State v. Darrell K. Smith

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 20, 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. 2021AP72-CR Cir. Ct. No. 2016CF1654

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DARRELL K. SMITH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS and STEPHANIE ROTHSTEIN,
Judges. Order reversed and cause remanded with directions.

Before Brash, C.J., Donald, P.J., and Dugan, J.
No. 2021AP72-CR

¶1 DONALD, P.J. Darrell K. Smith appeals from the judgment of
conviction, following a jury trial, for second-degree sexual assault, and an order
denying his postconviction motion without an evidentiary hearing.1 Smith
contends that he was deprived of his right to effective assistance of counsel
because trial counsel failed to object to: (1) the admission of statements from a
non-testifying sexual assault nurse examiner (SANE) in violation of Smith’s
constitutional right to confrontation; and (2) the admission of a Department of
Corrections (DOC) photo of Smith, and testimony from two law enforcement
officers, which highlighted that the photo was obtained from the DOC. Upon
review, we conclude that Smith is entitled to a Machner evidentiary hearing on his
ineffective assistance of counsel claims.2 Therefore, we reverse and remand.

BACKGROUND

¶2 According to the criminal complaint, on February 6, 2016, A.B. was
drinking with several friends, became intoxicated, and went to the Rave Bar, in
Milwaukee. The next thing A.B. remembered was waking up in the hospital. At
the hospital, A.B. noticed that she was bleeding from her vagina and believed that
someone may have had sex with her without her consent. A.B. later underwent a
sexual assault examination. DNA swabs were taken and submitted to the
Wisconsin State Crime Lab for analysis. A forensic analyst located semen on the
swabs, mapped a DNA profile of the semen, and entered it into the Combined
DNA Index System (CODIS). The DNA profile from the semen was determined

1
While Smith appeals from both a judgment and an order, we note that we only address
the order for the reasons set forth in the opinion.
2
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

2
No. 2021AP72-CR

to match the known profile of Smith. Smith was charged with second-degree
sexual assault.

¶3 The case proceeded to a jury trial in 2018. Relevant to this appeal,
at the start of the trial, the State indicated that C.H., the SANE who performed the
examination of A.B. was unavailable, and L.K., the manager of the SANE
program and a former SANE, would be testifying instead.3 Trial counsel objected
based on the “best evidence rule,” and the trial court overruled the objection.4

¶4 During L.K.’s testimony, the State moved A.B.’s SANE records into
evidence. L.K. testified that she did not do the SANE examination of A.B., and
that it was C.H. who conducted the examination.

¶5 As part of L.K.’s testimony, the prosecutor had her read into the
record, verbatim, what C.H. had written in the “Progress Notes - Encounter Notes”
of the SANE records. The notes included:

Patient returned … accompanied by friend Tiffany who
was with her last night at Rave and friend Molly. Patient
reports she has returned to have evidence collected and
report to police.

Patient reports she has not called police at this time
and wishes for them to be contacted prior to being seen by
the R.N. to speed up process.

Patient willing to be seen by R.N. while waiting for
police arrival. Milwaukee Sensitive Crimes contacted by
R.N. at 21:04. Notified that squad will be sent out.

3
The record indicates that at the time of the trial, C.H. no longer worked at the hospital.
The record, however, does not contain any details regarding C.H.’s unavailability.
4
The Honorable Mark A. Sanders presided over the trial. The Honorable Stephanie
Rothstein presided over the postconviction proceedings. We refer to Judge Sanders as the trial
court and Judge Rothstein as the postconviction court.

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No. 2021AP72-CR

The notes went on to state:

Patient reports she and friends had been drinking
prior to going to the Rave to see a show. Patient states she
is unsure of the exact quantity consumed but states it was a
fair amount. Patient reports she was intoxicated when they
left….

….

Patient reports she did not have a memory of having a drink
once getting to the Rave. Patient has no further memory
after arrival at the Rave until awakening at … about five
a.m. this morning.

Patient reports from what she has been told by
friends she and her friend Tiffany were in a cab and were
kicked out of the cab. The patient’s ex-boyfriend’s friend
witnessed this and brought them to his home at prior to
midnight.

Patient reports she lost her ID, credit card, debit
card and coat. Milwaukee Sensitive Crimes spoke with
patient at [the sexual assault treatment center] to take
report.

Patient had evidence collected and full head-to-toe
exam. Patient reports genital exam done earlier in day.
Patient declines photos at this time. Patient had all
medications including emergency contraception earlier….
Reviewed home [medication] instructions with patient.
Discharged, reviewed.

The prosecutor also asked L.K. about other information in the records, including
the chain of custody evidence report,5 the anatomical diagrams, and A.B.’s
description of the assault.

5
The biological evidence obtained from A.B. included swabs (vaginal, cervical, external
genitalia, right inner thigh, left inner thigh, and right side trunk), three tubes of blood, and three
tubes of urine. Clothing items, including A.B.’s underwear, were also collected.

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No. 2021AP72-CR

¶6 In addition, during the trial, the State moved into evidence a DOC
photo of Smith that was shown to A.B. The following exchange took place with
Detective Jon Charles:

STATE: Detective, I’m showing you what’s been marked
as State’s Exhibit 1. Can you tell me what that is?

DET.: It’s a department of correction—Wisconsin
Department of Corrections photo of the defendant.

STATE: So is this a fair and accurate photograph of the
picture that you showed [A.B.]?

DET.: I believe this is the picture I showed her.

STATE: And what makes you believe that?

DET.: When I showed it to her, it was a department of
corrections photo. This is the photo that I personally
placed in the—we have files in sensitive crimes. I placed
this in a file, and that’s where it was located.

(Emphasis added.)

¶7 Subsequently, the following exchange took place with Detective
Jolene Del Moral:

STATE: Given that it appeared Mr. Smith was unknown to
[A.B.], but his DNA had linked to her sex kit, what did you
do to follow up with that investigation?

DET.: So normally when we have that type of information,
what we would do is—a lot of times we would check our
own database to see if the person would be on file with us.
Mr. Smith was not on file with us. What we would do is
normally get a picture to see if she knows him. He was not
on file with us, so then my next option was to check the
department of corrections, and he was on file.

.…

STATE: Detective Del Moral, I’m showing you what’s
been marked as Exhibit 1. Do you recognize that?

DET.: Yes, I do.

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No. 2021AP72-CR

STATE: And what it is?

DET.: That’s the photo of Mr. Smith from the department
of corrections.

(Emphasis added.) Trial counsel did not object, move to strike, or seek a limiting
or curative instruction in regards to the DOC references.

¶8 Smith was found guilty, and filed a postconviction motion. Smith
argued that the admission of C.H.’s statements, as relayed in the SANE records
and L.K.’s testimony, constituted a Confrontation Clause violation, and trial
counsel was ineffective for failing to object. Smith also argued that trial counsel
was ineffective for failing to object to the admission of the DOC photograph, and
the testimony from the two law enforcement officers, which highlighted for the
jury that the photograph of Smith was obtained from the DOC.

¶9 The postconviction court denied the motion without an evidentiary
hearing. The court found that there was no Confrontation Clause violation. The
court also stated that trial counsel was not deficient for failing to challenge an area
of unsettled law. In addition, the court found that there was not a reasonable
probability that the references to the DOC as the source of the photo had any
impact on the outcome of the trial. Smith appeals. Additional relevant facts are
referenced below.

DISCUSSION

¶10 On appeal, Smith renews his argument that he was deprived of his
right to effective assistance of counsel because trial counsel failed to object to:
(1) the admission of C.H.’s statements, as relayed through the SANE records and
L.K.’s testimony, on the grounds that the evidence violated Smith’s constitutional
right to confrontation; and (2) the admission of the DOC photo of Smith, and the

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No. 2021AP72-CR

testimony from the two law enforcement officers, which highlighted that the photo
of Smith was obtained from the DOC.

¶11 To prevail on a claim of ineffective assistance of counsel, a
defendant must prove both that counsel’s performance was deficient and that the
defendant was prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a
defendant must point to specific acts or omissions by counsel that are “outside the
wide range of professionally competent assistance.” Id. at 690. To demonstrate
prejudice, the defendant must show there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.

¶12 When evaluating whether a defendant is entitled to an evidentiary
hearing, we first independently determine “whether the motion on its face alleges
sufficient material facts that, if true, would entitle the defendant to relief.” State v.
Ruffin, 2022 WI 34, ¶27, 401 Wis. 2d 619, 974 N.W.2d 432. Even if, however,
“the motion alleges sufficient facts, an evidentiary hearing is not mandatory if the
motion presents only conclusory allegations or if the record as a whole
conclusively demonstrates that the defendant is not entitled to relief.” Id., ¶3; see
also State v. Spencer, 2022 WI 56, ¶49, 403 Wis. 2d 86, 976 N.W.2d 383.
“Whether the record conclusively demonstrates that the defendant is entitled to no
relief is also a question of law we review independently.” Spencer, 403 Wis. 2d
86, ¶23 (citation omitted). “If the record conclusively demonstrates the defendant
is not entitled to relief, the circuit court has the discretion to decide whether to
hold a hearing, which we review for an erroneous exercise of discretion.” Id.

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No. 2021AP72-CR

¶13 As discussed below, we conclude that Smith is entitled to an
evidentiary hearing on both of his claims. Smith’s motion alleged sufficient
material facts that, if true, would entitle him to relief. Ruffin, 401 Wis. 2d 619,
¶27. Additionally, the record does not conclusively demonstrate that Smith is not
entitled to relief on his claims. See id., ¶28; Spencer, 403 Wis. 2d 86, ¶23.

A. Confrontation Claim

¶14 The Confrontation Clauses of the United States and Wisconsin
Constitutions guarantee criminal defendants the right to confront witnesses against
them. U.S. CONST. amend. VI; WIS. CONST. art. I, § 7. In Crawford v.
Washington, 541 U.S. 36 (2004), the United States Supreme Court held that
“[t]estimonial statements of witnesses absent from trial [can be] admitted only
where the declarant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Id. at 59.

¶15 In determining whether an out-of-court statement is testimonial, we
examine “‘whether, in light of all the circumstances, viewed objectively,’ the
‘declarant is acting as a witness against the defendant[.]’” State v. Nelson, 2021
WI App 2, ¶29, 395 Wis. 2d 585, 954 N.W.2d 11 (citation omitted). In doing so,
we consider “whether the ‘primary purpose’ of the statement was to ‘gather
evidence for the defendant’s prosecution’ or ‘substitute for testimony in a criminal
prosecution.’” Id. (citation and brackets omitted). Under the primary purpose
test, some factors relevant to our analysis include: “(1) the formality/informality
of the situation producing the out-of-court statement; (2) whether the statement is
given to law enforcement or a non-law enforcement individual; (3) the age of the
declarant and (4) the context in which the statement was given.” State v. Mattox,
2017 WI 9, ¶32, 373 Wis. 2d 122, 890 N.W.2d 256 (footnote omitted).

8
No. 2021AP72-CR

¶16 Based on our review of the postconviction motion, we first conclude
that Smith alleged sufficient material facts, that if true, entitle him to a Machner
hearing. See Ruffin, 401 Wis. 2d 619, ¶27; Spencer, 403 Wis. 2d 86, ¶23.
Smith’s postconviction motion alleged that trial counsel was deficient for failing
to object to the admission of C.H.’s written statements in the SANE
documentation and L.K.’s testimony as a violation of his right to confrontation
pursuant to Crawford. The motion explained that C.H.’s statements were
testimonial, and that Smith did not have a prior opportunity to cross-examine C.H.

¶17 The postconviction motion also alleged that trial counsel’s failure to
object prejudiced him because the admission of the SANE documentation and
L.K.’s testimony established the origin of the swab samples from which Smith’s
DNA profile was developed. According to Smith, without this evidence,
insufficient foundation existed to introduce the DNA evidence linking him to A.B.
In addition, Smith alleged that he was prejudiced because he did not have an
opportunity to challenge the integrity of the evidence and documentation
collection procedures.

¶18 Next, we examine whether the record conclusively demonstrates that
Smith is not entitled to relief. See Ruffin, 401 Wis. 2d 619, ¶28; Spencer, 403
Wis. 2d 86, ¶23. We conclude that it does not.

¶19 The State contends that trial counsel’s failure to object was not
deficient performance because the SANE examination report was nontestimonial,
so its admission did not violate Smith’s right to confrontation. According to the
State, the primary purpose of the SANE examination was to determine what
happened to A.B. for treatment purposes, and to respond to a potential ongoing
emergency. The State emphasizes that the SANE examination took place in an

9
No. 2021AP72-CR

informal setting, a hospital, and was a conversation between a patient and a nurse,
a non-law enforcement individual.6 Based on the particular facts in this case,
however, we reject the State’s argument and conclude that Smith’s right to
confrontation was violated. See Nelson, 395 Wis. 2d 585, ¶¶63-64 (Davis, J.,
concurring) (emphasizing that “a SANE or similar exam may give rise to
testimonial evidence in one situation and not another”).

¶20 To start, we note that the record reflects that A.B. was evaluated by
medical personnel three separate times on February 7, 2016.7 At approximately
12:35 a.m., A.B. went to the emergency room at Columbia St. Mary’s hospital.
A.B. was discharged at 4:18 a.m. and advised to proceed to Aurora Sinai Medical
Center. At approximately 4:51 a.m., A.B. arrived at the Aurora Sinai emergency
room, and was discharged at 6:38 a.m. Fourteen hours later, at 8:56 p.m., A.B.
returned to Aurora Sinai and underwent a sexual assault examination at the sexual
assault treatment center.

¶21 Smith does not contend that A.B.’s emergency room visits were
anything other than medical in nature. Smith, however, asserts that the primary
purpose of A.B.’s visit to the sexual assault treatment center was for the collection
of evidence to be used in a criminal prosecution. We agree. C.H.’s notes
expressly indicate, “[p]atient reports that she has returned to have evidence

6
The State also discusses the “age of the declarant.” See State v. Mattox, 2017 WI 9,
¶32, 373 Wis. 2d 122, 890 N.W.2d 256. We agree with the State that because C.H. is an adult,
this is a neutral factor. See State v. Reinwand, 2019 WI 25, ¶29, 385 Wis. 2d 700, 924 N.W.2d
184 (stating “that the declarant is an adult is a neutral factor, making the statement neither more
nor less likely to be testimonial”).
7
We note that Smith suggests that A.B. was evaluated by medical personnel two
separate times. A review of A.B.’s medical records, however, reflect that she was evaluated three
separate times.

10
No. 2021AP72-CR

collected and report to police” and that A.B. wanted the police to be contacted
prior to being seen by the nurse in order to “speed up [the] process.” C.H.’s notes
further indicate that the “Milwaukee Sensitive Crimes” unit was contacted, and
that A.B. was notified that a “squad will be sent out.”

¶22 In addition, during A.B.’s visit at the sexual assault treatment center,
A.B. signed a consent form, which stated that a SANE “has explained to me that a
medical/forensic exam is not a routine medical checkup,” the SANE performing
the exam “will not identify, diagnose, or treat any existing medical problems that I
may have,” and “I understand that if the evaluation and care of any physical
trauma or psychiatric condition is beyond the scope of the medical/forensic exam,
I will be referred to a physician or to the Emergency Department at Aurora Health
Care for further medical examination or treatment.”

¶23 The consent form also authorized the SANE to perform the
following services: (1) “[v]isually inspect injuries and possible areas of assault”;
(2) “[c]ollect evidence, which may include hair combings, body fluid samples and
clothing”; (3) “[c]ollect blood and/or urine to send for laboratory testing, for the
detection of drugs or alcohol used to facilitate the assault”; (4) “[p]hotography of
external body areas and/or internal anogenital areas, by use of colposcope and/or
camera, for the purpose of documenting injury and providing ongoing medical
care, evaluation and/or consultation.” Thus, these facts overall establish that the
primary purpose of the sexual assault examination was to collect evidence.

¶24 Moreover, there was not an ongoing emergency at the time of the
SANE examination, which would render the statements nontestimonial. See Davis
v. Washington, 547 U.S. 813, 822 (2006). As the State acknowledges, A.B. “had
absolutely no memory of nearly the entire night leading up to her arrival in the

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No. 2021AP72-CR

hospital.” Thus, C.H. could not have known whether a crime had actually been
committed. Cf. Michigan v. Bryant, 562 U.S. 344, 374 (2011) (holding that there
was an “ongoing emergency” where there was an armed shooter on the loose).

¶25 Thus, taking into consideration the particular facts of this case—
including that A.B. returned to the hospital for the collection of evidence and to
“report to police”—we conclude that C.H.’s statements were testimonial, and thus,
the admission of the statements violated Smith’s right to confrontation. See
Crawford, 541 U.S. at 59.

¶26 The State also argues that trial counsel did not perform deficiently
because the law was not settled. While it is true that there may not have been
binding Wisconsin law addressing this specific factual scenario in 2018 at the time
of the trial in this case, the legal principles regarding a defendant’s right to
confrontation were well-established. See Melendez-Diaz v. Massachusetts, 557
U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011); State v.
Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256.

¶27 Under the particular fact pattern presented in this case and the law in
existence at the time of the trial, we are not persuaded here that the record
conclusively shows that an objection based on the Confrontation Clause would be
so novel that a defense attorney would not be expected to make it. See generally
State v. Peebles, 2010 WI App 156, ¶28, 330 Wis. 2d 243, 792 N.W.2d 212
(holding that a Fifth Amendment challenge was “not so novel that counsel should
not be expected to have made it”). We emphasize, however, that we are not
drawing any conclusions in this opinion about whether trial counsel performed
deficiently. Whether trial counsel performed deficiently is a question to be
determined on remand by the circuit court after taking testimony. See State v.

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No. 2021AP72-CR

Sholar, 2018 WI 53, ¶54, 381 Wis. 2d 560, 912 N.W.2d 89. At the hearing, the
postconviction court can learn exactly why counsel did not object and whether the
failure to do so was a reasoned choice or an oversight. See Nelson, 395 Wis. 2d
585, ¶69 (Davis, J., concurring).

¶28 Finally, we observe that the State does not explicitly address the
question of whether Smith was prejudiced by trial counsel’s failure to object. See
Strickland, 466 U.S. at 687. We view this as a concession that the record does not
conclusively show that Smith would not be entitled to relief on the prejudice
prong. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97,
109, 279 N.W.2d 493 (Ct. App. 1979) (stating that unrefuted arguments are
deemed conceded).

¶29 Moreover, based on our independent review of the record, we
conclude that the record does not conclusively show that Smith would not be
entitled to relief on the prejudice prong. The record reflects that A.B. did not have
any memory after she arrived at the Rave until the following day when she woke
up at the hospital. The only evidence that linked Smith to A.B. was the DNA
evidence. As Smith explains, L.K.’s testimony and the SANE records established
the origin of the swab samples from which Smith’s DNA profile was developed.
Thus, if L.K.’s testimony and the SANE records were inadmissible on
confrontation grounds, there would not be a factual foundation or evidentiary basis
for the DNA analyst’s testimony that Smith was the source of DNA found on the
swabs from A.B.,8 or at minimum, the significance of the DNA evidence would
8
See generally WIS. STAT. § 907.02(1) (2019-20); State v. Giese, 2014 WI App 92, ¶18,
356 Wis. 2d 796, 854 N.W.2d 687 (stating that a court’s function is to ensure that an expert’s
opinion is based on a reliable foundation). All references to the Wisconsin Statutes are to the
2019-20 version unless otherwise noted.

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No. 2021AP72-CR

have been diminished as it would be unknown whether the evidence was in fact
from A.B.

¶30 In addition, because C.H. did not testify, Smith was deprived of an
opportunity to cross-examine C.H. about what she observed and recorded,
including whether the swabs and evidence taken from A.B. were in fact from A.B.
Once again, however, we note that we are not drawing any ultimate conclusions
about whether Smith was prejudiced. See Sholar, 381 Wis. 2d 560, ¶54. Rather,
we are only determining that the record does not conclusively show that Smith
would not be entitled to relief. See Ruffin, 401 Wis. 2d 619, ¶28; Spencer, 403
Wis. 2d 86, ¶23.

¶31 Therefore, we conclude that Smith is entitled to a Machner hearing.
On remand, we direct the circuit court to hear testimony and determine whether
trial counsel performed deficiently and whether Smith was prejudiced. See
Sholar, 381 Wis. 2d 560, ¶54.

B. DOC Photograph and Corresponding Testimony Claim

¶32 Smith’s postconviction motion alleged that trial counsel was
ineffective for failing to object to the admission of the DOC photograph, and the
testimony from the two law enforcement officers, which highlighted for the jury
that the photograph of Smith was obtained from the DOC. Once again, we
conclude that Smith is entitled to a Machner hearing.

¶33 First, Smith’s motion alleged sufficient material facts, that if true,
entitle him to a Machner hearing. See Ruffin, 401 Wis. 2d 619, ¶27; Spencer,
403 Wis. 2d 86, ¶23. The postconviction motion alleged that trial counsel had
legal grounds to object to the photograph and the testimony on the basis that the

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No. 2021AP72-CR

evidence was improper other-acts evidence and that it was irrelevant to whether
Smith assaulted A.B. See WIS. STAT. § 904.04(2)(a) (stating that “evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith”); WIS. STAT.
§ 904.01 (stating that “‘[r]elevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”).

¶34 The motion further alleged that trial counsel’s failure to object was
prejudicial because the jury was able to consider improper evidence in evaluating
the State’s case and Smith’s defense. The motion observed that the evidence that
the photo was obtained from the DOC communicated to the jury that Smith had
been in prison or supervision in the past, and that he had been previously
convicted of a crime.

¶35 The motion also observed that the “harmful depiction” of Smith was
“made more meaningful given that Smith did not testify in the case.” The motion
explained that had Smith testified, the State could have impeached his testimony
by asking him if he had ever been convicted of a crime, and if so, how many
times. See WIS. STAT. § 906.09(1). However, here, because Smith did not testify,
the evidence that the photo came from the DOC gave the State “an indirect yet
improper vehicle” to elicit Smith’s past criminal history.9

9
The State argues that any impact the DOC photo may have had on the jury was
“significantly tempered” by the fact that the jury also heard that Smith’s DNA was entered into
the CODIS database. As the State acknowledges, however, the jury was told that the DNA
profiles in CODIS are from “convicted offenders or other individuals based on state law”
(emphasis added). In other words, an individual’s profile is not necessarily in CODIS because
the individual was a convicted offender.

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No. 2021AP72-CR

¶36 Moreover, the record does not conclusively demonstrate that Smith
is not entitled to relief. See Ruffin, 401 Wis. 2d 619, ¶28; Spencer, 403 Wis. 2d
86, ¶23. The State contends that the DOC photo was properly introduced for the
permissible purpose of proving that A.B. did not know or recognize Smith. See
WIS. STAT. § 904.04(2)(a). The fact, however, that the photo came from the DOC
does not establish that A.B. knew or recognized Smith. As Smith observes, the
State could have simply introduced evidence that it had showed A.B. a photograph
of Smith, without referencing where it came from, and omitted any reference to
the DOC from the photograph.

¶37 The State also contends that Smith was not prejudiced because the
evidence of his guilt was “overwhelming.” We disagree. The State asserts that
there was no doubt that Smith had sexual intercourse with A.B. as his semen was
located on both a vaginal swab and a cervical swab from A.B. Even if we assume
that this evidence is not subject to exclusion due to a confrontation clause
violation, the presence of Smith’s semen is not overwhelming evidence of guilt.

¶38 In addition to proving that Smith had sex with A.B., to convict
Smith, the State also had to prove that A.B. was under the influence of an
intoxicant to a degree which rendered her incapable of giving consent. See WIS.
STAT. § 940.225(2)(cm) (2015-16); WIS JI—CRIMINAL 1212. However, as Smith
asserted in his postconviction motion, there was evidence supporting that A.B. was
not so intoxicated that she lacked capacity to consent. The evidence elicited at
trial included A.B.’s testimony that she only had a “medium” amount to drink that
night, and denied taking narcotics, ecstasy, or “anything like that.” Additionally,
when A.B. was at the emergency department, the provider notes observed that she
was “awake, alert and oriented,” and that her vital signs were “normal.” Further, a

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No. 2021AP72-CR

toxicologist testified that no conclusive evidence of any type of “date rape” drug
was found in A.B.’s blood or urine.10

¶39 Finally, the State notes that Smith initially denied having sexual
intercourse with A.B. to the police, which according to the State reflects
consciousness of guilt. However, this evidence by itself does not constitute
overwhelming evidence of guilt.

¶40 Thus, again, we conclude that Smith alleged sufficient material facts
in his postconviction motion, and that the record does not conclusively
demonstrate that he is not entitled to relief. See Ruffin, 401 Wis. 2d 619, ¶¶27-28;
Spencer, 403 Wis. 2d 86, ¶23. Accordingly, Smith is entitled to a Machner
hearing on his claim that trial counsel was ineffective for failing to object to the
admission of the DOC photograph and the corresponding testimony.

¶41 In sum, we reverse and remand for a Machner hearing on both of
Smith’s claims. As stated above, we repeat, however, that we are not concluding
that trial counsel performed deficiently or that Smith suffered any prejudice. See
Sholar, 381 Wis. 2d 560, ¶54.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

10
A.B.’s urine initially screened positive for Rohypnol. However, a follow-up test did
not confirm this result.

17