State v. Daniel J. Mick

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.
June 16, 2022
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. 2020AP1280 Cir. Ct. No. 2015CF454

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DANIEL J. MICK,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Portage County:
THOMAS B. EAGON, Judge. Affirmed.

Before Kloppenburg, 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. 2020AP1280

¶1 PER CURIAM. Daniel Mick appeals the circuit court’s denial of
his pro se WIS. STAT. § 974.06 (2019-20)1 postconviction motion, the order
denying his motion for reconsideration, and the order denying the supplemental
§ 974.06 motion he filed with the assistance of retained postconviction counsel.
We conclude that the court properly denied the motions without holding an
evidentiary hearing. Therefore, we affirm.

BACKGROUND

¶2 Daniel Mick was convicted, following a jury trial, of one count of
first degree sexual assault of a child and two counts of intentionally causing a
child to listen to and view sexually explicit content.2 The child, who we refer to as
“Joan,”3 was six years old at the time of the conduct at issue in this case. We set
forth additional background about the charges and the trial as needed below.

¶3 Through appellate counsel, Mick directly appealed his judgment of
conviction in this court without first filing a postconviction motion pursuant to
WIS. STAT. § 974.02. See State v. Daniel J. Mick, No. 2017AP1642-CR,
unpublished slip op. (WI App June 14, 2018). In his direct appeal, Mick argued
that the circuit court erred by granting the State’s motion in limine to exclude his
expert witness from testifying at trial and, further, that the exclusion of that
testimony violated his constitutional right to present a defense. Id., ¶13. Mick

1
All references to the Wisconsin Statutes are to the 2019-20 version.
2
It is undisputed that the sexually explicit content in question did not involve images of
children. To be clear, there is no suggestion in the record that Mick has ever possessed or viewed
child pornography.
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86, we use a pseudonym to
protect the identity of the victim, “Joan,” as well as her mother, who we refer to as “Cindy.”

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also asked us to exercise our power of discretionary reversal and order a new trial
in the interest of justice under WIS. STAT. § 752.35. Id., ¶36. We issued an
opinion in June 2018, which rejected Mick’s arguments and affirmed his judgment
of conviction. See generally id.

¶4 In September 2019, Mick filed a 75-page pro se motion for
postconviction relief pursuant to WIS. STAT. § 974.06. Among other things,
Mick’s pro se motion argued that his trial and appellate counsel had been
ineffective and that his due process rights had been violated.

¶5 The State moved for summary dismissal of the pro se motion,
arguing that the ineffective assistance of counsel claims were procedurally barred
because Mick failed to assert those claims in a WIS. STAT. § 974.02 motion prior
to his direct appeal. See WIS. STAT. § 974.06(4); State v. Escalona-Naranjo, 185
Wis. 2d 168, 517 N.W.2d 157 (1994) (interpreting the procedural bar in
§ 974.06(4)). In the alternative, the State argued that Mick was not entitled to an
evidentiary hearing because the motion did not allege sufficient facts to entitle him
to relief. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.
In an order dated April 29, 2020, the circuit court denied the motion without
holding a Machner hearing.4 Mick filed a motion for reconsideration, and the
circuit court denied that motion.

¶6 Mick then retained new appellate counsel, who filed a notice of
appeal from both orders on July 28, 2020. The same day, retained counsel filed a

4
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). 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. Balliette, 2011 WI 79, ¶31, 336
Wis. 2d 358, 805 N.W.2d 334.

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“supplemental” WIS. STAT. § 974.06 motion and a motion for reconsideration of
the circuit court’s April 29, 2020 decision.5 Collectively, the supplemental motion
and motion for reconsideration elaborated on the arguments that Mick presented in
his pro se motion regarding ineffective assistance of counsel, argued that counsel
was ineffective in other ways not articulated in Mick’s pro se motion, and raised a
new argument about newly discovered evidence.

¶7 The State moved for summary dismissal of the motions based on
Mick’s failure to raise the new issues in his direct appeal and his pro se WIS.
STAT. § 974.06 motion, and because Mick failed to show that the circuit court
made any manifest error of law or fact justifying reconsideration of its decision on
the issues Mick had previously raised. The State also argued that Mick was not
entitled to a new trial based on newly discovered evidence.

¶8 The circuit court denied the supplemental motion and motion for
reconsideration without holding a Machner hearing. Mick filed an additional
notice of appeal from that order.

DISCUSSION

¶9 We begin our discussion with a threshold issue raised by the State
regarding our jurisdiction over this appeal. After rejecting the State’s
jurisdictional argument, we consider whether the issues raised in Mick’s pro se

5
The State takes issue with Mick referring to his motion as a “supplemental” motion,
rather than as a “second” motion, because, at the time the supplemental motion was filed, Mick’s
pro se motion had already been denied by the circuit court and could no longer be supplemented.
See State v. Evans, 2004 WI 84, ¶9, 273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other
grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d
900. The State’s point about nomenclature is well taken, but this opinion nevertheless refers to
Mick’s motion using the name under which it was filed.

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WIS. STAT. § 974.06 motion and his supplemental § 974.06 motion relating to
ineffective assistance of counsel are procedurally barred. We assume without
deciding that the issues raised in the pro se motion are not barred; however, we
conclude that the issues raised for the first time in the supplemental motion are
barred and we address them no further. We then consider and reject the
ineffective assistance of counsel claims raised in Mick’s pro se motion. Finally,
we conclude that Mick is not entitled to a new trial based on newly discovered
evidence.

I. Jurisdiction

¶10 Appeals of WIS. STAT. § 974.06 proceedings are governed by the
procedures for civil appeals, see § 974.06(6) and WIS. STAT. RULE 809.30(2)(L),
and a timely notice of appeal is a jurisdictional prerequisite, see WIS. STAT.
RULE 809.10(1)(e). The pertinent timelines are set forth in WIS. STAT.
§ 808.04(1). Under § 808.04(1), a notice of appeal must be filed within 90 days of
the entry of a final judgment or order, except that the deadline is shortened to 45
days “if written notice of the entry of a final judgment or order is given within 21
days of the final judgment or order as provided in [WIS. STAT. §] 806.05(5).”

¶11 The State asserts that the 45-day deadline applies to Mick’s appeal
of the April 29, 2020 order denying his pro se motion. It goes on to assert that
Mick received the April 29, 2020 order in written form, shortening the appeal
deadline to 45 days, and that Mick’s notice of appeal, which was filed 90 days
after entry of the order, was untimely.

¶12 The State’s assertions are incorrect. To be sure, Mick received the
written order that denied his pro se motion, but that is not the same thing as
written “notice of entry” of that order, as that term is used in WIS. STAT.

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§§ 808.04(1) and 806.05. Notice of entry refers to a separate written document,
other than the order, which is served by a party after a final order is entered, and
which contains the date of entry of that final order. See § 806.05(3); Soquet v.
Soquet, 117 Wis. 2d 553, 557, 345 N.W.2d 401 (1984). Here, the State does not
point to any notice of entry that it served on Mick; therefore, the deadline to
appeal was not shortened to 45 days. Mick’s appeal, which was filed on the 90th
day, was timely, and we have jurisdiction over this appeal.

II. Escalona-Naranjo Procedural Bar

¶13 We now turn to the claims of ineffective assistance of counsel that
Mick raised in his pro se WIS. STAT. § 974.06 motion6 and in his supplemental
§ 974.06 motion.7 A threshold question is whether these claims are procedurally
barred under § 974.06(4) and Escalona-Naranjo because Mick did not raise them
in a WIS. STAT. § 974.02 motion prior to his direct appeal.

¶14 WISCONSIN STAT. § 974.06(4) provides that “[a]ll grounds for relief
available to a person under this section must be raised in his or her original,
supplemental or amended motion.” Further, “[a]ny ground finally adjudicated or
not so raised, or knowingly, voluntarily and intelligently waived … in any other

6
The issues Mick raised in the pro se motion and renews on appeal are whether trial
counsel’s performance was deficient in three general areas: (1) for failing to adequately impeach
Joan’s mother; (2) for failing to introduce an alternative explanation for the source of Joan’s
sexual knowledge; and (3) for failing to object to certain evidence, including alleged Haseltine
violations. See State v. Haseltine, 120 Wis. 2d 92, 97, 352 N.W.2d 673 (Ct. App. 1984).
7
The additional ineffective-assistance-based issues that Mick raised for the first time in
the supplemental motion and renews on appeal are whether trial counsel was ineffective for not
impeaching Cindy with a statement she made to police about the timing of Joan being in
counseling; for not objecting to Cindy’s testimony that she could tell when Mick was lying; for
not attempting to exclude portions of the forensic interview; and for not attempting to exclude
Cindy’s testimony that Mick was “abusive.”

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No. 2020AP1280

proceeding the person has taken to secure relief may not be the basis for a
subsequent motion, unless the court finds” that the defendant had a “sufficient
reason” for not asserting or inadequately raising the ground “in the original,
supplemental or amended motion.” Id.

¶15 In Escalona-Naranjo, our supreme court determined that a
defendant who could have but did not challenge his attorney’s effectiveness
through a WIS. STAT. § 974.02 motion prior to his direct appeal must show a
“sufficient reason” for that failure when asserting the ground in a later WIS. STAT.
§ 974.06 motion. Escalona-Naranjo, 185 Wis. 2d at 181-82, 184; see also State
v. Lo, 2003 WI 107, ¶44 & n.11, 264 Wis. 2d 1, 665 N.W.2d 756 (“claims that
could have been raised on direct appeal … are barred from being raised in a
subsequent § 974.06 postconviction motion absent a showing of a sufficient
reason” they were not previously raised); State v. Romero-Georgana, 2014 WI 83,
¶35, 360 Wis. 2d 522, 849 N.W.2d 668.

¶16 Here, like the defendant in Escalona-Naranjo, Mick had an
opportunity to raise claims about the ineffective assistance of trial counsel in a
postconviction motion under WIS. STAT. § 974.02 prior to his direct appeal, but he
did not do so. Therefore, like the defendant in Escalona-Naranjo, Mick must
establish a “sufficient reason” for not raising his claims in a § 974.02 motion.

¶17 Mick alleges that he chose to forgo filing a WIS. STAT. § 974.02
motion in favor of pursuing a direct appeal based on his appellate counsel’s
erroneous legal advice. This allegation is supported by affidavits that Mick and
his sister filed along with the pro se motion. Specifically, they aver that appellate
counsel told them that Mick could file a § 974.02 motion challenging the
effectiveness of his counsel or a direct appeal, but not both, that Mick would have

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to choose, and that it would be better to forego a § 974.02 motion and instead
pursue a direct appeal. Mick argues, and we agree, that such advice misstates the
law—Wisconsin Statutes allow a defendant to pursue a § 974.02 motion followed
by a direct appeal. See § 974.02(1); WIS. STAT. § 809.30(2).

¶18 We assume without deciding that Mick’s reliance on counsel’s
erroneous advice is a sufficient reason for not raising the ineffective assistance
claims in his pro se WIS. STAT. § 974.06 motion.8 It follows that the issues raised
in his pro se motion are not procedurally barred, and we address them on the
merits in this following section of this opinion.

¶19 However, the same cannot be said of the additional ineffective-
assistance-based issues that Mick raised for the first time in the supplemental
motion he filed with the assistance of retained postconviction counsel.9 Again, we
assume without deciding that appellate counsel’s erroneous legal advice was a
sufficient reason for not raising these additional issues in a WIS. STAT. § 974.02
motion prior to his direct appeal. However, at the time he filed his supplemental
motion, the circuit court had already decided his pro se WIS. STAT. § 974.06
motion, which did not raise these additional issues. Therefore, Mick must also
plead a “sufficient reason” for not raising these new issues in his pro se motion.

8
In their appellate briefing, the parties dispute whether Mick must also prove that the
issues he raised in his pro se motion are “clearly stronger” than the issues his appellate counsel
raised on direct appeal. See State v. Romero-Georgana, 2014 WI 83, ¶4, 360 Wis. 2d 522, 849
N.W.2d 668. An appellate court need not decide every non-dispositive issue raised by the parties.
Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508
(2013). For purposes of this appeal, we assume without deciding that, if Mick must make this
showing, he has done so.
9
The parties appear to agree that Mick’s newly-discovered-evidence-based claim is not
procedurally barred. We address that claim in the final section of this opinion.

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¶20 As best as we understand Mick’s argument, he contends that he did
not raise these issues in his pro se motion because he is not a trained lawyer and
“lacked knowledge regarding the factual or legal basis for some of the claims.”
To the extent that Mick is relying on an asserted lack of knowledge of “the factual
or legal basis” for “some” of the new claims, this assertion is conclusory and
undeveloped. See Allen, 274 Wis. 2d 568, ¶9. Additionally, the “vast majority”
of WIS. STAT. § 974.06 motions are filed by pro se litigants, State ex rel. Wren v.
Richardson, 2019 WI 110, ¶27 n.21, 389 Wis. 2d 516, 936 N.W.2d 587, and
Wisconsin courts have not recognized pro se status alone as a “sufficient reason”
for not raising a claim. Therefore, as to the issues that were first raised in Mick’s
supplemental motion, he has not alleged a sufficient reason to overcome the
procedural bar, and we address those issues no further.

III. Ineffective Assistance of Counsel Claims Raised in Mick’s
Pro Se WIS. STAT. § 974.06 Motion

¶21 To prevail on a claim of ineffective assistance of counsel, a
defendant has the burden to prove that trial counsel’s performance was deficient
and, also, that the deficiency prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 687 (1984).10 To demonstrate deficient performance, the defendant
must show that his counsel’s representation “fell below an objective standard of
reasonableness.” Id. at 688. To demonstrate prejudice, the defendant must show
that there is a “reasonable probability that, but for counsel’s unprofessional errors,
10
“Whether counsel’s actions constitute ineffective assistance presents a mixed question
of law and fact.” State v. Tourville, 2016 WI 17, ¶16, 367 Wis. 2d 285, 876 N.W.2d 735. We
uphold the circuit court’s factual findings “‘concerning circumstances of the case and counsel’s
conduct and strategy’” unless those findings are clearly erroneous. State v. Silva, 2003 WI App
191, ¶16, 266 Wis. 2d 906, 670 N.W.2d 385 (quoted source omitted). Whether counsel’s
performance was deficient and prejudicial are both questions of law that we review de novo.
State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).

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the result of the proceeding would have been different.” Id. at 694. If the factual
allegations in a defendant’s motion are sufficient to entitle the defendant to relief,
then the circuit court must hold a Machner hearing to test the allegations. Allen,
274 Wis. 2d 568, ¶9. However, a court may deny a motion without a hearing if
the motion fails to allege sufficient facts to raise a question of fact, if the motion
presents conclusory allegations or subjective opinion, or if the record conclusively
demonstrates that the defendant is not entitled to relief. Id.

¶22 As mentioned, Mick alleged in his pro se motion that his trial
counsel’s performance was deficient in three general areas: (1) for failing to
adequately impeach Joan’s mother; (2) for failing to introduce an alternative
explanation for the source of Joan’s sexual knowledge; and (3) for failing to object
to alleged Haseltine violations. Before addressing these claims, it is helpful to
provide additional background about the allegations in the complaint and the
evidence and arguments presented at trial. After providing that additional
background, we analyze the three issues Mick raised in his pro se motion,
rejecting each in turn.

A. Trial Evidence

¶23 The criminal complaint alleged that, in August 2015, Mick showed
pornography to and sexually assaulted six-year-old Joan for purposes of sexual
gratification. Joan’s mother, Cindy, was married to Mick and is the mother of
Mick’s son. Mick and Cindy’s marital relationship had soured in 2015, and they
were on the verge of a divorce and a custody battle over their son. Cindy first
reported the allegations that Mick had sexually abused Joan on November 19,
2015, the same day Cindy learned that Mick was seeking a harassment injunction
against her and had filed for divorce.

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¶24 The allegations in the criminal complaint were based on a video-
recorded statement that Joan gave to a forensic interviewer in November 2015,
approximately three months after the events in question.11 Joan discussed two
incidents in her recorded statement, which was played to the jury at trial. The first
incident occurred at the family’s home. On that occasion, Mick showed Joan
images on his phone about “how to make babies” and masturbated while Joan
watched. The second incident occurred in the family’s van. On that occasion,
Mick took Joan out for ice cream and they drove to a park where Mick “was
looking at the bad stuff on his phone” and put his penis in Joan’s mouth. In
discussing these incidents, Joan displayed a knowledge about sexual topics
including ejaculation and the function of a clitoris that would not be possessed by
most six-year-olds.

¶25 Notably, the forensic interview was the only direct evidence of
Mick’s guilt presented at trial—Joan, who was seven years old by the time of the
trial, testified that she did not recall anything about the incidents she had described
in her forensic interview.

¶26 Throughout the trial, the defense theory was that Cindy had invented
the allegations as a means to punish Mick and to improve her position in the
impending custody battle, and that her influence over Joan led Joan to repeat those
allegations.

11
See WIS. STAT. § 908.08 (providing a process by which, after notice and a hearing in
which the circuit court makes certain findings of fact, 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 cross-examination).

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¶27 During opening statements, Mick’s trial counsel urged the jury to put
the allegations “in context with what was really going on at the time”—
specifically, that Cindy first reported the allegations in the middle of a contentious
divorce and impending child custody battle, following a heated text message
exchange on November 18, 2015. During that text exchange, Cindy told Mick that
she was building a case against him about his use of pornography, and that Mick
was going to lose custody of their son when that issue played out in court. As trial
counsel explained, Mick obtained a temporary restraining order and sought a
harassment injunction against Cindy on November 19, 2015, and, in response to a
police officer informing her about the court order, Cindy first accused Mick of
molesting Joan. Counsel emphasized that the jury should “listen to where these
stories sprang from,” and that they all “started with [Cindy] in the middle of a
divorce.” Counsel stated: “The timing of this is crucial, that when [police] call
[Cindy] about her harassing behavior, [Mick] is now accused for the first time ever
of child molestation, of sexually assaulting [Joan].”

¶28 Trial counsel continued with this theme during the evidentiary
portion of the trial, eliciting evidence in an attempt to impeach Cindy’s credibility
and suggest her motive to encourage Joan to make false allegations. This included
evidence about the timing of Cindy’s report. Counsel presented police officer
testimony and documentary evidence showing that Cindy first reported that Mick
molested Joan during her initial telephone conversation with a police officer, in
direct response to the officer informing Cindy of Mick’s request for a harassment
injunction. In contrast, when Cindy testified, she denied that she had been aware
of Joan’s allegations against Mick at the time of her initial conversation with the
officer. Instead, Cindy testified that, during that first call, she told the officer that
Mick had a “porn addiction.” Cindy maintained that Joan did not disclose Mick’s

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conduct until after that first call, and that Joan’s disclosure occurred in direct
response to Joan overhearing Cindy tell the officer about Mick’s use of
pornography. Counsel asserted that this conflicting evidence tended to suggest
that Cindy was not being truthful, and that she was attempting to hide something
about how and when the allegations against Mick emerged.

¶29 Trial counsel vigorously cross-examined Cindy. During the cross-
examination, Cindy acknowledged that, the night before the allegations came out,
she and Mick had a text exchange about custody issues. She acknowledged that
the text exchange “went bad at some point and turned into an argument,” and that
Cindy said “something ... like” “have fun trying to win [the custody case].” She
acknowledged that she had used Mick’s password to break into his email and
online accounts, and that she told him she found things in those accounts that she
would use against him in court.12 Trial counsel asked Cindy about a particularly
threatening text message in which Cindy told Mick: “You haven’t seen me yet,
Bitch. You want to play dirty, I’ll get FILTHY on you.” Cindy testified that she
did not remember making that statement, but also did not deny that she had.
Cindy acknowledged that officers served her with a restraining order as a result of
her November 18 text exchange with Mick, but that she “didn’t have to go [to
court to defend against entry of an injunction] because [Mick] was in jail at the
time.”

12
As counsel started to ask Cindy about certain details of the text exchange, the State
objected, and the circuit court took up the objection outside the presence of the jury. Trial
counsel explained that the details of Cindy’s threats were relevant to show that she was motivated
to make up allegations against Mick. The court allowed counsel to question Cindy about her
threats to build a case against Mick, but it stated that it would not allow a “mini-trial” about
“collateral issues” regarding particular steps Cindy took to build that case. Mick has not argued
that the court’s evidentiary decision was an erroneous exercise of discretion.

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¶30 Trial counsel also elicited testimony from multiple witnesses that
children can be impressionable and are susceptible to outside influences, and that
the investigators would not want a child to have conversations with an adult that
could lead, mislead, or taint the child’s statement. To that end, the social worker
who worked with the family testified that she advised Cindy not to talk to Joan
about the incidents. However, during trial counsel’s cross-examination of the
social worker, she acknowledged that she did not give this advice to Cindy until
several days after Cindy reported the allegations. Additionally, during his cross-
examination of the forensic interviewer, trial counsel pointed to a number of times
during the interview in which Joan repeated something Cindy told her.
Additionally, counsel got the forensic interviewer to acknowledge that her job was
not to “challenge or question” information provided by a child during a forensic
interview and, further, that she did not ask Joan whether Cindy told Joan to say
anything during the interview. The forensic interviewer testified that parents are
not allowed in the observation room because their presence can affect a child.
However, on cross-examination, the forensic interviewer acknowledged that Joan
knew that adults were watching the interview take place on closed circuit
television, and that the forensic interviewer did not tell Joan that Cindy was not in
the observation room.

¶31 Mick also testified at trial. Among other things, he testified about
his text exchange with Cindy on November 18, 2015. According to Mick, they
had been texting back and forth about the placement of their son, and the exchange
“quickly escalated to a broad range of things,” including “threats from her,
harassments, threatening me that she was going to take me to court.” Mick
testified that Cindy threatened that Mick’s ex-wife’s mother, who works for a
district attorney, had been “using her detective to build a case against [Mick].

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Basically, saying that [Mick] would not be able to see [their son] again, or that it
would be at [Cindy’s] terms.”

¶32 Mick also testified about his use of pornography. He acknowledged
that he watched pornography a lot, and that he and Cindy argued about that subject
during their marriage. Mick also acknowledged that there was one instance in
which Cindy caught him viewing pornography on his phone while Joan was in the
same room watching television. However, Mick testified that, on that occasion, he
thought that Joan had fallen asleep and, in any event, Joan did not see what was on
his phone. Mick testified that, apart from that one incident, there were no other
occasions in which he viewed pornographic images while he was in the same
room or in a vehicle with Joan or any other child. He categorically denied
assaulting Joan.

¶33 In his closing argument, trial counsel repeated the themes he had
developed during trial—Cindy’s role in bringing the allegations to light, the timing
of Cindy’s report in relation to her threat that she was building a case against Mick
and the filing of the restraining order and injunction, and the evidence counsel had
elicited suggesting that Cindy was not being truthful about the timing and
circumstances under which Joan disclosed the information. He also emphasized
the testimony the jury heard about children being impressionable and susceptible
to influence, and the fact that Cindy had six days between her report and the
forensic interview in which to influence Joan’s statement. Counsel argued that the
role of the forensic interview was to collect information from the child, not to
investigate whether that information is true, and that there were plenty of reasons
to “wonder about” the veracity of Joan’s video statement.

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¶34 The jury found Mick guilty of one count of first degree sexual
assault of a child and two counts of intentionally causing a child to listen to and
view sexually explicit content.

B. Alleged Failure to Adequately Impeach Cindy

¶35 In his pro se motion, Mick argues that trial counsel was ineffective
for failing to use available evidence to impeach Cindy’s credibility. As
summarized in his opening appellate brief, Mick argued that trial counsel should
have impeached Cindy with “various facts, including the text messages from
[November 18, 2015] establishing [Cindy’s] motive to lie and undermining the
timeline of [Joan’s] alleged disclosures of abuse.”

¶36 However, as shown above, trial counsel extensively impeached
Cindy’s credibility at trial, and the November 18 text message exchange was a
significant focus of counsel’s questioning and argument. As also shown above,
counsel repeatedly questioned Cindy’s motive. He also demonstrated that Cindy’s
testimony about Joan’s spontaneous disclosure of the allegations after she
overheard Cindy talking to a police officer about Mick’s use of pornography was
contradicted by the disinterested officer’s testimony and police report. At best,
Mick’s pro se motion argues that counsel should have done more of what he was
already doing, and that, had counsel done more of the same, the jury would have
reached a different verdict. We disagree for reasons we now explain.

¶37 There is just one specific topic that Mick’s pro se motion contends
trial counsel could have cross-examined Cindy about but failed to do so. That
topic is Cindy’s assertion, during the November 18 text message exchange, that

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“[Joan] is in counseling. She’s admitting lots of stuff. The therapist will also be
in court.”13 For reasons we now explain, we conclude that the circuit court
properly denied Mick’s motion without holding a Machner hearing on trial
counsel’s failure to cross-examine Cindy about her text message regarding Joan’s
therapist.

¶38 We first observe that counsel could have had an objectively
reasonable strategic reason for not addressing this topic in cross-examination.14 It
is apparent that counsel’s strategy was to persuade the jury that Cindy made up the
allegation on November 19, in response to learning about the harassment
injunction. Any assertion that Joan said something to a therapist before
November 19 that could be used against Mick in court might have undermined
that strategy. See State v. Kimbrough, 2001 WI App 138, ¶¶31-35, 246 Wis. 2d
648, 630 N.W.2d 752 (even if trial counsel lacked a strategic reason at the time,
counsel’s performance was not deficient if it was one that an attorney could
reasonably have taken after considering the question in light of the information
available to counsel).

13
In his supplemental motion, Mick argues that this assertion was yet another lie by
Cindy. Mick contends that, in her audio-recorded interview with the police, Cindy “admitted”
that Joan had not yet been in counseling on November 18, 2015, when Cindy said that Joan’s
non-existent therapist would testify against Mick. As discussed above, the new arguments Mick
advances in his supplemental motion are procedurally barred.
14
Choices made by counsel are not constitutionally deficient if they were the result of a
strategic decision rationally based on the law and facts. See State v. Hunt, 2014 WI 102, ¶55,
360 Wis. 2d 576, 851 N.W.2d 434. Although the circuit court did not hold a Machner hearing
and we do not have the benefit of trial counsel’s testimony, deficiency is evaluated on an
objective basis. See State v. Kimbrough, 2001 WI App 138, ¶¶31-35, 246 Wis. 2d 648, 630
N.W.2d 752.

17
No. 2020AP1280

¶39 Nor has Mick shown that the omission prejudiced his defense. The
jury was repeatedly told that Cindy was threatening to build a case against Mick,
and Mick does not explain how one additional question focused on that same end
would lead to a reasonable probability that the jury would have acquitted him.
Based on our independent review of the evidence, it is far more likely that the jury
may have believed that Cindy had a motive to hurt Mick and had not been honest
about the timing and circumstances of Joan’s disclosure, but that the jury also
believed that Joan’s underlying statements about Mick’s conduct were true.

¶40 Additionally, to the extent that Mick’s pro se motion can be read to
argue that counsel should have introduced a copy of the text message exchange as
an exhibit, we conclude that the circuit court properly denied the motion without a
Machner hearing. Again, counsel could have had an objectively reasonable
strategic reason for not seeking to introduce an exhibit of the text exchange. Even
if the circuit court would have allowed it into evidence, see supra n.12, the
exchange contained unfiltered and salacious allegations about Mick and
demeaning language and insults from Mick that could have been very damaging in
the eyes of the jury. Counsel could have reasonably thought it best to cherry pick
the most helpful statements from the text exchange, rather than publishing it all—
the good, the bad, and the ugly—for the jury to read. Kimbrough, 246 Wis. 2d
648, ¶¶31-35. And again, Mick has not proven prejudice—the jury heard the
statements in the text exchange that were the most helpful to Mick’s defense from
counsel’s questioning, and also from Mick’s direct examination. We conclude
that there is no reasonable probability that the jury, having seen an exhibit with the
full text exchange, would have determined that Mick was not guilty and acquitted
him.

18
No. 2020AP1280

C. Failure to Introduce Alleged Evidence of Potential
Alternative Sources of Joan’s Sexual Knowledge

¶41 Mick also argued in his pro se motion that trial counsel was
ineffective for failing to present evidence about alternative potential sources for
Joan’s sexual knowledge. During the trial, counsel clearly and repeatedly
insinuated that Cindy was the source of Joan’s sexual knowledge. In his motion,
Mick described two alternative potential sources: (1) a prior allegation of
misconduct by Joan’s father, including an allegation that he exposed himself to
Joan and slept naked with her; and (2) Joan’s exposure to a sex toy business
owned by Joan’s grandmother.

¶42 Mick suggests that if counsel had been able to present admissible
evidence of an alternative source of such knowledge, it may have been helpful to
Mick’s defense. This is because Joan’s recorded statement demonstrated that Joan
had extensive sexual knowledge, which she communicated using language and
terms that appeared to be age-appropriate. Among other things, Joan repeatedly
described Mick “shaking” his “private part” with his hand until he “squeezed” the
“white stuff” out. She described Mick using toilet paper to make sure the “white
stuff” did not “spill.” She stated that, when he put his private part in her mouth,
the “white stuff came into [her] mouth” and tasted “super duper salty.” She
further described how Mick told her to take her pants off and viewed her pubic
area, and that Mick said that the “white dots” he observed were “hairs about to
grow.” Finally, she described Mick telling her about a “thingy” on her pubic area
that you can rub to “make[] you cool and hot” and “awesome.”

¶43 The circuit court properly denied Mick’s motion without a Machner
hearing on trial counsel’s failure to present these potential alternative sources of
Joan’s sexual knowledge. As for Mick’s argument about the prior allegations

19
No. 2020AP1280

against Joan’s father, there are significant barriers to introducing such evidence,
including WIS. STAT. § 972.11(2)(b),15 and Mick has not developed any argument
showing that there was any such evidence that would have been admissible at trial.
Turning to Mick’s argument about Joan’s exposure to her grandmother’s sex toy
business, Mick again fails to develop any argument that evidence on this topic
would be admissible. Nor does he show that counsel’s omission prejudiced his
defense. At best, the affidavits by Mick and his sister indicated that Joan’s
grandmother used the words “cool,” “hot,” and “awesome” to describe products
she sold, but they provide no non-speculative link accounting for Joan’s other
sexual knowledge, especially her graphic description of ejaculate and
ejaculation.16

D. Failure to Object to Alleged Haseltine Violations

¶44 A Haseltine violation occurs when a witness usurps the function of
the jury by opining that another witness is telling the truth. State v. Haseltine, 120

15
WISCONSIN STAT. §972.11(2)(b), commonly referred to as the “rape shield statute,”
provides that, with certain exceptions, “any evidence concerning the complaining witness’s prior
sexual conduct … shall not be admitted into evidence” during a prosecution for certain crimes
including sexual assault of a child. See also State v. Pulizzano, 155 Wis. 2d 633, 651-52, 456
N.W.2d 325 (1990) (providing that, under certain circumstances, a defendant may have a
constitutional right to present such evidence, despite the rape shield statute, if a defendant makes
an offer of proof satisfying a five-factor test).
16
Along similar lines, Mick’s pro se motion also argued that Joan was “developmentally
delayed,” making her an easy target for manipulation, and that counsel should have introduced
evidence of Joan’s intellectual and developmental deficits at trial. We reject this argument for
two reasons. First, Mick contends that he raised this issue with trial counsel, but that counsel
declined to pursue this issue because it would look “bad” for the defense to attack Joan’s intellect
at trial. That was a reasonable strategic decision, and we will not second guess it on appeal.
Second, trial counsel obtained categorical admissions from social workers and the forensic
interviewer that, as a general matter, children are susceptible to influence. Therefore, counsel
was able to achieve the same end without the risk of alienating the jury by pointing out Joan’s
deficits. Mick fails to meet his burden to show a reasonable probability of a different result had
counsel specifically raised Joan’s intellectual and developmental deficits at trial.

20
No. 2020AP1280

Wis. 2d 92, 97, 352 N.W.2d 673 (Ct. App. 1984). In his pro se motion, Mick
argued that the direct examination and cross-examination of the forensic
interviewer elicited two Haseltine violations.

¶45 The first alleged Haseltine violation occurred when, in response to
the prosecutor’s questioning, the forensic interviewer stated that a forensic
interview will be scheduled only if there is “credible information that a child has
been put at risk.”17 Mick does not develop any argument showing that this
constitutes an opinion that Joan was telling the truth, and we reject it on that basis.

¶46 The second alleged Haseltine violation occurred when trial counsel
was attempting to get the forensic interviewer to identify the difference between
information that is “credible” and information that is “reliable.” In response to
this questioning, she stated: “I use the term credible when, if—in this case,
whether this child was providing her statement, she was providing her information
in a free, narrative form.… To me, her testimony of her interview, the information
she provided, I view that as credible.”

¶47 We begin by observing that the circuit court determined that counsel
had an objectively reasonable strategic reason for asking the questions that elicited
these responses. Here, it is evident that counsel was attempting to show that the
purpose of the forensic interview was to collect information from Joan, not to test
the veracity of her statement. That is, counsel emphasized that none of the
forensic interviewer’s questions were aimed at questioning the accuracy of Joan’s

17
Mick’s pro se motion also refers to testimony from the social worker that Joan’s report
was sufficient to schedule a forensic interview, but his appellate briefing does not identify that
testimony, much less develop an argument about it on appeal. We discuss the social worker’s
testimony no further.

21
No. 2020AP1280

statement, nor did the forensic interviewer ask questions to determine whether
Joan’s statement had been influenced by Cindy or anyone else. Although counsel
may not have gotten all of the answers he hoped for, that does not make his
performance deficient.

¶48 We turn to whether trial counsel was ineffective for not objecting
and moving to strike the forensic interviewer’s response to his questioning. In
addressing this issue, we assume without deciding that counsel could have
objected to testimony that he himself elicited and, further, that the court would
have stricken the forensic interviewer’s testimony. Even so, Mick fails to
persuade us that he was prejudiced by any mistake.18 During his closing
arguments, trial counsel argued that the accuracy of Joan’s recorded statement was
in question because investigators assumed that Cindy’s report was true, and
neither the forensic interviewer nor any other member of the police considered
whether Joan’s statement might have been coached by Cindy. We do not see any
reasonable probability that the jury would have credited this defense theory had
the court stricken the testimony in question.

IV. Newly Discovered Evidence

¶49 Finally, Mick contends that he is entitled to a new trial based on
newly discovered evidence. To prevail, Mick must prove the following four
factors, commonly referred to as the Plude factors, by clear and convincing
evidence: (1) the evidence was discovered after conviction; (2) the defendant was

18
Mick points out that a court should consider the cumulative prejudicial effect of all
deficiencies. See State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305. This is an
accurate statement of the law. However, as this is the sole issue for which we assume deficient
performance, there is nothing to cumulate in this case.

22
No. 2020AP1280

not negligent in seeking the evidence; (3) the evidence is material to an issue in
the case; and (4) the evidence is not cumulative. State v. Plude, 2008 WI 58, ¶32,
310 Wis. 2d 28, 750 N.W.2d 42. If the defendant meets his burden of proof
regarding the Plude factors, the court considers whether “‘there is a reasonable
probability that a jury, looking at both the old and the new evidence, would have a
reasonable doubt as to the defendant’s guilt.’” State v. Edmunds, 2008 WI App
33, ¶22, 308 Wis. 2d 374, 746 N.W.2d 590 (quoted source omitted).

¶50 The new evidence in question is Mick’s Google search history from
April 2015, four months before the conduct at issue in this case. This search
history shows that, in April 2015, Mick asked Google, “what do I do if my
daughter seen me masterbaiting?” and “can I lock the data on my cell phone?”19
Mick contends that he had completely forgotten about an incident in April 2015
that lead to these search queries until he reviewed this search history. He now
recalls that he was in his bedroom masturbating and watching pornography on his
phone, and Joan walked into the room. Mick contends that he was very
embarrassed about what happened, and that he wanted to take steps to ensure that
it would never happen again. According to Mick, his search history is objective
evidence corroborating that Mick did not intentionally show sexually explicit
content to Joan, and that he would not have been sexually gratified by doing so.

¶51 We conclude that Mick is not entitled to a new trial based on the
search history evidence. For purposes of this opinion, we assume without

19
In total, Mick points to five search queries from that April date, asked in the following
sequence: “what do i do if my daughter seen me masterbaiting?”; “my daughter seen me
masterbaiting?”; “my daughter caught me masterbaiting?”; “what do i do if my daughter seen me
masterbaiting?”; and “can i lock the data on my cell phone?”

23
No. 2020AP1280

deciding that Mick can satisfy the four Plude factors (although we note that this is
no small assumption in Mick’s favor). We conclude that the circuit court properly
denied the motion because there is not a reasonable probability of a different result
had Mick’s search history been presented to the jury.20

¶52 Initially, we observe that the new evidence is contrary to the
unequivocal testimony Mick gave at trial. As mentioned above, Mick testified that
there was one incident in which he looked at pornography when Joan was in the
same room, but Mick insisted that he thought Joan was sleeping. Trial counsel
then asked Mick: “Have there been any other times that you have had adult
images or anything of that nature on your phone or computer or anything else
where [Joan] would have been in the room?” Mick responded: “Absolutely not.
No.” Indeed, had Mick’s search history been available to the prosecutor during

20
The applicable standard of review of the reasonable probability determination for
newly discovered evidence has been characterized in different ways in the case law. Some cases
state that the determination is a question of law we review de novo. See, e.g., State v. Plude,
2008 WI 58, ¶33, 310 Wis. 2d 28, 750 N.W.2d 42. Other cases indicate that we review this
determination for an erroneous exercise of discretion by the circuit court. See State v. Avery,
2013 WI 13, ¶32, 345 Wis. 2d 407, 826 N.W.2d 60 (“When weighing the new evidence against
the evidence presented at trial, we cannot say that the circuit court erroneously exercised its
discretion when it concluded that the photogrammetry evidence would not create a reasonable
doubt in the minds of the jury.” (emphasis omitted)); State v. Edmunds, 2008 WI App 33, ¶16,
308 Wis. 2d 374, 746 N.W.2d 590 (appearing to apply a discretionary standard of review to the
circuit court’s determination that “there was not a reasonable probability a new result would be
reached with a new trial”).

This apparent inconsistency in the case law is not limited to the cases we cite. Almost
twenty-five years ago, in a concurrence in State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707
(1997), then-Chief Justice Abrahamson wrote: “The cases reveal that although the supreme court
repeats the erroneous exercise of discretion standard of review, it often appears to have reviewed
the trial courts’ decisions independently, determining anew whether there exists a reasonable
probability of a different result.” See id. at 485 n.5 (Abrahamson, C.J., concurring).

Here, the parties do not address the apparent inconsistency in the case law, and we have
not undertaken an exhaustive review of the relevant cases. Rather, we will apply the de novo
standard, which could only benefit Mick.

24
No. 2020AP1280

the trial, one imagines that he would have jumped at the opportunity to use this
evidence to impeach Mick’s unequivocal trial testimony.

¶53 Presumably, had Mick been aware of the objective evidence proving
that the testimony he gave at trial was inaccurate, Mick’s trial testimony would
have been different. Even so, we do not see the evidence of Mick’s April 2015
search history and his explanation of what happened on that occasion as highly
probative of Mick’s mental state four months later. Even assuming that Mick was
embarrassed when Joan unexpectedly entered his bedroom and saw him
masturbating in April 2015, that does not speak to his intentions in August 2015.
The newly discovered evidence would not have provided the jury with any reason
to discount Joan’s statements in her forensic interview, which the jury clearly
believed. We conclude that, had the search history evidence been presented to the
jury, there is not a reasonable probability that it would have helped his case.

CONCLUSION

¶54 For all these reasons, we conclude that Mick is not entitled to a new
trial based on a theory of ineffective assistance of counsel or newly discovered
evidence.

By the Court.—Orders affirmed.

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

25