State v. Deron Darnell Love

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.
November 25, 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. 2022AP1671-CR Cir. Ct. No. 2015CF4186

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DERON DARNELL LOVE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.

Before White, C.J., Colón, P.J., and Geenen, J.

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. 2022AP1671-CR

¶1 PER CURIAM. Deron Darnell Love appeals from a judgment of
conviction for human trafficking and kidnapping, as well as the denial of his
postconviction motion. Love argues that his constitutional right to counsel was
violated, that his right to the effective assistance of counsel was violated, that the
circuit court erred when it admitted certain expert testimony, that prosecutorial
misconduct occurred, that the court should have granted his request for a new
attorney, and that a new trial is necessary in the interest of justice. Upon review,
we reject Love’s arguments and we affirm.

BACKGROUND

¶2 Love was charged with human trafficking and kidnapping in
September 2015, arising out of a criminal complaint that alleged Love forced
Mary1 to engage in prostitution, and when she stopped, Love kidnapped her by
forcing her into a vehicle, beating her, and holding her against her will. The case
proceeded to trial in February 2016, during which the State presented testimony
and evidence gathered by Milwaukee Police Department (MPD) officers and
detectives; a forensics analyst who testified about finding Mary’s DNA on Love’s
clothing; and a Department of Justice special agent who analyzed the cell phone
data.

¶3 At the trial, the State also called as witnesses two people who saw
Mary being kidnapped by Love from a McDonald’s parking lot; the store manager

We adopt the pseudonym used by the State for Love’s victim in this case. See WIS.
1

STAT. RULE 809.86(1) (2023-24) (providing that crime victims should be referred to by a
pseudonym or initials to protect their dignity and privacy interests).

All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2022AP1671-CR

who authenticated the surveillance video; Mary’s parents, who each testified about
Mary calling for money after Love kidnapped her; the manager of the Suburban
Motel; and Mary, herself, who testified that she was addicted to crack cocaine and
heroin during this time period.

¶4 Mary testified that Love placed online advertisements arranging for
her to commit acts of prostitution at the Suburban Motel and then took the
proceeds. About ten days after she escaped the motel, Love grabbed her from a
McDonald’s parking lot, beat her, and held her at a second location. She escaped,
called the police, and was treated for injuries.

¶5 The jury found Love guilty of both counts. The circuit court2
sentenced him to 26 years of initial confinement and 16 years of extended
supervision.

¶6 After Love’s initial postconviction motion was denied, he pursued a
supplemental postconviction motion under WIS. STAT. RULE 809.30.3 Love
alleged a violation of his right to counsel, ineffective assistance of counsel, and
prosecutorial misconduct, with different bases than in his initial motion. The court
denied the supplemental motion without a hearing. This appeal follows.
Additional facts relevant to his claims will be discussed below.

2
The Honorable Jeffrey Wagner presided over Love’s trial, sentencing, and
postconviction motions. We refer to Judge Wagner as the circuit court. The Honorable M.
Joseph Donald presided over certain initial proceedings and granted Love’s first attorney’s
motion to withdraw. We refer to Judge Donald as the trial court.
3
Love was granted a Machner hearing on two of his ineffective assistance of counsel
claims in his original November 2017 postconviction motion; however after the hearing all claims
were dismissed. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App 1979).

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No. 2022AP1671-CR

DISCUSSION

¶7 Love argues that the circuit court erred when it denied his
supplemental motion for postconviction relief without a hearing. First, he asserts
that trial counsel’s failure to meet with him and prepare for pretrial proceedings
resulted in denial of counsel. Second, he argues the court erred when it admitted
parts of expert witness Detective Lynda Stott’s testimony. Third, he argues trial
counsel’s representation was ineffective for failing to: (1) move to withdraw
earlier; (2) impeach Mary on certain topics; (3) object to vouching by Detective
Stott; (4) present a defense to an element of human trafficking; and (5) object to a
jury instruction change. Fourth, Love asserts that the prosecutor committed
misconduct in his representation to the circuit court of a prior ruling by the trial
court, a change to the jury instructions, and the testimony he elicited from
Detective Stott. Fifth, Love contends the court erred when it denied his request for
a new attorney. Sixth, he argues the real controversy has not been tried and we
should order a new trial in the interest of justice. We reject each argument and
address each below.

¶8 When a defendant appeals from the denial of a postconviction
motion without an evidentiary hearing, the issue on appeal is narrow. A defendant
is not entitled to an evidentiary hearing on a postconviction motion unless the
defendant alleges “sufficient and non-conclusory facts which would entitle the
defendant to relief and the record” must not “conclusively establish otherwise[.]”
State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d 608. Whether a
defendant’s postconviction motion alleges sufficient material facts to entitle the
defendant to a hearing is a question of law that we independently review. State v.
Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. “[I]f the motion does
not raise facts sufficient to entitle the movant to relief, or presents only conclusory

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No. 2022AP1671-CR

allegations, or if the record conclusively demonstrates that the defendant is not
entitled to relief, the circuit court has the discretion to grant or deny a hearing.”
Id. Therefore, we review whether the circuit court erroneously exercised its
discretion when it denied Love’s postconviction motion without an evidentiary
hearing. See id.

I. Denial of the right to counsel

¶9 Love argues that his right to counsel was denied, in effect, at the
critical stage of pretrial proceedings when trial counsel did not adequately prepare
or investigate his case. When we review a postconviction motion, it must allege
“within the four corners of the document itself” the “who, what, where, when,
why, and how” of the claim with the “material factual objectivity” necessary for
this court to “meaningfully assess” the claim. Id., ¶23. Reviewing Love’s
supplemental postconviction motion, his allegations can be summarized as
alleging that trial counsel failed to meet with him for 7 weeks during the pretrial
phase, only visiting with him on one occasion, 20 days prior to the trial date. Love
alleged that this meeting with counsel only occurred after he asked the circuit
court to remove counsel and asked the Office of Lawyer Regulation (OLR) for
assistance. When counsel did meet with Love, counsel purportedly failed to ask
for Love’s version of the facts of the case, review discovery materials with him, or

5
No. 2022AP1671-CR

develop a trial strategy with him, including discussing whether Love should testify
at trial.4

¶10 “An accused’s right to be represented by counsel is a fundamental
component of our criminal justice system.” United States v. Cronic, 466 U.S.
648, 653 (1984). “The presumption that counsel’s assistance is essential requires
us to conclude that a trial is unfair if the accused is denied counsel at a critical
stage” of the criminal proceedings. Id. at 659. A Cronic claim “lies only when
there is a ‘complete denial of counsel during a critical stage.’” Schmidt v. Foster,
911 F.3d 469, 480 (7th Cir. 2018).5 Love alleges that counsel’s pretrial
preparation and investigation were inadequate, asserting that presence at formal
proceedings is not enough. Love refers to the ABA Standards for Criminal Justice
in support of the kinds of pretrial preparation trial counsel should have done;

4
We note that Love was granted a Machner hearing in response to his original
postconviction motion’s claim that trial counsel told him that if he testified, his prior drug
convictions would be used against him in this case. Trial counsel denied those statements and
testified that he discussed Love’s right and option to testify and informed Love that the substance
of his prior convictions would only enter this case if he opened the door. The circuit court denied
this claim and found that trial counsel met with Love multiple times prior to the trial. To the
extent that Love argues now that trial counsel should have consulted with him earlier in the
pretrial proceedings, we conclude that the court’s finding of fact was not clearly erroneous and
therefore, the record conclusively demonstrates this part of the claim does not entitle Love to
relief.
5
The complete denial of counsel can be shown by counsel’s physical absence, counsel’s
failure to submit the State’s case to meaningful adversarial testing, or under circumstances where
even “competent counsel very likely could not” render assistance. Bell v. Cone, 535 U.S. 685,
695-96 (2002). Here, Love’s allegations arise from absence, and we do not further discuss the
other two Cronic paths.

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No. 2022AP1671-CR

however, he offers only conclusory allegations to connect those standards to a
critical stage of his case.6

¶11 While we acknowledge that Love may have been dissatisfied with
trial counsel’s performance, he was not completely denied counsel. The record
reflects that trial counsel consulted with Love, as he admits, 20 days before trial,
and that counsel actively participated in Mary’s deposition. The State argues it is
reasonable to infer that trial counsel discussed the case with Love prior to the
deposition because counsel questioned Mary about a consensual sexual
relationship between Love and Mary, and about whether Mary drove Love’s
vehicle. The State also argues it is reasonable to infer from trial counsel’s
statement in the withdrawal motion that he and Love “disagree about the merits
and ethics of certain motions and strategies to pursue in this case” that trial
counsel and Love communicated enough about strategy to disagree. Although
Love argues that counsel’s conduct at the deposition does not prove counsel spoke
with Love about his version of the facts of the case and counsel could have drawn
those topics from the police reports, ultimately, the record reflects a level of
preparation in Love’s case that cannot be considered a complete denial of counsel.
See Cronic, 466 U.S. at 653.

¶12 We conclude that the record conclusively demonstrates Love is not
entitled to relief on this claim. See Jackson, 405 Wis. 2d 458, ¶8. Therefore, the

6
The Supreme Court stated, “what makes a stage critical is what shows the need for
counsel’s presence.” Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 212 (2008). In pretrial
proceedings, critical stages have been recognized generally to include court appearances, the
preliminary hearing, pretrial lineups, interrogations, psychiatric exams, and arraignments. Id. at
217 (Alito, J., concurring).

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No. 2022AP1671-CR

circuit court acted within its discretion when it denied the claim without a hearing.
See Allen, 274 Wis. 2d 568, ¶9.

II. Admission of expert witness testimony

¶13 Love argues that the circuit court erred when it admitted parts of
Detective Stott’s expert testimony. He contends that her testimony usurped the
jury’s function because she testified that the evidence in this case constituted
human trafficking. Love also argues that the circuit court incorrectly applied State
v. Hogan, 2021 WI App 24, 397 Wis. 2d 171, 959 N.W.2d 658, to the admission
of her expert testimony.

¶14 The admission of expert testimony is governed by WIS. STAT.
§ 907.02. An expert witness must be qualified, the testimony must be relevant,
and the testimony must be reliable. Hogan, 397 Wis. 2d 171, ¶19. “It is within
the circuit court’s discretion whether to admit proffered expert testimony.” State
v. Dobbs, 2020 WI 64, ¶27, 392 Wis. 2d 505, 945 N.W.2d 609. “A [circuit]
court’s decision on admissibility or exclusion of expert evidence is an erroneous
exercise of discretion when a decision rests upon a clearly erroneous finding of
fact, an erroneous conclusion of law, or an improper application of law to fact.”
Seifert v. Balink, 2017 WI 2, ¶93, 372 Wis. 2d 525, 888 N.W.2d 816.

¶15 We turn to the record. Detective Stott testified about the methods of
control by which sex workers can become victims of human trafficking, discussing
persuasion, force, or access to addictive substances. The State asked Detective
Stott whether these methods of coercion applied to this case, and when asked to
rephrase the question, the State asked if heroin was used to control Mary. Trial
counsel objected several times during this line of questioning on the basis that the
prosecutor was making conclusions of a legal nature as to the definition of human

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No. 2022AP1671-CR

trafficking and the prosecutor was presenting argument to the jury through a
witness. The court sustained each objection and directed the State to rephrase.
The prosecutor asked Detective Stott if she saw “that level of control here … in
your training and experience, to move this prostitution to human trafficking?” The
detective answered, “Yes.” Further, Detective Stott interpreted a text message
Mary’s phone received from Love’s alleged cell phone in which Mary, who had
testified earlier in the trial to being addicted to heroin and crack cocaine, was
instructed not to purchase or obtain drugs from other people.

¶16 In Love’s postconviction motion, he argued that Detective Stott’s
testimony went beyond exposition regarding human trafficking principles and
characteristics, admissible under WIS. STAT. § 907.02(1). He asserted that the
detective testified that the crime of human trafficking occurred here, which
usurped the jury’s function as the finder of facts and its role as ultimate arbiter of
Love’s guilt. He contended that Detective Stott’s testimony, in which she opined
that Love’s conduct constituted human trafficking, was improper expert testimony.

¶17 Love posits that an expert may not testify as to whether a crime
occurred. While this legal principle is undisputed, we are mindful that
“[t]estimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of
fact.” WIS. STAT. § 907.04. “The ‘ultimate issue’ may not, however, be one that
is a legal concept for which the jury needs definitional instructions.” Lievrouw v.
Roth, 157 Wis. 2d 332, 351-52, 459 N.W.2d 850 (Ct. App. 1990).

¶18 The State argues that Detective Stott did not offer a legal conclusion
that the charged crime of human trafficking occurred. The record reflects that the
detective testified whether, based on her training and experience, the facts of this

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No. 2022AP1671-CR

case showed the level of control and conduct typically seen in human trafficking
cases. She was not asked, and did not testify about, the three elements of human
trafficking upon which the jury was instructed and tasked with deciding whether
the State proved those elements beyond a reasonable doubt.

¶19 Love also took issue with the circuit court’s conclusion in its
postconviction decision that all of Detective Stott’s testimony was admissible
under WIS. STAT. § 907.02(1). He asserts that she was not offered as an opinion
expert witness, but as an exposition expert witness who was prohibited from
applying general principles to the facts of the case. We conclude Love misreads
Hogan, and its quote from Dobbs. Hogan, 397 Wis. 2d 171, ¶27 n.8; Dobbs, 392
Wis. 2d 505, ¶42 (stating § 907.02(1) “continues to permit an expert witness to
testify in the form of an opinion ‘or otherwise,’ including exposition testimony on
general principles without explicitly applying those principles to, or even having
knowledge of, the specific facts of the case”). Our supreme court states nearly the
opposite of Love’s claim—offering exposition testimony on general principles
does not require the expert to apply those principles to the facts of the case. This
holding does not prohibit testimony applying the general principles to the facts.

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No. 2022AP1671-CR

¶20 We conclude Love has not shown an erroneous exercise of
discretion by the circuit court in admitting Detective Stott’s testimony.7 The
circuit court’s decision to admit this testimony was based on a consideration of
relevant facts applied to the proper standard of law. See Seifert, 372 Wis. 2d 525,
¶93.

III. Ineffective assistance of counsel

¶21 Love argues that trial counsel provided ineffective assistance during
trial. He asserts six claims, including that trial counsel failed to: (1) timely file his
motion to withdraw; (2) cross-examine Mary on how she benefited from the
State’s actions after her deposition; (3) impeach Mary on parts of her testimony;
(4) object to Detective Stott’s testimony vouching for Mary; (5) object to a change
in the jury instruction language; and (6) present a viable defense that the State did
not prove the third element of human trafficking.

¶22 For Love’s claim of ineffective assistance of counsel to succeed, he
must make two showings: (1) that trial “counsel’s performance was deficient,” and
(2) that “the deficient performance prejudiced the defense.” Strickland v.

7
The parties each raise forfeiture arguments as to the admissibility of Detective Stott’s
testimony. The State argues that Love failed to object to the detective’s testimony at trial and
raises a new argument on appeal that she was impermissibly vouching for Mary. Love argues
that the State did not argue to the circuit court at trial or during postconviction proceedings that
Detective Stott’s testimony was admissible under WIS. STAT. § 907.02. “The values protected by
the forfeiture and waiver rules would not be protected in the instant case by applying a forfeiture
or waiver rule to either the defendant or the State.” State v. Ndina, 2009 WI 21, ¶38, 315 Wis. 2d
653, 761 N.W.2d 612. We decline to untangle the forfeiture claims and address the substance of
the issue. See State v. Counihan, 2020 WI 12, ¶27, 390 Wis. 2d 172, 938 N.W.2d 530 (“The
forfeiture rule is a rule of judicial administration, and thus a reviewing court may disregard a
forfeiture and address the merits of an unpreserved issue in an appropriate case.”).

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No. 2022AP1671-CR

Washington, 466 U.S. 668, 687 (1984). To make a showing of deficient
performance, “the defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. To show prejudice, “[t]he
defendant must show that 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.” Id. at 694. We need not address both prongs of the ineffective
assistance test if the defendant fails to make a sufficient showing on one. Id. at
697.

A. Timely filing of the motion to withdraw

¶23 Love argues that trial counsel was ineffective for the delay in filing
his motion to withdraw. We recite a timeline of appointment of counsel. Love
was charged in September 2015; trial counsel was appointed to represent him in
November after his original attorney’s motion to withdraw was granted. In
December, Love wrote to the trial court and OLR, asking each for assistance
removing trial counsel. When Love and counsel met on January 12, 2016, Love
told counsel he wanted him to withdraw. On January 18, counsel filed a motion to
withdraw with the trial court, as the case was still on that docket. Counsel asked
the trial court to hear the motion at the final pretrial hearing on January 29;
however, counsel did not appear at that hearing because he was in another trial.8

8
Love contrasts this case with the results of a motion to withdraw in a different criminal
case pending against him in January 2016. Trial counsel, who also represented Love in the other
case, appeared in the other court on January 29, and his motion to withdraw as Love’s counsel
was heard and accepted.

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No. 2022AP1671-CR

¶24 Love argues that trial counsel unreasonably waited six days after
meeting with Love to file the motion to withdraw, from January 12 to January 18.
He asserts that if the motion had been filed earlier, it would have been heard
earlier, and he would have been appointed a new attorney. He also argues counsel
was deficient for failing to have this case recalled on January 29, after he was done
with his other trial. Love asserts that if the motion had been heard on January 29,
the court would have granted the motion to withdraw. He also contends that, in
the alternative, if he and trial counsel had known the motion was denied by
January 29, they would have had time to prepare over the weekend before the trial
began February 1.

¶25 Love’s allegations are conclusory. Although in our review we
accept the facts alleged as true, a defendant must proffer material facts and not
speculation. Allen, 274 Wis. 2d 568, ¶¶12, 15, 33. Love’s claim that his request
for a new attorney would have been granted if the hearing had occurred earlier is
pure speculation.

¶26 The record reflects that counsel’s motion to withdraw was heard the
following Monday, February 1, 2016, the scheduled beginning of Love’s trial.
When asked if he was prepared to proceed, trial counsel informed the circuit court,
which had taken over the case from the trial court that morning, that while he was
prepared, he and Love had a hard time communicating. Love told the court he
wanted a new attorney because he did not get all of the discovery, counsel would
not file specific motions, and he had only met with counsel once since counsel’s
appointment.

¶27 The circuit court also heard from the prosecutor, who raised
concerns of prejudice from any delay because he had recorded jail calls of Love

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No. 2022AP1671-CR

trying to have other people persuade Mary not to come to court. The State also
informed the court that Love’s original attorney moved to withdraw after she had
personal safety concerns based on contact by Love’s family and friends. The
prosecutor further alluded to the trial court’s concerns about “game playing”
during the withdrawal of Love’s original attorney.

¶28 We conclude that Love has failed to allege sufficient material facts
to show prejudice from trial counsel’s arguable delay in filing the motion to
withdraw. The State’s position that a delay would prejudice the case would have
been expressed even if the motion had been heard earlier. Love has not alleged
material facts showing how those concerns would have been mollified even if the
motion had been filed or heard immediately. Ultimately, Love has not shown
there was a reasonable probability that the motion to withdraw would have been
granted, much less undermined our confidence in the outcome of these
proceedings. See Strickland, 466 U.S. at 694. We conclude this claim of
ineffective assistance fails.

B. Cross-examination on how Mary benefitted from the State’s
actions after her deposition

¶29 Love argues that trial counsel failed to cross-examine Mary about
how she benefitted from the State’s actions after her deposition. Mary had a
misdemeanor drug charge unrelated to Love’s case. After Mary’s deposition in
Love’s case, the State converted the terms of Mary’s pretrial release from cash bail
on the drug charge to a signature bond, and she entered into a deferred prosecution
agreement (DPA). Love argues that after the State gave his trial counsel a copy of
the DPA, if counsel had performed a reasonable investigation, it would have
revealed the State’s actions that benefitted Mary.

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No. 2022AP1671-CR

¶30 Love asserts that, as Mary’s credibility was a key issue for both the
human trafficking and kidnapping counts, trial counsel was deficient for failing to
highlight her motivation to lie and that failure prejudiced his defense. However,
the record reflects that in both her deposition and at trial, Mary testified that she
understood that the State was not going to prosecute her for drug or prostitution
charges. She also stated in both that there was no deal, incentive, or threat
motivating her testimony. The State argues that because the jury heard Mary’s
testimony that she was not being prosecuted for drug or prostitution charges, it
was aware of a motive for her to lie. Therefore, additional cross-examination
related to this topic would be cumulative. The State also argues that there was no
condition in her DPA that required her to testify against Love.9

¶31 Love has not shown that there is a reasonable probability that even if
the jury had learned about the DPA, the result of the trial would have been
different. The jury was aware that Mary was not being charged for drug use or
possession or prostitution, which would provide straightforward evidence of
motivation for her to lie. Love’s allegations are conclusory and provide no
material facts supporting that the State’s DPA in another case was conditioned on
her testifying against Love or motivated her to lie about Love. We conclude that
Love has failed to make a showing of prejudice. Accordingly, this claim fails.

9
The State raises the issue that the DPA would not have been admissible as it was not
relevant and it did not fall under WIS. STAT. § 906.09(1), which allows a witness to be questioned
about the number of prior criminal convictions for “the purpose of attacking character for
truthfulness.” Id. Love argues the DPA was relevant, admissible evidence that had been
disclosed by the State. We need not resolve this issue and decline to address it further.

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No. 2022AP1671-CR

C. Impeachment of Mary’s testimony

¶32 Love argues that trial counsel was ineffective for failing to impeach
Mary’s testimony with evidence related to three issues: (1) their prior consensual
sexual relationship; (2) damage to Love’s vehicle as an alternate reason Mary
owed him money; and (3) whether it was Mary or Love who placed a
Backpage.com advertisement to secure prostitution dates for her. The record
reflects that Mary testified that she and Love had consensual sex only once, that
she never drove his vehicle, and that Love placed a Backpage.com ad. However,
the record reflects that trial counsel did impeach Mary’s testimony on these three
issues.

¶33 We turn to the record. During cross-examination, trial counsel
questioned Mary about her deposition testimony that she “willingly did stuff with
[Love]” and that she characterized their relationship as “[s]omebody I mess with.”
Mary maintained they had sex only once, and did not recall, but did not deny, text
messages that the police found between her known phone number and Love’s
phone discussing having a baby together or that she stated “I love you.” Mary also
denied driving and damaging Love’s vehicle, but she did not deny Love sent a text
stating that she damaged his vehicle and threatened her over it. When counsel
questioned her about an “I’m sorry” text after the vehicle text exchange, Mary
denied the text was about the vehicle. On the issue of who set up the
Backpage.com ad, during cross-examination, Mary testified that Love posted a
different ad than the one she posted.

¶34 We conclude that Love has failed to make a showing of prejudice.
The record reflects that trial counsel cross-examined Mary on each of these issues
and impeached her answers. These allegations do not show that there was a

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No. 2022AP1671-CR

reasonable probability of a different result at trial because the jury heard about
each of these issues. We conclude this claim of ineffective assistance fails.10

D. Expert witness vouching by Detective Stott

¶35 Love argues that trial counsel was ineffective for failing to object to
Detective Stott’s expert witness vouching for Mary’s credibility. “No witness,
expert or otherwise,” may opine that “another mentally and physically competent
witness is telling the truth.” State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d
673 (Ct. App. 1984). “The credibility of a witness is ordinarily something a lay
juror can knowledgeably determine without the help of an expert opinion.” Id.
Improper vouching testimony may arise from express or implied expert testimony
opining another witness is truthful. State v. Kleser, 2010 WI 88, ¶102, 328
Wis. 2d 42, 786 N.W.2d 144.

¶36 In Love’s postconviction motion, he alleged that Detective Stott’s
testimony was tantamount to Detective Stott testifying that she believed Mary.
Detective Stott testified that she relied on corroboration as one of the “factors of
truth” she considers when determining whether sex workers were working for
themselves or were coerced to work for others. As Mary’s credibility was a key
issue for both the human trafficking and the kidnapping counts, Love asserts this
vouching would have boosted her credibility for both counts. Love contends trial
counsel was ineffective for failing to object.

10
To the extent that Love argues that trial counsel’s impeachment attempts should have
been better, we conclude he has not alleged material facts to “show that counsel’s representation
fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668,
688 (1984).

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No. 2022AP1671-CR

¶37 When we review a claim of impermissible vouching, we “examine
the testimony’s purpose and effect.” State v. Pittman, 174 Wis. 2d 255, 268, 496
N.W.2d 74 (1993). The State argues that the purpose of this testimony was to
explain how Detective Stott investigates human trafficking cases and how the
evidence is gathered and processed. Here, the State established Detective Stott as
an expert on human trafficking, a status which is unchallenged. Her testimony
addressed her experience and training in this field. Detective Stott’s statements on
corroboration and factors of truth were not implied commentary on Mary’s
credibility as a witness, but offered to assist the jury in understanding the
investigation of a trafficking offense. The record conclusively demonstrates that
Detective Stott’s testimony was not improper vouching. Therefore, any objection
would be meritless. Counsel is not deficient for failing to present a meritless
argument. State v. Dalton, 2018 WI 85, ¶53, 383 Wis. 2d 147, 914 N.W.2d 120.

¶38 We conclude Love failed to show that trial counsel’s performance
was deficient for failing to object to vouching during Detective Stott’s testimony.
This claim of ineffective assistance of counsel fails.

E. Jury instruction language change

¶39 Love argues that trial counsel was ineffective for failing to object to
a change in the jury instruction for the human trafficking count. At the jury
instruction conference during the trial, the court questioned that the proposed jury
instruction for the human trafficking count included party to a crime liability,
which was incorrect. The State offered to remove that reference and tailor the jury
instructions so they were “not just boiler-plated instructions.” The next day, the
court instructed the jury that the State had to prove beyond a reasonable doubt that
(1) Love knowingly engaged in trafficking, (2) Love enticed Mary for the purpose

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No. 2022AP1671-CR

of a commercial sex act, and (3) Love engaged in trafficking by threatening to
cause bodily harm to Mary. In the original jury instructions, the second element
was worded as Love “recruited” Mary for the purpose of a commercial sex act.

¶40 Love argues that the change from “recruited” to “enticed” modified
the charged conduct underlying the offense. He contends that the criminal
complaint and information charging the offense both stated “recruit.” He argues
that the change to “entice” allowed the State to argue that Love enticed Mary by
different means—with drugs, with claims of love, or with protection, for example.
He asserts this allowed the State to undercut Love’s defense that this was a
consensual relationship.

¶41 The State argues that the charged statutory violation remains the
same, whether the term recruited or enticed were listed in the instruction. It
contends that both words are included in the statute and are “conceptually
similar.” See State v. Lomagro, 113 Wis. 2d 582, 593, 335 N.W.2d 583 (1983). It
argues that the jury instruction did not change the charged conduct.

¶42 Love was charged with conduct contrary to WIS. STAT.
§ 940.302(2)(a), which criminalizes human trafficking if (1) either the trafficking
was for the purposes of labor or services or the trafficking was for the purposes of
a commercial sex act; and (2) the trafficking was done by any of twelve methods
including “[c]ausing or threatening to cause bodily harm to any individual.”
“Trafficking” is defined in this section to mean “recruiting, enticing, harboring,
transporting, providing, or obtaining, or attempting to recruit, entice, harbor,
transport, provide, or obtain, an individual.” Sec. 940.302(1)(d).

¶43 “The purpose of a jury instruction is to fully and fairly inform the
jury of a rule or principle of law applicable to a particular case.” Nommensen v.

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No. 2022AP1671-CR

American Cont’l Ins. Co., 2001 WI 112, ¶36, 246 Wis. 2d 132, 629 N.W.2d 301.
“A challenge to an allegedly erroneous jury instruction warrants reversal and a
new trial only if the error was prejudicial” meaning that “it probably and not
merely possibly misled the jury.” Fischer v. Ganju, 168 Wis. 2d 834, 849-50, 485
N.W.2d 10 (1992). “If the overall meaning communicated by the instructions was
a correct statement of the law, no grounds for reversal exist.” Id. at 850.

¶44 Even if we assume without deciding that it was deficient for trial
counsel to fail to confirm the language in the jury instructions or object to the
word change, Love has not shown prejudice from this change. The language in
the jury instruction reflected a correct statement of the law under WIS. STAT.
§ 940.302. Love has not developed a legal argument to show that this word
change misled the jury. He fails to make a showing of prejudice for this claim.
We conclude that this claim of ineffective assistance fails.

F. Viable defense to the third element of the human trafficking
charge

¶45 Love argues that trial counsel was ineffective for failing to present a
viable defense that the State did not prove the third element of the human
trafficking charge: that Love engaged in trafficking by threatening to cause bodily
harm to Mary. Love contends that Mary was engaged in prostitution on her own
and did not testify that she engaged in prostitution at the motel because Love was
threatening to cause bodily harm to her.

¶46 The State argues that Mary’s testimony satisfied this element, even if
she did not expressly testify that she was a prostitute because Love had threatened
her with bodily harm. The record reflects that Mary testified that in late August
2015, Love picked her up and took her to the Suburban Motel, where he arranged

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No. 2022AP1671-CR

prostitution “dates” for her, using a Backpage.com ad with his phone number. She
testified she did not have “a choice in the matter,” stating “I had to do what he
said. I didn’t want anything to happen to me. I didn’t want to get beat up for not
going there. And so I did what he said until I found a way to escape from this
hotel.” She stated that Love forcefully took the money after the dates. She
testified, “I was scared for my safety and my well-being.” Mary stated that at the
motel, Love and his co-actor, Heather Gauger, always stayed near her and waited
outside in his vehicle while she was on prostitution “dates.” She stated that she
was “scared for [her] life to call the police” because she was afraid Love could get
to her before the police could.

¶47 Love’s allegations are conclusory and the record demonstrates that
he is not entitled to relief. While Love does not challenge the sufficiency of the
evidence for the human trafficking count, he asserts that the jury did not hear the
viable defense that Mary never definitively testified to prostituting because of
threats from Love, and thus the State did not prove the third element of the charge.
However, Love’s argument is a quibble over semantics in Mary’s word choice.
He does not grapple with the substance of Mary’s testimony that she felt
threatened by Love, that she was forced into these acts of prostitution by Love,
and that she complied with Love because she was afraid for her safety and well-
being. We conclude that Love has failed to show there is a reasonable probability
that the outcome of the trial would have been different if counsel had argued this
defense in light of the testimony Mary did give. Therefore, Love has failed to
make a showing of prejudice. See Strickland, 466 U.S. at 694.

¶48 Love further argues that trial counsel was ineffective for conceding
in his closing argument that Mary felt threatened. Our examination of the record
shows that trial counsel asked the jury to think critically about Mary’s claims—

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No. 2022AP1671-CR

that she felt threatened and could not leave. Counsel argued that Mary did not
want to be honest with the jury about the nature of her relationship with Love.
“[C]ounsel has wide latitude in closing arguments” to comment on the evidence,
witness motivation, and theories of defense. State v. Lenarchick, 74 Wis. 2d 425,
457, 247 N.W.2d 80 (1976). Trial counsel commented on the evidence elicited at
trial. Love has not shown deficiency in counsel’s closing argument. We conclude
that Love has failed to show both deficiency and prejudice for any part of this
claim and therefore, it fails.

¶49 Ultimately, each of Love’s ineffective assistance of counsel claims
fail. Therefore, Love was not entitled to an evidentiary hearing on his claims
because the record conclusively demonstrates that his claims of ineffective
assistance of counsel fail. Accordingly, the circuit court acted within its discretion
when it denied Love’s postconviction motion without a hearing. See Allen, 274
Wis. 2d 568, ¶9.

IV. Prosecutorial misconduct

¶50 Love argues that the prosecutor committed misconduct in three
ways.11 First, he asserts the prosecutor misinformed the circuit court about a prior
ruling of the trial court. Second, he argues that the prosecutor improperly

11
The State argues that Love has forfeited review of these issues because trial counsel
did not make contemporaneous objections of misconduct or move for a mistrial on that basis. It
asserts that Love should have brought the claims through ineffective assistance of counsel or
plain error. For the claim of misrepresenting the trial court’s ruling, counsel did not yet represent
Love when the court made the ruling at issue; therefore, it borders on absurd to ask that counsel
should have objected to the prosecutor’s representation of the ruling. We review the claim for
prosecutorial misconduct. For the claim of improper questioning of Detective Stott, Love alleged
ineffective assistance and erroneous discretion by the circuit court to admit parts of her testimony,
both claims that we have rejected above. For the jury instruction change, Love has alleged
ineffective assistance already, which we also rejected above.

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No. 2022AP1671-CR

questioned Detective Stott, eliciting opinion testimony about whether a crime had
been committed in this case. Third, he contends the prosecutor changed the
language in the jury instruction for the human trafficking count, which violated
WIS. STAT. § 971.29 because the change was prejudicial to his defense.

¶51 Prosecutorial misconduct “can rise to such a level that the defendant
is denied his or her due process right to a fair trial.” State v. Wolff, 171 Wis. 2d
161, 167, 491 N.W.2d 498 (Ct. App. 1992). “Whether a prosecutor engaged in
misconduct and, if so, it warrants a new trial,” is a question of law that we
independently review. State v. Jones, 2010 WI App 133, ¶27, 329 Wis. 2d 498,
791 N.W.2d 390. We consider the entire record to determine whether
prosecutorial misconduct prevented a fair trial from being conducted. See State v.
Bvocik, 2010 WI App 49, ¶13, 324 Wis. 2d 352, 781 N.W.2d 719.

A. Misrepresentation of the trial court’s ruling

¶52 Love argues that the prosecutor engaged in misconduct when he
failed to accurately inform the circuit court about the trial court’s pretrial ruling
regarding the admissibility of heroin paraphernalia found in Love’s vehicle. To
understand this issue, we recite from the record.

¶53 At the November 10, 2015 final pretrial hearing, the prosecutor
informed the trial court that police had lawfully searched Love’s vehicle after he
was arrested for kidnapping; police found heroin paraphernalia in the back. The
prosecutor argued the evidence also was relevant to the human trafficking count
and one of the possible jury instructions for the third element—“threatening to
control the victim’s access to addictive controlled substances.” The prosecutor
argued that the paraphernalia was circumstantial evidence that corroborated the
victim’s description. The trial court ruled that the evidence was potentially

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No. 2022AP1671-CR

relevant, but “if it is introduced, it has to be introduced from the standpoint of the
victim testifying about what occurred.”

¶54 When the case moved to the circuit court for the trial, the prosecutor
informed the court of the trial court’s rulings related to, among other things, the
heroin paraphernalia that had been found in Love’s vehicle. The prosecutor
argued it was relevant and the trial court had seemed to agree in a previous
hearing. The circuit court asked the defense and the following exchange occurred:

[TRIAL COUNSEL:] Well, I had understood that this was
a ruling that had already been made. If it’s still open for
argument then—

[THE STATE:] I just want to air it out. It was a ruling
that—

THE COURT: [The trial court] ruled—

[THE STATE:] Yes, sir.

THE COURT: —it was admissible?

[THE STATE:] He did.

THE COURT: Then I agree.

[THE STATE:] Okay.

THE COURT: I’m not going to change a ruling of [the trial
court].

¶55 At the trial, an MPD officer described being assigned the day after
the alleged kidnapping to surveil a room at the Suburban Motel, identify a specific
vehicle belonging to Love, and then stop the vehicle. In an inventory search of the
vehicle after Love was arrested, the officer found four cell phones and what he
recognized as heroin paraphernalia—33 syringes, 23 aluminum caps, and 5 rubber
bands.

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No. 2022AP1671-CR

¶56 In Love’s postconviction motion, he argued that the prosecutor
misrepresented the trial court’s ruling on the relevance and admissibility of the
paraphernalia in Love’s vehicle. As the record reflects, the prosecutor did not
reference the evidence being introduced “from the standpoint of the victim
testifying about what occurred.” The postconviction decision, adopting the State’s
response, concluded that the prosecutor’s statement was not inconsistent because
the evidence was admissible as long as the victim testified about the various ways
Love controlled or attempted to control her.

¶57 Love argues that the circuit court’s interpretation of the facts was
unreasonable, which resulted in denying him a fair trial. To consider this issue,
we examine the entire record. Mary testified that at the time of the trafficking, she
was “highly addicted to heroin and crack cocaine.” She mentioned that on
multiple occasions, Love had offered her samples of crack cocaine and heroin, but
she only accepted drugs from him once. She then testified to buying drugs from
other people without Love knowing. As discussed in Detective Stott’s testimony,
Mary received a text from Love’s phone number that instructed her not to
purchase or obtain drugs from other people. The MPD officer who testified to
finding the heroin paraphernalia in the search of Love’s vehicle was called as a
witness after Mary.

¶58 We conclude that while the prosecutor’s comments could have been
more forthcoming to the circuit court, the State only introduced the paraphernalia
evidence after Mary testified that she was controlled by Love. Her statements that
she purposefully did not obtain drugs from Love demonstrates that she felt a threat
over the control of her “access to addictive controlled substances.” Therefore, we
consider an error in the prosecutor’s description of the trial court’s ruling harmless
in light of its use of the evidence. We conclude that there is no evidence that the

25
No. 2022AP1671-CR

prosecutor’s use of the heroin paraphernalia evidence infected the trial with
unfairness or denied Love due process. See Wolff, 171 Wis. 2d at 167.

B. Improper questioning of Detective Stott

¶59 Love takes a third approach to arguing that Detective Stott’s
testimony was improper, this time based upon the questions the State asked. Trial
counsel objected to several of the questions the prosecutor asked, arguing that the
prosecutor was making conclusions of a legal nature and presenting argument to
the jury through the witness. In response, the circuit court required the prosecutor
to rephrase the questions. The detective’s testimony did not usurp the jury’s
function as the finder of fact and she did not offer legal conclusions. We conclude
that there is no evidence that the prosecutor’s line of questioning of Detective Stott
and the testimony those questions elicited infected the trial with unfairness or
denied Love due process. See Wolff, 171 Wis. 2d at 167.

C. Change to the jury instruction

¶60 Love argues that the prosecutor engaged in misconduct when he
filed and the circuit court utilized a jury instruction for human trafficking that
changed the charged conduct from “recruit” to “entice” without filing an amended
information, asking the court for permission to amend the charge, pursuant to WIS.
STAT. § 971.29(2), or notifying the court or trial counsel about the change.

¶61 As discussed above, the change in words in the instruction was not a
material change of the charged conduct. Trafficking in this statute includes
recruiting and enticing. WIS. STAT. § 940.302(1)(d). The terms are “conceptually
similar.” See Lomagro, 113 Wis. 2d at 593. Further, Love’s allegations that the
circuit court was unaware of the instruction the court gave is speculative and

26
No. 2022AP1671-CR

conclusory. Our examination of the record shows that the circuit court showed a
command of the instructions during the final jury instructions conference, and the
court identified an error in the instructions as filed. Love’s allegations that the
prosecutor slipped the changed jury instructions past the court lacks a basis in
material fact. We conclude that there is no evidence that this change to the jury
instruction denied Love due process. See Wolff, 171 Wis. 2d at 167.

¶62 Overall, we conclude that Love has not alleged sufficient material
facts to be entitled to an evidentiary hearing on any of his claims of prosecutorial
misconduct. His allegations were insufficient and conclusory. We conclude that
the circuit court acted within its discretion when it denied this claim without a
hearing. See Allen, 274 Wis. 2d 568, ¶9.

V. Denial of a new attorney before trial

¶63 Love argues that the circuit court erroneously exercised its discretion
when it denied trial counsel’s motion to withdraw and denied Love the opportunity
to have new counsel. The State argues that Love is raising a new claim for the
first time on appeal and we should decline to review it.

¶64 “As a general rule, issues not raised in the circuit court will not be
considered for the first time on appeal.” State v. Dowdy, 2012 WI 12, ¶5, 338
Wis. 2d 565, 808 N.W.2d 691. While a party does “not forfeit[] an argument on
appeal when it merely refines an argument that it made in the circuit court,” State
v. Johnson, 2025 WI App 20, ¶17, 415 Wis. 2d 682, 19 N.W.3d 645, we must
analyze “whether particular arguments have been preserved, not on whether
general issues were raised before the circuit court.” Townsend v. Massey, 2011
WI App 160, ¶25, 338 Wis. 2d 114, 808 N.W.2d 155. “Whether a claim is
forfeited or adequately preserved for appeal is a question of law that this court”

27
No. 2022AP1671-CR

independently reviews. State v. VanderGalien, 2024 WI App 4, ¶13, 410 Wis. 2d
517, 2 N.W.3d 774.

¶65 Love argues that he raised the issue to the circuit court and in his
postconviction motion. Our examination of the record shows that Love
communicated directly with the trial and circuit courts about his desire for new
counsel. In his postconviction motion, Love’s factual allegations referenced that
the trial court took no action on his request for new counsel and the circuit court
denied counsel’s motion to withdraw. However, Love did not develop an
independent claim with legal argument and authority to the circuit court. We
conclude that while Love may have preserved a general issue, he has not preserved
the legal argument. We therefore conclude this claim is forfeited.

VI. Interest of justice

¶66 Love argues that the real controversy has not been tried and we
should remand for a new trial in the interest of justice. This court may order a new
trial pursuant to WIS. STAT. § 752.35 when the real controversy has not been fully
tried or when it is probable that justice has miscarried. This court’s power of
discretionary reversal is limited to “exceptional cases.” State v. McKellips, 2016
WI 51, ¶52, 369 Wis. 2d 437, 881 N.W.2d 258. To consider whether a case is one
of the few requiring discretionary reversal, this court “must engage in ‘an analysis
setting forth the reasons’ that the case may be characterized as exceptional.” Id.
(citation omitted). We are unable to state that this case is exceptional and we
conclude that the controversy was fully tried.

28
No. 2022AP1671-CR

CONCLUSION

¶67 For the reasons stated above, we conclude that Love’s claims fail
and he was not entitled to an evidentiary hearing on any of his postconviction
claims. Therefore, the circuit court acted within its discretion when it denied his
motion without a hearing.

By the Court.—Judgment and order affirmed.

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

29