State v. Shane A. Butcher

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 29, 2025
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. 2024AP287-CR Cir. Ct. No. 2020CF24

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

SHANE A. BUTCHER,

DEFENDANT-RESPONDENT.

APPEAL from orders of the circuit court for Green Lake County:
MARK T. SLATE, Judge. Reversed and cause remanded with directions.

Before Gundrum, P.J., Grogan and Lazar, 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. 2024AP287-CR

¶1 PER CURIAM. The State appeals from orders of the circuit court
granting defendant Shane A. Butcher’s postconviction motion claiming ineffective
assistance of trial counsel, vacating Butcher’s conviction for operating a motor
vehicle while intoxicated (OWI) as a fourth offense, and ordering a new trial. We
reverse and remand with directions to reinstate Butcher’s conviction and sentence.

BACKGROUND

¶2 As relevant to this appeal, the State charged Butcher with OWI as a
fourth offense after a police investigation into a freshly-damaged mailbox led police
to conclude that Butcher had collided with the mailbox while driving in a
snowstorm. The Criminal Complaint alleged that a single set of tire tracks led the
police from the ditch with the damaged mailbox to a residence where Butcher,
Butcher’s friend, Mark Lemke, and Lemke’s wife, Alys Wild, were sleeping. The
car that had obviously hit the mailbox was at the residence and was registered to
Wild. Both Butcher and Lemke were visibly intoxicated when police initially made
contact with them, though Lemke was so intoxicated that “he could barely even
stand.” Wild denied having driven the vehicle that night and told police she had left
the car with Butcher and Lemke, who had been drinking at a local bar earlier that
night. Wild denied knowing whether Butcher or Lemke had driven her car home.
“[S]he had suspicions that BUTCHER was the operator” of the car when it hit the
mailbox, but was uncertain. Neither Butcher nor Lemke ever admitted to having
driven the car that hit the mailbox, or to knowing who had.

¶3 The police investigation yielded additional evidence, including the
following facts and observations, all of which were presented at trial. Both men
were asleep or passed out and still fully clothed when police arrived, which,
combined with the snow on the floor, suggested they went directly from the car to

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the couch and passed out. Butcher “was definitely nervous” and evasive when
questioned by police, but, unlike Lemke who was difficult to awaken and
incoherent, Butcher was able to respond to police questions. Butcher appeared to
be intoxicated, having “red, bloodshot, glassy” eyes and “slow, slurred speech.”
Butcher made multiple inconsistent statements to police regarding who drove home
from the bar—first, that he was “unsure” what happened and “didn’t know” who
was driving; next, that he definitely was not the driver; and, finally, that he “blacked
out” about how he got home despite being able to remember everything else about
the evening. A boot print in the snow on the driver’s side of the car was consistent
with the pattern from the bottom of Butcher’s boots, and dissimilar to the pattern
Lemke’s “clogs or slip-on style shoe” would have left. Additionally, police
observed a pack of the same brand of cigarettes Lemke was smoking on the
passenger side of the vehicle, while Butcher told police he does not smoke. Police
did not locate a key for the car that had hit the mailbox at the residence, but Butcher
had a key in his pocket when booked into jail, while Lemke had nothing. Finally,
Butcher performed poorly on standardized field sobriety tests conducted by police,
and his blood alcohol concentration shortly after his arrest was 0.133, above the
restricted limit.

¶4 At trial, no one testified to having witnessed who was driving the car
that struck the mailbox, and there was no video footage available that could show
who had been driving on the night in question. Two police officers did testify that
Wild had “suggested” to them during their investigation that Lemke likely would
not have been driving that night because Lemke was so impaired and, therefore,
Wild had “suspicioned” that Butcher was the driver. Wild did not testify at trial.
Butcher’s trial counsel argued to the jury that there was insufficient evidence to
convict Butcher of OWI because Butcher had denied being the driver, and no one

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No. 2024AP287-CR

knew for certain who had been driving when the car hit the mailbox. Despite
counsel’s efforts to create reasonable doubt as to whether Butcher had been the
driver, the jury convicted Butcher of OWI as a fourth offense.

¶5 After sentencing, Butcher filed a postconviction motion with the
circuit court alleging ineffective assistance of trial counsel. He argued that trial
counsel performed deficiently in failing to object on hearsay grounds to Wild’s
statements, brought in through the officers, suggesting that Butcher was the driver
of the vehicle. Butcher further asserted that counsel’s deficient performance
prejudiced him.

¶6 The circuit court held a Machner1 hearing at which trial counsel
testified. The court subsequently granted Butcher’s postconviction motion, vacated
his OWI conviction, and ordered a new trial. In its written decision, the court found:
“[t]he whole issue at trial was, can the [S]tate prove [Butcher] drove the motor
vehicle?” Thus, the court concluded that trial counsel’s failure to object to the
hearsay testimony constituted ineffective assistance of trial counsel because it
determined that the statements attributed to Wild were the only evidence presented
as to who was probably driving the vehicle. The State appeals.

DISCUSSION

¶7 A claim of ineffective assistance of counsel requires a showing that
trial counsel’s performance was deficient and that the deficient performance was
prejudicial. State v. Mayo, 2007 WI 78, ¶33, 301 Wis. 2d 642, 734 N.W.2d 115.
Deficient performance is established by showing that trial counsel’s representation
fell below an objective standard of reasonableness. State v. Wesley, 2009 WI App

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

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No. 2024AP287-CR

118, ¶23, 321 Wis. 2d 151, 772 N.W.2d 232. Prejudice is established by showing
that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984).

¶8 “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. The defendant need not prove that, in the
absence of the error, he or she would have been acquitted. State v. Smith, 207
Wis. 2d 258, 276, 558 N.W.2d 379 (1997). Instead, the “touchstone of the prejudice
component is ‘whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.’” Id. (citation omitted). A claim
of ineffective assistance of counsel fails when the defendant has not satisfied either
prong of the two-part test. Strickland, 466 U.S. at 697.

¶9 The issues of deficient performance and prejudice present mixed
questions of fact and law. State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69
(1996). Findings of historical fact will not be upset unless they are clearly
erroneous, but the questions of whether counsel’s performance was deficient or
prejudicial are legal issues we review independently. Id. at 236-37.

¶10 We assume without deciding that Butcher’s trial counsel performed
deficiently. However, we also conclude the State has demonstrated that counsel’s
failure to object to the hearsay testimony did not render the jury’s guilty verdict
unreliable. We reach this conclusion because the evidence of Butcher’s guilt—
unaffected by the hearsay testimony—was overwhelming. In the context of the
overwhelming evidence of guilt, we conclude that the deficiencies alleged here
neither undermine our confidence in the outcome nor render the proceeding
fundamentally unfair. See Smith, 207 Wis. 2d 258, 276. As such, Butcher has not

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established—and cannot establish—that he was prejudiced by counsel’s alleged
failures.

¶11 Butcher argues that because the evidence against him at trial was
“highly circumstantial,” it is likely that he “would have [been] acquitted” if trial
counsel had objected to the officer’s hearsay testimony regarding Wild’s suspicion
that Butcher was the driver. We disagree.

¶12 First, the fact that the evidence against Butcher was circumstantial is
of no consequence to its sufficiency. “It is well established that a finding of guilt
may rest upon evidence that is entirely circumstantial and that circumstantial
evidence is oftentimes stronger and more satisfactory than direct evidence.” State
v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

¶13 In addition, even if trial counsel had successfully raised the objections
Butcher argues were necessary, the jury still would have heard Butcher’s admission
to police that he had consumed four beers at a bar with Lemke that evening before
the two of them left together. It still would have heard Butcher’s varied and
inconsistent statements to the police—first, that he was “unsure” what happened and
“didn’t know” who was driving; later that he definitely was not the driver; and,
finally, that he “blacked out” about how he got home. The jury would have heard
how Lemke was, in the investigating officers’ opinions, too intoxicated to have
possibly driven home. It would have heard how Butcher was obviously impaired,
with a BAC of .133. It would have heard about the fresh tracks in the snow by the
driver’s door matching Butcher’s boots and the key found on Butcher at booking.
In other words, had Butcher’s counsel successfully objected and the jury never heard
any testimony regarding Wild’s statements, it still would have heard all of the

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No. 2024AP287-CR

evidence set forth above, which, though circumstantial, is more than sufficient to
support the guilty verdict.

CONCLUSION

¶14 In sum, even absent trial counsel’s assumedly-deficient performance,
we are confident the jury still would have found Butcher guilty. The admission of
the evidence at issue did not render his trial unreliable or fundamentally unfair, such
that trial counsel’s failures to object to the hearsay statements caused him prejudice.
Because Butcher has failed to establish prejudice, we conclude that the circuit court
erred in granting his postconviction motion on the basis of ineffective assistance of
counsel. See Strickland, 466 U.S. at 697. Therefore we reverse the orders and
remand with directions to reinstate Butcher’s conviction and sentence.

By the Court.—Orders reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

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