State v. Richard Steven Valdovinos

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 24, 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. 2024AP19-CR Cir. Ct. No. 2021CF176

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICHARD STEVEN VALDOVINOS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Columbia County: TODD J. HEPLER, Judge. Affirmed.

Before Blanchard, Graham, and Taylor, 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. 2024AP19-CR

¶1 PER CURIAM. Richard Steven Valdovinos appeals a judgment of
conviction and an order denying his postconviction motion for a new trial.
Valdovinos argues that he is entitled to a new trial because defense counsel
provided him with constitutionally ineffective assistance in two respects: (1) by
failing to object to testimony that referenced Valdovinos’s “parole officer” and the
possibility of Valdovinos “going back to prison”; and (2) by failing to object to the
prosecutor’s alleged reference to facts not in evidence in its rebuttal closing
argument. We conclude that Valdovinos has not shown that he was provided
ineffective assistance of counsel in either respect. Therefore, we affirm.

BACKGROUND

¶2 Valdovinos was convicted of three counts of strangulation and
suffocation and two counts of battery, all as a repeater and as acts of domestic
abuse. As discussed in more detail below, these convictions stemmed from three
separate incidents in 2020 and 2021 involving A.B., Valdovinos’s wife at the
time.1

¶3 During its opening statement, the prosecutor stated that, because
there was no physical evidence of the crimes, the testimony of the witnesses was
the only evidence that would be introduced. Defense counsel asked the jury to
focus on A.B.’s testimony and her credibility because “there [are] only two people
who know actually what happened.”

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2023-24), we refer to the
victim using initials that do not correspond to her actual name. All references to the Wisconsin
Statutes are to the 2023-24 version unless otherwise noted.

2
No. 2024AP19-CR

¶4 At trial, A.B. testified as follows. A.B. and Valdovinos had known
each other for many years, and they eventually married in 2019. The three
incidents of domestic abuse occurred in late 2020 through early 2021. The first
incident, which happened in their house in October 2020, started when A.B.
confronted Valdovinos about pornography that she found on his phone.
Valdovinos became angry with her and held her against the wall by putting his
hand on her throat. Valdovinos dropped her to the floor when his daughter and her
boyfriend entered the room. The second incident happened in November 2020.
A.B. was angry at Valdovinos for belittling her, and she started throwing and
destroying items in the house. Valdovinos grabbed her, threw her to the ground,
and put his knees on her chest and his hands on her throat. A.B. lost
consciousness and woke up later lying on the floor in the same location. A.B. was
“full of bruises” and had a black eye after this incident. The third incident
happened in February 2021 when, during an argument in their house, Valdovinos
grabbed A.B.’s throat and carried her into the kitchen by the throat. He then
slammed her head “back and forth” between two cabinets before throwing her to
the floor. While she was lying on the floor, Valdovinos punched her on the side of
her body, then kicked her in the stomach. A.B. had “goose eggs” on her head after
this incident and she believed that she had broken ribs. A.B. also said that she
noticed blood in her ileostomy bag after this incident.2 A.B. did not immediately
report any of the three incidents to the police, nor did she seek medical treatment
for her injuries.

2
“An ileostomy is a surgical creation of an opening through the abdomen into the small
intestine. An ileostomy bag is connected, into which fecal matter is directed from the rectum.”
Mackinaw v. Bowen, 866 F.2d 1023, 1023 n.3 (8th Cir. 1989). Here, A.B. had an ileostomy bag
as a result of colon surgery, for which she was receiving postoperative care and regular
intravenous (IV) infusions.

3
No. 2024AP19-CR

¶5 A.B. eventually reported the three incidents to authorities in
March 2021. When asked by the prosecutor why she did not report Valdovinos’s
conduct earlier, A.B. responded, “Because I loved him. He was my husband, and I
didn’t want to see him go back to prison. And fear. Fear of consequences.” A.B.
stated that she never sought medical treatment for the “same reason[s].”
Valdovinos’s counsel did not object or move to strike the reference to Valdovinos
being previously incarcerated. The prosecutor also asked A.B. who she told about
the incidents, and she responded: “I went to his parole officer.”3 Moreover, during
defense counsel’s cross-examination of A.B., defense counsel asked A.B. when
she first reported Valdovinos to the police. A.B. responded: “I don’t remember
the day he was arrested or which day exactly it was that I spent three hours with
his parole officer.” Defense counsel did not object to or move to strike either of
A.B.’s references to Valdovinos’s parole officer.

¶6 The prosecution also presented brief testimony from the following
individuals. Valdovinos’s daughter and her boyfriend testified that they were in
another room of the house during the October 2020 incident, but they both
testified that they did not witness any physical violence between Valdovinos and
A.B. Both of them also testified that they did not tell the police in an
October 2021 interview that they had witnessed Valdovinos push A.B. against the
wall during that incident. The detective who interviewed Valdovinos’s daughter
and her boyfriend in October 2021 testified that Valdovinos’s daughter and her
boyfriend both said during that interview that they witnessed Valdovinos push

3
Valdovinos was not on parole during the time in which A.B. reported these incidents.
Rather, Valdovinos was on supervision, which included being monitored by an agent of the
Department of Corrections. We understand that when A.B. referenced Valdovinos’s “parole
officer,” she was referring to this agent.

4
No. 2024AP19-CR

A.B. against a wall. In addition, the police officer who interviewed A.B. after she
reported the incidents in March 2021 testified that A.B. was crying during the
interview and appeared “upset,” “distraught,” and “scared.” Valdovinos did not
testify at trial.

¶7 Defense counsel’s closing argument focused on A.B.’s credibility.
At one point, he pointed out that A.B. was getting weekly IV treatments at the
time of the incidents due to her past colon surgery and argued that she would not
have been able to hide her injuries from her treatment providers. In its rebuttal
closing argument, the prosecutor responded to this argument by asking the jury to
use its common knowledge about the nature of blood draws and IV treatments:
“When you have gone to the doctor … to have blood draw[n], where do they draw
it from? Your arm; right? When you’ve gone to the doctor to have an IV, where
do they put the IV in? Your arm; right? … [It is] [e]asy to hide what’s going on in
other areas of your body.” Defense counsel did not object to this rebuttal
argument by the prosecutor.

¶8 The jury found Valdovinos guilty on all five counts, and the circuit
court sentenced him to a total of 18 years of imprisonment.

¶9 Valdovinos filed a postconviction motion arguing that he was
provided ineffective assistance of counsel in two respects: (1) defense counsel
failed to object to A.B.’s testimony that she reported Valdovinos to his parole
officer; and (2) defense counsel failed to object during the prosecutor’s rebuttal
closing argument when the prosecutor referenced facts not in evidence regarding
A.B.’s IV treatments. At the Machner hearing, defense counsel testified that he

5
No. 2024AP19-CR

did not have any strategy in failing to object to A.B.’s two references to
Valdovinos’s parole officer and the prosecutor’s rebuttal closing argument.4
Defense counsel testified that, at least with the benefit of hindsight, he believed
that he would have been concerned at the time of trial that lodging
contemporaneous objections would have served to draw attention to the allegedly
improper references, to the detriment of the defense.

¶10 In a written order, the circuit court denied Valdovinos’s
postconviction motion. The court concluded that defense counsel’s failure to
object to A.B.’s references to Valdovinos’s parole officer was not deficient
because objecting would have drawn the jury’s attention to Valdovinos’s
supervision status. The court also concluded that the fleeting references to the
parole officer were not prejudicial because of A.B.’s “credible testimony regarding
the multiple incidents of abuse.” Additionally, although Valdovinos did not raise
it in his postconviction motion or at the Machner hearing, the court sua sponte
considered A.B.’s testimony that she did not want Valdovinos to “go back to
prison” and concluded that this testimony would not have been excluded if defense
counsel had objected because the testimony was relevant to A.B.’s motivation and
rationale concerning her delayed reporting of the abuse. The court also concluded
that defense counsel’s failure to object to the prosecutor’s rebuttal closing
argument concerning A.B.’s IV treatments was not deficient because any objection
would have been overruled.

4
“A Machner hearing is ‘[t]he evidentiary hearing to evaluate counsel’s effectiveness,
which includes counsel’s testimony to explain his or her handling of the case.’” State v. Domke,
2011 WI 95, ¶20 n.5, 337 Wis. 2d 268, 805 N.W.2d 364 (citation omitted); see also State v.
Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

6
No. 2024AP19-CR

¶11 Valdovinos appeals his judgment of conviction and the circuit
court’s order denying his postconviction motion.

DISCUSSION

¶12 As noted, Valdovinos argues on appeal that he is entitled to a new
trial because he was provided ineffective assistance of counsel on two grounds:
(1) defense counsel failed to object to A.B.’s testimony that she did not want to
see Valdovinos “go back to prison” and that she reported Valdovinos to his parole
officer;5 and (2) defense counsel failed to object during the prosecutor’s rebuttal
closing argument concerning A.B.’s IV treatments. Valdovinos argues that
defense counsel’s failures to object to these statements were deficient performance
that prejudiced him.6 These arguments fail.

5
As noted in the text, Valdovinos’s postconviction motion did not argue that his defense
counsel was ineffective for failing to object to A.B.’s testimony that she delayed reporting the
incidents, in part, because she did not want Valdovinos to return to prison. “Issues that are not
preserved in the circuit court … generally will not be considered on appeal.” State v. Huebner,
2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727. However, the circuit court addressed this
testimony in its decision, concluding, for the reasons discussed in the text, that efforts of defense
counsel to prevent or object to this testimony would not have been successful. We will consider
Valdovinos’s argument regarding A.B.’s testimony on this issue because the circuit court
addressed it in the court’s decision denying Valdovinos’s postconviction motion, the State does
not argue that Valdovinos forfeited this argument in the circuit court, and both parties address the
issue in their appellate briefing. State v. Counihan, 2020 WI 12, ¶27, 390 Wis. 2d 172, 938
N.W.2d 530 (“[A] reviewing court may disregard a forfeiture and address the merits of an
unpreserved issue in an appropriate case.”).
6
Valdovinos also argues on appeal that defense counsel’s failure to object to A.B.’s
testimony and the prosecutor’s rebuttal closing argument was “plain error” under WIS. STAT.
§ 901.03. The State argues in its appellate response brief that because this argument was not
raised in Valdovinos’s postconviction motion and not addressed by the circuit court, it was
thereby forfeited. See Huebner, 235 Wis. 2d 486, ¶10 (issues that are not preserved at the circuit
court generally will not be considered on appeal). Valdovinos fails to address the State’s
forfeiture argument in his reply brief, effectively conceding the issue, and does not persuade us
that we should address his plain error argument despite his failure to preserve this argument in the
circuit court. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750,
(continued)

7
No. 2024AP19-CR

I. Standard of Review

¶13 Whether a defendant was denied the constitutional right to effective
assistance of counsel involves questions of fact and law. State v. Breitzman, 2017
WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93. “The factual circumstances of the
case and [defense] counsel’s conduct and strategy are findings of fact, which will
not be overturned unless clearly erroneous; whether counsel’s conduct constitutes
ineffective assistance is a question of law, which we review de novo.” Id.

¶14 To demonstrate that defense counsel’s assistance was ineffective,
Valdovinos has the burden of showing that counsel’s performance was deficient
and that the deficient performance was prejudicial. State v. Carter, 2010 WI 40,
¶21, 324 Wis. 2d 640, 782 N.W.2d 695. With respect to the deficiency prong,
Valdovinos must show that counsel’s performance “fell below an objective
standard of reasonableness” considering all of the circumstances. Id., ¶22 (citation
omitted). There is a “strong presumption” that counsel’s conduct “falls within the
wide range of reasonable professional assistance.” Id. (citation omitted).
“[C]ounsel’s performance need not be perfect, nor even very good, to be
constitutionally adequate.” Id. With respect to the prejudice prong, Valdovinos
must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.,
¶37 (citation omitted). We need not address both prongs if one prong is
dispositive. Id., ¶36.

738 N.W.2d 578 (appellant’s failure to respond in reply brief to argument made in response brief
may be taken as concession).

8
No. 2024AP19-CR

II. A.B.’s Testimony

¶15 As noted, Valdovinos argues that he was provided ineffective
assistance of counsel because defense counsel failed to object to A.B.’s testimony
that she did not want Valdovinos to “go back to prison” or to A.B.’s references to
Valdovinos having a parole officer. We consider each aspect of A.B.’s testimony
in turn.

1. A.B.’s Testimony About Valdovinos Not Going Back to Prison

¶16 Regarding A.B.’s “back to prison” reference, we conclude that
defense counsel’s failure to object to this testimony was not deficient because any
objection would have been overruled and would have drawn the jury’s attention to
the testimony.7

¶17 Our consideration of whether defense counsel was deficient in
failing to object to A.B.’s testimony about Valdovinos going back to prison begins
with our consideration of the admissibility of this testimony. Evidence is
generally admissible if it is relevant. WIS. STAT. § 904.02. Evidence is relevant if
it has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” WIS. STAT. § 904.01. However, even if evidence is
relevant, it may still be inadmissible “if its probative value is substantially
outweighed by the danger of unfair prejudice.” WIS. STAT. § 904.03. Evidence is
unfairly prejudicial if it “appeals to the jury’s sympathies, arouses its sense of

7
Because we conclude that defense counsel’s failure to object to this testimony was not
deficient, we need not and do not address whether this aspect of counsel’s performance was
prejudicial when considering Valdovinos’s ineffective assistance of counsel claim. See State v.
Carter, 2010 WI 40, ¶36, 324 Wis. 2d 640, 782 N.W.2d 695.

9
No. 2024AP19-CR

horror, provokes its instinct to punish or otherwise causes a jury to base its
decision on something other than the established propositions in the case.” State
v. Hurley, 2015 WI 35, ¶88, 361 Wis. 2d 529, 861 N.W.2d 174 (citation omitted).

¶18 In the circuit court’s decision denying Valdovinos’s postconviction
motion, the court stated that it would not have excluded A.B.’s testimony that she
did not want Valdovinos to go back to prison because this testimony explained
A.B.’s motivation for the delay in reporting the abuse. In other words, the court
concluded that this testimony was relevant to A.B.’s credibility and to the jury’s
evaluation of the prosecution’s case. A reasonable inference from the court’s
conclusion that defense counsel’s attempt to exclude or object to this statement
would not have been successful, is that, in the court’s assessment, the risk of
unfair prejudice did not substantially outweigh the probative value of the
testimony.

¶19 Here, the circuit court could have reasonably concluded that A.B.’s
testimony was relevant and that its probative value was not substantially
outweighed by the danger of unfair prejudice. One aspect of Valdovinos’s defense
was to argue that A.B. was motivated to delay reporting the abuse because she
wanted to wait until Valdovinos received a stimulus check from the government
before she filed for divorce. If the jury believed this argument about A.B.’s
motive, then the jury might have been less inclined to believe that A.B. was telling
the truth about Valdovinos’s abuse. As a result, the circuit court could have
reasonably determined that A.B.’s testimony about her motive in delaying her
report of Valdovinos’s abuse was relevant to the jury’s assessment of A.B.’s
credibility. See id., ¶81 (“A witness’s credibility is always ‘consequential’ within
the meaning of WIS. STAT. § 904.01.”).

10
No. 2024AP19-CR

¶20 Moreover, the circuit court could have reasonably determined that
the probative value of A.B.’s testimony was not outweighed by the danger of
unfair prejudice. The prosecutor did not ask any follow-up questions to this
testimony or otherwise dwell on Valdovinos’s prior incarceration. Although there
is a possibility that some jurors inferred that Valdovinos was a dangerous person
or had a bad character because of his prior incarceration, as Valdovinos argues, the
danger of this prejudicial effect was lessened because the prosecutor did not ask
the jury to make this inference, nor did it argue that Valdovinos acted in
conformity with any such character in the present circumstances. See State v.
Sullivan, 216 Wis. 2d 768, 782, 576 N.W.2d 30 (1998) (evidence of a person’s
other acts presents less danger of unfair prejudice when it is not used to support an
inference that the person has a bad character and acted in conformity with that
character). In other words, the purpose of A.B.’s testimony was to explain the
reason for her conduct, not to cast aspersions on Valdovinos’s character. Because
the circuit court could reasonably conclude that A.B.’s testimony was admissible
and not unduly prejudicial, we conclude that defense counsel was not deficient for
failing to object because any objection to that testimony would have been
overruled. See State v. Stroik, 2022 WI App 11, ¶36, 401 Wis. 2d 150, 972
N.W.2d 640 (“[A]n attorney’s failure to make an objection that would have been
properly overruled by the court is not deficient performance.”).

¶21 Valdovinos argues that this testimony should not have been admitted
at trial because the danger of unfair prejudice substantially outweighed the
probative value of this evidence under WIS. STAT. § 904.03, and that this court’s
decision in State v. Ingram, 204 Wis. 2d 177, 554 N.W.2d 833 (Ct. App. 1996),
demonstrates that A.B.’s testimony was inadmissible character evidence. Contrary
to Valdovinos’s argument, Ingram supports an argument that A.B.’s testimony

11
No. 2024AP19-CR

was admissible. In Ingram, law enforcement attempted to pull over a vehicle that
the defendant was driving based on a traffic violation. Id. at 180. The defendant
had been drinking alcohol prior to the stop, delayed pulling over, and fled his
vehicle on foot. He was ultimately apprehended and charged with fleeing an
officer. Id. The defendant’s parole agent testified at trial that the defendant was a
“high-risk” parolee, that the defendant had been released from prison one month
before the traffic stop, and that the defendant had not kept in touch with the agent.
Id. at 182-83. This court concluded that the agent’s testimony was admissible
because the prejudicial effect of the testimony did not substantially outweigh its
probative value, reasoning that the defendant’s parolee status provided an
explanation and motive for the defendant fleeing a police officer after the traffic
stop. Id. at 183-85. Just as the parole agent’s testimony in Ingram was deemed
relevant to the issue of the defendant’s motive, here A.B.’s testimony about not
wanting Valdovinos to return to prison was relevant in explaining her motive to
delay reporting Valdovinos’s abuse.

¶22 Valdovinos also argues that A.B.’s testimony was unfairly
prejudicial under WIS. STAT. § 904.03 because the circuit court did not caution the
jury about the “limited relevance” of that testimony. We are not persuaded.
Although a jury instruction about this testimony may have lessened the danger of
unfair prejudice, we do not think that the absence of such an instruction created
such a danger that the circuit court would have been required to sustain an
objection. As noted, the prosecutor did not dwell on this testimony or ask the jury
to draw a negative inference about Valdovinos’s character because of his prior
incarceration. Therefore, it was not deficient performance for defense counsel to
not request a jury instruction regarding the limited relevance of the testimony.

12
No. 2024AP19-CR

¶23 Separately, we conclude that defense counsel’s failure to object to
A.B.’s testimony was not deficient because defense counsel could have reasonably
determined that an objection could have served to draw the jury’s attention to the
reference that Valdovinos was previously incarcerated. See Johnson v. Thurmer,
624 F.3d 786, 792 (7th Cir. 2010) (“[T]he decision not to have [the testimony]
stricken was likely a sound tactical decision, designed to not draw attention to the
very issue … counsel rightfully wished to bury.”). Valdovinos argues that this
principle is inapplicable here because defense counsel testified that he had no
strategy in failing to object to this testimony. This argument fails because our
assessment of an alleged deficiency concerns “whether defense counsel’s
performance was objectively reasonable according to prevailing professional
norms.” State v. Kimbrough, 2001 WI App 138, ¶31, 246 Wis. 2d 648, 630
N.W.2d 752. For this reason, we conclude that defense counsel’s performance
was not deficient, even though he testified that he had no strategy in failing to
object to A.B.’s testimony. See id. (“[D]efense counsel’s failure to request a
lesser-included offense instruction was reasonable despite counsel’s subjective
averment that he overlooked the availability of such a defense.” (citing United
States v. Smith, 10 F.3d 724, 728 (10th Cir. 1993))). For these reasons, we reject
Valdovinos’s arguments that defense counsel was deficient for failing to object to
A.B.’s testimony about Valdovinos going back to prison.

13
No. 2024AP19-CR

2. A.B.’s References to Valdovinos’s Parole Officer

¶24 We next consider A.B.’s references to Valdovinos’s parole officer
during her testimony.8 Unlike A.B.’s testimony that she did not want Valdovinos
to go back to prison, A.B.’s references to Valdovinos’s parole officer did not
concern A.B.’s motive to delay reporting of Valdovinos’s abuse. For this reason,
we assume without deciding that defense counsel’s failure to object to A.B.’s two
references to Valdovinos’s parole officer was deficient. But we conclude that it
was not prejudicial because Valdovinos has not shown that there is a reasonable
probability of a different trial outcome had counsel objected to this testimony.

¶25 We consider A.B.’s references to Valdovinos’s parole officer in the
context of the totality of evidence presented at trial. See State v. Thiel, 2003 WI
111, ¶62 n.15, 264 Wis. 2d 571, 665 N.W.2d 305 (whether counsel’s performance
was prejudicial depends on “the totality of the evidence before the judge or jury”
(citation omitted)). As discussed above, A.B. testified in detail about
Valdovinos’s conduct during the three incidents at issue. The police officer who
interviewed A.B. when she eventually reported the incidents testified that A.B.
was crying and appeared scared and upset. Valdovinos’s daughter and her
boyfriend also testified that they were in the house at the time of the October 2020
incident, but they denied witnessing any abuse. Their trial testimony was called
into question when the detective who interviewed them in October 2021 testified
that they told him they had witnessed Valdovinos push A.B. against a wall. Given

8
At another point during cross-examination, A.B. referenced Valdovinos’s “PO” in
referring to Valdovinos’s parole officer. Valdovinos doesn’t mention this reference in his
postconviction motion or on appeal, but neither our analysis nor conclusion would change on this
issue had he done so.

14
No. 2024AP19-CR

that these prior inconsistent statements are not hearsay pursuant to WIS. STAT.
§ 908.01(4)(a), the jury was allowed to consider the possibility that these
witnesses had truthfully reported the abuse.

¶26 When the foregoing evidence is considered together, it follows that
A.B.’s testimony was the primary evidence presented at trial regarding
Valdovinos’s conduct during the three incidents. Valdovinos’s daughter and her
boyfriend were present only for the October 2020 incident. Their brief testimony
was that they had not witnessed any abuse, not that abuse had not occurred,
although there was evidence that they had truthfully told the police about
witnessing the abuse. Valdovinos did not testify, and A.B.’s testimony was the
most direct evidence presented at trial regarding Valdovinos’s conduct during the
November 2020 and February 2021 incidents. No other witness contradicted
A.B.’s version of events in any meaningful way. As a result, the outcome of the
trial was dependent on the jury’s assessment of A.B.’s credibility.

¶27 For these reasons, A.B.’s credibility was central to the prosecution’s
case, and Valdovinos’s theory of defense focused primarily on attacking A.B.’s
credibility. For example, defense counsel argued in closing arguments that A.B.
omitted certain details regarding the three incidents, questioned why A.B. never
sought medical treatment for her injuries, suggested that A.B. delayed reporting
the abuse and filing for divorce because she was waiting until Valdovinos received
a stimulus check from the government, referenced A.B.’s admitted history of drug
abuse and writing fraudulent checks, and characterized her trial testimony as being
“assertive[]” and “surl[y].” However, A.B.’s testimony about the three incidents
was consistent and unambiguous. The circuit court found in its postconviction
decision that A.B. gave “credible testimony regarding the multiple incidents of
abuse.”

15
No. 2024AP19-CR

¶28 Additionally, A.B.’s references to Valdovinos’s parole officer were
brief and did not impugn Valdovinos’s character. These references were also
nonspecific, without any reference to the nature of any crime of which he had been
convicted or any suggestion that it involved violence. Moreover, the prosecutor
did not ask any follow-up questions concerning these references, did not repeat
these references, did not move to admit any prior acts of Valdovinos, and did not
mention Valdovinos’s supervision status, his prior incarceration, or his past
criminal activities at any time during the trial. And nobody at trial explicitly or
even implicitly asked the jury to infer Valdovinos was a dangerous or bad person
because he was being supervised by an agent.

¶29 Valdovinos argues that A.B.’s references to his parole officer were
prejudicial because they disclosed to the jury that Valdovinos was being
supervised by a state agent, which the jury could infer was based on a prior
criminal conviction. For this reason, Valdovinos argues that this testimony
constituted impermissible character evidence from which the jury could infer that
Valdovinos was a dangerous person with a bad character. In support, Valdovinos
points to this court’s decision in State v. Coleman, 2015 WI App 38, 362 Wis. 2d
447, 865 N.W.2d 190. We disagree that Coleman is analogous. In that case, the
defendant’s counsel said during opening statements that the defendant had “spent
time in prison,” had “done all kind[s] of things in his past,” and was “not an
angel.” Id., ¶5. This court concluded that these statements contributed to a
determination of prejudice because counsel “gave the jury negative and prejudicial
information that was not relevant to any element of the crime” and “impugned
Coleman’s character.” Id., ¶¶42, 46. Unlike in Coleman, A.B.’s references to
Valdovinos’s parole officer, as previously discussed, did not impugn Valdovinos’s
character, and we conclude that Coleman is unpersuasive in this instance.

16
No. 2024AP19-CR

¶30 In sum, the fleeting and somewhat obscure nature of A.B.’s
references to Valdovinos’s parole officer likely had minimal effects on the jury’s
assessment of A.B.’s credibility. We are not convinced that A.B.’s testimony
creates a reasonable probability that the jury would have acquitted Valdovinos on
one or more charges if defense counsel had objected to or moved to strike this
testimony.

III. The Prosecutor’s Rebuttal Closing Argument

¶31 Valdovinos also argues that he was provided ineffective assistance
of counsel because defense counsel failed to object when the prosecutor argued in
its rebuttal closing argument that A.B. would have been able to hide her injuries
resulting from the abuse during her weekly IV treatments. According to
Valdovinos, this argument was improper because it referenced facts about these
treatments that were not in evidence, such as the location where the IV was placed
on A.B.’s body and the standard procedures for such treatments. For the following
reasons, we conclude that defense counsel’s failure to object to the prosecutor’s
argument was not deficient because any objection would have been overruled. See
Stroik, 401 Wis. 2d 150, ¶36.

¶32 We begin by considering the context of the prosecutor’s remarks
during its rebuttal closing argument. A.B. testified on cross-examination about the
nature of the weekly medical treatments that she was receiving at the time of the
incidents. In relevant part, she said: “I get an IV put in, and they give me a liter of
fluids and three grams of magnesium.… I have lab work done. If my magnesium
levels are 2.0 or less, then I get three grams of magnesium.” Defense counsel did
not ask A.B. where on her body the IV was placed, nor did he ask any other
questions as to how the lab work or IV treatments were performed. The

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No. 2024AP19-CR

prosecutor also did not ask any questions on redirect about A.B.’s weekly medical
treatments.

¶33 In Valdovinos’s closing argument, defense counsel referenced
A.B.’s testimony about her medical treatment:

This whole time, she’s going every week to the
doctor or to a healthcare provider. And the State wants you
to believe that she did well in hiding [her injuries from the
incidents]. She never says she hid anything. And, again,
how much can you hide? She’s getting an IV. They’re
seeing her regularly. Regularly enough … that they would
notice things like that.

Because A.B. never testified in detail as to how the IV treatments were performed,
this argument from defense counsel implicitly asked the jury to use its common
knowledge and experience about the ordinary medical procedures for IV
treatments.

¶34 In its rebuttal, the prosecutor responded to defense counsel’s
argument by asking the jury to use its common knowledge and experience about
blood draws and IV treatments:

So use your own common knowledge and
experience. The judge instructs you on that as well. When
you have gone to the doctor … to have blood draw[n],
where do they draw it from? Your arm; right? When
you’ve gone to the doctor to have an IV, where do they put
the IV in? Your arm; right?

So that’s the kind of thing[] that was happening
when she was going in on Mondays. They weren’t doing a
full exam. She told you that she was just going in and
having blood work done and getting an IV. Easy to hide
what’s going on in other areas of your body.

¶35 We conclude that defense counsel’s failure to object to this aspect of
the prosecutor’s rebuttal was not deficient because the prosecutor did not

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No. 2024AP19-CR

improperly reference facts outside the evidence presented at trial. Instead, the
prosecutor asked the jury to rely on its “common knowledge and experience”
about blood draws and IV treatments to which A.B. had testified. This was not
error because jurors are “permitted to take into account matters of common
knowledge, observations and experience in the affairs of life,” State v. Powell,
2012 WI App 33, ¶14, 340 Wis. 2d 423, 812 N.W.2d 520, and the jury here was
instructed accordingly. Moreover, the prosecutor’s request that the jurors rely on
their own common knowledge and experience was not error because it was invited
by defense counsel’s argument that implicitly asked the jurors to use their own
knowledge and experience about IV treatments. See State v. Wolff, 171 Wis. 2d
161, 169, 491 N.W.2d 498 (Ct. App. 1992) (“[W]here the argument of the defense
‘clearly invited and provoked the remark of the prosecutor ... the appellant cannot
complain because his argument backfired.’” (citation omitted)).

¶36 Valdovinos argues that, even if it was permissible to ask the jurors to
use their own common knowledge and experience, the prosecutor’s reference to
the usual procedure for “blood draw[s]” was not relevant because A.B. did not
testify that she had blood drawn. This argument fails because A.B. testified that
she had “lab work” done to test her “magnesium levels” during her weekly IV
treatments, which reasonably implies that A.B.’s blood was drawn during each
treatment and tested for the amount of magnesium present. It was not error for the
prosecutor to draw this reasonable inference from A.B.’s testimony and to have
jurors rely on their common-sense understandings about what parts of A.B.’s body
would be typically exposed for such treatments. See Hurley, 361 Wis. 2d 529, ¶95
(“‘[C]ounsel is allowed considerable latitude in closing arguments,’ and is
permitted to draw any reasonable inference from the evidence.” (citation
omitted)).

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No. 2024AP19-CR

¶37 In a related argument, Valdovinos asserts that the prosecutor’s
argument was improper because the particular procedures for IV treatments used
by the hospital that A.B. visited were not matters within the juror’s common
knowledge. This argument fails because the prosecutor did not ask the jurors to
use any knowledge about particular medical procedures employed by the hospital
that treated A.B. Rather, as explained above, the prosecutor asked the jury to use
its common knowledge and experience about blood draws and IV treatments
generally. Valdovinos fails to identify any relevant error that jurors might have
been expected to make in considering blood draws and IV treatments based on
their life experiences given that these are not obscure or rare medical treatments.

¶38 In sum, when considered in the context of the entire trial, it was not
error for the prosecutor to request that the jurors rely on their common knowledge
and experience about blood draws and IV treatments when assessing A.B.’s
credibility. Therefore, defense counsel’s failure to object to this argument was not
deficient performance because any objection would have been overruled. Stroik,
401 Wis. 2d 150, ¶36.

CONCLUSION

¶39 For the foregoing reasons, the judgment and order of the circuit
court are affirmed.

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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