State v. Jacob T. Robinson

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 5, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP182-CR Cir. Ct. No. 2019CF453

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACOB T. ROBINSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2023AP182-CR

¶1 PER CURIAM. Jacob T. Robinson appeals a judgment convicting
him of first-degree sexual assault of a child under the age of thirteen and incest
with a child. He also appeals an order denying his postconviction motion.
Robinson contends that his trial counsel performed deficiently by failing to object
to: (1) the admission of a video-recorded forensic interview of the victim, Susan1
without the circuit court conducting the statutorily required hearing under WIS.
STAT. § 908.08(3)(a)2; (2) a prosecutor’s question to a detective regarding
whether Robinson offered any explanation for why Susan would fabricate her
allegations, which Robinson contends shifted the burden of proof; and (3) the
prosecutor’s remarks during closing arguments that Susan’s testimony was
uncontradicted, which Robinson asserts amounted to an improper comment on his
choice not to testify. We affirm.

¶2 Robinson was arrested and charged with five counts of sexual
assault involving Susan for acts that occurred between late 2018 and early 2019.
At trial, the State presented Susan’s testimony and a video-recorded forensic
interview in which she described the assaults. The defense challenged Susan’s
credibility, highlighting inconsistencies in her accounts. The jury convicted
Robinson on two counts and acquitted him on three. He was sentenced to three
years of initial confinement and nine years of extended supervision for the incest
conviction, and a consecutive twenty-year term of probation for the first-degree
sexual assault conviction.

1
We refer to the victim in this case by the pseudonym consistent with the policy set forth
in WIS. STAT. § 809.86(1) (2021-22). All references to the Wisconsin Statutes are to the 2021-22
version unless otherwise noted.

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No. 2023AP182-CR

¶3 Following his conviction, Robinson filed a postconviction motion
alleging ineffective assistance of counsel. After a hearing, the circuit court denied
the motion, concluding that counsel’s performance was not deficient and that
Robinson had not shown prejudice. Robinson then filed this appeal.

¶4 Robinson first argues that his trial counsel was ineffective for failing
to object to the admission of Susan’s video-recorded forensic interview, asserting
that the circuit court did not conduct an “interests of justice” hearing required by
WIS. STAT. § 908.08(3)(a)2.

¶5 To establish ineffective assistance of counsel, a defendant must
satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984): (1) counsel’s performance was deficient; and (2) the deficient
performance prejudiced the defense. Performance is deficient if it falls below an
objective standard of reasonableness under prevailing professional norms,
considering all the circumstances. State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d
640, 782 N.W.2d 695. Prejudice requires showing a reasonable probability that,
but for counsel’s alleged errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694. A reasonable probability is one sufficient
to undermine confidence in the trial’s result. Id.

¶6 It is undisputed that Susan’s forensic interview was introduced at
trial without the circuit court conducting the WIS. STAT. § 908.08(3)(a)2 “interests
of justice” hearing. That provision requires the court to evaluate whether the
interview meets the statute’s admissibility requirements, including whether
admitting it serves the interests of justice when the child is twelve years or older at
the time of trial. Trial counsel acknowledged that she overlooked this requirement

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No. 2023AP182-CR

because Susan had just turned twelve and counsel did not recognize the impact of
the change in her age.

¶7 Robinson cannot prevail on his argument that counsel was
ineffective because he has not shown prejudice—specifically, that there is a
reasonable probability the video would have been excluded had counsel asked for,
or objected to the lack of, a hearing.

¶8 The record provides overwhelming support for the video’s
admissibility under factors in WIS. STAT. § 908.08(3)(a)2, including Susan’s age,
the emotional strain of testifying, and the reliability of her recorded statement.
Susan was twelve at trial and would likely have experienced more emotional stress
if required to provide more lengthy testimony. Allowing the video into evidence
minimized that stress while still allowing for cross-examination. Her forensic
interview showed clear circumstantial guarantees of trustworthiness. Susan, then
ten-years old, showed that she understood the difference between truth and
falsehood, took an oath, and gave detailed accounts that reflected her personal
knowledge. The interview was conducted soon after the incidents in a formal
forensic setting, further supporting its reliability. See State v. Sorenson, 143
Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988). Additionally, Susan’s close
relationship with Robinson and the lack of evidence of a motive to fabricate
supported her credibility. See State v. Huntington, 216 Wis. 2d 671, 688, 575
N.W.2d 268 (1998).

¶9 In summary, Robinson cannot meet the Strickland prejudice
requirement because there is no reasonable probability that the video would have
been excluded even if counsel had objected. His ineffective assistance claim on
this point therefore fails.

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No. 2023AP182-CR

¶10 Robinson next argues that trial counsel was ineffective for failing to
object when the prosecutor asked a police officer whether Robinson had provided
any explanation for why Susan would fabricate her allegations. The officer
responded that Robinson had not offered a reason. Robinson contends this line of
questioning improperly implied that he bore the burden of disproving Susan’s
claims. See State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d
669 (stating that the State may not suggest that the defendant’s failure to testify
demonstrates guilt).

¶11 Robinson’s argument is unavailing. Counsel testified at the
postconviction hearing that she considered the full interview beneficial to the
defense because it showed Robinson’s reluctance to call Susan a liar while
maintaining his innocence. She thought the jury would positively perceive the
sympathetic manner in which he handled the question. Courts ordinarily defer to
counsel’s strategic decisions when they are consistent with the defense theory.
Strickland, 466 U.S. at 689.

¶12 Moreover, the jury received repeated instructions on the State’s
burden of proof. The circuit court explicitly informed jurors that Robinson was
presumed innocent and did not have to prove anything. Defense counsel
emphasized during closing arguments that the burden rested solely on the State.
These instructions and the comments in closing dispelled any potential
misunderstanding caused by the prosecutor’s question. We therefore reject
Robinson’s ineffective assistance claim on this issue.

¶13 Finally, Robinson argues that trial counsel was ineffective for not
objecting to the prosecutor’s statements during closing argument that Susan’s

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No. 2023AP182-CR

testimony was not contradicted, which he asserts was an impermissible reference
to his decision not to testify and an improper shifting of the burden of proof.

¶14 The Wisconsin Supreme Court has explained that a prosecutor’s
comments are improper only if they are “manifestly intended” or are “of such
character” that the jury would necessarily understand them as a reference to the
defendant’s silence. State v. Hoyle, 2023 WI 24, ¶29, 406 Wis. 2d 373, 987
N.W.2d 732. The court further noted that commentary on uncontradicted evidence
is permissible so long as it addresses the evidence itself rather than the defendant’s
choice not to testify.

¶15 Here, the prosecutor’s comments were aimed at the evidence and
Susan’s credibility, not at Robinson’s decision to remain silent. The prosecutor
underscored the consistency between Susan’s trial testimony and her prior
statements to argue that her account remained unchallenged by contrary
evidence—whether from other witnesses or any other source. Because these
remarks did not improperly highlight Robinson’s silence or shift the burden of
proof, we reject his claim of error on this basis.

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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