State v. Vernon K. Sommerfeldt

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.
December 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. 2019AP1602-CR Cir. Ct. No. 2015CF471

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VERNON K. SOMMERFELDT,

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. Vernon Sommerfeldt appeals from a judgment of
conviction for second-degree sexual assault and an order denying him
No. 2019AP1602-CR

postconviction relief. Sommerfeldt claims that his trial counsel was ineffective in
several respects. We reject his arguments and affirm.

BACKGROUND

¶2 Sommerfeldt was charged with sexually assaulting his daughter’s
friend during a 2013 sleepover. The victim testified at trial that she fell asleep on
the living room couch while watching a movie with her friends and awoke to
Sommerfeldt’s hand moving around on her left breast. The others were sleeping
in the room but did not wake up.

¶3 Before trial, the circuit court granted a motion to admit other acts
evidence regarding a prior sexual assault Sommerfeldt had committed in 2008,
where he admitted to sexually assaulting another friend of his daughter’s under
nearly identical circumstances. The victim in the earlier case testified that in
2008, during a sleepover with Sommerfeldt’s daughter, she woke up to
Sommerfeldt “grabbing” and “fondling” her breasts under her shirt. Sommerfeldt
then began grabbing her buttocks.1 This testimony was considered by the court
when it granted a motion to admit other acts evidence regarding Sommerfeldt’s
2008 sexual assault.

¶4 The 2008 victim then stated that she and a friend went back to the
Sommerfeldt home the very next night in 2008 for another sleepover. The 2008
victim testified that she was under the impression Sommerfeldt would not be at
home the second night. She testified that on the second night, Sommerfeldt
fondled both her and her friend. Sommerfeldt’s attorney did not object to this

1
The court read the jury an instruction on other acts evidence prior to this testimony.

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No. 2019AP1602-CR

testimony. On cross-examination, the victim admitted that her friend said that the
alleged assault on the second night in 2008 did not occur.2 This testimony was not
considered when the circuit court granted the State’s motion to admit other acts
evidence.

¶5 Sommerfeldt testified that he confessed to the 2008 sexual assault of
the victim on the occasion considered by the circuit court in the State’s other acts
evidence motion. He explained that he was an alcoholic in 2008 and was “very
drunk.” Conversely, Sommerfeldt testified that on the night the alleged victim in
this case slept over in 2013, he walked into the living room when everyone had
fallen asleep, and he then watched a movie. He claimed that he “sat down in the
chair and … fell asleep, eventually woke up, and went upstairs” to his bedroom.
He testified “[i]t was out of the question” that he assaulted the victim in 2013,
“[b]ecause [he] hadn’t been drinking much.”

¶6 The jury found Sommerfeldt guilty of second-degree sexual assault
of a child. The circuit court imposed seven years’ initial confinement and eight
years’ extended supervision.

¶7 Sommerfeldt then filed a motion for postconviction relief. He
argued that his trial attorney was ineffective by failing to object to other acts
evidence that was not covered by the pretrial ruling and by failing to adequately
impeach the victim’s credibility. He also argued his trial counsel undermined his
defense by failing to permit him to explain to the jury that he admitted to the 2008
sexual assault because of a deferred prosecution agreement he received, and

2
Sommerfeldt was not charged for this alleged second night of assaults in 2008.

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No. 2019AP1602-CR

because of the detective’s insistence over the course of the three-hour long
interview that he had done something. Following a Machner3 hearing, the circuit
court concluded that counsel’s performance was not deficient because the alleged
deficiencies were based upon reasonable trial strategies, and Sommerfeldt was not
prejudiced by the alleged deficiencies in any event. Sommerfeldt now appeals.

DISCUSSION

¶8 When a lower court determines that counsel had a reasonable trial
strategy, that strategy is virtually unassailable in an ineffective assistance of
counsel analysis. State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904
N.W.2d 93. The question is not whether we agree with counsel’s strategic
decisions, but only whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the circuit court proceedings cannot be
relied upon as having produced a just result. Strickland v. Washington, 466 U.S.
668, 686 (1984).

¶9 Sommerfeldt argues that his trial counsel was deficient in three
respects. Sommerfeldt first argues his counsel performed deficiently by not
objecting to, moving to strike, or moving for a mistrial based on the earlier
victim’s testimony about the assault on her and her friend on the second night in
2008. As the circuit court explained, however, counsel had multiple strategic
reasons for not objecting to the victim’s testimony about the second night in 2008.

¶10 Counsel did not object because he felt the victim’s testimony about
the alleged assaults on the second night in 2008 was not damaging and may have

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2019AP1602-CR

been exculpatory. Significantly, counsel emphasized that the defense knew the
other acts evidence regarding the sexual assault on the first night in 2008 was
being allowed into evidence, and counsel “felt it would be better not to object in
the presence of the jury to that.” Counsel had brought out on cross-examination
that the victim’s friend denied that she had been assaulted. Sommerfeldt’s trial
counsel therefore reasonably believed that the additional testimony from the
victim about the alleged second night in 2008 was unlikely to harm Sommerfeldt,
and it “was actually exculpatory towards him.” Additionally, the fact that the
victim chose to return to the Sommerfeldt home for another sleepover on the night
immediately following an alleged sexual assault could have reduced the impact of
the victim’s testimony regarding the assault alleged to have occurred the night
before.

¶11 Based on this knowledge, Sommerfeldt’s trial counsel made the
strategic decision not to object to the victim’s testimony at issue. As the circuit
court correctly concluded, this strategic decision was reasonable, especially in
light of counsel’s strategy to portray Sommerfeldt as a forthcoming individual
who admits to wrongdoing if he is guilty of it.

¶12 Sommerfeldt next argues that his trial attorney was deficient for
“failing to argue in closing that the other acts witness’s testimony was not
credible.” Sommerfeldt claims his trial counsel should have used the friend’s
skepticism regarding the second night in 2008 to attack the victim’s credibility and
argue that, despite his confession, Sommerfeldt never actually sexually assaulted
the victim in 2008.

¶13 Attacking the victim’s credibility regarding the 2008 sexual assault,
however, would have directly contradicted counsel’s chosen trial strategy, which

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No. 2019AP1602-CR

the circuit court found to be reasonable. Again, Sommerfeldt’s trial counsel
sought to contrast the 2008 sexual assault with the alleged assault in the present
case and to argue, based on this contrast, that Sommerfeldt was the type of person
who admits wrongdoing when he is guilty of it.

¶14 For example, Sommerfeldt’s counsel argued in closing arguments
that in 2008 Sommerfeldt had been drinking heavily and voluntarily confessed to
assaulting the victim for sexual gratification. In contrast, in the present case
Sommerfeldt “wasn’t drinking a lot the way he was in 2008,” and he would have
freely admitted to the 2013 accusations if they were true. Furthermore, the 2008
sexual assault was reported to the victim’s mother the next day, but the present
offense involved “this delayed-reporting concept.”

¶15 This strategy depended on the jury accepting that Sommerfeldt
sexually assaulted the victim in 2008. It would have sent contradictory messages
to the jury to simultaneously attack the victim’s credibility by arguing that
Sommerfeldt did not sexually assault the victim in 2008. Indeed, an overarching
problem with Sommerfeldt’s present argument is that it largely discounts the fact
that the circuit court allowed the other acts evidence regarding the sexual assault
on the first night in 2008—which was particularly damaging to his defense and to
which Sommerfeldt had confessed.

¶16 Perhaps even more importantly, any attempt to disprove the 2008
sexual assault would have failed. Sommerfeldt signed a detailed confession to
sexually assaulting the victim by touching the outside of her shirt near her breast
and then moving his hand down by her vagina on the outside of her clothes.
Sommerfeldt’s own daughter also stated to law enforcement that he “will
sometimes touch younger females inappropriately,” and that “when he drinks there

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No. 2019AP1602-CR

[have] been instances of him inappropriately touching younger girls.” Moreover,
the victim explained that she returned to the Sommerfeldt home the night after
being assaulted because she was under the impression that Sommerfeldt would not
be present. For these reasons, no reasonable jury would have been persuaded by
an attempt to convince it that Sommerfeldt’s confession to the first 2008 assault
was false.

¶17 Finally, Sommerfeldt argues that his trial attorney was ineffective
for not eliciting testimony from him that he pleaded to the 2008 sexual assault
only due to the lenient treatment he received, and the detective’s insistence over
the course of the three-hour interview that he had done something. Eliciting such
testimony, however, would have directly undermined trial counsel’s reasonable
trial strategy of portraying Sommerfeldt as an honest man who would have
admitted wrongdoing if he were guilty, regardless of the consequences.
Accordingly, trial counsel wanted the jury to hear that Sommerfeldt admitted guilt
in 2008, but not to hear that he was treated leniently with the deferred prosecution
agreement. Further, Sommerfeldt provided his confession in July 2008, but he did
not enter into the deferred prosecution agreement until October 2009. This gap in
time shows that the deferred prosecution agreement was not the reason
Sommerfeldt confessed to the 2008 sexual assault.4

¶18 In all, Sommerfeldt has failed to overcome the circuit court’s
virtually unassailable conclusion that his trial attorney acted in accordance with a
reasonable trial strategy. Counsel’s conduct did not so undermine the proper

4
Sommerfeldt does not develop an argument as to how he was pressured into providing
a false confession. We therefore will not further address that issue. See M.C.I., Inc. v Elbin,
146 Wis. 2d 239, 244-45, 430 N.W.2d 366 (Ct. App. 1988).

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No. 2019AP1602-CR

functioning of the adversarial process that a just result was not produced. Because
we conclude that trial counsel’s performance was not deficient, we need not
address whether Sommerfeldt was prejudiced by the alleged errors. See State v.
Reinwand, 2019 WI 25, ¶43, 385 Wis. 2d 700, 924 N.W.2d 184.

By the Court.—Judgment and order affirmed.

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

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