State v. Jason H. LaVigne

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.
September 7, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP224-CR Cir. Ct. No. 2018CF501

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON H. LAVIGNE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Outagamie County: VINCENT R. BISKUPIC, 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. Jason LaVigne appeals a judgment convicting him
of one count of repeated sexual assault of the same child and an order denying his
No. 2021AP224-CR

motion for postconviction relief. LaVigne argues that he should be granted a new
trial because he received ineffective assistance of trial counsel; because a witness
changed her testimony after trial; because he discovered new evidence after trial;
and because the circuit court erroneously exercised its discretion by not dismissing
a juror for bias, by allowing the State to amend the Information at trial, by not
striking a witness’s testimony, and by admitting other-acts evidence. We reject
LaVigne’s arguments and affirm.

BACKGROUND

¶2 LaVigne was a teacher at Little Chute High School for twenty years,
starting in the 1990s and continuing until the summer of 2018 when he resigned.
In 2009, Lyla1 reported to a school official that she had a keyboarding class with
LaVigne her “freshman year from late January to late March of 1999” and that
LaVigne used to “rub his erect penis on [her] back” while she was typing on her
computer in the back row of the classroom. Lyla recalled “seeing a distinct bump
in his pants” and said “[i]t was quite noticeable that he was erect.” Lyla felt
compelled to report the incident after ten years, in part, because her younger sister
was attending Little Chute High School at the time. The report was later closed
“without any substantial findings” and placed in LaVigne’s personnel file. Law
enforcement was never notified.

¶3 In June of 2018, LaVigne was accused of sexually assaulting Zoey,
his daughter’s sixteen-year-old friend, on LaVigne’s pontoon boat in Marinette

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2019-20), we use
pseudonyms instead of the victims’ names. All references to the Wisconsin Statutes are to the
2019-20 version unless otherwise noted.

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County. While investigating Zoey’s allegations, law enforcement discovered
Lyla’s 2009 report in LaVigne’s personnel file. Based on Lyla’s report, the State
subsequently charged LaVigne in this case with one count of repeated sexual
assault of a child. LaVigne was also charged in Marinette County with one count
of third-degree sexual assault based on Zoey’s allegations.

¶4 Prior to trial in this case, the circuit court granted the State’s motion
to admit other-acts evidence involving Zoey’s allegations from Marinette County
and allegations by Natasha, another friend of LaVigne’s daughter. Natasha had
reported that LaVigne rubbed her shoulder while giving her a ride home late at
night in August 2017 and then, upon arriving at her home, put his arms around her
and attempted to kiss her. The court permitted the State to present the other-acts
evidence for purposes of demonstrating LaVigne’s motive, method of operation,
absence of mistake, and the context of the case. The State, however, was not
permitted to present evidence of Zoey’s allegations of sexual intercourse; it could
only present evidence that LaVigne had touched Zoey’s breasts and vagina and
that his DNA was found on Zoey’s left breast.

¶5 At trial, several witnesses testified in support of the State’s case,
including Lyla, Bryan Collar (a friend and classmate of Lyla), Officer Brandon
Stahmann (the investigating officer), Natasha and Zoey. Lyla described how
LaVigne would sometimes stop behind her in class, rub her neck and her side with
his hands, and rub his erect penis on her back. Lyla also recounted how LaVigne
once asked her to come to his classroom during the lunch hour. Lyla was afraid to
go alone, so she asked Collar to go with her. LaVigne asked Collar to wait in the
hallway and then asked Lyla to read a note on a computer screen, which said, “I’m
sorry. Don’t tell anyone about this. It won’t happen again.” Collar testified that
he recalled going to LaVigne’s classroom with Lyla, who seemed nervous at the

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time, and that Lyla told him about “a note or a computer or something” upon
exiting the room, but he could not remember what it said.

¶6 During Lyla’s cross-examination, LaVigne’s trial counsel
established that Lyla would have been in eighth grade at the beginning of 1999—
the time period charged in the Information—and that Lyla did not have LaVigne’s
keyboarding class until the first three months of 2000, which was Lyla’s freshman
year of high school. Over LaVigne’s objection, the circuit court allowed the State
to amend the Information to reflect that the offense occurred at the beginning of
2000, not 1999.

¶7 LaVigne adjusted his defense to the amended Information
accordingly, and he presented evidence that he took paternity leave “[f]or a large
chunk” of the time when Lyla was a student in his keyboarding class. LaVigne
also attempted to show, using a chair similar to that in which Lyla might have sat
as demonstrative evidence, that it would have been impossible for him to rub his
penis on Lyla’s back because the chairs in his keyboarding class were too tall.
Testifying in his own defense, LaVigne denied touching Lyla with his penis or
walking around the classroom with an erection.

¶8 In addition, LaVigne testified to his version of events regarding the
other-acts evidence involving Natasha and Zoey. According to LaVigne, he did
not rub Natasha’s shoulder or put his arms around her, but he did make a joke
about kissing her that “went over her head” and that she “misunderstood.”
LaVigne also described how Zoey was the initial aggressor on his pontoon boat
and that he fell asleep on the boat and woke up to Zoey on his lap, kissing him,
and “trying to get [him] to do things with her that were inappropriate.” LaVigne
testified that he pushed Zoey away and yelled at her to stop.

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¶9 The jury found LaVigne guilty. Thereafter, the circuit court
sentenced LaVigne to five years’ initial confinement followed by eleven years’
extended supervision. LaVigne was also later convicted in Marinette County for
his sexual assault of Zoey.

¶10 LaVigne subsequently filed a postconviction motion seeking a new
trial in this case. In support, he argued that his trial counsel was ineffective, that
Natasha had changed her testimony in the later-tried Marinette County case, that
he had discovered new evidence regarding the height of the chairs in his
keyboarding classroom, and that the circuit court erroneously exercised its
discretion several times throughout this case. In a written decision, the court
concluded that LaVigne was entitled to a Machner2 hearing on his ineffective
assistance of counsel claims, but the court denied relief on the remainder of the
claims without a hearing. Following the Machner hearing—at which LaVigne,
his trial counsel, and his wife and daughter all testified—the court issued a written
decision denying LaVigne’s ineffective assistance of counsel claims.

¶11 LaVigne now appeals, renewing each of the claims in his
postconviction motion. Additional facts will be provided as necessary below.

DISCUSSION

I. Ineffective assistance of counsel

¶12 A criminal defendant has the constitutional right to effective
assistance of counsel. State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP224-CR

N.W.2d 89. To prevail on an ineffective assistance of counsel claim, the
defendant bears the burden of proving: (1) that counsel’s performance was
deficient; and (2) that the deficient performance prejudiced the defense. Id. A
court need not address both components of this inquiry if the defendant does not
make a sufficient showing on one. State v. Smith, 2003 WI App 234, ¶15, 268
Wis. 2d 138, 671 N.W.2d 854.

¶13 To establish deficient performance, a defendant must demonstrate
that his or her trial counsel’s performance fell below “an objective standard of
reasonableness.” State v. Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1, 951 N.W.2d
838 (citation omitted). “Courts afford great deference to trial counsel’s conduct,
presuming that it ‘falls within the wide range of reasonable professional
assistance.’” Id. (citation omitted). “Counsel need not be perfect, indeed not even
very good, to be constitutionally adequate.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305.

¶14 To establish prejudice, “a defendant must show that there is a
reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Savage, 395 Wis. 2d 1, ¶32 (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). A reasonable probability is
a probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694. However, “a defendant need not prove the outcome would ‘more
likely than not’ be different in order to establish prejudice in ineffective assistance
cases.” Sholar, 381 Wis. 2d 560, ¶44 (citing Strickland, 466 U.S. at 693).

¶15 Whether a defendant has been denied the effective assistance of
counsel is a mixed question of law and fact. Savage, 395 Wis. 2d 1, ¶25. We will
not overturn a circuit court’s findings of fact, including findings regarding the

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factual circumstances of the case and trial counsel’s conduct and strategy, unless
those findings are clearly erroneous. Id. We review de novo whether counsel
performed deficiently and, if so, whether counsel’s deficient performance was
prejudicial to the defense. Id.

A. Counsel’s decision not to provide LaVigne with a recorded jail phone call
involving other-acts evidence

¶16 At trial, LaVigne testified about his recollection of the other-acts
incident involving Zoey. LaVigne explained how his daughter was sleeping on
the boat but apparently woke up during the incident. The State questioned
LaVigne regarding a telephone conversation between him and his daughter while
LaVigne was in jail. Specifically, the State asked whether LaVigne recalled his
daughter asking him about what she should tell police about the incident involving
Zoey and whether he recalled “instructing and directing [her] on the story that she
is to tell police.” LaVigne responded multiple times that he did not communicate
with his daughter about the incident between his arrest and her speaking to police
about the incident. Upon further questioning, LaVigne confidently stated: “I did
not speak to my daughter before she was interviewed. Prove that please.”

¶17 Subsequently, over LaVigne’s objection, the State presented a
recorded jail phone conversation between LaVigne and his daughter that occurred
prior to LaVigne’s daughter speaking to police. Upon being confronted with the
recording, LaVigne clarified that he had spoken to his daughter in that time frame
but did not instruct her what to tell police. According to LaVigne, he had simply
told his daughter to tell the same story she had previously told him.

¶18 LaVigne argues that his counsel performed deficiently because
counsel did not review or provide him with the recording of the phone call

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between him and his daughter. He concedes that “[t]he jail call did involve a
collateral issue,” but he contends that his credibility was the “central issue” in the
trial and that his credibility was severely undercut by counsel failing to give him
the recording.

¶19 The circuit court concluded, and we agree, that counsel’s failure to
provide LaVigne with the recording of his phone call did not fall below an
objective standard of reasonableness. At the Machner hearing, counsel testified
that, before trial, he had heard the recording of the phone call and reviewed the
transcript of the recording. Counsel also testified, however, that he did not prepare
LaVigne for cross-examination on the recording because the recording was about
the Marinette County case and because he did not anticipate that it would be
admitted into evidence. Indeed, the court recognized in its decision on LaVigne’s
postconviction motion that “[b]ased on the scope of pretrial hearings and rulings,
the jail call was not likely to be relevant in the Outagamie County case unless
someone unexpectedly opened the door.” Counsel could therefore reasonably
conclude that LaVigne did not need to be prepared for cross-examination on the
recorded jail phone call.

¶20 LaVigne disagrees with the circuit court’s suggestion that he had
opened the door to the introduction of the recording, arguing that “[t]he State
opened the door by asking the question.” LaVigne fails to recognize, however,
that had he admitted speaking to his daughter on the phone before she spoke to
police and had he not challenged the prosecutor to “[p]rove that” he had spoken to
his daughter, the recording likely would not have been admitted into evidence.
We surmise this likelihood based on the court’s assessment of the pretrial rulings,
which LaVigne does not question. Although LaVigne emphasizes his later
testimony that he had made many phone calls to his family while in jail and that he

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did not recall speaking to his daughter at the particular time in question, the court
never credited his testimony. Indeed, LaVigne’s claimed uncertainty could be
viewed as incredible because he never expressed such uncertainty in his trial
testimony. Furthermore, the court observed that LaVigne “was a party to the jail
call and should have been fully aware of what he said to his daughter.” LaVigne
does not contend that such a finding of fact is clearly erroneous, nor do we think it
is under the circumstances.

¶21 In addition, LaVigne’s personal knowledge of the phone call
buttresses the conclusion that his trial counsel’s performance did not fall below an
objective standard of reasonableness. Trial counsel could reasonably prioritize
other, more important matters before reminding LaVigne about facts concerning
other-acts evidence that LaVigne would or should likely know already. In
retrospect, counsel might have advised LaVigne about the State’s possession of
the recorded phone call and to not challenge the State to prove certain facts, but
we do not rely on hindsight when determining whether counsel’s performance was
objectively reasonable. See State v. Pico, 2018 WI 66, ¶22, 382 Wis. 2d 273, 914
N.W.2d 95. Under the relevant circumstances, counsel did not perform deficiently
by deciding not to provide the recording or transcript of the jail phone call to
LaVigne.

B. Counsel’s decision not to prepare or call LaVigne’s daughter as a witness

¶22 LaVigne argues that his trial counsel was also deficient for not
preparing or calling LaVigne’s daughter as a witness. He contends that his
daughter’s testimony would have refuted the State’s argument that he had
instructed her about what to tell police. He also asserts that his daughter could

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No. 2021AP224-CR

have produced text messages that she had sent to Zoey before the recorded jail
call, in which she confronted Zoey about “going after” her dad.

¶23 “[A] lawyer’s decision to call or not to call a witness is a strategic
decision generally not subject to review. The Constitution does not oblige counsel
to present each and every witness that is suggested to him [or her].” United States
v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (citation omitted). Moreover, “[a]s a
matter of trial strategy, counsel could well decide not to call family members as
witnesses because family members can be easily impeached for bias.” Bergmann
v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995).

¶24 Counsel made a reasonable, strategic decision not to call LaVigne’s
daughter as a witness. Counsel testified at the Machner hearing that LaVigne’s
daughter “wasn’t very strong” as a witness and “was emotional.” Counsel also
perceived LaVigne’s daughter to be asking counsel “what do you want me to
testify to? And it didn’t seem like she had a lot of facts that she was aware of at
that time that would be helpful.”

¶25 LaVigne’s daughter might have been able to testify about text
messages between her and LaVigne on the night of the incident involving Zoey,
but those messages would have shown LaVigne telling his daughter his version of
the facts: “[Zoey] was drunk and acting crazy and I kept trying to push her away.”
Although LaVigne’s daughter responded, “I know,” suggesting she might have
knowledge of the facts, she later asked “what happened[?]” LaVigne then
responded, “I would rather just talk to you about it instead of text.” Thus, the texts
largely corroborated trial counsel’s testimony that LaVigne’s daughter did not
know much of the underlying facts and that her testimony would likely have been
informed by LaVigne’s version of events. Under the circumstances, counsel could

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reasonably determine that LaVigne’s daughter would not have been a persuasive
or an effective witness because of her emotions, her relationship to LaVigne, and
her lack of personal knowledge about the incident.

¶26 In addition, LaVigne’s counsel testified that he was concerned that
having LaVigne’s daughter testify in the Outagamie County case “was going to
compromise what [LaVigne] had to deal with in Marinette [County].” Such a
concern was reasonable because his daughter’s testimony could have adversely
affected LaVigne’s defense to the then-unresolved charges in Marinette County.
For example, LaVigne’s daughter could have revealed inculpatory statements by
LaVigne, or she might have made statements that could be used to impeach her
later testimony in the Marinette County case. Ultimately, as the circuit court
found, LaVigne himself agreed that his daughter should not be called as a witness,
which further supports the reasonableness of counsel’s decision not to call her as a
witness.

¶27 Counsel’s decision not to spend more time preparing LaVigne’s
daughter was also objectively reasonable under the circumstances. Counsel
testified that he

saw the whole Marinette matter as collateral. I kn[e]w it
would have an impact. But I thought the strength of the
Outagamie case was strong enough to be decided on its
own merits. And that was not our focus as to what
occurred in Marinette County. Our focus was on what was
being claimed in Outagamie County.

Indeed, although refuting the other-acts evidence related to Zoey was an important
part of LaVigne’s defense, counsel could reasonably focus his attention on the
underlying allegations in the present case.

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¶28 Moreover, it is undisputed that counsel met with LaVigne’s daughter
at least once to discuss her potential testimony. The circuit court also found that
“counsel was aware of what the daughter had said in her police interview.” While
LaVigne suggests that his daughter would have been less emotional if counsel had
spent more time preparing her, he fails to identify any evidence in the record to
support that assertion. To the contrary, LaVigne’s daughter testified at the
Machner hearing—over a year after the trial—that she was still “pretty upset
about the whole situation[.]”

C. Counsel’s decision not to recall a witness to testify about LaVigne’s
statement

¶29 LaVigne testified at trial that he would stand behind the students in
his keyboarding class to ensure they “were typing properly.” When asked twice
on cross-examination whether LaVigne told Officer Stahmann that LaVigne
would not stand behind students, LaVigne responded, “No.” Prior to this line of
questioning, the jury had viewed portions of the recorded interview between
Stahmann and LaVigne.

¶30 LaVigne argues his trial counsel performed deficiently by not
recalling Officer Stahmann as a witness to testify that LaVigne had not denied
standing behind his students. He asserts that the prosecutor’s questioning implied
that he had lied to Stahmann, which reflected poorly on LaVigne’s credibility. He
further argues that Stahmann’s rebuttal testimony would not have been cumulative
because it would have corroborated his testimony.

¶31 We reject LaVigne’s arguments. LaVigne established, through his
own testimony, that he regularly stood behind the students and that he never
previously denied doing so. Although the prosecutor’s questioning might have

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implied that LaVigne had previously lied to Officer Stahmann about where
LaVigne stood in the classroom, the State did not introduce any evidence to that
effect or attempt to impeach LaVigne’s statements. The jury therefore had no
basis to find that LaVigne had previously lied to Stahmann. Moreover, the jury
viewed portions of LaVigne’s recorded interview with Stahmann, and it would
have known that LaVigne’s statements to Stahmann were consistent with his
testimony at trial. It would have been reasonable for LaVigne’s trial counsel to
conclude—based on the evidence presented at trial—that recalling Stahmann was
unnecessary and largely cumulative of evidence already presented and that
Stahmann’s potential testimony could have only minimal, if any, value in
bolstering LaVigne’s credibility.

D. Counsel’s lack of knowledge regarding a magazine article used to impeach
LaVigne’s expert witness

¶32 In support of LaVigne’s defense at trial, forensic psychologist
Hollida Wakefield testified as an expert witness about delayed reporting. During
the State’s cross-examination, she acknowledged that a “pro-pedophilia magazine”
in Europe had interviewed her and her late husband around the early 1990s. When
asked whether the magazine had represented that Wakefield believed “pedophilia
is an acceptable expression of God’s will,” Wakefield responded: “I did not say
that.” Wakefield then explained that her late husband, who was a Lutheran
minister, made a poorly phrased comment about “free will” that was taken out of
context. Wakefield further testified that “nowhere in our writings will you find
that we approve of adult/child contact” and that she has “never been in favor of
adult/child sexual contact and neither was [her] late husband.”

¶33 LaVigne argues on appeal that his trial counsel performed
deficiently by failing to investigate the magazine article used to impeach

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Wakefield. He also asserts that, due to counsel’s lack of investigation, counsel
failed to rehabilitate Wakefield on redirect examination.

¶34 LaVigne’s arguments are undeveloped. “[A] defendant who alleges
a failure to investigate on the part of his or her counsel must allege with specificity
what the investigation would have revealed and how it would have altered the
outcome of the case.” State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709,
616 N.W.2d 126. LaVigne does not explain what counsel’s investigation into
Wakefield’s history would have revealed, nor does he explain how further
investigation would have altered the outcome of this case. Although LaVigne
suggests that counsel failed to rehabilitate Wakefield on redirect due to an
insufficient investigation, counsel testified that he did not ask about the article on
redirect because he thought Wakefield had provided “an adequate explanation” to
the State’s questioning by not accepting or affirming the views expressed in the
article. He also testified, “I thought she was good on what I wanted her to testify
to. And that’s all I thought we needed.” Indeed, the transcript establishes that
Wakefield explained her disagreements with the article and that she rejected any
suggestion that she approved of pedophilia or sexual contact between adults and
children. Therefore, counsel could reasonably determine that Wakefield did not
need to be rehabilitated on redirect examination.

E. Counsel’s decision not to object during the State’s closing argument

¶35 The State began its closing argument by stating: “Throughout this
trial, we heard about Jason LaVigne’s dark side. His pattern of attraction towards
young, underage girls. His disgusting desire to be sexually gratified by these
young, underage girls in a public setting.” LaVigne’s trial counsel later stated at

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the Machner hearing that he considered objecting to the State’s closing argument
but did not do so because he “concluded it was argument.”

¶36 LaVigne argues his trial counsel performed deficiently by failing to
object to the State’s closing argument. He contends that the State’s argument
“was an attack on [his] character” and “vilif[ied him] … as one who seeks young
girls for sexual satisfaction.”

¶37 Contrary to LaVigne’s arguments, the prosecutor’s comments—that
LaVigne had a “dark side” and a “pattern of attraction towards young, underage
girls”—were not impermissible. Attorneys are given “considerable latitude in
closing arguments.” State v. Hurley, 2015 WI 35, ¶95, 361 Wis. 2d 529, 861
N.W.2d 174 (citation omitted). Considered in the context of the State’s case and
the prosecutor’s closing argument, it would have been reasonable for trial counsel
to conclude that the prosecutor was emphasizing LaVigne’s “pattern of attraction”
for the permissible purposes of showing LaVigne’s motive, intent, and lack of
mistake or accident in rubbing his penis on Lyla’s back. See WIS. STAT.
§ 904.04(2)(a). Indeed, other acts that demonstrate a “pattern” can be highly
probative of facts at issue in a case. See, e.g., State v. Opalewski, 2002 WI App
145, ¶¶17-18, 256 Wis. 2d 110, 647 N.W.2d 331 (recognizing that the pattern of
other acts showed how the acts were similar to each other and that the other-acts
evidence was relevant to proving intent, motive, and absence of mistake); see also
State v. Midell, 39 Wis. 2d 733, 737, 159 N.W.2d 614 (1968) (upholding a
decision to admit other-acts evidence that “show[ed] a pattern and a state of mind
of the defendant”).

¶38 Even if the State’s closing argument did suggest that LaVigne had a
character and a propensity to commit sexual assault, it would have been

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reasonable for trial counsel to determine, under the circumstances, that the State’s
closing argument was permissible and that LaVigne would not benefit from his
trial counsel objecting and calling attention to the State’s argument. Accordingly,
trial counsel did not perform deficiently by choosing not to object to the State’s
closing argument.

F. Counsel’s decision to advance two consistent defense theories

¶39 LaVigne’s trial counsel asserted in closing arguments that there were
multiple reasonable doubts as to whether LaVigne committed the offense of
repeated sexual assault of a child. Counsel argued that LaVigne could not have
committed the offense during the first three months of 2000, which was the
relevant period of time alleged in the amended Information, because LaVigne was
on paternity leave during those months. Counsel also argued, however, that it
would be impossible for LaVigne to have committed the offense because the back
of the chair that Lyla would have sat in was too high for LaVigne to press his
penis on her back. As counsel described it, LaVigne “would have to be some sort
of a contortionist to put his penis up near her shoulder as she sat in the chair.”

¶40 LaVigne contends his trial counsel performed deficiently because he
argued “competing” defense theories, which “confuse[] the jury as to what the
defense really is.” He argues that such a strategy undermines the outcome of the
trial.

¶41 LaVigne’s argument is a nonstarter. LaVigne’s trial counsel
explained at the Machner hearing that his strategy going into trial was to show
that LaVigne could not have physically committed the offense based on the height
of the classroom chairs. When the State amended the Information to reflect a
charging period between January 1, 2000, and March 31, 2000, counsel also

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attempted to show that LaVigne was on paternity leave during that time. Counsel
recognized, however, that the paternity-leave argument was not a complete
defense because LaVigne and his wife “were uncertain as to the length of
[LaVigne’s] time … away from school,” so “the door was open for him to be there
at least part time at different days.” Indeed, LaVigne testified at trial that he was
on paternity leave “[f]or a large chunk” of the time when the offenses allegedly
occurred. Nonetheless, counsel believed that “either way … it created a
reasonable doubt.”

¶42 As the circuit court correctly observed, “[t]hese two theories are
concurrent to each other, not competing. There was little risk that the jury would
be confused about [LaVigne’s] position.” Trial counsel’s argument was
abundantly clear that LaVigne was on paternity leave for a majority of the relevant
time period, which reduced LaVigne’s opportunity to commit the offense, and that
LaVigne could not physically commit the offense—even when he was in class—
due to the height of the chairs in the classroom. Counsel could reasonably believe
that if a jury accepted one or both of these arguments, a jury might find that the
State failed to prove the offense beyond a reasonable doubt. Trial counsel did not
perform deficiently by arguing two compatible defenses.

G. Counsel’s decision not to present videos prepared by LaVigne

¶43 In preparation for trial, LaVigne created a few short video files,
which he thought would be relevant to his defense, from larger video clips that
contained police interviews of Lyla and Collar. LaVigne believed that one part of
Lyla’s interview was particularly important because “she said the word neck and
pointed to her neck when she described the touching.” LaVigne also believed that
part of Collar’s interview was important because “[s]everal times he said that he

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had very poor memory of anything that happened.” LaVigne’s trial counsel did
not present either of these two videos at trial.

¶44 LaVigne argues his trial counsel performed deficiently by not
playing the videos at trial. He contends that the video of Lyla describing the
touching near her neck area would have impeached her trial testimony that
LaVigne pressed his penis on a lower part of her back. He also asserts that trial
counsel could have impeached Collar’s trial testimony by showing Collar’s video
statement that Collar had a poor memory about Lyla’s comments to him in 2000
and by Collar failing to mention a note or computer in his interview.

¶45 LaVigne’s argument again misses the mark. As the circuit court
appropriately observed, Lyla’s statement in the video that LaVigne had touched
her around her neck was largely consistent with her trial testimony. Although
Lyla testified that she felt LaVigne’s erect penis on her “upper back,” she also
testified that LaVigne would “stand behind me and touch my neck with his hands
and sometimes along my side with his hands.” Accordingly, playing a short video
of Lyla saying “neck” and pointing to an area around her neck would not have
impeached her credibility because her statements in the video were consistent with
her testimony at trial.

¶46 Similarly, LaVigne’s trial counsel was able to establish on
cross-examination—without playing any videos—that Collar had a poor
recollection of what occurred in 2000. Collar testified that he could not recall
what time of day, day of the week, or month that he had escorted Lyla down to
LaVigne’s classroom. He described Lyla as appearing nervous, but he struggled
to explain how she appeared nervous, other than saying she was shaking a little
bit. Collar also testified that he could not recall whether Lyla told him why she

18
No. 2021AP224-CR

was nervous, nor could he recall whether he gave Lyla any advice after her
meeting with LaVigne. Collar conceded that he “possibly” told Officer Stahmann
that his “memory was real vague,” but he had not read the police report. Nearly
the entire cross-examination of Collar emphasized Collar’s poor memory of when
he walked Lyla down to LaVigne’s classroom. Thus, playing a video of Collar
stating he had a “poor memory” of the event would have only reiterated what trial
counsel had already established in cross-examination.

¶47 To the extent trial counsel failed to show that Collar did not
previously mention that Lyla had said something about a note or a computer, trial
counsel would have needed to show the entire video of Collar’s interview to
establish this fact, not one short video clip. Regardless, it was readily apparent
from Collar’s testimony that his memory about the note or computer statement
was questionable. He testified: “I can remember like a note or a computer or
something. What it said I don’t remember.” In short, trial counsel acted
reasonably by choosing not to play the videos that LaVigne had created.

H. Counsel’s decision not to investigate the home of an other-acts witness

¶48 Natasha testified at trial that LaVigne massaged her shoulder for
about thirty seconds while he drove her home one evening, and upon arriving at
her home, LaVigne exited the vehicle, “put his arms around [her,] and tried to kiss
[her].” Natasha then pushed LaVigne away and ran into her home. At the time,
Natasha was fifteen years old. Natasha specifically testified that LaVigne was
driving the vehicle and that he used his right hand to massage her left shoulder. At
the trial in the Marinette County case, Natasha again testified about this incident,
but she acknowledged on cross-examination that she, not LaVigne, drove
LaVigne’s vehicle that night.

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No. 2021AP224-CR

¶49 LaVigne argues his trial counsel performed deficiently by failing to
investigate the layout of Natasha’s home. He contends that if counsel had done so,
“he would have found that [Natasha’s] driveway was to the left of the front door to
[her] house,” and counsel could have then asked Natasha why she did not go
directly to her home’s front door from the passenger side of the vehicle. He also
asserts that such questioning would have shown that Natasha’s story was
implausible and impeached Natasha’s credibility.

¶50 Trial counsel’s decision not to investigate the layout of Natasha’s
home was reasonable under the circumstances. Even if Natasha had admitted to
driving the vehicle on cross-examination, such an admission would not have
contradicted or disproved her testimony that LaVigne massaged her shoulder,
wrapped his arms around her, and attempted to kiss her. LaVigne testified at trial
that Natasha “was pretty excited to drive” his vehicle and “had stopped in front of
the [vehicle] to take a selfie.” He admitted that he “got into the selfie with her”
and told her: “I feel like I am dropping you off for a date and I should be asking
for a kiss.” Although LaVigne denied attempting to kiss Natasha, LaVigne’s own
testimony established that he was physically close to Natasha and that he made a
concerning comment about kissing her. The jury could have therefore believed
Natasha’s testimony about the attempted kiss even if it believed that Natasha had
driven LaVigne’s vehicle.

¶51 In addition, and as noted earlier, LaVigne’s trial counsel reasonably
prioritized preparing a defense to the charged crime over defending against every
detail of the other-acts evidence in this case. The fact that Natasha drove instead
of LaVigne was a minor detail explaining how LaVigne and Natasha came to be
standing in front of LaVigne’s vehicle. A jury might have found Natasha slightly
less credible had she admitted on cross-examination that she had, in fact, driven

20
No. 2021AP224-CR

the vehicle, but LaVigne’s own testimony still established that he had made a
concerning comment about kissing Natasha while in close proximity to her.
Counsel could reasonably decide to avoid focusing on the small factual
discrepancies in Natasha’s testimony and to focus instead on the allegations in the
present case.

I. Cumulative prejudice

¶52 Finally, LaVigne argues “that in the aggregate, trial counsel’s
multiple deficient actions and omissions prejudiced [his defense].” This argument
fails, however, because LaVigne has not shown that his trial counsel performed
deficiently in any respect. Courts do not consider the cumulative effect of
counsel’s alleged deficiencies where “the alleged errors, taken in isolation, did not
constitute a deficient act or omission.” State v. Hunt, 2014 WI 102, ¶55 n.15, 360
Wis. 2d 576, 851 N.W.2d 434. As discussed above, none of trial counsel’s alleged
deficiencies amount to deficient performance, which leaves nothing for us to
aggregate.

II. Discretionary reversal

¶53 LaVigne next argues that we should vacate his conviction and grant
him a new trial under WIS. STAT. § 752.35 because “he was convicted based upon
the untruthful testimony of [Natasha].” LaVigne contends that Natasha’s
subsequent testimony in the Marinette County case was “vastly different” from her
“very detailed testimony” in this case that LaVigne drove the vehicle and used his
right hand to massage her shoulder. He contends that these discrepancies create a
question about Natasha’s veracity and explain why he excited the vehicle, which
bolsters his credibility.

21
No. 2021AP224-CR

¶54 This court may reverse a judgment and remand for a new trial if it
appears from the record that the real controversy has not been fully tried or it is
probable that justice has for any reason miscarried. WIS. STAT. § 752.35. The real
controversy has not been fully tried if:

(1) Either the jury was not given an opportunity to hear
important testimony that bore on an important issue in the
case, or (2) the jury had before it testimony or evidence
which had been improperly admitted, and this material
obscured a crucial issue and prevented the real controversy
from being fully tried.

State v. Burns, 2011 WI 22, ¶24, 332 Wis. 2d 730, 798 N.W.2d 166 (citation
omitted). In addition, justice has been miscarried if “there would be a substantial
probability that a different result would be likely on retrial.” Id. (citation omitted).
“We exercise our discretionary-reversal powers ‘only in exceptional cases.’” Id.,
¶25 (citation omitted).

¶55 This is not an exceptional case warranting discretionary reversal. As
discussed more fully below, the circuit court did not erroneously exercise its
discretion by admitting other-acts evidence involving Natasha. In addition,
Natasha’s incorrect statements—that LaVigne was driving (instead of her) and that
LaVigne was massaging her shoulder with his right hand (instead of his left
hand)—are minor, incidental facts to her testimony. Although Natasha’s change
in testimony in the Marinette County case bears on her credibility and further
explains that LaVigne needed to exit the vehicle to return to the driver’s seat,
Natasha maintained in the Marinette County case that LaVigne massaged her
shoulder and attempted to kiss her. Moreover, and most significantly, Natasha’s
testimony concerned other-acts evidence, not the charge for which LaVigne was
on trial—i.e., repeatedly rubbing his erect penis on Lyla’s back.

22
No. 2021AP224-CR

¶56 In light of LaVigne’s admission that he made a concerning comment
about kissing Natasha in front of his vehicle and the other-acts evidence involving
Zoey, there is not a reasonable probability that Natasha’s change in testimony in
the Marinette County case would affect the jury’s conclusion that LaVigne
violated WIS. STAT. § 948.025(1) by repeatedly rubbing his erect penis on Lyla.
In short, the real controversy has been tried in this case, and it is not probable that
justice has been miscarried.

III. Newly discovered evidence

¶57 LaVigne also argues that the circuit court erroneously exercised its
discretion by not holding an evidentiary hearing to consider his request for a new
trial based on newly discovered evidence. He contends that he discovered after his
trial and conviction that the classroom chair produced at trial was “a standard
size.” He suggests that this evidence would have rebutted the State’s trial
argument that Lyla might have sat in chair with a lower height than the chair
shown at trial.

¶58 A circuit court is required to hold a hearing on a postconviction
motion “only when the movant states sufficient material facts that, if true, would
entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d
568, 682 N.W.2d 433. Whether a motion meets this standard is a question of law
that we review de novo. Id., ¶9. “[I]f the motion does not raise facts sufficient to
entitle the movant to relief, or presents only conclusory 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. We review a court’s
discretionary decisions for an erroneous exercise of discretion. Id.

23
No. 2021AP224-CR

¶59 To set aside a judgment of conviction based on newly discovered
evidence, the defendant must prove, by clear and convincing evidence, that
“(1) the evidence was discovered after conviction; (2) the defendant was not
negligent in seeking the evidence; (3) the evidence is material to an issue in the
case; and (4) the evidence is not merely cumulative.” State v. Avery, 2013 WI 13,
¶25, 345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted). If the defendant
establishes those four factors, then the court must determine whether a reasonable
probability exists that a different result would be reached in a trial. Id.

¶60 LaVigne alleged in his postconviction motion that Clyde Trudeau,
the sales person who sold the chairs that were to be used in LaVigne’s classroom,
said that the chairs were “an Artco-Bell Transitional Series Model 7167 Uniflex
Chair with casters,” which “comes in a standard height, with or without casters.”
LaVigne further asserted that this evidence “was not negligently missed because
the height of the chair was not an issue until cross[-]examination at trial” and that
the evidence “is not cumulative [because] Mr. Trudeau would verify the chair in
question is the same style chair with a standardized height.” LaVigne also claimed
that there is reasonable doubt as to his guilt because, contrary to the State’s
argument at trial, “this new evidence [showed] that there is no way the chair had a
different height.”

¶61 Contrary to the allegation in LaVigne’s postconviction motion, the
height of the chairs was an issue at trial prior to any cross-examination by the
State. LaVigne’s main defense at trial was that the height of the chairs used in his
classroom in 2000 would have made it physically impossible for him to commit

24
No. 2021AP224-CR

the offense.3 To potentially prevail on that defense, LaVigne needed to establish
the type of chair used in his classroom in 2000, the height of those chairs, and his
height as compared to those chairs. LaVigne produced evidence addressing each
of those issues by testifying that a chair brought to the courtroom was “exactly the
same” as the chairs used in his classroom in 2000, that he was five feet, seven
inches tall, and that, in relation to the chair in the courtroom, his genitalia was
“just below the edge of the top of the chair.”

¶62 Although Trudeau might now be able to provide additional
testimony addressing the model and height of the chairs that were to be used in
LaVigne’s classroom, LaVigne should have spoken to Trudeau before trial
because LaVigne knew that such information would have been helpful to his
defense. LaVigne has not provided any explanation for not doing so—other than
his erroneous argument that the height of the chair was not an issue—and his
postconviction motion therefore fails to allege that he was not negligent in seeking
evidence from Trudeau.

¶63 The record also conclusively establishes that Trudeau’s potential
testimony would be cumulative of evidence already presented at trial. “Newly
discovered evidence is cumulative where it tends to address ‘a fact established by
existing evidence.’” State v. McAlister, 2018 WI 34, ¶37, 380 Wis. 2d 684, 911
N.W.2d 77 (citation omitted). As alleged in LaVigne’s postconviction motion,
Trudeau’s testimony would establish that the chair used in LaVigne’s classroom

3
At the Machner hearing, LaVigne’s trial counsel confirmed what the trial record
plainly demonstrates—namely, that “from day one our strategy was that it was just physically
impossible where this occurred in the manner that it was being claimed.” Trial counsel further
testified that part of LaVigne’s defense was based on the height of the chair and that the chair was
a critical issue.

25
No. 2021AP224-CR

and produced at trial “comes in a standard height, with or without casters.”
Although no witness testified at trial about whether the chair came in a “standard
height,” LaVigne unequivocally testified at trial that the chair brought into the
courtroom was exactly the same as the chairs used in his classroom in 2000. In
other words, LaVigne’s trial testimony established that the height of the chair in
the courtroom was the same height as the chairs used in his classroom in 2000.
The superintendent and a computer technician for the Little Chute School District
also testified, respectively, at trial that the chair in the courtroom was the same
chair as the chairs used in the area of the school where LaVigne’s class was
located and that the chair was the “same type of chair” that was used in the Little
Chute High School computer room in 2000. Trudeau’s testimony that “the chair
in question is the same style chair with a standardized height” is therefore
cumulative of facts already established by existing evidence. See id.

¶64 Finally, even if Trudeau would testify to the facts alleged in
LaVigne’s postconviction motion, Trudeau’s testimony would not create a
reasonable probability that a different result would be reached in a new trial. “A
reasonable probability of a different outcome exists if ‘there is a reasonable
probability that a jury, looking at both the [old evidence] and the [new evidence],
would have a reasonable doubt as to the defendant’s guilt.’” State v. Plude, 2008
WI 58, ¶33, 310 Wis. 2d 28, 750 N.W.2d 42 (alterations in original; citation
omitted). At most, Trudeau’s testimony would establish that he sold the chairs
that were to be used in LaVigne’s classroom and that those chairs were a standard
height. He could not establish, however, that those chairs were, in fact, used in the
classroom or that Lyla sat in one of those chairs when LaVigne rubbed his penis
against her back. Thus, Trudeau’s testimony would not debunk the State’s theory
that the chair used in the courtroom at trial might not have been the chair in which

26
No. 2021AP224-CR

Lyla sat. Accordingly, there is not a reasonable probability that a jury, considering
both the evidence presented at trial and the facts alleged in LaVigne’s
postconviction motion, would have a reasonable doubt as to LaVigne’s guilt. See
id.

¶65 In short, LaVigne’s postconviction motion fails to allege sufficient
facts to entitle him to relief, and the record conclusively establishes that he is not
entitled to relief. The circuit court therefore did not erroneously exercise its
discretion by denying, without a hearing, LaVigne’s request for a new trial based
on newly discovered evidence.

IV. Erroneous exercises of discretion before and during trial

¶66 LaVigne’s final arguments challenge several of the circuit court’s
discretionary decisions before and during trial. We review these decisions for an
erroneous exercise of discretion. Allen, 274 Wis. 2d 568, ¶9.

¶67 LaVigne first argues that the circuit court erroneously exercised its
discretion by not excusing Juror Wegand, a juror believed to have improperly
communicated with Lyla during the trial, for being biased. LaVigne’s brother,
Allen LaVigne, testified at a break in the trial (outside the presence of the jury)
that he had observed a juror give a “sympathetic look” and mouth or say the words
“so sorry” to Lyla. LaVigne’s brother acknowledged, however, that he was “too
far away” to know exactly what was said or gestured. Lyla subsequently testified
that she did not recall any juror looking or mouthing anything to her. Later, when
the jurors were back in the courtroom, the court asked if any of them had any kind
of contact or communication with someone in the “back of the courtroom.” None
of the jurors responded affirmatively, with the exception of one juror

27
No. 2021AP224-CR

acknowledging that she had asked for a Kleenex. The court did not excuse any
jurors.

¶68 A criminal defendant has a constitutional right to an impartial jury.
State v. Funk, 2011 WI 62, ¶31, 335 Wis. 2d 369, 799 N.W.2d 421. A juror is
presumed to be impartial, and the party challenging a juror’s impartiality bears the
burden of rebutting this presumption and proving bias. Id. A circuit court’s
findings of fact as to a juror’s bias will not be overturned unless they are clearly
erroneous. See State v. Lindell, 2001 WI 108, ¶¶36, 39, 245 Wis. 2d 689, 629
N.W.2d 223.

¶69 The circuit court found that Juror Wegand had not engaged in
improper communications with Lyla, and it concluded that Wegand was not
biased. These findings are not clearly erroneous because no juror admitted to
communicating with anyone in the courtroom gallery, nor could Lyla recall a juror
interacting with her. The court could also reasonably conclude that LaVigne’s
brother misinterpreted what had occurred because he was sitting “too far away”
from the purported event. Accordingly, the court did not erroneously exercise its
discretion by not excusing Juror Wegand.

¶70 LaVigne next argues that the circuit court erroneously exercised its
discretion by allowing the State to amend the relevant period of time alleged in the
Information from the first three months in 1999 to the first three months in 2000.
He contends that he was prejudiced by the amendment because he “could not fully
develop an alibi defense” that he was on paternity leave at the beginning of 2000.

¶71 A circuit court may allow amendment of the Information at trial “to
conform to the proof where such amendment is not prejudicial to the defendant.”
WIS. STAT. § 971.29(2). A defendant is not prejudiced by an amendment to the

28
No. 2021AP224-CR

Information at trial if the defendant had notice of “the nature and cause of the
accusations.” State v. Neudorff, 170 Wis. 2d 608, 619, 489 N.W.2d 689 (Ct. App.
1992).

¶72 Amending the Information to conform to the proof at trial did not
prejudice LaVigne’s defense. Although the amended Information changed the
year in which the offense allegedly occurred, it did not change the nature or
substance of the allegations, charge a new or additional offense, or preclude the
assertion of a defense. Furthermore, LaVigne’s trial counsel had notice at least
two weeks before trial that there was a potential mistake in the charging period.
Consequently, trial counsel began developing an alibi defense by submitting a
public records request to ascertain the timing of LaVigne’s paternity leave during
the 1999-2000 school year, but counsel was later “told by the school that those
records no longer exist[ed].”

¶73 Despite the obstacles LaVigne faced in developing his alibi defense,
he did not earlier notify the circuit court about the apparent mistake in the
charging period or seek to postpone the trial to gather additional evidence. Rather,
as the court recognized in its decision allowing the amendment, “there was a
strategic decision not to raise [the] issue[] prior to the jury being sworn.”
Nevertheless, the court, with the State’s agreement, removed barriers to LaVigne
asserting the alibi defense by waiving LaVigne’s obligation to give the State
notice of the alibi defense and by permitting LaVigne’s wife and an additional
witness to testify without being named as witnesses on LaVigne’s witness list. See
WIS. STAT. § 971.23(8)(a). LaVigne also testified on his own behalf that he “was
on paternity leave” for “a large chunk of” the time period alleged in the amended
Information.

29
No. 2021AP224-CR

¶74 LaVigne was therefore able to assert an additional defense he would
not otherwise have had under the original Information. While LaVigne suggests
that he did not have enough time to develop witness testimony or discover other
employment records to support his alibi defense, he has not identified any
documents or witnesses that would have been found with additional time to
investigate. Under the circumstances, allowing amendment of the Information at
trial did not prejudice LaVigne’s defense because he had adequate notice of the
allegations and of the charge, and because the amendment allowed him to assert an
additional defense. As a result, the circuit court did not erroneously exercise its
discretion by allowing the State to amend the Information at trial.

¶75 LaVigne also argues that the circuit court erroneously exercised its
discretion by not instructing the jury to disregard Zoey’s testimony that there was
blood in her swimsuit. Before trial, the court concluded that other-acts evidence
involving Zoey would be limited to “touching” allegations and that allegations of
sexual intercourse would be inadmissible unless raised by LaVigne. At trial, Zoey
testified that “[t]here was some blood left in [her swimsuit]” in response to
LaVigne’s trial counsel asking her whether “there [was] any damage done to the
swimsuit.” Trial counsel did not object to Zoey’s testimony, however, and neither
trial counsel nor the State asked any follow-up questions regarding the blood.

¶76 Contrary to LaVigne’s argument, Zoey’s testimony was admissible
because the circuit court specifically did not “clos[e] the door” on LaVigne
eliciting testimony related to Zoey’s allegations of intercourse, and LaVigne’s trial
counsel elicited the testimony at issue. Although LaVigne suggests—in a single
sentence—that his trial counsel was ineffective for eliciting the testimony, he does
not develop that argument on appeal, and he failed to raise this issue in the circuit
court or at his Machner hearing. Accordingly, we need not consider this

30
No. 2021AP224-CR

undeveloped ineffective assistance of counsel claim. See State v. Thompson, 222
Wis. 2d 179, 190 n.7, 585 N.W.2d 905 (Ct. App. 1998) (we need not consider an
ineffective assistance of counsel claim that was not raised in the trial court or
addressed at a Machner hearing). Finally, even if the testimony was inadmissible,
the court had no duty to sua sponte strike Zoey’s testimony. See State v. Delgado,
2002 WI App 38, ¶12, 250 Wis. 2d 689, 641 N.W.2d 490 (“It is not the duty of the
trial court to sua sponte strike testimony that is inadmissible.”).

¶77 Lastly, LaVigne argues the circuit court erroneously exercised its
discretion by admitting the other-acts evidence at trial. Other-acts evidence is
admissible where: (1) it is offered for a permissible purpose pursuant to WIS.
STAT. § 904.04(2)(a); (2) it is relevant under the two relevancy requirements in
WIS. STAT. § 904.01; and (3) its probative value is not substantially outweighed by
the risk or danger of unfair prejudice under WIS. STAT. § 904.03. State v.
Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. In a child sexual
assault case, the greater latitude rule under § 904.04(2)(b) permits a more liberal
admission of other-acts evidence and applies to each prong of our other-acts
analysis. See Marinez, 331 Wis. 2d 568, ¶20.

¶78 LaVigne does not dispute that the State offered the other-acts
evidence for the permissible purposes of proving LaVigne’s motive, method of
operation, intent, and lack of mistake or accident. See WIS. STAT. § 904.04(2)(a).
Nor does he dispute that the State had to prove that he intentionally touched Lyla
for the purpose of sexual arousal or gratification and to prove that Lyla was a
credible witness, both of which were consequential facts in this action. See State
v. Gutierrez, 2020 WI 52, ¶33, 391 Wis. 2d 799, 943 N.W.2d 870; WIS. STAT.
§§ 948.01(5)(a), 948.025(1). He argues, however, that the other-acts evidence was
not probative of these consequential facts because the environments in which the

31
No. 2021AP224-CR

other acts took place were different in nature from the classroom environment
where the alleged acts took place in this case. He also argues that the other acts
are too remote in time from the alleged offense in this case.

¶79 “‘The measure of probative value in assessing relevance is the
similarity between the charged offense and the other act.’ Similarity is
demonstrated by showing the ‘nearness of time, place, and circumstance’ between
the other-act and the charged crime.” Hurley, 361 Wis. 2d 529, ¶79 (citations
omitted). A circuit court has discretion to determine whether other-acts evidence
is too remote. Id.

¶80 Here, despite the length of time between the charged offense and the
other acts, the circuit court concluded that the other acts were probative of
LaVigne’s method of operation because the charged offense and the other acts
were similar in nature and environment. We agree that the charged offense and
the other acts were similar. First, the charged offense and the other acts involved
unwanted, intimate contact with the victims. Second, all of the victims were
female high school teenagers—ages fifteen or sixteen. Third, the acts occurred
when the victims were isolated from others but not completely alone. Fourth, the
victims were subject to LaVigne’s control in his classroom, on his boat, or in his
car. Fifth, LaVigne was acquainted with all of the victims through either his
daughter or his role as a teacher.

¶81 Although LaVigne is correct that there was a roughly seventeen-year
gap between the alleged offense and the other-acts evidence, that gap is not
dispositive of whether the other acts are probative. “Even when evidence may be
considered too remote, the evidence is not necessarily rendered irrelevant if the
remoteness is balanced by the similarity of the two incidents.” Id., ¶80. On

32
No. 2021AP224-CR

balance, the similarities between the charged offense and the other acts outweigh
the time between LaVigne’s actions. In addition, and as the circuit court
recognized, the probative value of the other-acts evidence is further buttressed by
the greater latitude rule, which permits a more liberal admission of other-acts
evidence. See id., ¶59.

¶82 LaVigne faults the circuit court for relying on the greater latitude
rule, and he contends that the greater latitude rule is not a rule of “automatic
admission.” The court, however, did not treat the greater latitude rule as a rule of
“automatic admission.” Rather, it considered each prong of the other-acts
analysis, and, as it related to the relevancy prong, the court concluded that the
similarity between the charged offense and the other acts outweighed the length of
time between LaVigne’s actions, especially in light of the greater latitude rule.
The court did not erroneously exercise its discretion in weighing the probative
value of the other-acts evidence.

¶83 LaVigne also argues that the other-acts evidence was “unfairly
prejudicial” because the State’s closing argument used the other-acts evidence for
impermissible purposes and to arouse the jury’s sense of horror and to provoke it
to punish him. LaVigne fails to recognize, however, that we consider only the
facts that were before the circuit court when reviewing the court’s decision to
admit other-acts evidence. See Marinez, 331 Wis. 2d 568, ¶45. “[W]e will not
conclude that a circuit court erred by failing to divine exactly how the evidence
would be used at trial.” Id.

¶84 When considering only the facts before the circuit court when it
decided to admit the other-acts evidence, we conclude the court did not
erroneously exercise its discretion. The court considered the prejudicial effect of

33
No. 2021AP224-CR

the other-acts evidence and concluded that it did not substantially outweigh the
probative value of the evidence, especially once the jury was given a limiting
instruction.

By the Court.—Judgment and order affirmed.

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

34