State v. Mario T. Ostrum

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.
November 4, 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. 2020AP1615-CR Cir. Ct. No. 2014CF36

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARIO T. OSTRUM,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Wood County: TODD P. WOLF, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, 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. 2020AP1615-CR

¶1 PER CURIAM. Mario T. Ostrum appeals a judgment of conviction
for one count of first-degree sexual assault of a child. He contends that the
evidence at trial was insufficient for the jury to conclude beyond a reasonable
doubt that he had sexual contact with the victim or, in the alternative, that he is
entitled to an evidentiary hearing and a new trial based on newly discovered
evidence. He also contends that his sentence should be modified, either because
he has presented a new factor warranting modification or because it is unduly
harsh. We reject Ostrum’s arguments and affirm.

BACKGROUND

¶2 On December 23, 2013, nine-year-old E.B. and ten-year-old F.S.
were sleeping at the home that Ostrum shared with his wife, Jenny Ostrum.1 At
some point during the evening, E.B. woke F.S. and said that Ostrum had sexually
assaulted her. E.B. and F.S. woke Jenny and told her the same thing.

¶3 The incident was reported to the police the following day. At that
time, F.S. also told police that Ostrum had assaulted her on several separate
occasions. The State charged Ostrum with two counts of first-degree sexual
assault of a child contrary to WIS. STAT. § 948.02(1)(e), the first count pertaining
to F.S. and the second count pertaining to E.B.

1
We refer to the child witnesses by their initials consistent with WIS. STAT.
§§ 809.19(1)(g) and 809.86 (2019-20), and we refer to Jenny Ostrum by her first name to
distinguish her from the defendant. All references to the Wisconsin Statutes are to the 2019-20
version.

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No. 2020AP1615-CR

¶4 Ostrum pled not guilty to the charges and then fled to California. He
was eventually extradited to Wisconsin, and his trial took place in
November 2017.

¶5 The State presented several witnesses at trial, including the officer
who investigated the allegations and the officer who conducted recorded
interviews of the girls in early January 2014, shortly after the assaults allegedly
occurred. We recount pertinent details of these witnesses’ testimony as needed
below.

¶6 The State also played the audiovisual recordings of the statements
that E.B. and F.S. had given in 2014, and both were physically present at trial for
cross and redirect examinations.2 We recount E.B.’s recorded statement and trial
testimony in general terms here and then in greater detail as needed below.

¶7 In her video testimony, the nine-year-old E.B. stated that, on the
evening she stayed at Ostrum’s house, he touched her “front private,” which she
identified as the place where “you go pee pee.” On cross-examination in live
courtroom testimony, E.B., who was by then thirteen years old, testified that she
was “kind of awake and asleep at the same time” when Ostrum touched her.
However, she identified with certainty that it was Ostrum who touched her that
evening.

2
See WIS. STAT. § 908.08 (establishing process by which, after notice and a hearing in
which the circuit court makes certain findings about the characteristics of a child witness and the
contents of an audiovisual recording, the testimony of a child who is available to testify may be
presented by audiovisual recording, provided that the child will be immediately available for
crossexamination).

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No. 2020AP1615-CR

¶8 The jury found Ostrum guilty of the charge relating to E.B., and the
circuit court entered a judgment of conviction on that count. The jury was unable
to reach a unanimous verdict as to the charge relating to F.S., and the court
declared a mistrial on that count.

¶9 The circuit court sentenced Ostrum to fifteen years of incarceration,
consisting of nine years of initial confinement and six years of extended
supervision. We provide additional facts about the information presented at
sentencing and the basis for the court’s sentencing decision as needed below.

¶10 Ostrum filed a motion for postconviction relief under WIS. STAT.
§§ 974.02 and 809.02(2)(h), and we discuss its allegations in detail below. In
short, Ostrum argued that he was entitled to a new trial based on newly discovered
evidence, consisting primarily of statements that E.B. purportedly made to
Ostrum’s nephew shortly after the trial. Ostrum also argued, in the alternative,
that he was entitled to sentence modification based on a recent diagnosis of autism
spectrum disorder, among other mental health disorders. Citing State v.
McAlister, 2018 WI 34, 380 Wis. 2d 684, 911 N.W.2d 77, the circuit court denied
the motion for a new trial based on newly discovered evidence. It also determined
that the information about Ostrum’s mental health was not a new factor justifying
sentence modification.

DISCUSSION

¶11 Ostrum raises three issues on appeal. First, he challenges the
sufficiency of the evidence to support the charge that he had “sexual contact” with
E.B. Second, Ostrum contends that he is entitled to an evidentiary hearing and a
new trial based on newly discovered evidence. Third, he argues that he is entitled

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No. 2020AP1615-CR

to sentence modification. We address each argument in turn, rejecting Ostrum’s
arguments for the reasons explained below.

I. Sufficiency of the Evidence

¶12 We first consider whether the evidence presented at trial was
sufficient to sustain Ostrum’s conviction for first-degree sexual assault. Before
the jury could find him guilty, the State was required to prove beyond a reasonable
doubt that Ostrum had “sexual contact” with E.B. WIS. STAT. § 948.02(1)(e);
WIS JI—CRIMINAL 2102E. The instruction presented to the jury defined “sexual
contact” as:

[A]n intentional touching of the vagina or pubic mound of
E.B. ... by the defendant. The touching may be of the
vagina or pubic mound directly or it may be through the
clothing. The touching may be done by any body part or
by any object, but it must be an intentional touching.

Sexual contact also requires that the defendant acted
with intent to become sexually aroused or gratified or
sexually degrade or humiliate E.B.

WIS JI—CRIMINAL 2101A (citing WIS. STAT. § 948.01(5)).

¶13 Ostrum makes a limited argument about the sufficiency of the
evidence. He implicitly acknowledges that the evidence was sufficient to prove
the following: that it was Ostrum rather than someone else who touched E.B., that
he did so intentionally, and that he acted with the intent to become sexually
aroused or gratified or to sexually degrade or humiliate E.B. However, Ostrum
argues that the evidence was insufficient to prove that he actually touched E.B.’s
vagina or pubic mound.

¶14 Ostrum’s argument proceeds as follows. E.B. did not use the words
“vagina” or “pubic mound” in her recorded interview or in her trial testimony, and

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No. 2020AP1615-CR

the evidence that the State elicited from her was not “specific enough to meet that
element of the offense.” Ostrum contends that it “would perhaps have been
understandable for the State’s failure to obtain specific testimony on this point if
E.B. was only nine years old at the time of trial,” but she was thirteen by the time
the trial took place and “old enough to be able to identify” her body parts using
precise language. As such, Ostrum asks us to reverse his conviction on the basis
that the evidence was insufficient to prove that he touched E.B.’s vagina or pubic
mound.

¶15 We apply a highly deferential standard when reviewing the
sufficiency of the evidence to support a conviction. See State v. Poellinger, 153
Wis. 2d 493, 503-504, 451 N.W.2d 752 (1990). We “examine the record to find
facts that support upholding the jury’s decision to convict,” State v. Hayes, 2004
WI 80, ¶57, 273 Wis. 2d 1, 681 N.W.2d 203, and we adopt all reasonable
inferences to support the conviction, State v. Banks, 2010 WI App 107, ¶46, 328
Wis. 2d 766, 790 N.W.2d 526. A jury “may not indulge in inferences wholly
unsupported by any evidence,” State ex rel. Kanieski v. Gagnon, 54 Wis. 2d 108,
117, 194 N.W.2d 808 (1972), but the “‘credibility of the witnesses and the weight
of the evidence’” are determinations that rest with the factfinder, Poellinger, 153
Wis. 2d at 504 (quoted source omitted). We will not substitute our judgment for
that of the jury unless the evidence, “viewed most favorably to the state and the
conviction, is so lacking in probative value and force that ... no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt.” Id. at 507.

¶16 Here, we conclude that the State presented sufficient evidence of
sexual contact. Although E.B. never explicitly used the words “vagina” or “pubic
mound,” the jury could draw reasonable inferences that Ostrum had touched her
vagina or pubic mound from the following evidence.

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No. 2020AP1615-CR

¶17 Deputy Doug Christianson was the State’s first witness.
Christianson responded to the Ostrum household the morning after the alleged
assault, and he testified about what E.B. told him had occurred.

¶18 According to Christianson, E.B. told him that she was attempting to
sleep on a couch in the living room when she felt someone’s hand going up her
pant leg. When she looked down, she saw that it was Ostrum. Christianson
testified that E.B. described the incident as follows:

[Ostrum] continued putting his hand up her pant leg until it
reached the area of her groin; and when I asked her where,
she patted her groin area. I asked at that point if this was
over the top of her underwear or if this would have been
under her underwear. She stated that it was over the top.
And I said, this was on your privates; and she nodded yes.
Then I asked her just to verify what you mean here by
privates, do you mean your vagina? She stated yes.

¶19 Deputy Sara McCormick was the officer who conducted the
recorded forensic interview of E.B. McCormick also testified, and her recorded
interview of E.B. was played for the jury. On the video, McCormick asked E.B.
why the interview was happening, and E.B. said it was because “Jenny’s husband
Mario [Ostrum] touched me where he’s not supposed to.” E.B. then indicated that
Ostrum touched her on her “front private.” She pointed to the front pubic area on
a female body diagram and identified it as the area where “you go pee pee.”
When McCormick asked E.B. to tell her “all about it,” E.B. declined on the
grounds that her mother told her not to talk about it. E.B.’s mother was allowed in
the interview room and assured her it was okay to tell McCormick what happened.
E.B. stated that Ostrum approached her after F.S. fell asleep on a couch. Ostrum
sat down near E.B.’s feet pretending to sleep. At that point, she felt Ostrum’s
hand, starting at her ankles, going up her pant leg. According to E.B., Ostrum
attempted to pull off her pants, he “finally got his hand up there,” and then he

7
No. 2020AP1615-CR

“touched it.” E.B. told Ostrum to “stop it” and “go to bed.” The last time E.B.
told him to stop, Ostrum said “alright, alright, alright, I’ll stop,” and returned to
the kitchen table and pretended to sleep. E.B. described the sweatpants she was
wearing, and by using a doll, showed McCormick how Ostrum placed his hand on
her pubic mound.

¶20 During cross-examination, E.B. was asked whether Ostrum put his
hand “all the way up [your pant leg] past your knee and all the way up to what’s
been referred to as your private area.” She responded, “Yes.” When asked
whether she felt Ostrum’s hand, E.B. replied that she felt it around her “upper
thigh.” Later, on redirect, the State asked E.B. where Ostrum’s hand was when he
finally stopped. E.B. replied that his hand was “between [her] legs.” During her
redirect examination, the State asked E.B. whether she was telling the truth when
she identified Ostrum as the person who “touched [her] private parts,” and she
responded, “Yes.”

¶21 Following E.B.’s cross-examination, McCormick identified the
diagram that E.B. used to show where Ostrum had touched her, and it was
admitted into evidence.

¶22 As stated above, a jury may base its verdict on inferences reasonably
derived from the evidence, and we will not disturb a jury’s guilty verdict unless no
reasonable jury could have found the defendant guilty. See Poellinger, 153 Wis.
2d at 507. That is not the case here. Based on the recorded statement of E.B., or
the testimony provided by Christianson, or McCormick, or E.B., the jury could
reasonably infer that Ostrum had sexual contact with E.B. as that term was defined
in the jury instructions. Although E.B. did not use a specific noun to identify
precisely where Ostrum had touched her, she told Christianson that Ostrum had

8
No. 2020AP1615-CR

touched her vagina, she used a doll and a diagram to communicate to McCormick
that Ostrum touched her “front private” where “you go pee pee,” and she testified
that Ostrum’s hand was “all the way up ... to [her] private area.” Accordingly, we
conclude that the evidence was sufficient to support the conviction for first-degree
sexual assault of a child.3

II. Newly Discovered Evidence

¶23 We now turn to Ostrum’s argument that he is entitled to an
evidentiary hearing and ultimately a new trial based on newly discovered
evidence. A circuit court must hold an evidentiary hearing on a motion for a new
trial based on newly discovered evidence if the motion alleges facts which, if true,
would entitle the defendant to relief. See State v. Allen, 2004 WI 106, ¶¶9, 12-13,
274 Wis. 2d 568, 682 N.W.2d 433.

¶24 To set aside a judgment of conviction based on newly discovered
evidence, the new evidence must be “sufficient to establish that a defendant’s
conviction was a ‘manifest injustice.’” State v. Plude, 2008 WI 58, ¶32, 310 Wis.
2d 28, 750 N.W.2d 42 (quoted source omitted). A defendant must first satisfy four
requirements by clear and convincing evidence: (1) the evidence was discovered

3
We reject the argument Ostrum makes based on the State’s motion during trial to
amend the count related to E.B. to an attempted sexual assault rather than a completed act. The
State made this motion after the close of all evidence, stating that E.B.’s testimony could “at least
create the impression that the act was not completed.” Ostrum objected, and the circuit court
denied the State’s motion. The State’s motion may have reflected the prosecutor’s concern that a
jury might not find Ostrum guilty of first-degree sexual assault based on E.B.’s testimony, but it
is not an admission that the evidence was insufficient to support a guilty verdict on that count. As
defense counsel explained when successfully arguing that the motion should be denied, E.B.’s
recorded statement and cross-examination, if believed, was that Ostrum “touched [E.B.] over her
underwear but inside her pants in the pubic area,” and that testimony, if believed, “would meet
the definition of a sexual assault.”

9
No. 2020AP1615-CR

after conviction; (2) the defendant was not negligent in seeking the evidence;
(3) the evidence is material to an issue in the case; and (4) the evidence is not
merely cumulative. WIS. STAT. § 805.15(3)(a)-(d); see also Plude, 310 Wis. 2d
28, ¶32. If the court determines that these four requirements have been met, it
then considers whether there is “a reasonable probability of a different
outcome”—that is, whether a jury would find that the newly discovered evidence
“had a sufficient impact on other evidence presented at trial that a jury would have
a reasonable doubt as to the defendant’s guilt.” Plude, 310 Wis. 2d 28, ¶¶32-33.

¶25 Defendants must satisfy additional requirements if the newly
discovered evidence is a recantation. McAlister, 380 Wis. 2d 684, ¶33. In such
cases, the recantation must be corroborated by “additional newly discovered
evidence” showing that “‘there is a feasible motive for the initial false statement’”
and that “‘there are circumstantial guarantees of the trustworthiness of the
recantation.’” Id. (quoting State v. McCallum, 208 Wis. 2d 463, 478, 561 N.W.2d
707 (1997)).

¶26 In this case, Ostrum requested an evidentiary hearing to present
newly discovered evidence. The new information consists primarily of a
purported conversation between E.B. and R.W. (who is Ostrum’s nephew) that is
said to have occurred in 2017, shortly after the trial ended. Ostrum supported his
motion with his postconviction counsel’s affidavit, which summarizes the

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No. 2020AP1615-CR

interviews that counsel conducted with R.W. and his mother (who is Ostrum’s
sister) in 2019.4

¶27 The attorney averred to the following. E.B. approached R.W. in the
school library a day or two after the trial. E.B. told R.W. that she was sorry about
accusing Ostrum, and that her mother made her pursue the charges. E.B. said that
“someone” touched her on the night in question, but the room was dark, she did
not know who it was, and it could have been someone other than Ostrum. E.B.
said that the hand that touched her did not feel like a man’s hand. E.B. said that
the day after the assault, she overheard Jenny Ostrum tell E.B.’s mother to press
charges; otherwise, Jenny would tell E.B. that she was adopted. R.W. told his
mother about this conversation.

¶28 In his postconviction motion, Ostrum argued that this information in
the affidavit satisfied the four requirements for newly discovered evidence and
that there was a reasonable probability of a different result if R.W.’s testimony had
been presented at trial. Ostrum also argued that the new information should not be
considered a “recantation” because E.B.’s statements to R.W. do not meet the

4
We observe that, although we assume without deciding at this stage that the allegations
set forth in Ostrum’s postconviction pleadings are true, it is not clear what R.W. or his mother
would actually testify to at an evidentiary hearing. Neither submitted an affidavit, and our only
understanding of their expected testimony is based on representations Ostrum’s postconviction
counsel makes about the interviews he conducted with R.W. and his mother. These interviews
occurred fifteen months after the conversation between E.B. and R.W. purportedly occurred, and
sixteen months before counsel memorialized his understanding of R.W.’s and his mother’s
expected testimony in his affidavit dated June 2020.

For the sake of completeness, we also note some discrepancies in the affidavit. The
affidavit indicates that E.B. and R.W. attended school together during the 2013-2014 school year,
but their purported conversation did not occur until after the trial, which took place in 2017.
Additionally, although the affidavit was signed by postconviction counsel on June 30, 2020, the
notary stamp is dated August 1, 2013. These discrepancies are not material to our analysis.

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No. 2020AP1615-CR

“classic definition” of that term, or, in the alternative, if the court treated E.B.’s
“subsequent inconsistent statements as a recantation of her trial testimony” it
“should still find that Ostrum has met his burden.”

¶29 The circuit court denied Ostrum’s postconviction motion for a new
trial without holding an evidentiary hearing. It found that the new information
satisfied the first three requirements for newly discovered evidence—it was new, it
had not been negligently overlooked, and at least some of the testimony was
material to an issue in the case. However, citing McAlister, the court also
determined that R.W.’s testimony would be cumulative because it was a challenge
to E.B.’s credibility, which was a topic addressed at trial. The court also
determined that this was a “recanting-type situation,” that Ostrum did not establish
a “feasible motive[]” for E.B. to falsify her initial incriminating statements, and
that there were not “circumstantial guarantees of trustworthiness” of the new
information in postconviction counsel’s affidavit.

¶30 The ultimate decision to grant a motion for a new trial based on
newly discovered evidence rests in the circuit court’s discretion. Plude, 310 Wis.
2d 28, ¶31. We will affirm a court’s exercise of discretion if the decision has a
reasonable basis, and the circuit court reached its conclusion in accordance with
accepted legal standards and the facts of record. See State v. LaCount, 2008 WI
59, ¶15, 310 Wis. 2d 85, 750 N.W.2d 780. In this case, we do not conclude that
the court erroneously exercised its discretion in light of our supreme court’s recent
pronouncements in McAlister.

A. Overview of McAlister

¶31 In McAlister, two individuals, Jefferson and Waters, were suspected
of committing a string of armed robberies and apprehended by the police.

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No. 2020AP1615-CR

McAlister, 380 Wis. 2d 684, ¶¶5-7. Both implicated McAlister as the mastermind
of the robberies and the getaway driver. Id., ¶¶6-7. In exchange for their
cooperation and provision of “truthful testimony” at McAlister’s trial, Jefferson
and Waters both expected to receive favorable treatment from the prosecution in
their own criminal cases. Id., ¶¶43, 48. Both testified and implicated McAlister
during his trial, and both were aggressively cross-examined by McAlister’s
attorney about their lengthy criminal records, their prior histories of making false
statements to the police, and the “consideration” they expected to receive as a
result of their testimony against McAlister. Id., ¶¶10-11, 16. The jury found
McAlister guilty. Id., ¶18.

¶32 Some years later, McAlister filed a motion seeking a new trial based
on newly discovered evidence consisting of affidavits from three inmates. One of
the inmates averred that he had been in prison with Waters prior to McAlister’s
trial, and that Waters told him that Waters coordinated with Jefferson about what
to say to police and lied about McAlister’s involvement in the crime. Id., ¶21.
The other two inmates averred that they had been in jail with Jefferson prior to
McAlister’s trial, and that Jefferson told them that Jefferson falsely accused
McAlister to police to get a shorter sentence. Id., ¶¶22, 23. The circuit court
denied the motion for a new trial without holding a hearing. Id., ¶24

¶33 On review, our supreme court determined that the circuit court did
not erroneously exercise its discretion when it denied the motion. Id., ¶¶4, 64. In
the course of its opinion, the McAlister court set forth two propositions that are
significant to our analysis here. The first relates to the cumulative nature of the
newly discovered evidence, and the second to the corroboration requirements for
recantations. Based on these two propositions, we cannot say that the circuit court
erroneously exercised its discretion in Ostrum’s case when it determined, without

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No. 2020AP1615-CR

holding an evidentiary hearing, that R.W.’s expected testimony would not require
a new trial. More specifically, as we now explain, the court was within its
discretion to conclude that the proffered testimony was cumulative, and also that
Ostrum was required to provide corroboration, which he did not do.

B. Cumulative

¶34 The first proposition from McAlister that is significant to this appeal
is its conclusion that the circuit court did not err when it determined that the new
affidavits were cumulative. The McAlister court stated that the new evidence was
“of the same general character, and to the same point for which testimony was
elicited at trial”—that is, whether Jefferson and Waters lied when they implicated
McAlister in order to get favorable plea bargains for themselves. Id., ¶¶46, 49, 50,
64. The court also stated: “Where the credibility of a prosecution witness was
tested at trial, evidence that again attacks the credibility of that witness is
cumulative.” Id., ¶39.

¶35 Based on our supreme court’s guidance in McAlister, the circuit
court could reasonably determine that the proffered evidence of E.B.’s statements
to R.W. was cumulative. As in McAlister, the “gravamen” of Ostrum’s argument
is that E.B. “perjured [her]self at his trial” when she identified Ostrum with
certainty as the person who assaulted her. See id., ¶27. E.B.’s purported
statements to R.W. appear to cast doubt on the statements she made to police and
her subsequent testimony, and they also imply that she was under some sort of
pressure to continue to make false allegations against Ostrum. Although there was
no suggestion at trial that E.B. was uncertain about her assailant’s identity, her

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No. 2020AP1615-CR

memory, motive, and credibility were challenged at trial.5 Following McAlister,
the circuit court could reasonably have determined that the new evidence of E.B.’s
statements to R.W. was cumulative. See id., ¶39.

¶36 Ostrum argues that “the whole point” of his motion is that E.B.’s
post-trial statements to R.W. were “different” from and “inconsistent” with her
trial testimony, and that inconsistent post-trial statements “cannot be cast as
cumulative” to E.B.’s trial testimony. We understand Ostrum to be arguing that
E.B.’s alleged statements to R.W. should be considered as “substantive,
exculpatory evidence” that goes beyond E.B.’s credibility, and that Ostrum was
unable to present these statements and to cross-examine E.B. about them at trial.
Yet, the same was true of the newly discovered statements by Jefferson and
Waters that were determined to be cumulative in McAlister. Ostrum’s attempt to
distinguish McAlister on this basis fails to persuade us that the circuit court
erroneously exercised its discretion.

¶37 In reaching this conclusion, we do not mean to suggest that the
circuit court was required to find that the proffered evidence was “of the same
general character, and to the same point for which testimony was elicited at trial.”
See id., ¶¶46, 49, 50, 64. Nevertheless, based upon the applicable standard of

5
For example, during the trial, Ostrum cross-examined Christianson, attempting to
create the suggestion that E.B., having falsely incriminated Ostrum to Christianson, would fear
that she would get in trouble if she later admitted that she had lied. Ostrum raised the fact that
F.S. and E.B. had spent the evening of December 23, 2013, discussing their alleged assaults with
one another, insinuating that E.B. took that opportunity to fabricate and rehearse her account
before making the incriminating statements to Jenny Ostrum and the police. Ostrum also elicited
admissions from E.B. that she did not remember certain aspects of the evening. In addition, the
State inquired into E.B.’s motives and overall credibility by asking her whether she knew Ostrum
well and whether she would have any reason to be angry with him or make a false accusation to
get him into trouble.

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No. 2020AP1615-CR

review and McAlister’s broad statements about the cumulative nature of evidence
attacking a prosecution witness, id., ¶39, we cannot say that the circuit court erred.
Whether testimony is cumulative is a fact-intensive and discretionary
determination, and McAlister provides a reasonable basis for the circuit court to
reach the conclusion it reached in accordance with accepted legal standards and
the facts of record. See LaCount, 310 Wis. 2d 85, ¶15. As the McAlister court
explained, “whether to grant a hearing … based on newly discovered evidence that
claims to uncover perjured trial testimony requires careful examination of the
movant’s specific factual allegations in the context of the record as a whole.”
McAlister, 380 Wis. 2d 684, ¶28.

¶38 Under McAlister, our conclusion that the circuit court did not
erroneously exercise its discretion in determining that the new evidence was
cumulative is dispositive of the outcome of this issue on appeal. As a result, we
need not consider any other aspect of the test for newly discovered evidence.
However, for the sake of completeness, we further explain why Ostrum does not
persuade us that the circuit court erred when it treated E.B.’s statements to R.W. as
a recantation requiring corroboration.

C. Corroboration

¶39 The second important proposition from McAlister that is significant
to this appeal is our supreme court’s determination that the circuit court did not err
when it treated the new statements as recantations requiring corroboration.
McAlister, 380 Wis. 2d 684, ¶63. The McAlister court acknowledged that
Jefferson’s and Waters’ purported pre-trial statements that they planned to perjure
themselves at trial were not “classic recantations” and did not “fully meet” the
definition of that term. Id., ¶33 n.4, ¶¶53-56. That is, the new evidence at issue in

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No. 2020AP1615-CR

McAlister involved statements from new affiants relaying what Jefferson and
Waters purportedly told them about plans to lie in trial testimony, as opposed to
publicly sworn post-verdict admissions of perjury by Jefferson and Waters
themselves. Id., ¶54. Nevertheless, the court determined that the affidavits “bear
a similarity to recantation evidence in that they use what is claimed to be
Jefferson’s and Waters’ own words to allege they lied at trial,” and therefore
corroboration should be required. Id., ¶¶55-56. Applying the corroboration
requirements—newly discovered evidence of a feasible motive for the initial false
statement and circumstantial guarantees of trustworthiness of the recantation—the
court determined that the new affidavits failed to satisfy these requirements, in
part because the affidavits were created years after the events they purported to
describe. Id., ¶¶52, 57-62.

¶40 Ostrum argues that E.B.’s purported statements to R.W. should not
be treated as a recantation, and the corroboration requirements should not apply
for two distinct reasons. First, he points out that E.B. did not formally or publicly
withdraw or renounce her testimony from trial. Yet, the same was true of
Jefferson and Waters and the new evidence in McAlister. Second, Ostrum also
contends that, unlike in McAlister, in which the statements treated as recantation
occurred prior to trial and in a penal setting, E.B. spoke to R.W. after the trial had
concluded, and the conversation took place at school, a “place free of outside
pressure.” However, McAlister does not contain any language suggesting that, if
similar statements were made after trial, they could not be treated as recantations.
Nor does McAlister suggest a different result for statements made in settings other

17
No. 2020AP1615-CR

than a penal institution.6 We conclude that the circuit court did not erroneously
exercise its discretion when it determined that corroboration was required.

¶41 Having rejected Ostrum’s arguments about the applicability of the
corroboration requirements, we now turn to the circuit court’s determination that
these requirements were not met.

¶42 First, the circuit court could have reasonably determined that Ostrum
failed to present new evidence of a feasible motive for E.B. to have made false
statements during the investigation and trial. According to the affidavit, E.B. told
R.W. that she overheard “Jenny Ostrum tell [E.B.’s mother] to press charges, and
some kind of discussion about telling E.B. that she was adopted otherwise.” Yet
the record shows that Jenny supported Ostrum, not E.B., at trial. Under the
circumstances, the circuit court could have reasonably questioned the plausibility
of the claim that Jenny urged E.B.’s mother to pressure E.B. to pursue charges
against Ostrum.

¶43 Second, the circuit court could have reasonably determined that the
new evidence of E.B.’s purported statements to R.W. lacked circumstantial
guarantees of trustworthiness. Ostrum argues that E.B.’s purported statements are
trustworthy because they were made at school and on “E.B.’s own accord.”
However, as the circuit court put it, “[t]here’s nothing directly stating that E.B. is
agreeing that this is what occurred here ....” Ostrum did not offer a sworn affidavit
from a recanting witness, or even from someone who spoke to a recanting witness.

6
The discussion about the incarceration of the witnesses in McAlister was used to
explain that the new testimony lacked circumstantial guarantees of trustworthiness, not to support
Ostrum’s suggestion that the corroboration requirements only apply to statements made in a penal
institution. State v. McAlister, 2018 WI 34, ¶61, 380 Wis. 2d 684, 911 N.W.2d 77.

18
No. 2020AP1615-CR

Instead, Ostrum offered a sworn affidavit from his postconviction counsel, who
spoke to Ostrum’s fourteen-year-old nephew, and the attorney summarized the
substance of a conversation that the nephew purportedly had with E.B. fifteen
months earlier. The court determined that there were no circumstantial guarantees
of trustworthiness because the report came from Ostrum’s sister and nephew, and
because of the “length of delay” in reporting the conversation. Based on
McAlister, the court did not erroneously exercise its discretion. McAlister, 380
Wis. 2d 684, ¶60 (concluding that “the length of time that passed between
McAlister’s trial and the submission of the affidavits cuts against concluding that
the affidavits are trustworthy”).

¶44 In sum, in light of our supreme court’s recent pronouncements in
McAlister, we cannot say that the circuit court erroneously exercised its discretion.
To the extent that Ostrum asks us to disregard McAlister as wrongly decided, that
is an argument for another court. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
N.W.2d 246 (1997) (we cannot overrule precedent from our supreme court).7

7
Ostrum also sought to present new evidence of unsubstantiated sexual assault
allegations that F.S. made against her father in 2018. We conclude that the circuit court did not
err when it determined that the unsubstantiated allegations were not newly discovered evidence
warranting a new trial.

By way of background, F.S.’s father told Ostrum’s investigator that F.S. falsely accused
him of sexual assault, and that investigators ultimately determined that the allegations were
unsubstantiated. The circuit court determined that the evidence was cumulative because F.S.’s
credibility was addressed at trial, resulting in a hung jury on the count pertaining to F.S., and that
the evidence was not material to the count pertaining to E.B. because there is no relationship
between any purportedly false allegations that F.S. made regarding her father’s conduct and
E.B.’s allegations regarding Ostrum’s conduct. Ostrum does not provide any adequate
explanation on appeal of how any purportedly false allegations F.S. made regarding her father in
2018 are material to the count pertaining to E.B. As the State explains, Ostrum would likely face
barriers to admissibility under WIS. STAT. § 972.11(2)(b)3., and Ostrum effectively concedes this
point by failing to address it in his reply brief. See United Coop. v. Frontier FS Coop., 2007 WI
(continued)

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No. 2020AP1615-CR

III. Ostrum’s Sentence

¶45 We now turn to Ostrum’s arguments that his sentence should be
modified. We begin our discussion by providing additional background regarding
the information presented to the circuit court during sentencing and the court’s
exercise of its sentencing discretion.

¶46 First-degree sexual assault committed against a child under the age
of thirteen is a class B felony and, upon conviction, Ostrum faced a maximum
sentence of sixty years. See WIS. STAT. §§ 948.02(1)(e), 939.50(3)(b). The
prosecutor asked the circuit court to impose twenty years of initial confinement
and twenty years of extended supervision. Defense counsel asked the court to
impose three years of initial confinement and four years of extended supervision.
The author of the presentence investigation report recommended a sentence of
seven to nine years of initial confinement followed by three to four years of
extended supervision. After considering these recommendations and the
information discussed below, the court imposed a fifteen-year sentence comprised
of nine years initial confinement and six years of extended supervision.

¶47 Prior to the sentencing hearing, the circuit court was presented with
a presentence investigation report and letters of support written by members of
Ostrum’s family. The report included comments from Ostrum and his mother
indicating a likelihood that Ostrum was autistic, although he had not been
diagnosed with that disorder. Ostrum’s mother described his abscondence to
California as a “‘fight or flight’ situation that is very common with people with

App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to
an argument made in response brief may be taken as a concession).

20
No. 2020AP1615-CR

autism,” and she also reported that Ostrum had experienced extreme social anxiety
since he was a child. The report also included information about Ostrum’s history
of alcohol and substance use, which, according to Ostrum, stemmed from his
depression. Although the letters of support from Ostrum’s family members were
not made part of the appellate record, the prosecutor, defense counsel, and the
court all commented on them during the hearing. Apparently, Ostrum’s family
members expressed concern that Ostrum’s “condition” would be exacerbated by
confinement in prison.

¶48 During the sentencing hearing, E.B.’s mother read a prepared
statement describing how the assault, Ostrum’s abscondence, and his release on
bond pending trial had affected E.B. She indicated that E.B. had nightmares about
Ostrum after the assault, that she started sleeping with her lights on, and that her
demeanor at school and at home had changed for the worse. E.B. had been
making progress in counseling, but the ordeal of preparing for trial caused E.B. to
“withdraw” all over again. E.B.’s mother asked the court to impose “a minimum
of 15 years actual prison time” so that E.B. and F.S. would be about to “finish high
school, college, and start their adult lives [without] having to look over their
shoulders to see where [Ostrum’s] at.”8

¶49 The prosecutor argued that a long period of confinement was needed
to protect the public, especially in light of what the prosecutor characterized as
Ostrum’s failure to take responsibility for his crime. Defense counsel emphasized

8
In its comments, the circuit court noted that, although the prosecutor and E.B.’s mother
had made sentencing arguments about alleged assaults of F.S., it would not consider F.S.’s
unproven allegations when imposing sentence. Ostrum does not argue that any comments about
F.S. improperly influenced the court’s sentencing determination.

21
No. 2020AP1615-CR

the wide range of conduct criminalized as first-degree sexual assault of a child and
indicated that the specific conduct for which Ostrum had been convicted, while
serious, was at the lower end of that range and did not warrant the lengthy
sentence recommended by the State. Defense counsel also pointed to Ostrum’s
history of depression and that doctors had told him that he had “every symptom or
indicator” of a lower level of autism. Specifically, counsel noted that there was
“much discussed … in the letters regarding issues he’s had, everything from
depression and things of that nature to … him being on … what they describe as
the autism spectrum.” Although defense counsel had not used Ostrum’s mental
health as a defense at trial, he argued that it contributed toward Ostrum being a
“misunderstood man” who had “a lot of good in him” and “a lot to offer.”

¶50 As stated above, the circuit court sentenced Ostrum to nine years of
initial confinement and six years of extended supervision. The court identified the
various factors and objectives it considered in selecting this sentence. The court
recognized that, while undiagnosed, Ostrum’s autism may have contributed to his
decision to abscond to California. As for the gravity of the offense, the court
acknowledged that, without minimizing the effect that Ostrum’s conduct had on
E.B., “unfortunately we see worse type[s] of [child sexual] assaults.” It further
indicated that it had crafted Ostrum’s sentence in part so that he would remain
confined until E.B. was in her twenties, explaining, “I don’t know if she plans to
go to college,” but even if not, she will “be able to start at least employment and a
life without having to worry about this as far as her protection.” Finally, the court
noted that the sentence imposed was “not all that dissimilar” from the
recommendation in the presentence investigation report.

22
No. 2020AP1615-CR

¶51 Ostrum argues that his sentence should be modified, either because
he has presented a new factor not known to the circuit court during sentencing, or
because it is unduly harsh. We address these arguments in turn.

A. New Factor

¶52 Within certain constraints, circuit courts have discretion to modify a
sentence based on a “new factor” presented to the court after sentencing. State v.
Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. A “new factor” is “a
fact or set of facts” that is “highly relevant to the imposition of sentence, but not
known to the trial judge at the time of original sentencing, either because it was
not then in existence or because, even though it was then in existence, it was
unknowingly overlooked by all of the parties.” Rosado v. State, 70 Wis. 2d 280,
288, 234 N.W.2d 69 (1975); see also Harbor, 333 Wis. 2d 53, ¶¶40, 52.

¶53 A circuit court follows a two-step analysis when determining
whether a defendant is entitled to sentence modification based on a new factor.
First, the court considers “[w]hether a fact or set of facts presented by the
defendant constitutes a ‘new factor.’” Harbor, 333 Wis. 2d 53, ¶33. The
defendant has the burden to demonstrate the existence of a new factor by clear and
convincing evidence. Id., ¶36. Second, the court considers whether, in its
discretion, “that new factor justifies sentence modification.” Id., ¶33. The first
step presents a question of law that we review de novo, and we review the circuit
court’s determination of the second step for erroneous exercise of discretion. Id.,
¶33.

¶54 Ostrum’s claim is founded on an evaluation report that he presented
to the circuit court along with his postconviction motion. That report, which was
authored and submitted by a psychiatrist in 2020, two years after Ostrum was

23
No. 2020AP1615-CR

sentenced, diagnoses Ostrum with autism spectrum disorder, major depressive
disorder (recurrent, moderate severity), and unspecified anxiety disorder, along
with alcohol and cannabis use disorder (both in remission). The psychiatrist
opined that, as a result of Ostrum’s autism spectrum disorder, he has “significant
core deficits, primarily within the social realm,” and that he suffers from
“hypersensitivity to various sensory stimuli, including bright lights, environmental
noise, and physical touch.” The report also noted that autism sprectrum disorder
“is a spectrum disorder,” and that more severe autism spectrum disorder “is
typically accompanied by language and/or intellectual impairments. In Mr.
Ostrum’s case, there is no evidence of gross language impairment or intellectual
disability.” According to the psychiatrist, Ostrum’s mental health conditions have
resulted in “an exceptionally aversive experience during his period of
incarceration,” and it has “contributed to significant psychiatric sequelae,
including depression, anxiety, and suicidality.” The circuit court denied the
motion for sentence modification, reasoning that additional information provided
by the psychiatrist was not a new factor as that term is defined under Wisconsin
law.

¶55 Ostrum takes issue with the circuit court’s determination that his
mental health is not a new factor. According to Ostrum, although “there were
hints” about his mental health during sentencing, the court lacked “a meaningful
assessment of the nature and extent” of Ostrum’s mental health disorders, which

24
No. 2020AP1615-CR

was “critical information needed to impose an appropriate sentence” consistent
with Ostrum’s rehabilitative needs.9

¶56 We disagree. There is no doubt that a defendant’s mental health can
be an important sentencing consideration, see State v. Gallion, 2004 WI 42, ¶43
n.11, 270 Wis. 2d 535, 678 N.W.2d 197, and the record provides no reason for us
to think that the court doubted the serious nature of Ostrum’s reported mental
health concerns. However, as shown above, the court was presented with
information about Ostrum’s reported autism spectrum disorder, depression,
anxiety, and substance use disorder, and it considered these underlying conditions
when it imposed Ostrum’s sentence. The court could have been presented with
even more information about Ostrum’s mental health at the time of sentencing;
however, with any sentencing consideration, that will often be the case. See, e.g.,
Harbor, 333 Wis. 2d 53, ¶27. Based on the information that was presented to the
court, we cannot say that Ostrum’s underlying mental health condition was “not
known to the trial judge” at the time of sentencing, that this information was “not
then in existence,” or that it was “unknowingly overlooked.” Rosado, 70 Wis. 2d
at 288; see also Harbor, 333 Wis. 2d 53, ¶58 & n.12 (concluding that the
“additional and more expansive knowledge of the defendant’s mental health
issues” presented after sentencing did not constitute a new factor); Krueger, 119
Wis. 2d 327, 335, 351 N.W.2d 738 (Ct. App. 1984) (concluding that the defendant
was not entitled to modification because “the so-called ‘new factor’ was, in fact,
known to the trial judge at the time of sentencing”).

9
See State v. Gallion, 2004 WI 42, ¶¶40-41, ¶43 n.11, 270 Wis. 2d 535, 678 N.W.2d
197 (identifying numerous sentencing objectives and factors that circuit courts should consider
under the appropriate circumstances of each case, including the rehabilitative needs of the
defendant).

25
No. 2020AP1615-CR

¶57 Ostrum does not cite any authority to support the proposition that a
subsequent diagnosis that confirms disorders that the court accounted for during
sentencing constitutes a new factor under Wisconsin law. Nor does he cite any
authority for the proposition that a post-sentencing exacerbation of health
conditions resulting from confinement constitutes a new factor. See State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider
arguments that are unsupported by adequate legal citations). Accordingly, we
conclude that Ostrum has not met his burden to demonstrate the existence of a new
factor by clear and convincing evidence. See Harbor, 333 Wis. 2d 53, ¶36.

B. Unduly Harsh

¶58 Circuit courts also have inherent authority to modify a sentence if
the court determines that it is “unduly harsh or unconscionable.” Harbor, 333
Wis. 2d 53, ¶35 n.8.10 A sentence is unduly harsh if it is “‘so excessive and
unusual and so disproportionate to the offense committed as to shock public
sentiment and violate the judgment of reasonable people concerning what is right
and proper under the circumstances.’” State v. Davis, 2005 WI App 98, ¶15, 281
Wis. 2d 118, 698 N.W.2d 823 (quoted source omitted). In determining whether a
defendant is entitled to a modification, we review the circuit court’s sentence for
an erroneous exercise of discretion. State v. Scaccio, 2000 WI App 265, ¶17, 240
Wis. 2d 95, 622 N.W.2d 449. “When the exercise of discretion has been

10
Typically, we would review a circuit court’s determination about whether a sentence
was unduly harsh for an erroneous exercise of discretion. State v. Grindemann, 2002 WI App
106, ¶30, 255 Wis. 2d 632, 648 N.W.2d 507. Here, however, Ostrum did not unambiguously
present this issue in his postconviction motion, and therefore, there is no circuit court
determination to review. Although we question whether the issue was preserved under WIS.
STAT. § 974.02(2), we will briefly address it because the State has not argued that Ostrum
forfeited it by failing to present it in his postconviction motion.

26
No. 2020AP1615-CR

demonstrated, we follow a consistent and strong policy against interference with
the discretion of the [circuit] court in passing sentence ....” State v. Stenzel, 2004
WI App 181, ¶7, 276 Wis. 2d 224, 231, 688 N.W.2d 20. “A sentence well within
the limits of the maximum sentence is unlikely to be unduly harsh ….” Scaccio,
240 Wis. 2d 95, ¶18.

¶59 Ostrum does little to demonstrate that his sentence was unduly harsh
or unconscionable. He points to his reported mental health disorders, particularly
anxiety and autism spectrum disorder, and argues that they could have helped
explain why he absconded to California. Additionally, Ostrum points out that
WIS. STAT. § 948.02(1)(e) criminalizes a wide range of criminal conduct, from
touching to intercourse and a “host of factual scenarios in between.” He argues
that nine years of initial confinement is unduly harsh “considering the conduct that
formed the basis for [Ostrum’s] conviction relative to other conduct” that falls
under § 948.02(1)(e).

¶60 We conclude that the circuit court did not erroneously exercise its
discretion at sentencing. The record reflects that the court considered Ostrum’s
mental health and the relative gravity of Ostrum’s conduct as compared to other
offenses, and, after noting those considerations among others, the court gave a
sentence that was well below the maximum penalty for violations of WIS. STAT.
§ 948.02(1)(e). The sentence the court gave to Ostrum does not “shock the public
sentiment,” nor does it violate “‘the judgment of reasonable people concerning
what is right and proper.’” Davis, 281 Wis. 2d 118, ¶15 (quoted source omitted).
Ostrum may posit that the court should have given more weight to certain
mitigating factors, but the weight given to relevant factors is particularly within
the discretion of a sentencing court. Id., ¶13. Ostrum’s sentence is not rendered

27
No. 2020AP1615-CR

unduly harsh as a result of his disagreement with the weight the court gave to
these pertinent considerations.

¶61 Based on this conclusion, and our conclusion that Ostrum has not
presented a new factor, we reject Ostrum’s assertion that his sentence should be
modified.

CONCLUSION

¶62 For all the foregoing reasons, we reject Ostrum’s arguments and
affirm the judgment of conviction and the order denying his postconviction
motion.

By the Court.—Judgment and order affirmed.

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

28