State v. Tomas Jaymitchell Hoyle

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 18, 2024
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. 2020AP1876-CR Cir. Ct. No. 2017CF572

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TOMAS JAYMITCHELL HOYLE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Chippewa County: JAMES M. ISAACSON, 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. Tomas Jaymitchell Hoyle appeals a judgment of
conviction for two counts of second-degree sexual assault and two counts of
No. 2020AP1876-CR

second-degree sexual assault of a child. Hoyle also appeals an order denying his
motion for postconviction relief. Hoyle argues that he is entitled to a new trial
based on newly discovered evidence. Alternatively, Hoyle argues that if this court
rejects his newly discovered evidence claim, we should remand for a new hearing
on that claim so that he may subpoena the victim and her counseling records.
Hoyle also asserts that he is entitled to a new trial based on the State’s failure to
disclose evidence.1

¶2 We conclude that the circuit court properly denied Hoyle’s newly
discovered evidence claim because there is no reasonable probability that the jury
would have had a reasonable doubt about Hoyle’s guilt if it had heard the newly
discovered evidence. We further conclude that no remand is required because the
victim’s counseling records are not necessary to decide Hoyle’s newly discovered
evidence claim. Finally, we conclude that Hoyle is not entitled to a new trial
based on the State’s failure to disclose evidence because the evidence in question
is not material. We therefore affirm.

1
This court previously reversed Hoyle’s convictions and remanded for a new trial based
on our conclusion that the prosecutor improperly commented on Hoyle’s exercise of his
Fifth Amendment right to remain silent. State v. Hoyle, No. 2020AP1876-CR, unpublished slip
op. ¶¶1-2 (WI App Apr. 26, 2022). Because we reversed on that basis, we did not address
Hoyle’s arguments regarding newly discovered evidence, postconviction discovery of the
victim’s counseling records, and the State’s failure to disclose evidence. Id., ¶¶1 & n.1, 2.

The Wisconsin Supreme Court subsequently reversed our decision, concluding that the
prosecutor at Hoyle’s trial did not improperly comment on Hoyle’s exercise of his right to remain
silent. State v. Hoyle, 2023 WI 24, ¶¶1-3, 406 Wis. 2d 373, 987 N.W.2d 732. The supreme court
remanded the matter to this court for us to address the other issues that Hoyle raised on appeal,
and we now do so.

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BACKGROUND

¶3 In March 2017, fifteen-year-old Hannah2 reported to law
enforcement that she had been sexually assaulted the previous month. Although
Hannah did not initially disclose the identity of her assailant, in May 2017, she
named Hoyle as the person who had sexually assaulted her. The State
subsequently charged Hoyle with two counts of second-degree sexual assault and
two counts of second-degree sexual assault of a child. The case proceeded to a
jury trial in December 2018.

¶4 At trial, Hannah testified that one day in February 2017, she left her
home and was on her way to a friend’s house to tell the friend that Hannah’s
mother would not allow Hannah to sleep over. Hannah expected this errand to
take about five or ten minutes. She testified that she was “high” or “buzzed” at the
time, having taken “numerous” Vicodin pills and consumed “numerous” alcoholic
drinks throughout the day. Hannah admitted that she did not have a prescription
for Vicodin and had taken her sister’s pills.

¶5 While Hannah was on the way to her friend’s house, Hoyle—who
was the stepbrother of Hannah’s former best friend—“drove through and asked if
[she] wanted to hang out.” Hannah got into the front passenger seat of Hoyle’s
vehicle and told him that she could only hang out for about five minutes. She
described Hoyle’s vehicle as a small, four-door sedan with gray fabric in the
interior, a center console in the front seat, and no center console in the back seat.

2
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use a
pseudonym instead of the victim’s name. All references to the Wisconsin Statutes are to the
2021-22 version unless otherwise noted.

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¶6 Hannah testified that Hoyle initially drove to the Wissota Marina
near the Lafayette Town Hall. He then turned around in a parking lot across from
the marina and started to drive back toward the trailer court where Hannah lived.
Instead of dropping Hannah off at the trailer court, however, Hoyle continued
driving toward Cadott. Hannah could not recall how far toward Cadott they went,
but she “remember[ed] crossing a bridge and a couple of bars.” Hannah testified
that she “didn’t say anything” when Hoyle failed to stop at the trailer court, but
she was “kind of confused.” As they drove, Hoyle kept telling Hannah to sing
along with a song playing on the radio, which she did not want to do, and he “kept
poking [her] legs.”

¶7 Hoyle ultimately turned onto a dead-end road and stopped the
vehicle. Hannah got out of the car. She testified that she was confused and did
not have a plan, but Hoyle’s behavior seemed “weird” to her. Hoyle told her to
get back into the car. She then got into the car’s back seat because she was
“scared” and did not want Hoyle touching her anymore, and she thought that “by
sitting in the back, he wouldn’t have access to touching [her].”

¶8 Hannah testified that she thought Hoyle would bring her home after
she got back into the car. Instead, Hoyle climbed into the back seat and moved
close to her, which made her feel uncomfortable. Hoyle started touching Hannah,
grabbing her hands, and rubbing his hands on her upper thighs. He then started
pulling Hannah’s pants down. Hannah tried to pull her pants back up and told
Hoyle to stop, but he was ultimately successful in removing both her pants and her
underwear.

¶9 Hannah testified that she was scared. She told Hoyle that she needed
to go home because “it was past five minutes” and her “mom [was] going to be

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getting worried.” Hoyle then grabbed Hannah’s waist and pulled her body down,
so that she was lying flat on the back seat of the car. He moved his body on top of
Hannah and inserted his fingers into her vagina for a few seconds. Hannah
testified that she did not want to be touched that way and did not give Hoyle
permission to do so. Hoyle then inserted his penis into Hannah’s vagina. When
Hannah told Hoyle that she might end up pregnant, he responded, “Don’t worry
about it, you won’t.” Hoyle continued to assault Hannah for “[a] couple of
minutes” until she “forcefully push[ed] him off” and started to get dressed.

¶10 Hannah testified that after the assault, she returned to the front seat
of the car, and Hoyle drove her to a tavern across the street from the trailer court
where she lived. According to Hannah, before dropping her off, Hoyle “said that
if anyone finds out about this, someone is going to end up dead,” and Hannah
understood that the “someone” would be her.

¶11 After Hannah testified regarding the details of the assault, the
prosecutor asked her about her testimony at the preliminary hearing that she had
taken six Vicodin pills and consumed three shots of vodka on the day in question.
Hannah explained that her prior testimony was merely a “rough estimate” and she
did not know—either at the time of the preliminary hearing or at trial—how much
Vicodin or alcohol she had consumed that day.

¶12 Hannah then testified that the first person she told about the assault
was “Officer Nelson,” a school resource officer. Nelson subsequently turned the
investigation over to Investigator Kari Szotkowski, formerly known as
Kari Anderson. Hannah testified that she did not initially tell Szotkowski the
name of the person who assaulted her because she was scared. She ultimately
identified Hoyle as her assailant while speaking to Nelson in May 2017. She

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No. 2020AP1876-CR

explained that Nelson “was kind of the person that I talked to, not really like a
counselor, but if I had any issues, that’s who I talked to.”

¶13 Finally, the prosecutor asked Hannah whether it was easy for her to
talk about the assault, and Hannah responded that it was not because the assault
was “very uncomfortable and traumatic.” The following exchange then occurred:

Q. You mentioned that it’s traumatic to you today and
upsetting to you today. Is there a reason why you are not
crying now?

A. I have gotten counseling to help with dealing with this.

Q. So because it has happened so long ago, you’ve had
professional help in dealing with the repercussions of what
occurred.

A. Correct.

Q. So it’s not that it doesn’t affect you; it’s that you are
now better able to deal with it.

A. Correct.

Q. So just because you’re not crying here today doesn’t
mean you’re not sad about what occurred to you.

A. Correct.

Q. Do you still go to counseling for this?

A. Yes.

Q. And your counseling, is it related to just this or
everything that’s gone on in your life, like the stuff with
your mom?

A. Correct, everything.

Q. So it’s everything. So you talk both about issues with
your mom, life in general, and this assault.

A. Yes.

Q. Are they able to help you process through this?

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No. 2020AP1876-CR

A. Yes.

Q. So as you mentioned, your ability to deal with it gets
better and better as you deal with it professionally?

A. Correct.

¶14 On cross-examination, Hannah conceded that she could not
remember whether the assault occurred before or after Valentine’s Day in
February 2017. She testified that she remembered taking three shots of alcohol
that day, but she could not remember how many pills she took. Hannah also
testified on cross-examination that she was away from home for about forty-five
minutes on the day of the assault. Although her mother “demand[ed] an
explanation of where [she] had been” when she returned home, she did not tell her
mother, her stepfather, or her sisters about the assault.

¶15 Following Hannah’s testimony, Investigator Szotkowski testified
briefly regarding her investigation of Hannah’s allegations. Hoyle elected not to
testify in his own defense, and the defense rested without presenting any evidence.
The jury convicted Hoyle of all four of the charges against him.

¶16 Hoyle then moved for postconviction relief. He raised multiple
claims, three of which are relevant to the present appeal. First, Hoyle sought a
new trial based on newly discovered evidence, on the grounds that Hannah told the
author of the presentence investigation report (PSI) that she was attending
counseling for substance abuse only and had not “discussed the sexual assault with
her counselor because she [did] not want to constantly relive the assault.” Hoyle
argued that this statement was contrary to Hannah’s trial testimony that she had
received counseling that helped her deal with the effects of the assault. Second,
Hoyle argued that if the circuit court did not grant him a new trial based on newly
discovered evidence, then he was entitled to postconviction discovery of Hannah’s

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No. 2020AP1876-CR

counseling records so that he could file an amended postconviction motion based
on those records. Third, Hoyle asked for a new trial based on the State’s failure to
disclose evidence regarding Hannah’s initial disclosure of the assault to
Officer Nelson. The court denied Hoyle’s motion for postconviction relief on all
grounds, and this appeal follows.

DISCUSSION

I. Newly discovered evidence

¶17 To obtain a new trial based on newly discovered evidence, a
defendant must prove four factors: “(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. Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42. If
the defendant establishes each of these factors, the court must then determine
whether there is a “reasonable probability” that the jury would have had a
reasonable doubt as to the defendant’s guilt if it had heard the newly discovered
evidence. Id.

¶18 Whether to grant or deny a motion for a new trial based on newly
discovered evidence is committed to the circuit court’s discretion. Id., ¶31.
However, whether there is a reasonable probability that the jury would have had a
reasonable doubt as to the defendant’s guilt is a question of law that we review
independently. Id., ¶33.

¶19 In this case, the State concedes that the evidence in question—
namely, Hannah’s statement to the PSI author that she had not discussed the
sexual assault with her counselor—meets the first four factors of the newly

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No. 2020AP1876-CR

discovered evidence test. The disputed issue is whether there is a reasonable
probability that the jury, having heard this evidence, would have had a reasonable
doubt as to Hoyle’s guilt.

¶20 Hoyle asserts that the requisite reasonable probability exists because
the State’s case “relied exclusively on [Hannah’s] credibility,” and there was
“absolutely no corroborating physical evidence or witness testimony.” For
instance, Hoyle emphasizes that there were no cell phone tower records showing
that he was in the area of the alleged assault at any point during the alleged time
frame, nor was there evidence that he owned or had access to a car matching the
description that Hannah provided. Hoyle also notes that, although Hannah
testified that her mother was upset that she was gone for forty-five minutes on the
day of the assault, the State did not “call to the stand either [Hannah’s] friend or
any of [Hannah’s] family members to testify about a time [Hannah] was out of the
house unexpectedly,” and Investigator Szotkowski conceded that she did not
interview any of those potential witnesses.

¶21 Given this lack of corroborating evidence, Hoyle argues that the
prosecutor “undoubtedly was aware” that Hannah’s demeanor was critical to the
jury’s assessment of her credibility. Hoyle contends that the prosecutor “must
have been concerned with [Hannah’s] unemotional affect, and so solicited
testimony [that she had received counseling for the assault] to explain her
demeanor.” Hoyle therefore argues that the newly discovered evidence regarding
Hannah’s lack of counseling for the sexual assault “went straight to the heart of
the critical issue at trial: whether [Hannah’s] demeanor during her testimony
[lent] her enough credibility to convince the jury of Hoyle’s guilt beyond a
reasonable doubt.” Hoyle further argues that “[i]f the jury heard that shortly after
trial [Hannah] claimed that she had not received any treatment, the jury could

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No. 2020AP1876-CR

reasonably conclude that her demeanor was not because she received counseling,
but because the assault did not actually happen.”

¶22 “Wisconsin law has long held that impeaching evidence may be
enough to warrant a new trial.” Plude, 310 Wis. 2d 28, ¶47.

For example, in Plude, the main issue at trial was whether
Plude drowned his wife Genell by forcing her head in the
toilet. 310 Wis. 2d 28, ¶4, 750 N.W.2d 42. The testimony
of several doctors was inconclusive as to the cause of
death, but the testimony of the State’s expert, Saami
Shaibani, was that Plude drowned his wife. Id., ¶25.
Shaibani testified that he was an expert in “injury
mechanism analysis,” a combination of physics, trauma,
and engineering. Id., ¶23. He conducted a series of
experiments and concluded that Genell could not have
inhaled toilet bowl water on her own. Id., ¶37. After Plude
was convicted, newly discovered evidence revealed that
Shaibani falsified his credentials. Id., ¶36. [The supreme]
court concluded that “in a trial rife with conflicting and
inconclusive medical expert testimony … there exists a
reasonable probability that, had the jury discovered that
Shaibani lied about his credentials, it would have had a
reasonable doubt as to Plude’s guilt.” Id.

State v. Avery, 2013 WI 13, ¶28, 345 Wis. 2d 407, 826 N.W.2d 60.

¶23 Hoyle argues that “[t]he newly discovered evidence both here and in
Plude involved evidence bolstering the key witness’s credibility.” Hoyle therefore
asserts that, as in Plude, there is a reasonable probability that the jury in this case
would have had a reasonable doubt about his guilt had it heard the newly
discovered evidence.

¶24 We disagree. In Plude, the newly discovered evidence that Shaibani
had lied about his credentials undercut the entire basis for his expert testimony
about how the victim died. Shaibani’s testimony on that point was critical to the
jury’s determination of Plude’s guilt, given that the other experts’ testimony

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No. 2020AP1876-CR

regarding the victim’s cause of death was inconclusive. Here, in contrast,
Hannah’s statement to the PSI author that she had not received counseling for the
sexual assault, if accurate, would have impeached only her testimony on the
collateral issue of why her demeanor on the witness stand was unemotional. It
would not have impeached any of Hannah’s substantive testimony regarding the
circumstances of the sexual assault or her identification of Hoyle as her assailant.

¶25 Furthermore, Hannah’s statements regarding her counseling were
not entirely inconsistent. Hannah testified at trial that she had discussed the
assault in counseling, but she told the PSI author that she had not. In both
instances, however, Hannah stated that the counseling she received had helped her
to deal with the assault. In particular, while Hannah told the PSI author that she
attended counseling once a week “for substance abuse” and had not discussed the
assault with her counselor, she also stated that the counseling “has helped her a
lot” and that “she still has trouble dealing with the assault at times, but no longer
relies on drugs to help her through this.” Thus, even if Hannah’s statements to the
PSI author had been introduced at trial, they would not have completely
undermined Hannah’s explanation for her unemotional demeanor while on the
witness stand.

¶26 Under these circumstances, we agree with the State that there is no
reasonable probability that the jury would have had a reasonable doubt as to
Hoyle’s guilt had it heard Hannah’s statements to the PSI author regarding the
counseling she received. Consequently, Hoyle is not entitled to a new trial based
on newly discovered evidence. See Plude, 310 Wis. 2d 28, ¶32.

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No. 2020AP1876-CR

II. Hannah’s counseling records

¶27 Hoyle next argues that if this court does not grant him a new trial on
his newly discovered evidence claim, we should remand to the circuit court for a
new hearing on that claim so that he may subpoena Hannah and her counseling
records.3 We agree with the State that no remand is required because Hannah’s
counseling records are not necessary to decide the newly discovered evidence
claim.

¶28 As discussed above, Hoyle’s newly discovered evidence claim is
based on Hannah’s statement to the PSI author that she never discussed the sexual
assault with her counselor, which was contrary to her trial testimony that she had
received counseling for the sexual assault. Hannah’s conflicting statements on this
point are already in the record. While a review of Hannah’s counseling records
might reveal whether her statement to the PSI author about the scope of her
counseling was accurate, our analysis of Hoyle’s newly discovered evidence claim
does not turn on the accuracy of that statement. Instead, the dispositive issue is
whether there is a reasonable probability that a jury, having heard the new
evidence, would have a reasonable doubt as to Hoyle’s guilt. See id. We have
already concluded that no such reasonable probability exists.

3
In his postconviction motion, Hoyle sought postconviction discovery of Hannah’s
counseling records pursuant to State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App.
1993), and its progeny. However, our supreme court overruled Shiffra during the pendency of
this appeal. See State v. Johnson, 2023 WI 39, ¶1, 407 Wis. 2d 195, 990 N.W.2d 174. We
therefore granted Hoyle’s request to allow the parties to submit supplemental briefs addressing
“the postconviction discovery issue in light of Johnson.” Hoyle now argues that because Shiffra
has been overruled, he should be allowed to subpoena Hannah and her counseling records at a
new hearing on his newly discovered evidence claim.

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No. 2020AP1876-CR

¶29 Thus, even assuming that Hannah’s counseling records confirm the
accuracy of her statement to the PSI author, the records are not necessary to decide
Hoyle’s newly discovered evidence claim. We therefore deny Hoyle’s request to
remand this matter for a new hearing on the newly discovered evidence claim to
allow him to subpoena Hannah and her counseling records.

III. State’s failure to disclose evidence

¶30 Finally, Hoyle seeks a new trial based on the State’s failure to
disclose evidence. A defendant has a due process right to the disclosure of any
favorable evidence material to guilt or punishment that is in the State’s possession.
State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468 (citing
Brady v. Maryland, 373 U.S. 83, 87 (1963)). When reviewing a circuit court’s
decision on a Brady claim, “we independently review whether a due process
violation has occurred, but we accept the [circuit] court’s findings of historical fact
unless clearly erroneous.” Wayerski, 385 Wis. 2d 344, ¶35.

¶31 “A Brady violation has three components: (1) the evidence at issue
must be favorable to the accused, either because it is exculpatory or impeaching;
(2) the evidence must have been suppressed by the State, either willfully or
inadvertently; and (3) the evidence must be material.” Wayerski, 385 Wis. 2d
344, ¶35. With respect to the first prong, evidence is favorable when, “if disclosed
and used effectively, it may make the difference between conviction and
acquittal.” United States v. Bagley, 473 U.S. 667, 676 (1985). Under the second
prong, “suppression is nondisclosure or the withholding of evidence from the
defense. The prosecutor’s mindset or ‘passivity’ is irrelevant to this suppression
inquiry.” Wayerski, 385 Wis. 2d 344, ¶58. Under the third prong, evidence is
material “only if there is a reasonable probability that, had the evidence been

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disclosed to the defense, the result of the proceeding would have been different.”
Id., ¶61 (citation omitted).

¶32 Hoyle contends that “[t]he only document[] provided by the [S]tate
during discovery regarding [Hannah’s] initial disclosure of the sexual assault was
a police report prepared by” Investigator Szotkowski. According to that report,
Szotkowski received an email from “Officer Joseph Nelson with [the] Chippewa
Falls Police Department” on March 14, 2017,4 stating that Hannah told Nelson that
she had been sexually assaulted. Hoyle asserts that during pretrial discovery, the
State did not produce either Nelson’s email to Szotkowski or any report prepared
by Nelson regarding Hannah’s initial disclosure of the assault. Hoyle states,
however, that he ultimately obtained a copy of the email through an open records
request and that the State eventually provided a copy of Nelson’s report after
Hoyle filed his postconviction motion.

¶33 Addressing the first and third prongs of the Brady analysis, Hoyle
contends that Officer Nelson’s report and email are favorable to him and material
because “[b]oth versions of [Hannah’s] initial statement to Officer Nelson contain
inconsistencies with her later statements, and suggest possible explanations for
why [Hannah] would falsely accuse Hoyle of the assault.” Under the second
prong of the Brady analysis, Hoyle asserts that the State suppressed this evidence
by failing to turn it over to the defense.

¶34 The State, in turn, concedes that it “inadvertently” suppressed
Officer Nelson’s email and report. The State argues, however, that Hoyle is not

4
While Investigator Szotkowski’s report states that she received this email on March 14,
2017, the email was actually sent on March 13, 2017.

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No. 2020AP1876-CR

entitled to a new trial on this basis because Nelson’s email and report “contain no
previously unknown evidence that is both material and favorable to Hoyle.”

¶35 We conclude that Hoyle’s Brady claim fails because he has not
shown that Officer Nelson’s report and email are “material”—that is, that there is
a reasonable probability that the result of Hoyle’s trial would have been different
had this evidence been disclosed to the defense. See Wayerski, 385 Wis. 2d 344,
¶61. In support of his Brady claim, Hoyle first notes that both the email and report
state that Hannah told Nelson that he was the first person she told about the
assault. Hoyle argues that these statements are “significant” because Hannah
“later said to Investigator [Szotkowski] that she had told a friend about the assault
the night it happened or the night after.” Hoyle contends that if the State had
disclosed Nelson’s email and report, he “could have used this inconsistency to
impeach [Hannah’s] credibility, and to point out that there was yet another
potential witness that the [S]tate neither investigated nor called to the witness
stand.”

¶36 Investigator Szotkowski’s report actually states that during an
interview on March 15, 2017, Hannah told Szotkowski that she “shared some of
what happened with a friend of hers the night of the assault or the following
night,” but she “was not completely truthful with her friend.” We agree with the
State that Hannah’s statement to Szotkowski is not necessarily inconsistent with
her earlier statement that Officer Nelson was the first person she told about the
assault because “sharing a partial—and only partially true—version of what
happened that night is not the same as telling the whole true story.” In addition,
while Hoyle claims that he could have used this inconsistency “to point out that
there was yet another potential witness” that the State failed to investigate—i.e.,
the friend to whom Hannah made the initial disclosure—that friend’s existence

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was revealed in Szotkowski’s report, not in Nelson’s report or email. Hoyle
concedes that the State provided him with Szotkowski’s report during pretrial
discovery. Under these circumstances, there is no reasonable probability that the
result of Hoyle’s trial would have been different had Nelson’s email and report
been disclosed to the defense. See Wayerski, 385 Wis. 2d 344, ¶61.

¶37 Second, Hoyle notes that according to Officer Nelson’s report,
Hannah told Nelson that she was “on a bunch of pills, and smoked weed” on the
day of the assault. Hoyle observes that Hannah subsequently testified at trial that
she had taken pills and consumed alcohol that day. Hoyle asserts that if Nelson’s
report had been disclosed to the defense, he “could have used this inconsistency to
impeach [Hannah’s] credibility.” We agree with the State, however, that Hoyle
does not explain how this trivial discrepancy—i.e., whether Hannah consumed
pills and weed or pills and alcohol on the day of the assault—would have had any
significant impeachment value. Again, there is no reasonable probability that the
result of Hoyle’s trial would have been different had this evidence been disclosed
to the defense. See id.

¶38 Third, according to Officer Nelson’s report, Hannah told Nelson that
Hoyle gave her cigarettes before the assault and then stated, “I gave you cigarettes,
now you can give me something in return.” Hoyle correctly observes that Hannah
did not testify to these facts at trial, and he therefore asserts that he could have
used Nelson’s report to impeach Hannah’s trial testimony regarding the
circumstances leading up to the assault. We agree with the State, however, that if
Hoyle had asked Hannah about these prior statements in Nelson’s report, “[a]ny
answer would [have been] at best indifferent and at worst damaging to the
defense.” If the defense had asked Hannah about her statements regarding
cigarettes in Nelson’s report, Hannah may have simply responded that she did not

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remember making those statements, which would not have been particularly
helpful to Hoyle’s defense. Alternatively, Hannah may have confirmed that Hoyle
did, in fact, give her cigarettes and then state that she owed him something in
return. That response would have been damaging to the defense. We therefore
fail to see how this evidence, if disclosed to the defense, would have created a
reasonable probability of a different outcome at trial. See id.

¶39 Fourth, according to Officer Nelson’s report, Hannah stated that
after Hoyle made the comment about cigarettes, he locked the doors of the vehicle
and then assaulted her. At trial, Hannah did not testify that Hoyle locked the
vehicle’s doors before the assault. Again, Hoyle argues that if the State had
disclosed Nelson’s report prior to trial, he could have cross-examined Hannah
regarding this inconsistency. This argument is unpersuasive because it is
undisputed that Hoyle had access to Investigator Szotkowski’s report, which
included Hannah’s statement that “the guy locked the doors” before assaulting her.
Thus, Hoyle could have used Szotkowski’s report to cross-examine Hannah on
this point at trial, and he did not need Nelson’s report to do so. Under these
circumstances, Hoyle has again failed to show that Nelson’s report is material—
that is, that it is reasonably probable the result of his trial would have been
different had the report been disclosed to the defense. See id.

¶40 Fifth, Hoyle asserts that Officer Nelson’s report and email “clarify
that [Hannah’s] initial disclosure did not come about as a result of [Hannah]
seeking to speak with someone about the alleged assault.” Instead, Nelson’s email
states that Hannah “was in my office talking about her drug dependence and she
used this incident as an example of how low she goes when she is high/drunk.”
Hoyle contends that a jury “could reasonably discount [Hannah’s] credibility
because she first brought up the assault as an aside when discussing her drug use,

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No. 2020AP1876-CR

as opposed to being driven to disclose the incident by the assault itself.” We do
not agree that this additional information would have caused the jury to discount
Hannah’s credibility to the extent that there is a reasonable probability the result of
Hoyle’s trial would have been different had the State disclosed Nelson’s report
and email. See id. Arguably, the fact that Hannah did not come into Nelson’s
office with a plan to tell him that she had been sexually assaulted makes her
disclosure more, not less, believable.

¶41 Sixth, Hoyle asserts that Officer Nelson’s report and email support
an inference that the police pressured Hannah to name her assailant after she
initially refused to do so, which “suggests why [she] falsely implicated Hoyle in
an assault.” Hoyle theorizes:

[W]hile discussing her drug and alcohol abuse with
Officer Nelson, [Hannah] started telling him about a sexual
experience she regretted, became embarrassed, and claimed
it was forced rather than consensual. And because she did
not want to get her actual partner in trouble, she refused to
identify the alleged assailant.

However, law enforcement then pressured her to name
someone, and she later chose Hoyle, whom she knew
through her former best friend.

¶42 In support of this theory, Hoyle cites the following statement from
Officer Nelson’s email: “Right now she did not seem interested in getting this guy
in trouble, but I think I can convince her otherwise.” Hoyle also cites
Investigator Szotkowski’s report, which states that during a May 10, 2017
interview with Nelson, Hannah “confirmed the subject who sexually assaulted her
was T.J. (Tomas) Hoyle, [J.G.’s] stepbrother.” Hoyle argues that Szotkowski’s
use of the word “confirmed” suggests that Nelson, not Hannah, “was the first one
to name Hoyle as [Hannah’s] assailant,” which “would support a defense

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No. 2020AP1876-CR

argument that [Hannah] was simply going along with the government’s
suggestions.”

¶43 We reject this argument for several reasons. As an initial matter,
Hoyle places too much importance on Investigator Szotkowski’s use of the word
“confirmed” in her report. Her use of that word does not support a reasonable
inference that it was Officer Nelson, rather than Hannah, who first named Hoyle
as Hannah’s assailant. In any event, as previously noted, Szotkowski’s report was
in Hoyle’s possession before trial. Thus, Hoyle could have used that report to
cross-examine Hannah on the issue of whether she or Nelson first raised Hoyle’s
name. Consequently, Hoyle did not need Nelson’s report or email to pursue that
line of inquiry.

¶44 Hoyle also places undue emphasis on Officer Nelson’s statement
that he would “convince” Hannah to name her assailant. We agree with the State
that “[t]he whole point of police investigation is to uncover crimes and identify
their perpetrators. Where, as here, a victim is reluctant to identify her assailant,
the police have two choices: to investigate without the victim’s assistance or urge
the victim to make the identification.” Like the State, we conclude that an
officer’s urging a victim to identify her assailant, without more, does not give rise
to a reasonable inference that the victim made a false accusation as a result of
improper pressure from law enforcement. That conclusion is particularly
appropriate here, given that Nelson made his statement about “convinc[ing]”
Hannah to name her assailant in a March 13, 2017 email, but Hannah did not
actually name Hoyle as the perpetrator until May 10, 2017. As the State aptly
notes, given that it took Hannah approximately two months to disclose her
assailant’s identity, “Nelson’s purported attempts at coercion must have been
pretty weak indeed.”

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No. 2020AP1876-CR

¶45 Furthermore, additional facts belie Hoyle’s claim that Hannah’s
identification of him was a last-minute fabrication caused by police pressure.
Investigator Szotkowski noted in her initial report that Hannah told Officer Nelson
that her assailant was twenty-two years old. Szotkowski later noted that during a
March 15, 2017 interview, Hannah refused to name her assailant but said that he
“was her old best friend’s stepbrother.”5 Thus, two months before Hannah named
Hoyle as her assailant, she had significantly limited the pool of potential suspects
to males who were approximately twenty-two years old and who were the
stepbrothers of Hannah’s former best friend. The details that Hannah initially
provided regarding her assailant’s identity—and the fact that Hoyle generally fit
Hannah’s initial description—are inconsistent with a claim that Hannah’s
subsequent identification of Hoyle was a fabrication caused by police pressure.

¶46 For these reasons, we cannot conclude that any of the aspects of
Officer Nelson’s report and email that Hoyle has identified are material. In other
words, Hoyle has not shown a reasonable probability that the result of his trial
would have been different had Nelson’s report and email been disclosed to the
defense. See Wayerski, 385 Wis. 2d 344, ¶61. Accordingly, the circuit court did
not err by denying Hoyle’s Brady claim.

By the Court.—Judgment and order affirmed.

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

5
Hannah confirmed at trial that Hoyle was the stepbrother of her former best friend. In
addition, the record shows that Hoyle was approximately one month shy of his twenty-first
birthday at the time of the assault.

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