State v. Jonathan T. DiFrances

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.
April 16, 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. 2023AP790-CR Cir. Ct. No. 2019CF143

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JONATHAN T. DIFRANCES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Ozaukee County: PAUL V. MALLOY, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2023AP790-CR

¶1 PER CURIAM. Jonathan T. DiFrances appeals a judgment of
conviction for incest with his minor daughter and an order denying his
postconviction motion seeking a new trial. DiFrances argues he was denied the
constitutionally effective assistance of his trial counsel when his attorney, despite
filing a motion under the now-defunct Shiffra/Green procedure,1 failed to also
investigate and obtain a years-earlier mental health evaluation that was known to
DiFrances and in the possession of one of the relatives supporting his defense.
DiFrances also argues the circuit court erroneously exercised its discretion by
prohibiting him from presenting evidence that the victim had previously said that
an uncle “made out” with her and requested lewd pictures of her, later claiming
that the uncle “never did anything to me” after DiFrances’s arrest. Given these
alleged errors, DiFrances urges us to use our power of discretionary reversal to
order a new trial.

¶2 We reject DiFrances’s arguments. He has not demonstrated that his
trial attorney was constitutionally deficient for failing to investigate the victim’s
years-earlier mental health evaluation under circumstances where the attorney had
successfully obtained in camera review under the Shiffra/Green process based on
his request for all of the victim’s mental health records. Further, DiFrances has
not established that the evidence regarding the victim’s uncle was evidence of a
“prior untruthful allegation of sexual assault” within the meaning of WIS.

1
State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), as modified by
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, created a procedure by which a
criminal defendant could obtain limited, in camera review of a victim’s privately held privileged
health records; that procedure was eliminated by State v. Johnson, 2023 WI 39, 407 Wis. 2d 195,
990 N.W.2d 174.

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No. 2023AP790-CR

STAT. § 972.11(2)(b)3. (2023-24),2 nor that he was constitutionally entitled to
present such evidence at his trial. We therefore decline to exercise our power of
discretionary reversal in this case and affirm.

BACKGROUND

¶3 DiFrances was charged with incest based on his seventeen-year-old
daughter Emily’s allegations that between January and May 2019 he had engaged
in sexual intercourse and repeated oral sex with her.3 At trial, Emily testified and
the State presented incriminating text messages supporting her allegations.4
DiFrances also testified at trial and suggested that Emily was fabricating the
allegations. He noted that Emily had access to his iPad, and he suggested that
Emily had sent the incriminating messages to herself from his device and then
deleted them from the iPad. His defense was supported by testimony from his

2
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86, we use a pseudonym for
the victim.
4
On May 18, DiFrances texted Emily that he “woke up really wanting” “that thing you
do that is better then how [his fiancée] does.” Emily declined this request unless DiFrances
would buy her an iPad, which he said he could not do.

On May 20, DiFrances sent a text recalling her effort to “brib[e]” him, to which Emily
responded that she didn’t “feel like it right now.” DiFrances responded, “Lol, being a lesbian I
don’t see how you could ever feel like it.”

A few hours later, DiFrances sent another message: “God damnit!!!! Why do you have to
be so good at that thing!!!! Lol fine if I get you the iPad would you do it? I don’t know when I’ll
be off work early enough to do it but if I did it would you be willing then?” Emily responded that
she would, but it would be the last time. DiFrances asked her if she was coming now and told her
to lock the door behind her. When Emily told him it would have to be quick, DiFrances
responded, “Well guess we will see what kind of skills you have lol.”

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No. 2023AP790-CR

mother, Patricia, and his wife, Elizabeth, among others. The jury convicted
DiFrances of incest.

¶4 Emily’s allegations had come to light as a result of her disclosures to
her therapist, who was a mandatory reporter. DiFrances and family members who
were supporting his defense had told his trial attorney that Emily had problems
with truthfulness, and those problems were being addressed in her therapy
sessions.

¶5 Accordingly, DiFrances’s trial attorney had submitted a pretrial
Shiffra/Green motion seeking Emily’s treatment records for the purpose of
determining whether she had made previous false allegations of unwanted sexual
contact, whether any external factors might have motivated her allegations against
DiFrances, and whether her mental condition might impact her recollection,
perception, propensity for untruthfulness, willingness to manipulate others, or
credibility. Critically, counsel’s request for the circuit court to order an inspection
of “any and all records related to medical and mental health treatment [Emily]
may have received in the State of Wisconsin or elsewhere.”

¶6 Recognizing that cases such as DiFrances’s were often “absolutely
straight credibility battles,” the circuit court granted DiFrances’s motion for an
in camera inspection and ordered the State to produce the records. After twice
reviewing the records, the court denied their release. The court’s examination
revealed “nothing … that would be releasable under a Shiffra/Green type of
motion. They are basically standard-type reports … [a]nd then the counselor fills
in some [information] on the bottom.”

¶7 DiFrances sought postconviction relief, asserting that despite his trial
attorney’s efforts under the Shiffra/Green framework, his attorney was

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No. 2023AP790-CR

constitutionally ineffective for failing to discover a report issued following a
psychological evaluation of Emily in 2013, when she was eleven years old.5 The
circuit court conducted a Machner hearing,6 after which it denied the
postconviction motion. DiFrances now appeals. Further facts will be set forth as
necessary below.

DISCUSSION

¶8 On appeal DiFrances raises two arguments. He first challenges the
denial of his postconviction motion, asserting his trial counsel was constitutionally
ineffective for failing to investigate and obtain Emily’s 2013 psychological
evaluation. Second, DiFrances argues the circuit court erroneously exercised its
discretion by excluding evidence that showed Emily had falsely accused her uncle
of “making out” with her years earlier and of requesting lewd photographs of her.
Given these alleged errors, DiFrances also argues we should exercise our power of
discretionary reversal to order a new trial. As set forth below, we reject these
arguments.

I. DiFrances’s trial counsel did not perform deficiently by failing to
investigate and obtain Emily’s 2013 psychological evaluation outside of
his other efforts to obtain Emily’s mental health records.

¶9 DiFrances first argues that after the circuit court denied him access
to the victim’s mental health records under Shiffra/Green, his trial attorney was
constitutionally deficient for failing to further investigate and obtain a 2013

5
The report was sealed in the circuit court. Its contents are not relevant to the
disposition of the issues here, and therefore it is unnecessary to do more than note that DiFrances
believes its contents cast doubt on Emily’s general truthfulness.
6
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP790-CR

evaluation that may have cast doubt on Emily’s credibility. The Sixth
Amendment guarantees a defendant the effective assistance of counsel. State v.
Savage, 2020 WI 93, ¶27, 395 Wis. 2d 1, 951 N.W.2d 838. We review an
ineffective assistance of counsel claim using a mixed standard of review. Id., ¶25.
The court’s factual findings, including those regarding trial counsel’s conduct and
strategy, will not be overturned unless they are clearly erroneous, but we review
de novo whether counsel’s conduct constitutes constitutionally ineffective
assistance. Id.

¶10 To prevail on an ineffective assistance claim, the defendant must
show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. Id.; see also Strickland v. Washington,
466 U.S. 668, 687 (1984). If the defendant fails to establish either prong, we need
not address the other. Savage, 395 Wis. 2d 1, ¶25.

¶11 Here, we conclude DiFrances’s trial attorney was not
constitutionally deficient. To demonstrate deficient performance, the defendant
must show that his or her attorney made errors so serious that he or she was not
functioning as the “counsel” guaranteed by the Sixth Amendment. Id., ¶28. We
presume that counsel’s conduct fell within the wide range of reasonable
professional assistance, and we will grant relief only upon a showing that
counsel’s performance was objectively unreasonable under the circumstances. Id.
Prejudice is demonstrated by showing a reasonable probability that, but for
counsel’s unprofessional conduct, the result of the proceeding would have been
different. Id., ¶32.

¶12 At the postconviction hearing, DiFrances’s counsel testified that
DiFrances and his fiancée had told counsel they attended therapy appointments

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No. 2023AP790-CR

with Emily specifically to discuss her manipulative and lying behavior. Counsel
knew, based on information from the family, that there were at least two recent
treatment providers who might have information about Emily’s truthfulness.
Accordingly, DiFrances’s trial attorney pursued Emily’s mental health records
through the Shiffra/Green framework.

¶13 It is undisputed that the 2013 evaluation was not produced as part of
the Shiffra/Green process. But DiFrances’s counsel did not know that. Counsel
intentionally made the request for all of the victim’s records, testifying that he
meant his request to be all-encompassing because he did not know which
treatment providers Emily had seen and he had no idea what might be in her
records. He had contemplated that there might be “one nugget” in a “completely
unrelated” treatment record or the records of an unknown specialist that might
affect her credibility.

¶14 DiFrances has not established any reason why his trial attorney
would have believed the in camera production of records was incomplete so as to
pursue further investigation. Consistent with the Shiffra/Green process, his
counsel testified he did not see the requests that were submitted to Emily’s
treatment providers, he did not know to whom the requests were directed, he did
not know the time frame covered by the requests, and he did not see the records
that were ultimately produced for in camera review. Though counsel was
surprised at the circuit court’s determination that there were no disclosable
records, DiFrances has not supplied any basis to conclude his counsel was
deficient for failing to discover that the 2013 evaluation was not part of the
in camera review.

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No. 2023AP790-CR

¶15 Nor is there any reason to believe counsel was aware, or should have
been aware, of the 2013 evaluation outside the Shiffra/Green context. The
evaluation was apparently in Patricia’s possession. Emily had lived with Patricia
between the ages of nine and sixteen, and Patricia had submitted an affidavit with
the Shiffra/Green motion. However, Patricia did not tell DiFrances’s counsel
about Emily’s 2013 evaluation, nor was it mentioned in her affidavit. At some
point in the representation, Patricia had shown defense counsel a box of some
other collection of records, but counsel had no reason to believe it contained
mental health records that could be relevant to DiFrances’s defense. Rather,
counsel testified it was possible the records consisted of merely school records
collected from the ordinary course of life through seven years. Counsel believed
the most important aspect of his investigation was obtaining Emily’s mental health
records under the Shiffra/Green framework.

¶16 We disagree with DiFrances that the foregoing demonstrates a
“textbook deficiency” based on failure to investigate. DiFrances likens this case
to Williams v. Taylor, 529 U.S. 362 (2000), asserting his attorney’s failure to
investigate was based on counsel’s erroneous belief that he could only pursue the
victim’s mental health records through Shiffra/Green. But regardless of whether
the 2013 evaluation would have been admissible outside of that framework, it still
does not render unreasonable counsel’s expectation that all of the victim’s mental
health records had been provided for in camera review pursuant to his request.

II. The circuit court did not erroneously exercise its discretion when it
excluded evidence of Emily’s prior allegations of sexual impropriety
with her uncle.

¶17 DiFrances’s trial counsel had learned from Patricia and Elizabeth
that, around the time of Emily’s disclosure about DiFrances, she had also claimed

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No. 2023AP790-CR

she engaged in sexually inappropriate conduct with her uncle. Specifically, Emily
had told Elizabeth that her uncle had recently requested a nude picture from her (in
response to which she sent a topless photo) and that they had “made out” a few
years prior. When DiFrances was arrested following Emily’s report, Emily told
Patricia the uncle “never did anything to me, leave him out of this.”7

¶18 DiFrances’s attorney regarded this information as showing that
Emily had made a “prior false claim of sexual assault,” and he requested that the
corresponding evidence be admitted at trial. The circuit court, however, regarded
the information as a collateral matter that risked a mini-trial on the issue of
whether the uncle committed the alleged sexual impropriety. It excluded the
evidence, reasoning the evidence was not particularly probative of whether
DiFrances committed incest during the relevant time frame.

¶19 DiFrances challenges the exclusion of the “uncle” evidence,
asserting it was admissible as a prior untruthful allegation of sexual assault that
would have negatively impacted Emily’s credibility. We review a circuit court’s
evidentiary decisions for an erroneous exercise of discretion. State v. Ringer,
2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448. We will uphold the court’s
ruling if it applied the correct legal standard, based its decision on the relevant
facts, and reached a reasonable conclusion. Id.

7
Patricia’s affidavit includes an assertion that the victim accused her uncle of “similar
activity” and, a few days later, “denied ever disclosing that information.” Based on the
investigative reports attached to the affidavit (and the parties’ briefing), it is apparent the affidavit
is referring to the alleged “making out” and photo exchange between the victim and her uncle,
and not other sexual conduct.

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No. 2023AP790-CR

¶20 The parties agree that, in an incest prosecution, the “uncle” evidence
is presumed inadmissible pursuant to the legislature’s determination that evidence
of a victim’s prior sexual conduct is “largely irrelevant ‘or, if relevant,
substantially outweighed by its prejudicial effect.’” Id., ¶25; see also WIS. STAT.
§ 972.11(2)(b) (prohibiting “evidence concerning the complaining witness’s prior
sexual conduct”).8 DiFrances argues the evidence was admissible by virtue of an
exception to this general prohibition for “[e]vidence of prior untruthful allegations
of sexual assault made by the complaining witness.” See § 972.11(2)(b)3.

¶21 Admissibility under WIS. STAT. § 972.11(2)(b)3. requires a threshold
factual showing that the evidence constitutes a prior false allegation. Ringer,
326 Wis. 2d 351, ¶29. The defendant bears the burden of producing evidence
from which a jury could reasonably find that the victim made prior untruthful
allegations of sexual assault. Id., ¶31. The circuit court determines whether that
evidence is sufficient as a matter of conditional relevancy. Id., ¶32.

8
The parties contend the “uncle” evidence was admissible only upon satisfying the
three-part test articulated in State v. DeSantis, 155 Wis. 2d 774, 785, 456 N.W.2d 600 (1990), as
modified by State v. Ringer, 2010 WI 69, 326 Wis. 2d 351, 785 N.W.2d 448. That three-part test
incorporates the requirements of not only WIS. STAT. § 972.11(2)(b), which is applicable to incest
prosecutions under WIS. STAT. § 948.06, but also WIS. STAT. § 971.31(11), which appears not to
be. DeSantis and Ringer involved prosecutions for second-degree sexual assault and repeated
sexual assault of a child, respectively—both of which crimes, unlike the one at issue here,
explicitly fall within § 971.31(11)’s ambit.

Based on the foregoing, it is unclear to what extent the DeSantis/Ringer three-part test is
applicable in the present case. Ultimately, we need not address that issue because, for reasons
explained elsewhere in this opinion, we conclude the “uncle” evidence did not constitute a prior
untruthful allegation of sexual assault under WIS. STAT. § 972.11(2)(b)3.—the statute explicitly
applicable to incest prosecutions. See Ringer, 326 Wis. 2d 351, ¶28 (holding that a court need
not discuss the other criteria if it concludes that the evidence is inadmissible under
§ 972.11(2)(b)).

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No. 2023AP790-CR

¶22 Here, we conclude the evidence proffered by DiFrances did not
constitute evidence of “prior untruthful allegations” within the meaning of WIS.
STAT. § 972.11(2)(b)3. Emily alleged specific sexual conduct with her uncle,
consisting of “making out” and a request for lewd photographs. Her purported
“denial” of those allegations—consisting only of her statement that her uncle
“never did anything to me, leave him out of this”—was highly ambiguous, both
about what conduct she was referring to and whether it constituted a retraction of
her past claims. The ambiguity is only heightened by the fact that the “denial”
was uttered immediately after DiFrances’s arrest on suspicion of sexual
intercourse, and was made to someone that did not know of Emily’s prior
assertions about sexual conduct with her uncle.

¶23 This conclusion appears consistent with the relevant case law. In
DeSantis, the complainant told her roommate she had been raped. DeSantis, 155
Wis. 2d at 779. The complainant later said the incident “didn’t happen exactly the
way she [the complainant] had said that it did,” and she told a mutual friend that
the incident merely involved someone walking up to her, putting his arm around
her, and saying, “[H]ey, where’s the party.” Id. Our supreme court regarded both
the report and the alleged retraction as both alleging “nonconsensual touching,”
which made the allegation and alleged retraction immaterial to the defendant’s
assertions of consent. Id. at 790-91.

¶24 Although the circuit court in DeSantis—and, consequently, the
supreme court—did not directly address the contours of the “prior untruthful
allegation” criterion, the supreme court’s decision demonstrates extreme
skepticism that the evidence would qualify—labeling, among other things, the
evidence “sketchy, vague, remote, disputed, and cumulative.” Id. at 792. Indeed,
Ringer recasts the DeSantis discussion as a conclusion that a “reasonable jury

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No. 2023AP790-CR

could not find that the complainant made prior untruthful allegations.” Ringer,
326 Wis. 2d 351, ¶33.

¶25 Contrast this with the comparatively clear recantation in State v.
Stroik, 2022 WI App 11, 401 Wis. 2d 150, 972 N.W.2d 640, the exclusion of
which justified a new trial. There, we concluded that the complainant had made a
prior untruthful allegation of sexual assault after the victim, contrary to her
statements to her mother, denied to social workers that her cousin had touched any
part of her body. Id., ¶¶22, 57-58. The victim acknowledged telling her mother
that her cousin had touched her intimate areas, but she told social workers she did
not know why she had said that. Id., ¶22. Following the investigation, child
protective services determined the allegation was unsubstantiated based on the
victim’s assertion “that the statement she made that led to the investigation was
inaccurate and because CPS was aware of no other evidence to support the
original allegation.” Id.

¶26 Putting this all together, Emily’s statement that her uncle “never did
anything to her” more closely resembles the nebulous alleged recantations in
DeSantis and Ringer than the clear denial in Stroik. It was non-specific, made to
a person that had no knowledge of her prior claims, and uttered in a context that
included her father being arrested as a result of her much different allegations of
bargaining with her for sexual intercourse. In short, based on the evidence
presented by DiFrances, no jury could reasonably find that Emily made a prior
untruthful allegation of sexual assault against her uncle.

¶27 DiFrances argues that even if the evidence was not permitted by
state evidentiary rules, he nonetheless was entitled to present it by virtue of his
constitutional right to present a defense. A defendant has a constitutional right to

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No. 2023AP790-CR

present evidence. State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325
(1990). This right does not, however, guarantee that a defendant will be able to
present evidence of a victim’s prior sexual conduct. Id. at 646. Whether the
application of WIS. STAT. § 972.11 deprives the defendant of his or her rights in a
particular case is a question of constitutional fact that we review de novo.
Pulizzano, 155 Wis. 2d at 648.

¶28 The constitutional right to present a defense is subject to the
application of evidentiary rules that themselves support the interests of fairness
and reliability. State v. Ochoa, 2022 WI App 35, ¶20, 404 Wis. 2d 261, 978
N.W.2d 501. We conduct this balancing using a two-part test. See State v.
St. George, 2002 WI 50, ¶¶18-20, 252 Wis. 2d 499, 643 N.W.2d 777. As a
threshold matter, the defendant must demonstrate a constitutional right to present
WIS. STAT. § 972.11 evidence by offering proof

that prior acts clearly occurred; that the acts closely
resembled those of the present case; that the prior act is
clearly relevant to a material issue; that the evidence is
necessary to the defendant’s case; [and] that the probative
value of the evidence outweighs its prejudicial effect….

Pulizzano, 155 Wis. 2d at 651. Once the defendant has made that showing, the
State has an opportunity to demonstrate, under strict scrutiny, that its interests in
prohibiting the evidence nonetheless require that it be excluded. Id. at 653.

¶29 DiFrances does not directly address the first part of the test, the five
Pulizzano factors. Certain of his arguments nod in that direction; for example,
much of his argument is directed to establishing the relevance of the “uncle”
evidence vis-à-vis Emily’s credibility. But most notably, nowhere does DiFrances
attempt to tackle the similarity or necessity requirements. We could reject his

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No. 2023AP790-CR

argument on this basis alone. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).

¶30 DiFrances’s claim fails on its merits as well. We are not persuaded
the alleged sexual conduct with Emily’s uncle—a single instance of “making out”
years earlier and a request for lewd photographs—“closely resembled” Emily’s
allegations of repeated sexual intercourse with DiFrances. Indeed, in Michael
R.B. v. State, 175 Wis. 2d 713, 736, 499 N.W.2d 641 (1993), our supreme court
labeled it an “insupportable leap of reasoning to conclude that two or three
minutes of undefined sexual touching … so closely resembles sexual intercourse
[so] as to satisfy the Pulizzano test.”

¶31 Further, Emily’s purported recantation was highly ambiguous, and
the circuit court’s concerns about a mini-trial were well-founded based upon
DiFrances’s bare-bones pretrial offer of proof. Unlike the federal cases DiFrances
cites in support of his arguments, this case does not involve an unequivocal
admission by the victim to fabricating a prior instance of sexual assault. See
Redmond v. Kingston, 240 F.3d 590, 591 (7th Cir. 2001) (the victim admitted to
making up a story about a prior forcible rape and to manufacturing evidence by
ripping her own clothes in an effort to garner attention from her mother); Sussman
v. Jenkins, 240 F.3d 329, 336 (7th Cir. 2011) (the victim admitted to others that
his prior allegation that he had been raped by his father was false and was
motivated by his desire for attention; the victim had apologized to his father and
his allegations were deemed unfounded by investigators).

III. DiFrances has not demonstrated he is entitled to discretionary reversal.

¶32 Last, DiFrances argues he is entitled to a new trial because the real
controversy—whether Emily was telling the truth—was not fully tried. We

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No. 2023AP790-CR

exercise of power of discretionary reversal under WIS. STAT. § 752.35 sparingly
and only in exceptional cases. State v. Cameron, 2016 WI App 54, ¶31,
370 Wis. 2d 661, 885 N.W.2d 611. In light of our determination that there was no
error, and based on the arguments presented in the appeal, we conclude this case is
not an exceptional one warranting the exercise of our power of discretionary
reversal.

By the Court.—Judgment and order affirmed.

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

15