State v. Rick Edward Gengler

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.
January 28, 2021
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. 2019AP1358-CR Cir. Ct. No. 2017CF103

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICK EDWARD GENGLER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Grant
County: CRAIG R. DAY, Judge. Affirmed.

Before Fitzpatrick, PJ, Kloppenburg, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1358-CR

¶1 PER CURIAM. Rick Gengler appeals a judgment of conviction and
an order denying his postconviction motion. Gengler was tried and convicted for
substantial battery of his father, N. He contends that trial counsel was ineffective
by failing to: (1) cross-examine Gengler’s sister-in-law, who testified that N. told
her that Gengler had hit him; (2) call Gengler’s brother to testify; (3) obtain and use
a voicemail that Gengler left for his brother on the night of the incident; and
(4) introduce N.’s medical records. We affirm.

BACKGROUND

¶2 On the night of the incident, Gengler and N. had been out drinking
together at a bar near a Kwik Trip. A Kwik Trip employee testified that she was
taking garbage out to a dumpster when she saw two men walking toward the Kwik
Trip. She heard them arguing and heard a lot of swearing. She then saw the younger
of the two men, who was wearing a baseball cap, charge the older man and tackle
him to the ground. The younger man proceeded to stand over the older man and
say, “I hope you’re ready to die.” The Kwik Trip employee reported what she had
witnessed to a coworker who contacted the police.

¶3 A police officer who responded to the scene testified that Gengler was
wearing a hat and N. was not. He noted that Gengler appeared to be injured on his
lip and above one eye.

¶4 N. testified that he and Gengler lived together and that Gengler had
taken care of him for twenty years. He stated that, on the night of the incident, he
and Gengler were out having a few drinks at the bar. N. said that, when they left
the bar and headed toward their parked vehicle near the Kwik Trip, he fell because
he lost his footing in the dark on a walkway with a drop-off. He stated that the
injuries he suffered that night were the result of his fall. N. denied that Gengler had

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No. 2019AP1358-CR

punched, tackled, or threatened him. He stated that Gengler had fallen while trying
to help him up.

¶5 Gengler’s sister-in-law testified that she asked N. whether Gengler
had hit him because he looked like he had been punched in the eye. She that N.
responded “yes” with no hesitation. She asked him two more times, and he
confirmed that Gengler had hit him.

¶6 Consistent with N.’s testimony, defense counsel argued to the jury
that N.’s injuries were the result of a fall. Counsel pointed out that, regardless of
what N. may have told Gengler’s sister-in-law, his testimony under oath was that he
fell.

¶7 The jury found Gengler guilty, and the circuit court entered judgment
accordingly. Gengler filed a postconviction motion claiming ineffective assistance
of counsel. After a Machner1 hearing, the circuit court concluded that Gengler
failed to show ineffective assistance of counsel, and the court denied Gengler’s
motion.

DISCUSSION

¶8 As noted, Gengler claims that trial counsel was ineffective by failing
to: (1) cross-examine Gengler’s sister-in-law, (2) call Gengler’s brother to testify,
(3) obtain and use a voicemail that Gengler left for his brother on the night of the
incident, and (4) introduce N.’s medical records. According to Gengler, all of these
actions that counsel failed to take would have shown that it was more likely that N.

1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2019AP1358-CR

fell rather than being assaulted by Gengler. For the reasons that follow, we reject
Gengler’s claims.

¶9 We review claims for ineffective assistance of counsel under the two-
part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, the defendant must show both that counsel’s performance was deficient
and that the defendant was prejudiced by the deficient performance. Id. at 687. We
need not address both parts of the Strickland test if the defendant fails to make a
sufficient showing on one. See id. at 697.

¶10 To establish deficient performance, the defendant must show that
“counsel’s representation fell below an objective standard of reasonableness.” Id.
at 688. In assessing counsel’s performance, “[r]eviewing courts should be highly
deferential to counsel’s strategic decisions and make every effort ... to eliminate the
distorting effects of hindsight.” State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d
431, 904 N.W.2d 93 (internal quotations and cited source omitted).

¶11 To establish prejudice, the defendant must show that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶12 In reviewing the circuit court’s decision on ineffective assistance of
counsel claims, “[w]e will not reverse the [circuit] court’s factual findings unless
they are clearly erroneous.” State v. Kimbrough, 2001 WI App 138, ¶27, 246
Wis. 2d 648, 630 N.W.2d 752. “However, we review the two-pronged
determination of trial counsel’s effectiveness independently as a question of law.”
Id.

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No. 2019AP1358-CR

¶13 Gengler first contends that counsel was ineffective by failing to
conduct any cross-examination of his sister-in-law, who testified that N. told her
Gengler had hit him. Gengler contends, as we understand it, that counsel could have
impeached his sister-in-law with prior inconsistent statements.

¶14 At the Machner hearing, counsel explained his reasons for not cross-
examining Gengler’s sister-in-law. Counsel noted that her testimony was very brief,
consisting essentially of the answer to one question. He was surprised by the brief
nature of her testimony because he knew that she had previously made negative
statements about Gengler that included information about a “pattern of abuse.”
Counsel was aware “that she had witnessed these things that she felt other people
were characterizing as accidents that may or may not have been.” In reading her
body language at trial, counsel thought that Gengler’s sister-in-law was also
surprised at how brief her direct examination was. He became concerned that, if he
asked her questions, “she would, upon redirect or whatever, whatever mechanism,
she would get in all this other damaging information that I felt was more damaging.”
Counsel stated that he made a “strategic decision … to avoid getting all that other
information in.”

¶15 Based on counsel’s testimony, the State contends that counsel made a
reasonable strategic decision not to cross-examine Gengler’s sister-in-law. We
agree and, therefore, we further agree that Gengler fails to show deficient
performance on this ground. We will not second-guess counsel’s reasonable
strategic decision even if a different decision may have also been reasonable. “[A]
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

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No. 2019AP1358-CR

¶16 Gengler next contends that counsel was ineffective by failing to call
his brother to testify. According to Gengler, his brother would have testified that
he was with N. and Gengler at the bar prior to the incident, that everything seemed
fine between N. and Gengler when he left, and that he had no reason to believe that
Gengler would have hit or attacked N. that night.2

¶17 At the Machner hearing, counsel explained his reasons for declining
to call Gengler’s brother to testify. Most notably, counsel was aware that Gengler’s
brother, like Gengler’s sister-in-law, had made negative statements about Gengler
in the past. Counsel’s impression was that Gengler’s brother “didn’t seem to be a
big fan” of Gengler. Counsel acknowledged that Gengler’s brother could have
testified that N. had a tendency to fall but, on balance, counsel did not see Gengler
as a positive defense witness.

¶18 Based on counsel’s testimony, the State argues that it was not
deficient performance for counsel to decline to call Gengler’s brother to testify. We
agree. Counsel’s testimony again supports a conclusion that counsel made a
reasonable strategic decision.

¶19 Gengler next argues that counsel was ineffective by failing to obtain
and use a voicemail message that Gengler left for his brother on the night of the
incident. Gengler asserts that counsel should have used the voicemail to cross-
examine the Kwik Trip employee. The circuit court read the voicemail into the
record, quoting it as follows:

[Y]ou know I have tried three times to get Dad up
from laying in the fucking concrete. You got him bleeding,
me bleeding and you know what? You don’t fucking quite
get it, and you don’t give a fuck about his alcoholism or

2
Gengler’s brother provided testimony to this effect at the Machner hearing.

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No. 2019AP1358-CR

anything that happens to him. This falls on my
responsibility. This is bullshit. This is recorded, so fuck
you.

Gengler contends that counsel could have used this voicemail to undercut the Kwik
Trip employee’s version of events, primarily by showing that the swearing she heard
could have been Gengler’s brother leaving the voicemail after N. fell.

¶20 At the Machner hearing, counsel testified that he recalled the
voicemail being referenced in a police report. He could not recall, however, whether
he had obtained and listened to the voicemail.

¶21 The State argues that Gengler fails to show deficient performance
based on the voicemail because the voicemail had extremely little value for purposes
of cross-examining the Kwik Trip employee. We agree. Gengler’s argument that
the voicemail could have been used to undercut the Kwik Trip employee’s
testimony lacks merit.

¶22 First, the Kwik Trip employee unequivocally testified that she heard
arguing and swearing before she saw the younger man tackle the older man to the
ground, whereas the voicemail indicates that it was recorded after N. was already
on the ground. Second, the Kwik Trip employee testified that she heard one of the
men say “I hope you’re ready to die,” whereas the voicemail contains no statement
of the kind. Finally, nothing in the voicemail calls into question the Kwik Trip
employee’s testimony that she saw the younger of the two men tackle the older man.

¶23 Gengler’s final claim is that counsel was ineffective by failing to
introduce N.’s medical records. According to Gengler, the records would have
shown that N. was a fall risk and that N. reported to medical staff that he fell on the
night of the incident. The State does not dispute that counsel performed deficiently

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No. 2019AP1358-CR

by failing to introduce medical evidence that N. was a fall risk. The State argues,
however, that any deficiency in counsel’s performance did not prejudice the
defense.

¶24 We conclude that Gengler fails to show prejudice based on counsel’s
failure to introduce N.’s medical records. Regardless whether N. was a fall risk, the
Kwik Trip employee’s testimony was powerful evidence from a disinterested
witness that, on the night in question, N. did not fall but rather was tackled to the
ground by Gengler. The jury apparently determined that her testimony was more
reliable than N.’s testimony, and Gengler does not convince us that there is a
reasonable probability that N.’s medical records would have changed that
determination and produced a different result. Gengler provides no persuasive
reason to think that the jury would have doubted the Kwik Trip employee’s ability
to perceive or recall events.

¶25 In sum, for the reasons stated above, we affirm the judgment of
conviction and the order denying Gengler’s postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-2018).

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