State v. Timothy Christopher Scott, Jr.

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.
September 28, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1118-CR Cir. Ct. No. 2017CF4173

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIMOTHY CHRISTOPHER SCOTT, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE and MICHELLE ACKERMAN
HAVAS, Judges. Affirmed.

Before Donald, P.J., Dugan and White, 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. 2020AP1118-CR

¶1 PER CURIAM. Timothy Christopher Scott, Jr. appeals from a
judgment of conviction entered following a jury trial for two counts of first-degree
recklessly endangering safety by use of a dangerous weapon, one count of
possession of a firearm by a person adjudicated delinquent, and one count of
felony bail jumping. He also appeals an order of the circuit court denying his
postconviction motion for relief, without a hearing. He argues on appeal that he
received ineffective assistance of counsel and that the trial court erred when it
denied his motion to dismiss count three for possession of a firearm by a person
adjudicated delinquent. For the reasons set forth below, we affirm.

BACKGROUND

¶2 On September 9, 2017, Scott was charged with two counts of first-
degree recklessly endangering safety by use of a dangerous weapon, one count of
possession of a firearm by a person adjudicated delinquent, and one count of
felony bail jumping following a shooting that occurred at 2725 West Capitol Drive
in Milwaukee on May 24, 2017. According to the criminal complaint, an
eyewitness, Nicole,1 was waiting at a bus stop when she saw an accident at the
entrance to a gas station between “a four-door ‘dirty bronze’ vehicle with dark
tinted windows” and “a four[-]door gray Nissan with dark tinted windows.” She
also told police that “the bronze vehicle proceeded to exit the lot and drive north,”
and then “it was stopped in the far right lane when the front passenger of the
vehicle suddenly opened his door and produced a handgun.” She stated the
passenger “fired about eight gunshots” and said it was “a black handgun and it

1
For ease of reading and to protect confidentiality, we use a pseudonym when referring
to the eyewitness in this case.

2
No. 2020AP1118-CR

appeared to have an extended magazine.” When she subsequently viewed a photo
array, Nicole identified Scott as the passenger in the bronze vehicle who fired the
shots. Further investigation also led police to find a firearm matching the bullet
casings left at the scene in a vehicle connected to Scott, and a gun case with the
same serial number as the firearm in a search of Scott’s residence.

¶3 Scott proceeded to a jury trial in December 2018.2 Nicole testified at
the trial; however, at times she denied making some of her prior statements to
police of what she saw and her identification of Scott that she previously provided
to the police. As a result, the State called Detective Kent Gordon to testify
regarding his interview of Nicole, during which she provided statements detailing
her account of the shooting, and the State also called Detective Steven Johnson to
testify about Nicole’s identification of Scott during the photo array. Trial counsel
did not object to this testimony from these detectives.

¶4 Over the course of the trial proceedings, Scott also moved—once on
the first day of trial and again at the close of the State’s case—to dismiss count
three for possession of a firearm by a person adjudicated delinquent on the basis
that his delinquency adjudication was void because, at the time of his adjudication,
the juvenile court failed to inform him of his right to petition the court for release
from the firearms prohibition under WIS. STAT. § 941.29(8) (2019-20),3 as

2
The Honorable T. Christopher Dee presided over Scott’s trial and denied Scott’s
motion to dismiss count three for possession of a firearm by a person adjudicated delinquent. The
Honorable Michelle Ackerman Havas entered the decision and order denying Scott’s
postconviction motion. We refer to Judge Dee as the trial court and Judge Havas as the circuit
court.
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

3
No. 2020AP1118-CR

required by WIS. STAT. § 938.341. Scott also contended that the State failed to
allege and prove what he argues is an element of the charge of possession of a
firearm by a person adjudicated delinquent contained in § 941.29(8)—namely, that
Scott was not exempt from § 941.29(1m)(bm).4 Thus, Scott argued that the State
failed to “charge a crime.”

¶5 The trial court denied his motion. In so doing, the trial court found
WIS. STAT. § 941.29(8) “is an option” for Scott to ask the court to find him eligible
to possess a gun and is not a “requirement or a penalty” under § 941.29(1m)(bm)
that the juvenile court was required to inform Scott of under WIS. STAT.
§ 938.341. Thus, the trial court found that the juvenile court was not required to
inform Scott at the time of the juvenile adjudication of that option. Scott then
stipulated to his prior delinquency adjudication, and the jury was informed that
Scott had been adjudicated delinquent prior to May 24, 2017, and was, as a result,
prohibited from possessing a firearm.

¶6 The jury ultimately found Scott guilty of all counts, and the trial
court subsequently sentenced him to a total of fourteen years of imprisonment,
composed of nine years of initial confinement and five years of extended
supervision.

¶7 Scott filed a motion for postconviction relief in which he argued that
his trial counsel was ineffective for failing to object to the testimony of Detectives
Gordon and Johnson. The circuit court denied his motion without a hearing,

4
WISCONSIN STAT. § 941.29(8) provides that § 941.29(1m)(bm) does not apply to a
person adjudicated delinquent if a court subsequently determines that the person is not likely to
act in a manner dangerous to public safety.

4
No. 2020AP1118-CR

finding that the testimony of Detectives Gordon and Johnson was not hearsay and
was admissible as testimony of the prior inconsistent statements of Nicole. In so
doing, the circuit court rejected Scott’s reliance on State v. Lenarchick, 74
Wis. 2d 425, 247 N.W.2d 80 (1976), saying that it did not apply to the situation
presented:

Unlike Lenarchick, here, the court did not need to make a
determination regarding [Nicole]’s memory failure and
whether it rendered her testimony inconsistent with her
prior statements. While the defendant attempts to paint
[Nicole]’s testimony as pure memory failure, in fact,
[Nicole] made a number of blanket statements divorced
from her memory issues, which were patently inconsistent
with the statements that were subsequently introduced
through the detectives.

This appeal follows.

DISCUSSION

I. Ineffective Assistance of Counsel

¶8 Scott argues that he received ineffective assistance of counsel
because his trial counsel failed to object to what Scott alleges was hearsay
testimony from Detectives Gordon and Johnson about Nicole’s statement and
identification of Scott. We disagree.

¶9 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must show two elements to establish that his or her counsel’s
assistance was constitutionally ineffective: (1) counsel’s performance was
deficient; and (2) the deficient performance resulted in prejudice to the defense.
Id. “To demonstrate deficient performance, the defendant must show that his

5
No. 2020AP1118-CR

counsel’s representation ‘fell below an objective standard of reasonableness’
considering all the circumstances.” State v. Carter, 2010 WI 40, ¶22, 324 Wis. 2d
640, 782 N.W.2d 695 (citation omitted).

¶10 “An ineffective assistance of counsel claim presents a mixed
question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914
N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they
are clearly erroneous.” Id. “We independently review, as a matter of law,
whether those facts demonstrate ineffective assistance of counsel.” Id.

¶11 Scott argues that trial counsel’s performance was deficient because
the testimony of Detectives Gordon and Johnson about Nicole’s statements and
identification of Scott did not qualify as prior inconsistent statements. See WIS.
STAT. § 908.01(4)(a)1. We disagree and conclude that trial counsel’s performance
was not deficient for failing to object to the testimony of Detectives Gordon and
Johnson because the testimony was admissible as prior inconsistent statements of
Nicole.

¶12 Under WIS. STAT. § 908.01(4)(a)1., prior statements of a witness are
admissible if the declarant testifies at trial, is subject to cross-examination
concerning the statement, and the statement is inconsistent with the declarant’s
testimony. See State v. Prineas, 2012 WI App 2, ¶18, 338 Wis. 2d 362, 809
N.W.2d 68. That is all that is required, and those requirements were met here.
See id. For this reason, we also reject Scott’s argument that, under Lenarchick, 74
Wis. 2d at 436, there needed to be some showing that Nicole’s denials and
memory loss were not in good faith. Furthermore, Nicole’s testimony contained
statements directly contradicting her prior statements, making her testimony more

6
No. 2020AP1118-CR

than the lack of recollection addressed in Lenarchick. See id. (witness “denies
recollection of a prior statement”).

¶13 In fact, we agree with the circuit court’s description that Nicole
made “a number of blanket statements divorced from her memory issues” that
were “patently inconsistent” with the statements she originally gave to the police.
As examples, Nicole began her testimony denying that she ever saw or heard a
shooting on May 24, 2017, and stated that “I just got on a bus,” and further
testified that “I didn’t speak to nobody.” As another example, in response to a
question from the prosecutor asking if Nicole recalled speaking to a police officer
regarding a four-door Nissan, she again said, “No, I didn’t talk to nobody that
day.” On cross-examination, Nicole continued testifying in a similar manner with
answers that were inconsistent with her prior statement such as saying, “No,”
when asked whether she was “able to describe the car that the shooter was in.” At
other times during her testimony, Nicole even presented a version of events in
which she was not at the bus stop but instead was inside the gas station at the time
of the shooting and was unable to see anything. As a result, Nicole’s testimony
was inconsistent with her prior statements and her identification of Scott.

¶14 Consequently, the testimony from Detectives Gordon and Johnson
about Nicole’s prior statements to police and identification of Scott was
admissible as the prior inconsistent statements of Nicole, and trial counsel’s
performance cannot be considered deficient for failing to make a meritless
objection to the detectives’ testimony. See State v. Wheat, 2002 WI App 153,
¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (“Failure to raise an issue of law is not
deficient performance if the legal issue is later determined to be without merit.”).
Accordingly, Scott’s claim for ineffective assistance of counsel fails, and we do
not address Scott’s argument that he was prejudiced. See State v. Floyd, 2016 WI

7
No. 2020AP1118-CR

App 64, ¶22, 371 Wis. 2d 404, 885 N.W.2d 156 (“If the defendant fails to prove
either prong, we need not address whether the other prong was satisfied.”).

II. Motion to Dismiss Count Three for Possession of a
Firearm by a person adjudicated delinquent

¶15 Scott additionally argues that the trial court erred when it denied his
motion to dismiss count three for possession of a firearm by a person adjudicated
delinquent contrary to WIS. STAT. § 941.29(1m)(bm) because it is undisputed that
“the juvenile court had failed to inform [Scott] of his right to petition the court for
release from the firearm prohibition, his adjudication was invalid.”5 He argues
that pursuant to WIS. STAT. § 938.341, the juvenile court must inform a juvenile of
the “mandates” of § 941.29, which includes the juvenile’s right to petition the
court for release from the firearm prohibition, and the State was required to prove
that Scott received the proper notice at the time of the juvenile adjudication.

¶16 Scott additionally argues that WIS. STAT. § 941.29(8) creates a new
element of proof before a defendant can be found guilty of felon in possession of a
firearm based upon a juvenile adjudication—that element being that the defendant
is not exempt from the firearms prohibition under the provision set forth in
§ 941.29(8). In other words, Scott argues that the State must allege and prove that
this exemption did not apply to Scott. He also contends that an information is
required to list all the elements of the charged crime and that the information in
this case did not allege this element. Therefore, Scott argues that the information

5
We note that Scott does not contend that the juvenile court did not inform him that he
could not possess a firearm in the future.

8
No. 2020AP1118-CR

here “charges no crime [and] is void,” resulting in the trial court lacking
jurisdiction.6

¶17 There are three main statutes at issue here. First, WIS. STAT.
§ 941.29(1m)(bm) makes it a Class G felony to possess a firearm for a person who
has been adjudicated delinquent for an act, committed on or after April 21, 1994,
that would be considered a felony if committed by an adult. WISCONSIN STAT.
§ 941.29(8) then states that “[t]his section does not apply to any person specified
in sub. (1m)(bm) if a court subsequently determines that the person is not likely to
act in a manner dangerous to public safety.” It further provides that “[i]n any
action or proceeding regarding this determination, the person has the burden of
proving by a preponderance of the evidence that he or she is not likely to act in a
manner dangerous to public safety.” Id. Last, WIS. STAT. § 938.341 states,
“Whenever a court adjudicates a juvenile delinquent for an act that if committed
by an adult in this state would be a felony, the court shall inform the juvenile of
the requirements and penalties under [§] 941.29.”

¶18 Scott’s arguments require this court to review the trial court’s
interpretation of those statutes. “[S]tatutory interpretation ‘begins with the
language of the statute. If the meaning of the statute is plain, we ordinarily stop
the inquiry.’” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). We review issues of

6
The State argues that Scott has abandoned his argument that he made in the trial court
and forfeited his new argument on appeal because he failed to raise it below. We conclude that
Scott raised the same two arguments before the trial court that he raised on appeal. Therefore,
Scott has not forfeited those same arguments on appeal.

9
No. 2020AP1118-CR

statutory interpretation independently. Noffke ex rel. Swenson v. Bakke, 2009 WI
10, ¶9, 315 Wis. 2d 350, 760 N.W.2d 156.

A juvenile court need not inform the juvenile of WIS. STAT. § 941.29(8)

¶19 Scott argues that the notice requirement in WIS. STAT. § 938.341
adds an additional element to the provision in WIS. STAT. § 941.29(1m)(bm). In
other words, Scott contends that when read together, §§ 938.341, 941.29(1m)(bm),
and 941.29(8) set forth three elements to the offense of possession of a firearm by
a felon—as applied in Scott’s case, the elements would be: (1) that Scott was
adjudicated delinquent for an act that would be a felony if committed by an adult;
(2) that he possessed a firearm subsequent to the adjudication; and (3) that the
juvenile court orally informed him that if a court subsequently determined that he
was not likely to act in a manner dangerous to public safety he would be able to
possess a firearm in the future.

¶20 First, as noted, WIS. STAT. § 938.341 is a notice requirement that
provides that “the court shall inform the juvenile of the requirements and penalties
under [WIS. STAT. §] 941.29.” We conclude that the provision in § 941.29(8) that
the firearms prohibition does not apply to a person adjudicated delinquent “if a
court subsequently determines that the person is not likely to act in a manner
dangerous to public safety” does not constitute a “requirement or penalty” under
§ 938.341. Rather, the requirement, as it applies to Scott is that after he was
adjudicated delinquent, he could never possess a firearm. Nothing in § 941.29(8)
requires the juvenile court to take any action, and nothing in § 941.29(8) requires
the juvenile court to make any such determination at the time of the delinquency
adjudication. Instead, the statute puts the burden on the “person” to petition the
court and prove that he or she is not likely to act in a manner dangerous to public

10
No. 2020AP1118-CR

safety and is, thus, exempt from the firearm prohibition. Additionally, as the trial
court recognized, a person adjudicated delinquent does not have to violate
§ 941.29 for subsec. (8) to apply, and the plain language of the statute indicates
that a person can seek a determination under subsec. (8) separate and apart from
the juvenile proceedings or any criminal proceedings under § 941.29.
Consequently, we conclude that § 941.29(8) is neither a requirement nor a penalty
under § 938.341 and, therefore, the juvenile court was not required to inform Scott
of the provision in § 941.29(8) at the time of his adjudication.

¶21 Second, even if WIS. STAT. § 938.341 required the juvenile court to
advise Scott of the provision in WIS. STAT. § 941.29(8), it would have no bearing
on whether he was guilty of violating § 941.29(1m)(bm). In addressing an
argument similar to the one Scott now brings, we stated in State v. Carter,
No. 2014AP2707-CR, unpublished slip op. at ¶¶12-13 (WI App July 14, 2015),
that “we cannot ignore the plain language of the statutes” and concluded there that
the juvenile court’s failure to comply with the notice requirement in § 938.341—to
inform the juvenile that he could never possess a firearm—at the time of the
delinquency adjudication “has no bearing on whether he is guilty of violating
§ 941.29’s prohibition.”7 See also State v. Phillips, 172 Wis. 2d 391, 394-95, 493
N.W.2d 238 (Ct. App. 1992). In other words, there was no notice requirement that
the State needed to prove in order to bring a charge for possession of a firearm by
a person adjudicated delinquent, and the State was only required to prove two

7
We cite and discuss State v. Carter, No. 2014AP2707-CR, unpublished slip op. (WI
App July 14, 2015) for its persuasive value. See WIS. STAT. RULE 809.23(3)(b) (“[A]n
unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge
panel … may be cited for its persuasive value.”). We are persuaded by this court’s analysis in
Carter. The statute at issue there was the predecessor to WIS. STAT. § 941.29(1m)(bm). See
2015 Wis. Act 109, §§ 6, 8.

11
No. 2020AP1118-CR

elements—that the defendant was adjudicated delinquent and possessed a firearm.
See Carter, No. 2014AP2707-CR, ¶¶11-12 (quoting Phillips, 172 Wis. 2d at 394-
95).

¶22 In Carter, we further stated that

[t]here is no substantive difference between the statute
requiring courts to inform adult felons of the penalties they
face for possessing a firearm pursuant to WIS. STAT.
§ 941.29, and the statute requiring the courts to inform
juvenile delinquents of the same. See WIS. STAT.
§§ 973.176 (adults) & 938.341 (juveniles). And the
language of the statute penalizing possession of firearms is
also the same for both adult felons and juvenile
delinquents. See § 941.29. Consequently, we must
conclude, as did the circuit court in this case, that Phillips
is controlling. While Carter spends a great deal of time
trying to convince us that public policy demands a different
result, we cannot ignore the plain language of the statutes.

Carter, No. 2014AP2707-CR, ¶12.

¶23 In reaching this conclusion, we noted that WIS. STAT. § 941.29 “does
not mandate … notice,” and “[n]othing in the plain language of [§] 941.29 leads
one to believe a notification element to [§] 941.29 exists.” See Carter,
No. 2014AP2707-CR, ¶11 (quoting Phillips, 172 Wis. 2d at 394-96). We, thus,
construed the statute requiring notice to juveniles about the prohibition on
possessing a firearm as just that—a notice requirement—which had no ability to
nullify a subsequent charge under § 941.29. See Carter, No. 2014AP2707-CR,
¶¶11-12. We further rejected the argument that “any problems with [the] juvenile
adjudication were compounded when [the defendant] was subsequently charged.”
Id., ¶12. Therefore, to bring a charge under § 941.29, the State was not required to
prove the juvenile court’s compliance with statutory notice requirements
applicable at the time of the underlying juvenile adjudication, and the juvenile

12
No. 2020AP1118-CR

court’s compliance (or lack thereof) did not negate the State’s ability to bring a
charge for possession of a firearm. See Carter, No. 2014AP2707-CR, ¶12.8

¶24 The same reasoning applies here. The language of WIS. STAT.
§ 941.29(1m)(bm) is plain and only requires proof of the two elements—namely
that Scott was adjudicated delinquent for an act that would be a felony if
committed by an adult and that Scott possessed a firearm. See WIS JI—CRIMINAL
1343. We conclude that even if WIS. STAT. § 938.341 requires the juvenile court
to give Scott notice of the exemption in § 941.29(8), there is no requirement that
the State prove the juvenile court’s compliance with the notice requirement in
§ 938.341.

The State need not allege or prove that WIS. STAT. § 941.29(8) did
not apply

¶25 Scott additionally argues that WIS. STAT. § 941.29(8), creates a new
element of proof before a defendant can be found guilty of felon in possession of a
firearm based upon a juvenile adjudication—that element is that the defendant was
not exempt from the firearms prohibition under the provision set forth in
§ 941.29(8). In other words, he contends that the State must allege and prove that
the exemption did not apply to Scott. He also contends that the information must
allege all elements required of the charged crime and that the State did not allege
or prove that Scott was not exempt under the statutory exemption. Therefore, he

8
We additionally concluded that the language for adult felons and juvenile delinquents is
the same and, thus, Phillips controlled despite the fact that Phillips involved a predicate offense
from adult court. See Carter, No. 2014AP2707-CR, ¶12. We reached this conclusion in the face
of arguments from the defendant “that public policy demands a different result.” Id. Thus, we
reject Scott’s invitation to treat firearm possession involving prior juvenile adjudications different
than those involving prior convictions in adult court.

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No. 2020AP1118-CR

argues that the information in this case did not properly charge Scott with the
crime of felon in possession of a firearm and the trial court did not have
jurisdiction.

¶26 Like the defendant in Carter, Scott spends a great deal of time trying
to convince us that public policy demands a different result. He argues that
Wisconsin courts have concluded that juveniles are treated far differently than
adults and that applicable case law requires that juveniles be treated differently
than adults. Scott then asserts that adults and juveniles are treated differently
under WIS. STAT. § 941.29(1m)(bm). He contends that the prohibition of
possession of a firearm for adults and a person adjudicated delinquent are
different—the prohibition for an adult is an absolute lifetime prohibition, but is not
absolute for a juvenile because § 941.29(8) creates an exemption for a juvenile.
He then argues that the exemption “has essentially become an element of a
conviction under WIS. STAT. § 941.29 when the underlying felony is a juvenile
adjudication.”

¶27 As noted above, in Carter, this court stated that “[t]here is no
substantive difference between the statute requiring courts to inform adult felons
of the penalties they face for possessing a firearm pursuant to WIS. STAT.
§ 941.29, and the statute requiring the courts to inform juvenile delinquents of the
same[.]” Carter, No. 2014AP2707-CR, ¶12. We also stated that “the language of
the statute penalizing possession of firearms is also the same for both adult felons
and juvenile delinquents.” Id. We further stated that “[w]hile Carter spends a
great deal of time trying to convince us that public policy demands a different
result, we cannot ignore the plain language of the statutes.” Id.

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No. 2020AP1118-CR

¶28 As we noted above, the plain language of WIS. STAT.
§ 941.29(1m)(bm) contains two elements that the State must prove: (1) that Scott
was adjudicated delinquent for an act that would be a felony if committed by an
adult and (2) that Scott possessed a firearm. Nothing in the language of
§ 941.29(8) adds anything to the State’s burden, and in fact, the plain language of
§ 941.29(8) clearly places the burden of proof on the person seeking the
exemption to the firearms prohibition found in subsec. (8).9 To add subsec. (8) as
an element for the State to prove in bringing a criminal charge under
§ 941.29(1m)(bm) would directly contradict the burden found in the language of
the statute.10

¶29 Furthermore, contrary to Scott’s argument, we note that the
prohibition of possession of a firearm by an adult is not absolute. WISCONSIN
STAT. § 941.29 contains several additional subsections that allow a person to
exempt him or herself from the general firearms prohibition. See § 941.29(5)(a)
(exemption for a person who has received a pardon); § 941.29(7) (exemption for a
person who is “no longer insane or no longer has a mental disease, defect or

9
WISCONSIN STAT. § 941.29(8) provides in its entirety that

[t]his section does not apply to any person specified in sub.
(1m)(bm) if a court subsequently determines that the person is
not likely to act in a manner dangerous to public safety. In any
action or proceeding regarding this determination, the person has
the burden of proving by a preponderance of the evidence that he
or she is not likely to act in a manner dangerous to public safety.
10
To the extent that Scott argues that the State lacked evidence to prove this
“exemption,” we decline to address it because our conclusion that no such element exists is
dispositive. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

15
No. 2020AP1118-CR

illness”).11 Scott has not provided any authority, and this court is not aware of any
authority, holding that any of these other subsections constitute an element that the
State must prove for a charge under § 941.29(1m)(bm). We decline to treat
subsec. (8) any differently despite subsec. (8)’s application to those who have
previously been a part of the juvenile justice system.

CONCLUSION

¶30 In sum, we conclude that trial counsel’s performance was not
deficient for failing to object to the testimony of Detectives Gordon and Johnson.
We, therefore, reject Scott’s argument that he received ineffective assistance of
counsel. We further conclude that WIS. STAT. § 941.29(8) does not create an
additional element of proof for the State, either on its own or by way of the notice
requirement in WIS. STAT. § 938.341 and, therefore, the trial court did not err in
denying Scott’s motion to dismiss count three. Thus, we affirm the judgment and
order.

By the Court.—Judgment and order affirmed.

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

11
Similar to WIS. STAT. § 941.29(8), WIS. STAT. § 941.29(7) requires that a court make a
determination. The determination is that: “(a) The person is no longer insane or no longer has a
mental disease, defect or illness. (b) The person is not likely to act in a manner dangerous to
public safety.”

16