stated, we conclude that the circuit court properly
denied Cansler’s motion for postconviction relief. Accordingly, we affirm.

By the Court.—Judgment and order affirmed.

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

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