State v. Benjamin Alan Gunn

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 17, 2026
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. 2024AP1637-CR Cir. Ct. No. 2022CF805

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BENJAMIN ALAN GUNN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Brown County:
JEFFREY R. WISNICKY, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).

¶1 PER CURIAM. Benjamin Alan Gunn appeals from a judgment
convicting him, following a jury trial, of three counts related to threats he made
No. 2024AP1637-CR

against a prosecutor. On appeal, Gunn argues that the circuit court erroneously
exercised its discretion in two respects: granting a 43-day continuance beyond the
deadline set by his prompt disposition request under the Intrastate Detainer
Act (IDA), see WIS. STAT. § 971.11 (2023-24);1 and denying his motion for a
mistrial after a witness testified in violation of the court’s pretrial ruling. For the
following reasons, we affirm.

BACKGROUND

¶2 In 2017, the State charged Gunn, in a case separate from the one
underlying this appeal, with several counts based on allegations that he attacked
four individuals with a machete. A jury found Gunn guilty of second-degree
recklessly endangering safety, disorderly conduct (use of a dangerous weapon),
and criminal damage to property. The jury acquitted Gunn on three additional
counts of second-degree recklessly endangering safety.

¶3 In May 2022, the State charged Gunn in the present case with two
counts of making a threat to a prosecutor and one count of stalking, each count as
a repeater. The State alleged that Gunn sent two threatening letters to a Brown
County prosecutor, Sally,2 who prosecuted him in the 2017 case. Thereafter,
Gunn was revoked from extended supervision and incarcerated in July 2022.

¶4 Because the charges against Gunn involved a threat to a Brown
County prosecutor, the 2022 case was assigned to an out-of-county circuit court

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we use a pseudonym
instead of the victim’s name.

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No. 2024AP1637-CR

judge on July 6, 2022, and was prosecuted by an assistant attorney general from
the Wisconsin Department of Justice (DOJ). The State Public Defender’s
Office (SPD) appointed an attorney to represent Gunn in June 2022; however, that
attorney withdrew at Gunn’s request in August 2022 due to a “breakdown in
communications [and] the avoidance of conflict of interest.” A new attorney was
appointed to represent Gunn on October 19, 2022.

¶5 The circuit court held a preliminary hearing on November 18, 2022.
At the hearing, the parties initially scheduled a status conference for January 2023.
However, Gunn then informed the court that sometime in September 2022, he had
filed a request with Dodge Correctional Institution, where he was then
incarcerated, for “[p]rompt disposition” under the IDA. See WIS. STAT. § 971.11.
Gunn confirmed with the circuit court that he wanted a trial within 120 days of his
prompt disposition request. See § 971.11(2).

¶6 In response, the State commented, “I think we’d have to schedule
something a lot sooner than January at this point.… [W]e need a status in two
weeks to set a trial date as soon as possible.” Defense counsel explained that he
would “see what [he] can do about … meeting with [Gunn] and reviewing the
discovery before the holidays.” The circuit court stated that the parties would end
the hearing there and that the court’s judicial assistant would coordinate with the
Brown County Circuit Courts to determine space availability for the trial.

¶7 A status conference was held on December 2, 2022, and the circuit
court set a trial for February 21, 2023. Regarding the IDA issue, the State advised
the court that the Brown County District Attorney’s Office had no record of
Gunn’s prompt disposition request. However, Dodge Correctional Institution
informed the State that Gunn filed the prompt disposition request on September 6,

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No. 2024AP1637-CR

2022, and that the prison had forwarded the request to the Brown County District
Attorney’s Office. The prison provided a receipt showing that the prompt
disposition request was delivered to the Brown County District Attorney’s Office
by certified mail on September 9, 2022. Based on the date of the certified mail
receipt, the parties agreed that Gunn’s trial should take place on or before January
9, 2023.

¶8 The State argued, however, that it would be in the interest of justice
for the circuit court to grant a continuance beyond that deadline. In support, the
State, through the DOJ, noted that it had not received notice of Gunn’s prompt
disposition request until the November 18, 2022 preliminary hearing; Gunn’s
request was sent to the wrong party; the Brown County District Attorney’s Office
could not act on Gunn’s request because it was not prosecuting him; a delay was
caused when Gunn’s first defense counsel withdrew; and the February trial date
was “not too far past” the IDA-based trial deadline.

¶9 The circuit court found that it was in the interest of justice to extend
the trial deadline.3 In support of its decision to grant the continuance, the court
stated that it “tried mightily to find Mr. Gunn” an attorney but that it “took some
time.” Once an attorney was found, the trial date was “promptly” scheduled. In
addition, the court noted the unique circumstances of the case—namely, that the
presiding judge was from outside of Brown County, the DOJ was prosecuting the

3
The circuit court noted that it believed that the February 2023 trial date complied with
the IDA; however, it also made factual findings supporting its decision to grant a continuance and
extend the deadline. Defense counsel stated he believed that a February 21, 2023 trial date was
acceptable because, under the IDA, the 120-day deadline began to run on November 18, 2022.
On appeal, the State does not adopt the position that the February 21, 2023 trial was within 120
days of receipt of Gunn’s prompt disposition request.

4
No. 2024AP1637-CR

case, and defense counsel “lives out of the area as well.” The court explained that
it was “balancing all of these things to try and get this case heard.”

¶10 Prior to the jury trial, the State moved to admit evidence related to
the 2017 case. Specifically, the State sought to admit evidence that Sally
prosecuted Gunn in that case and that Gunn was convicted “of endangering the life
of another with a machete.” The State also sought to admit the trial dates and
when Gunn was sentenced and released from prison. Ultimately, the circuit court
ruled that the State could introduce, as panorama evidence, the date of the
prosecution and that Sally could testify as to “some baseline statement” along the
lines of, “I prosecuted [Gunn] for swinging a machete at another.” The court
prohibited the State from introducing the specific charges in the 2017 case, the
classifications of the charges, or that Gunn was convicted of any of the charges.
The court stated that the admissibility of the fact of Gunn’s conviction could be
revisited at trial if that evidence “becomes relevant in the context of which it
comes in.”

¶11 The trial commenced on February 21, 2023, as scheduled. Sally
testified that she filed criminal charges against Gunn in 2017 in her capacity as a
Brown County prosecutor. Sally then described the first threatening letter at issue,
explaining that, at the time, she believed Gunn could have sent the letter because
he “wasn’t happy with me.” The State asked Sally why she knew that Gunn was
not happy with her, to which Sally stated, “So that criminal complaint I talked
about, I filed charges on Mr. Gunn and had a jury trial with him. And he was
convicted and not happy about that.”

¶12 In addition, the State asked Sally how it made her feel once law
enforcement matched Gunn’s fingerprints with those on the letters. Sally

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No. 2024AP1637-CR

responded, “It made me concerned. The case that I had prosecuted him for he had
been involved in taking a machete to attempt to attack several individuals. And
when they jumped into a car[,] he was smashing the car with that machete, and
so—.” Defense counsel then interjected to request a sidebar, during which he
argued that Sally’s testimony had exceeded the scope of the circuit court’s pretrial
ruling regarding permissible evidence of the 2017 case. Defense counsel moved
for a mistrial on this basis.

¶13 The circuit court found that Sally’s testimony exceeded its pretrial
ruling but that any erroneously admitted evidence did not unfairly prejudice Gunn.
The court explained that it could “very well have let” the State introduce the fact
of Gunn’s conviction in the 2017 case and the facts underlying those charges but
that it had been “very restrained and, frankly, conservative” in its pretrial ruling.
Specifically, the court found that the fact of Gunn’s conviction in the 2017 case
was admissible as panorama evidence because it “told the entire story.”
Furthermore, the court found that evidence concerning the acts underlying Gunn’s
charges in the 2017 case was admissible other-acts evidence. In addition, the
court stated that it would provide a limiting instruction, and it admonished the
State, noting that it did not want the State to “reiterate this information.”
Consistent with its ruling denying Gunn’s motion for a mistrial, the court provided
the jury with the other-acts pattern jury instruction regarding the evidence that
Gunn “was prosecuted for waving, threatening another with a machete.” See WIS
JI—CRIMINAL 275.

¶14 The jury found Gunn guilty of all three counts. The circuit court
sentenced Gunn to a total of 13 years of initial confinement followed by 8 years of
extended supervision. Gunn now appeals.

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No. 2024AP1637-CR

DISCUSSION

I. 120-day trial deadline

¶15 The IDA “applies when a criminal case is brought against an inmate
of a state prison and directs the warden, at the inmate’s request, to send a written
request to the district attorney for prompt disposition of the case.” State v. Butler,
2014 WI App 4, ¶4, 352 Wis. 2d 484, 844 N.W.2d 392 (2013); WIS. STAT.
§ 971.11(1). “The district attorney shall bring the case on for trial within 120 days
after the receipt of the request subject to [WIS. STAT. §] 971.10.” Sec. 971.11(2).

¶16 The continuance provision of Wisconsin’s speedy trial statute, WIS.
STAT. § 971.10(3)(a), applies equally to the IDA. Butler, 352 Wis. 2d 484, ¶¶1, 7.
“A court may grant a continuance in a case, upon its own motion or the motion of
any party, if the ends of justice served by taking action outweigh the best interest
of the public and the defendant in a speedy trial.” Sec. 971.10(3)(a). The speedy
trial statute lists “[t]he factors, among others, which the court shall consider in
determining whether to grant a continuance.” Sec. 971.10(3)(b). These factors are
“[w]hether the failure to grant the continuance … would be likely to make a
continuation of the proceeding impossible or result in a miscarriage of justice”;
“[w]hether the case taken as a whole is so unusual and so complex, due to the
number of defendants or the nature of the prosecution or otherwise, that it is
unreasonable to expect adequate preparation within the periods of time established
by this section”; and “[t]he interests of the victim.” Id. “No continuance … may
be granted because of general congestion of the court’s calendar or the lack of
diligent preparation or the failure to obtain available witnesses on the part of the
state.” Sec. 971.10(3)(c).

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No. 2024AP1637-CR

¶17 Whether to grant a continuance is a decision that this court reviews
for an erroneous exercise of discretion. See State v. Davis, 2001 WI 136, ¶28, 248
Wis. 2d 986, 637 N.W.2d 62. An erroneous exercise of discretion results when
the circuit court’s decision is based on an error of law, does not consider the facts
of record under the relevant law, or does not reason its way to a rational
conclusion. Id. “[W]e may search the record to determine if it supports the
court’s discretionary decision.” Randall v. Randall, 2000 WI App 98, ¶7, 235
Wis. 2d 1, 612 N.W.2d 737.

¶18 Gunn contends that the circuit court erroneously exercised its
discretion by granting the State’s motion for a continuance without applying WIS.
STAT. § 971.10(3)(b) or the factors therein.4 We disagree.

¶19 Following the parties’ arguments with reference to the IDA, the
circuit court appropriately considered several relevant factors in granting the
State’s continuance request for good cause. While only one of the factors
considered by the court is expressly listed in WIS. STAT. § 971.10(3)(b), the statute
states that the listed factors are not exclusive. Therefore, even if the court failed to
expressly consider each of the three factors outlined by the statute, the factors the
court did consider support its exercise of discretion in granting the State’s
continuance request for good cause.

¶20 To begin, the circuit court noted that Gunn’s first defense counsel
withdrew and that it “took some time” to appoint a second attorney. In fact,
Gunn’s second defense counsel was not appointed until October 19, 2022, 40 days

4
We assume without deciding that Gunn did not waive or forfeit his IDA challenge, as
the State argues on appeal.

8
No. 2024AP1637-CR

after the Brown County District Attorney’s Office received Gunn’s prompt
disposition request and less than 90 days before the January 9, 2023 deadline. The
circuit court’s consideration in this respect logically fits under WIS. STAT.
§ 971.10(3)(b)1., as the continuance provided defense counsel the time necessary
to effectively represent Gunn at trial and, thus, avoid a miscarriage of justice.5

¶21 Gunn argues that there is no evidence in the record that his second
defense counsel required additional time—i.e., beyond the January 9, 2023
deadline—to prepare for trial because counsel never informed the circuit court of
this fact. Again, we disagree. At the November 18, 2022 preliminary hearing,
defense counsel stated that he wished to review discovery (which he had not yet
received), visit Gunn in person, and engage in preliminary negotiations with the
State prior to the court holding another pretrial status conference. Before
addressing Gunn’s prompt disposition request, defense counsel sought a status
conference for January 2023 in order to accomplish these tasks. At a December
21, 2022 status conference—19 days before the January 9, 2023 deadline—
defense counsel explained that there was “a large amount of material” in the
discovery received from the State and that he was “still working [his] way through
it.” Accordingly, the record demonstrates that Gunn’s second defense counsel
required time beyond the January 9, 2023 deadline to prepare for trial.

¶22 In addition, the circuit court considered the unique circumstances of
the case, including the fact that the presiding judge, prosecutor, and defense

5
Gunn argues that a miscarriage of justice “was only possible if the [circuit] court
exercised its discretion to dismiss [the case] with prejudice.” Gunn does not explain this position
with citation to relevant statutory or case law, and we will not consider his argument further.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating that we
need not consider arguments that are undeveloped or unsupported by citations to legal authority).

9
No. 2024AP1637-CR

counsel were traveling from outside of Brown County. The court further
acknowledged that the parties were required to coordinate with the Brown County
Circuit Courts to determine when a Brown County courtroom would be available
for trial.

¶23 Gunn asserts that the circuit court’s “scheduling” issue was not a
valid reason for granting the State’s request for a continuance and that there is no
evidence that the court attempted “to schedule a trial prior to” the January 9, 2023
deadline. We disagree with Gunn’s characterization of the court’s decision. The
court did not consider the “general congestion of the court’s calendar,” see WIS.
STAT. § 971.10(3)(c), but, rather, it considered the logistics of scheduling Gunn’s
case given the reality that the presiding judge, prosecutor, and defense counsel
were traveling from outside of the county and that they required preapproval from
the Brown County Circuit Courts to use a courtroom for trial.

¶24 The record supports a finding that the trial could not have reasonably
been scheduled before February 2023 given these constraints. Although the circuit
court referenced its own calendar when scheduling the trial, the court also
explained that its judicial assistant coordinated with the Brown County Circuit
Courts to determine courtroom availability for the trial. The court stated that its
judicial assistant “spoke with the Brown County officials” and that “we are
looking at” February 21, 2023, for a trial date.

¶25 It is further worth noting that the circuit court’s finding that the
parties “promptly” scheduled a jury trial once the IDA issue was presented to the
court is supported by the record. The parties moved their pretrial hearing dates,
defense counsel completed his pretrial duties earlier than the deadline he initially
requested, and the State obtained the presence of its witnesses at trial with fairly

10
No. 2024AP1637-CR

short notice. No additional continuances were granted, and the record does not
support a conclusion that the parties engaged in a “lack of diligent preparation.”
See WIS. STAT. § 971.10(3)(c).

¶26 Additionally, although not expressly considered by the circuit court,
the prejudice to Gunn as a result of the short continuance was, at most, minimal.
As the State contends, Gunn was serving his revocation sentence until
October 2023, and the short continuance did not result in additional time in pretrial
custody. See State v. Urdahl, 2005 WI App 191, ¶34, 286 Wis. 2d 476, 704
N.W.2d 324 (citing the prevention of oppressive pretrial incarceration as an
interest that the right to a speedy trial protects). Likewise, the continuance also
had no conceivable effect on the outcome of Gunn’s trial because there is no
suggestion that any witnesses became unavailable or that the delay impacted
witness testimony. See id. We further agree with the State that, given the court’s
ruling granting the continuance request—and the factors it relied on in reaching
that decision—the most likely “alternative to granting a very short continuance
would have been dismissal” without prejudice and the refiling “of charges, which
would have unnecessarily delayed proceedings further.”

¶27 While IDA requests can only be initiated by individuals who are
already incarcerated, Gunn cites no authority suggesting that prejudice to a
defendant from a continuance is not a proper consideration when contemplating
such a request. Indeed, when “exercising its discretion to dismiss a criminal case
with or without prejudice for the State’s failure to bring the case on for trial within
the time period set forth in WIS. STAT. § 971.11(7), a circuit court should consider

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No. 2024AP1637-CR

a number of factors, including, but not limited to,” “the harm to an accused
resulting from the delay.”6 Davis, 248 Wis. 2d 986, ¶29.

¶28 In short, the circuit court did not erroneously exercise its discretion
by granting the relatively short continuance of 43 days in this case. The record
reflects that the court considered proper factors in granting the State’s continuance
request to conclude that the ends of justice served by granting the continuance
outweighed Gunn’s interest in a prompt disposition under the IDA. See WIS.
STAT. § 971.10(3)(a).

II. Motion for mistrial

¶29 “When faced with a motion for mistrial, ‘the circuit court must
decide, in light of the entire facts and circumstances, whether … the claimed error
is sufficiently prejudicial to warrant a mistrial.’” State v. Debrow, 2023 WI 54,
¶15, 408 Wis. 2d 178, 992 N.W.2d 114 (citation omitted). “We review a circuit
court’s decision to grant or deny a motion for mistrial for an erroneous exercise of
discretion.” Id.

¶30 Gunn asserts that the circuit court erroneously exercised its
discretion by denying his motion for a mistrial because it “failed to address the

6
Gunn further asserts that the State’s reliance on prejudice to Gunn “ignores that having
open cases directly affects inmate classification” under WIS. ADMIN CODE DOC § 302.11(14)
(Nov. 2024). Be that as it may, this argument was not made before the circuit court, and we will
not blindside the court by considering this new argument with respect to the court’s discretionary
decision. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995).
Furthermore, the record is devoid of any evidence that Gunn’s inmate classification was
adversely affected by the continuance or that it led to “more restrictions” during his incarceration,
and his argument on this point is purely speculative. And, as we have already noted, the most
likely alternative to granting the continuance would have been dismissal and refiling of the
charges. Accordingly, Gunn would likely have been subject to criminal charges regardless of
whether or not the circuit court granted the continuance.

12
No. 2024AP1637-CR

falsity of [Sally’s] testimony in its decision.” Gunn contends that Sally’s
testimony “suggested Mr. Gunn engaged in behavior he was found not guilty of.”
Specifically, Gunn takes issue with Sally’s testimony that he attacked “several
individuals” because he was acquitted of three of the four counts of second-degree
recklessly endangering safety. According to Gunn, Sally’s testimony put defense
counsel “in an impossible position”: ignore the blatantly false statement regarding
the number of individuals actually attacked or relitigate the 2017 case on cross-
examination. Gunn also argues that Sally’s testimony that Gunn smashed a car
window with a machete “is an issue” because “it increase[d] the chance of the jury
relying on an improper view of Mr. Gunn.”

¶31 The State, for its part, contends that Sally’s testimony was
admissible, and it appears to suggest that her testimony did not violate the circuit
court’s pretrial ruling. The State also argues that the court properly concluded that
any error in admitting Sally’s testimony was not so prejudicial as to warrant a
mistrial.

¶32 We conclude that regardless of whether Sally’s testimony regarding
the 2017 case exceeded the circuit court’s pretrial ruling and whether the evidence
was admitted in error, Gunn has failed to demonstrate that the court erroneously
exercised its discretion by concluding that the testimony was insufficiently
prejudicial to warrant a mistrial.

¶33 The circuit court’s decision to deny Gunn’s motion for a mistrial
must be considered in the context of the principle that “not all errors warrant a
mistrial and ‘the law prefers less drastic alternatives, if available and practical.’”
See State v. Givens, 217 Wis. 2d 180, 191, 580 N.W.2d 340 (Ct. App. 1998)

13
No. 2024AP1637-CR

(citation omitted). Consistent with this principle, the circuit court took two
reasonable steps to limit the prejudicial effect of Sally’s challenged testimony.

¶34 First, the circuit court admonished the State and noted that it did not
want the State to “reiterate this information.” The State complied with the court’s
directive. Accordingly, the arguably inadmissible evidence was, as the State
contends, isolated. See State v. DeLain, 2004 WI App 79, ¶¶25-26, 272 Wis. 2d
356, 679 N.W.2d 562 (concluding that circuit court did not erroneously exercise
its discretion by denying a motion for mistrial based, in part, on the “isolated
nature” of the State’s golden rule argument).7

¶35 Second, the circuit court provided a limiting instruction to the jury
that prohibited it from considering evidence that Gunn “was prosecuted for
waving, threatening another with a machete” to conclude that Gunn “has a certain
character or a certain character trait and that [he] acted in conformity with that trait
or character with respect to the offense charged in this case.” The instruction
further prohibited the jury from considering this evidence to conclude that Gunn
“is a bad person and for that reason is guilty of the offense charged.”

¶36 “We presume that juries comply with properly given limiting and
cautionary instructions, and thus consider this an effective means to reduce the
risk of unfair prejudice to the party opposing admission of other acts evidence.”
State v. Marinez, 2011 WI 12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399; see also

7
We disagree with Gunn’s assertion that defense counsel “had no way to know he would
need to rebut” Sally’s testimony. In ruling on the admissibility of the fact of Gunn’s conviction,
the circuit court stated that the scope of Sally’s testimony could be revisited at trial if that
evidence “becomes relevant in the context of which it comes in.” Even so, the court minimized
the prejudicial effect of Sally’s challenged testimony by preventing the evidence of Gunn’s
conviction from being expounded on or addressed a second time.

14
No. 2024AP1637-CR

Genova v. State, 91 Wis. 2d 595, 622, 283 N.W.2d 483 (Ct. App. 1979) (“Where
the trial court gives the jury a curative instruction, … the appellate court may
conclude that such instruction erased any possible prejudice, unless the record
supports the conclusion that the jury disregarded the trial court’s admonition.”).

¶37 Gunn does not argue that the record supports a conclusion that the
jury disregarded the circuit court’s limiting instruction.8 Instead, he asserts that
the limiting instruction was insufficient because it “did not inform the jury that
[Sally’s] testimony was not accurate” and was misleading.

¶38 We disagree that Sally’s challenged testimony was inaccurate simply
because Gunn was acquitted of three of the four counts of second-degree
recklessly endangering safety. Sally accurately testified that she filed charges
against Gunn and that he was subsequently convicted. After several questions and
answers on direct examination, Sally then stated that the charges in that case
involved “taking a machete to attempt to attack several individuals. And when
they jumped into a car[,] he was smashing the car with that machete.” Sally did
not testify that Gunn was convicted for each offense with which he was charged or
what the charges in the 2017 case included.

¶39 To the extent Gunn argues that the circuit court should have
instructed the jury that the machete attacks for which Gunn was acquitted did not
occur, we again disagree. “[A]n acquittal only establishes that there was a

8
We question the State’s assertion that the circuit court provided a “curative instruction”
to the jury regarding the arguably inadmissible evidence. The court did not inform the jury that it
should disregard Sally’s challenged testimony altogether. Instead, the court permitted the jury to
consider this evidence as other-acts evidence. However, Gunn does not argue that Sally’s
challenged testimony was inadmissible as other-acts evidence, and he does not contend that the
court should have provided a curative instruction, rather than a limiting instruction.

15
No. 2024AP1637-CR

reasonable doubt in the jury’s mind as to whether the defendant committed the
prior crime, not that the defendant is innocent.” See State v. Landrum, 191
Wis. 2d 107, 118, 528 N.W.2d 36 (Ct. App. 1995). “[A]n acquittal in a criminal
case does not preclude the Government from relitigating an issue when it is
presented in a subsequent action governed by a lower standard of proof.” Dowling
v. United States, 493 U.S. 342, 349 (1990).9 As the State argues, “the acquittals
do not even establish that the jury had a reasonable doubt as to whether Gunn
attacked multiple people with a machete.” “Instead, it seems just as likely that the
jury simply was not certain Gunn’s attack ended up creating a substantial risk of
death or great bodily harm to these individuals.”

¶40 Furthermore, Gunn does not respond to the State’s argument that
Sally’s challenged testimony was insignificant when compared to the
overwhelming evidence of Gunn’s guilt on all three counts. See State v. Sigarroa,
2004 WI App 16, ¶27, 269 Wis. 2d 234, 674 N.W.2d 894 (2003) (citing the
“overwhelming evidence against” the defendant as grounds for supporting the
circuit court’s decision to deny a motion for mistrial). The State posits that “[a]ny
possible prejudice resulting from the other-acts evidence came from the
(admissible) fact that Gunn swung a machete at someone. The fact that there may
have been more than one victim would not have moved the needle, especially
given the overwhelming evidence of Gunn’s guilt ….” Because Gunn does not
respond to the State’s argument, we deem it conceded. See Charolais Breeding

9
Gunn argues that State v. Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995),
and Dowling v. United States, 493 U.S. 342 (1990), were “wrongly decided.” We are not
permitted to disregard that binding authority. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
N.W.2d 246 (1997).

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No. 2024AP1637-CR

Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App.
1979).

¶41 Lastly, Gunn urges this court to adopt a rule that mistrial motions
must “be granted when parties violate pretrial orders in an egregious manner.”
Even if we were to adopt such a rule, the circuit court never found that Sally or the
State acted in an “egregious manner.” Accordingly, there is no need to, as Gunn
suggests, “send[] a message to litigants that pretrial orders are to be abided by and
will be meaningfully enforced.” Moreover, there is no need to “send[] a message”
in this case because the circuit court determined that Sally’s challenged testimony
was, in fact, admissible, and that any error in admitting the evidence was not
sufficiently prejudicial to warrant a mistrial. As explained, the court’s
discretionary decision to deny Gunn’s motion for a mistrial is supported by the
record, given the isolated nature of Sally’s challenged testimony and the limiting
instruction provided.

By the Court.—Judgment affirmed.

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

17