State v. Dennis Bell, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 17, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2108-CR Cir. Ct. No. 2021CF696

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DENNIS BELL, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: ELLEN R. BROSTROM and JEFFREY A. WAGNER,
Judges. Affirmed.

Before White, C.J., Colón, P.J., and Donald, J.

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. 2024AP2108-CR

¶1 PER CURIAM. Dennis Bell, Jr. appeals from a judgment of
conviction for repeated sexual assault of a child and an order denying Bell’s
postconviction motion.1 For the reasons set forth below, we affirm.

BACKGROUND

¶2 In 2020, Mary2 disclosed to her mother that she was repeatedly
sexually assaulted by her older cousin, Bell, from the years 2005 to 2010, when
Mary was roughly 11 years old until she was 16 years old. The State subsequently
filed a criminal complaint charging Bell with repeated sexual assault of a child.
The criminal complaint alleged that Bell had sexual intercourse with Mary
“whenever he could,” that Bell would “play wrestle” with Mary at family
gatherings as a pretext for being able to touch her, and that Bell asked Mary to be
his secret girlfriend.

¶3 As part of the pretrial proceedings, Bell sought to admit a partially
nude photograph of Mary.3 Bell argued that the photograph was evidence that
Bell and Mary had a consensual sexual relationship after Mary turned 18 years old
and further showed that, contrary to Mary’s assertion, Mary did not try to avoid

1
The Honorable J.D. Watts presided over the motion to introduce the photograph at
issue on appeal. The Honorable Ellen R. Brostrom presided over Bell’s trial and sentencing,
entered the judgment of conviction, and ordered the restitution challenged on appeal. The
Honorable Jeffrey A. Wagner entered the order denying Bell’s postconviction motion. For ease
of reference, we refer to each generally as the trial court.
2
We refer to the victim in this matter using the pseudonym provided by the State. See
WIS. STAT. RULE 809.19(1)(g) (2023-24). All references to the Wisconsin Statutes are to the
2023-24 version.
3
Bell also sought to admit text messages that he received from Mary, but we do not
discuss this aspect of his motion further because Bell has not pursued any argument as to the trial
court’s decision to exclude the text messages.

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No. 2024AP2108-CR

Bell once she became an adult. The State opposed Bell’s motion and argued that
the photograph should be excluded pursuant to the rape shield law, see WIS. STAT.
§ 972.11, and the three-step test set forth in State v. DeSantis, 155 Wis. 2d 774,
456 N.W.2d 600 (1990). The trial court denied Bell’s motion and excluded the
photograph.

¶4 The case proceeded to a jury trial at which Mary, Mary’s mother,
and an investigating officer testified. Mary generally testified consistent with the
allegations in the criminal complaint. She testified that Bell would wrestle with
her at family gatherings and use that as an excuse to touch her, that Bell would
take photographs of her, and that Bell would have sexual intercourse with her any
time the opportunity presented itself. She explained that she delayed her
disclosure until her adulthood because she was scared of what would happen if she
said anything and she was disclosing now because Bell recently started a
relationship with a woman who had a young daughter that Mary feared would also
be assaulted if she remained silent.

¶5 Mary’s mother testified that, at the time that Mary disclosed the
assaults to her, Mary was crying and upset. She testified that she confronted Bell,
and she described that Bell confessed and apologized profusely. She stated:

I asked him how could he do that to her. And he
immediately started apologizing and said that he feels
awful, he feels incredibly bad, and—and disgusted. And he
just kept saying sorry and I kept asking him, why would
you do this. He would never answer the why.

The State further introduced the related text messages from Bell to Mary’s mother
apologizing for his behavior.

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No. 2024AP2108-CR

¶6 After approximately 20 minutes of deliberation, the jury found Bell
guilty, and Bell was convicted of repeated sexual assault of a child. The trial court
subsequently sentenced Bell to ten years of imprisonment, bifurcated as five years
of initial confinement and five years of extended supervision. The trial court
additionally awarded restitution in the amount of $2,380 for past treatment and
$10,000 “for future psychological/psychiatric treatment.”

¶7 Bell subsequently filed a postconviction motion alleging ineffective
assistance of counsel. Specifically, Bell alleged that trial counsel was ineffective
for failing to object to hearsay testimony from Mary’s mother and the
investigating officer about what Mary told them. Bell further alleged that trial
counsel was ineffective for failing to call Bell’s sister as a witness because she
would support the assertion that Bell was never left unsupervised with Mary
during the time of the alleged assaults and that Mary never told her about any
assaults at the time they occurred despite having a close relationship with Mary.
Bell further challenged the restitution order. The trial court denied Bell’s motion
without a hearing. Bell now appeals. Additional relevant facts will be noted
below as necessary.

DISCUSSION

¶8 On appeal, Bell raises three main arguments. First, Bell argues that
the trial court erroneously exercised its discretion when it excluded the photograph
of Mary. Second, Bell argues that the trial court erred in denying his
postconviction motion alleging ineffective assistance of counsel without a hearing.
Third, Bell argues that the trial court erroneously awarded restitution for what Bell
characterizes as Mary’s “life coaching” expenses. We address each argument in
turn.

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No. 2024AP2108-CR

I. Exclusion of the Photograph of Mary

¶9 Bell argues that the trial court erroneously excluded the photograph
of Mary under the rape shield law and erroneously found that the unfair prejudice
of the photograph exceeded its probative value. Bell also argues that the exclusion
of the photograph violated his constitutional right to present a defense. We
disagree, and we conclude that the trial court did not erroneously exclude the
photograph.

¶10 WISCONSIN STAT. § 972.11(2)(b), commonly referred to as the rape
shield law, provides:

If the defendant is accused of a crime under [WIS. STAT.
§ 948.02], if the court finds that the crime was sexually
motivated, as defined in [WIS. STAT. §] 980.01(5), any
evidence concerning the complaining witness’s prior sexual
conduct or opinions of the witness’s prior sexual conduct
and reputation as to prior sexual conduct shall not be
admitted into evidence during the course of the hearing or
trial, nor shall any reference to such conduct be made in the
presence of the jury[.]

In other words, “[u]nder the rape shield law, introducing any evidence concerning
the complainant’s prior sexual history or reputation is generally barred ‘regardless
of the purpose.’” State v. Sarfraz, 2014 WI 78, ¶38, 356 Wis. 2d 460, 851
N.W.2d 235 (quoting § 972.11(2)(c)). “The law reflects the legislature’s
determination that evidence of a complainant’s prior sexual conduct is largely
irrelevant ‘or, if relevant, substantially outweighed by its prejudicial effect.’”
State v. Ringer, 2010 WI 69, ¶25, 326 Wis. 2d 351, 785 N.W.2d 448. There are
three statutory exceptions to this general rule that such evidence is excluded. Sec.
972.11(2)(b)1.-3.; Ringer, 326 Wis. 2d 351, ¶25. On appeal, we focus on whether
the photograph of Mary met the first statutory exception for “[e]vidence of the
complaining witness’s past conduct with the defendant.” Sec. 972.11(2)(b)2.

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¶11 To meet this exception, a defendant is required to show that “(i) the
proffered evidence relates to sexual activities between the complainant and the
defendant; (ii) the evidence is material to a fact at issue; and (iii) the evidence of
sexual contact with the complainant is of ‘sufficient probative value to outweigh
its inflammatory and prejudicial nature’” under WIS. STAT. § 973.21(11). State v.
Jackson, 216 Wis. 2d 646, 659, 575 N.W.2d 475 (1998) (quoting DeSantis, 155
Wis. 2d at 785). The State notes that the photograph “likely meets the low bar” of
relating to sexual conduct between Bell and Mary; therefore, we assume without
deciding that the photograph meets the first part of the DeSantis test. However,
we conclude that it does not meet the second or third parts of the test, and the trial
court did not erroneously exercise its discretion in excluding the photograph. See
State v. Nieves, 2017 WI 69, ¶16, 376 Wis. 2d 300, 897 N.W.2d 363 (“We review
a circuit court’s decision to admit or exclude evidence under an erroneous exercise
of discretion standard.” (citation omitted)).

¶12 In reaching an application of the three-part DeSantis test, we
recognize that the State argues the threshold matter that Bell forfeited any
argument about the trial court’s decision to exclude the photograph by failing to
cite the three-part DeSantis test and develop any argument that the photograph
met this test. In reply, Bell argues that the parties and the trial court below did not
use this framework in evaluating the photograph. The record, however, reveals
that the State framed its written motion in opposition to the admission of the
photograph under this three-part DeSantis test, and while the trial court did not
explicitly mention DeSantis in rendering its oral decision, the parties’ discussion
and trial court’s oral ruling is readily recognizable as set within this framework.
Nevertheless, we reject the State’s argument for forfeiture because Bell’s
argument in his opening brief is similarly recognizable as an argument made

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No. 2024AP2108-CR

within this framework given that Bell both cited the rape shield law, the exception
for evidence of past conduct, and the balancing of unfair prejudice and probative
value. Thus, we turn to the application of the DeSantis test and whether the trial
court erroneously excluded the photograph of Mary.

¶13 In seeking to admit the photograph, Bell claimed that the photograph
of Mary established his theory of defense that he did in fact have a sexual
relationship with Mary but, contrary to Mary’s assertion, the relationship was a
consensual sexual relationship after Mary reached the age of 18. He further
asserted that the photograph impeached Mary’s assertion that she wanted nothing
to do with Bell after she reached the age of 16. Assuming that the partially nude
photograph relates to sexual activity between Bell and Mary, it is neither material
to a fact at issue nor sufficient in probative value to outweigh its inflammatory and
prejudicial nature.

¶14 “The proper inquiry under the second prong of the DeSantis test is
to consider whether the proffered evidence ‘relates to a fact or proposition that is
of consequence to the determination of the action.’” Sarfraz, 356 Wis. 2d 460,
¶48 (citation omitted). The photograph, however, does not help answer the
question of whether Bell repeatedly sexually assaulted Mary when she was a child
between the ages of 11 and 16 years old by play wrestling with her, taking
photographs of her, or having sexual intercourse with her. At most, the
photograph would help to answer the question of whether Bell and Mary had any
sort of sexual relationship after Mary turned 18 years old. However, whether Bell
and Mary had a consensual sexual relationship of any sort after Mary turned 18
years old has no bearing on the issue at trial of repeated sexual assault of a child.
As the State argues, a later consensual relationship would not negate prior sexual
assaults while Mary was a minor. Therefore, whether Mary had a later consensual

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No. 2024AP2108-CR

sexual relationship with Bell after she turned 18 is frankly not relevant to the issue
of whether Bell engaged in any of the alleged behavior before Mary turned 18.

¶15 Bell further argues that the photograph is relevant to determining
Mary’s credibility because Mary claimed to have not wanted contact with Bell
after she turned 16. While we recognize that the State disputes Bell’s
characterization of Mary’s testimony, our conclusion remains the same. Whether
Mary wanted a relationship with Bell after she turned 18 or did not want any
contact with Bell after she turned 16 sheds no light on whether Bell repeatedly
sexually assaulted Mary as a child.

¶16 As to the third part of the DeSantis test where we balance the
probative value of the evidence with its prejudicial nature, we start with the
assumption that the evidence is prejudicial. Sarfraz, 356 Wis. 2d 460, ¶52.
Indeed, “this step operates as an inverted balancing test that ‘initially weight[s] the
balance in favor of a determination that the evidence is inherently prejudicial’ due
to ‘the legislature’s distrust of evidence of a victim’s prior sexual history.’” Id.
(alteration in original; citation omitted). Thus, “[s]atisfying this burden is far more
demanding than the showing required under the second step of DeSantis.” Id.

¶17 As the trial court recognized, the photograph has “very limited”
probative value because it would, at most, suggest that Bell possessed an intimate
photograph of Mary allegedly taken after Mary turned 18 and the issue at trial was
repeated sexual assault when Mary was a child. The trial court further
characterized the photograph as having an “extraordinarily prejudicial and
inflammatory” effect. This very limited probative value does not outweigh the
extraordinary prejudicial and inflammatory effect that the photograph would have
on the jury’s perception of Mary as the complaining witness in this case. As the

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No. 2024AP2108-CR

trial court stated, “viewing a photo of the complaining witness nude from the waist
up would be something that [the jury] would not be able to deal with in a rational
way when weighing the evidence.”

¶18 Thus, we conclude that the photograph fails to meet the exception
for evidence of past conduct with the defendant, and we discern no erroneous
exercise of discretion on the trial court’s part in excluding the photograph. In so
concluding, we do not address whether the exclusion of this photograph violated
Bell’s constitutional right to a present a defense nor do we address the State’s
alternative argument that the trial court’s decision to exclude the photograph was
harmless error. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct.
App. 1989) (“[C]ases should be decided on the narrowest possible ground[.]”).

II. Ineffective Assistance of Counsel

¶19 Next, Bell argues that the trial court erroneously denied his
postconviction motion alleging ineffective assistance of counsel without a hearing.
We again disagree, and we conclude that the trial court properly exercised its
discretion when it denied Bell’s motion without a hearing.

¶20 In reviewing Bell’s postconviction motion, we must first “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. “[I]f the motion does not raise facts sufficient to entitle the
movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” State v. Allen, 2004 WI 106,
¶9, 274 Wis. 2d 568, 682 N.W.2d 433. In such a case, we review the trial court’s
discretion to grant or deny a hearing for an erroneous exercise of discretion. Id.

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No. 2024AP2108-CR

¶21 In his postconviction motion, Bell argued that he received
ineffective assistance of counsel because his trial counsel failed to object to
several instances of hearsay testimony from Mary’s mother and the investigating
officer wherein each testified to what Mary told them. He further argued that trial
counsel was ineffective for failing to seek a jury instruction on the proper use of
any hearsay testimony that was introduced at trial and that trial counsel was
ineffective for failing to call a witness that would testify that Bell and Mary were
never left alone together and, despite having had a close relationship with Mary,
Mary never told her that Bell was doing these things to her. We conclude that the
trial court properly denied Bell’s motion without a hearing because the record
conclusively demonstrates that Bell cannot show that his counsel was ineffective.

¶22 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334.
A defendant must establish two elements to demonstrate that he received
ineffective assistance of counsel: (1) “that counsel’s performance was deficient”
and (2) “that the deficient performance resulted in prejudice to the defense.” Id.
Should the defendant fail to establish one prong, we need not address the other.
See State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990). In this case,
we conclude that the record conclusively demonstrates that Bell cannot show
prejudice.

¶23 The record reflects an overwhelming amount of evidence at trial to
support Bell’s guilt. Mary herself testified as to the details of the assaults, the
pictures that Bell would take, and how it made her feel. The State further
introduced evidence in the form of testimony from Mary’s mother and text
messages from Bell about phone conversations and text messages in which Bell

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No. 2024AP2108-CR

confessed and apologized. As the trial court described in denying Bell’s motion,
“[t]he victim’s mother provided some of the strongest corroborating evidence of
the victim’s allegations, not because of the hearsay regarding the victim’s
statements, but due to her testimony about the defendant’s reactions[.]” The trial
court continued that Bell’s reaction “amount[ed] to a confession. Innocent men
don’t apologize for sexually assaulting underage girls. They don’t admit to feeling
‘incredibly horrible’; admit to having feelings of ‘guilt,’ ‘disgust,’ or ‘shame’; or
admit that they ‘only have [themselves] to blame.’”

¶24 In light of this evidence, the record conclusively demonstrates that
Bell was not prejudiced by any alleged deficiency in trial counsel’s performance
by failing to object to any alleged hearsay testimony, failing to request a limiting
instruction, or failing to call the witness that Bell identifies in his postconviction
motion. The trial court, therefore, did not erroneously exercise its discretion when
it denied Bell’s motion without a hearing.

III. Restitution for “Life Coaching” Expenses

¶25 Finally, Bell argues that the trial court erroneously awarded
restitution for what he describes as life coaching expenses, both past and future.
Bell argues that the restitution statute, see WIS. STAT. § 973.20, does not authorize
the trial court to award restitution for life coaching fees and, if it does, there is no
credible evidence in the record to support the amount awarded.

¶26 On this matter, we first note that Bell failed to raise any argument in
his reply brief to refute the argument made by the State in its response brief. We,
therefore, consider Bell’s argument conceded. See United Coop. v. Frontier FS
Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (stating that the
failure to refute a proposition asserted in a response brief may be taken as a

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No. 2024AP2108-CR

concession). However, for the sake of completeness, we address the merits of
Bell’s argument below.

¶27 We review the trial court’s restitution award both independently and
as an exercise of discretion. “The scope of the trial court’s authority to order
restitution is a question of statutory interpretation.” State v. Hoseman, 2011 WI
App 88, ¶12, 334 Wis. 2d 415, 799 N.W.2d 479. Thus, whether “the trial court is
authorized to order restitution under a certain set of facts” is a question of law that
we review de novo. State v. Vanbeek, 2009 WI App 37, ¶6, 316 Wis. 2d 527, 765
N.W.2d 834. However, the trial court has discretion “in deciding on the amount of
restitution and in determining whether the defendant’s criminal activity was a
substantial factor in causing any expenses for which restitution is claimed.”
Hoseman, 334 Wis. 2d 415, ¶13 (citation omitted). Accordingly, this part of our
review is for an erroneous exercise of discretion.

¶28 The restitution statute states that a court “shall order the defendant to
make full or partial restitution … to any victim of a crime considered at sentencing
… unless the court finds substantial reason not to do so and states the reason on
the record.” WIS. STAT. § 973.20(1r). “[T]he purpose of restitution is to return the
victims to the position they were in before the defendant injured them, and we
construe the restitution statute broadly and liberally to allow victims to recover
their losses resulting from the defendant’s criminal conduct.” State v. Holmgren,
229 Wis. 2d 358, 366, 599 N.W.2d 876 (Ct. App. 1999) (citation omitted).

¶29 As noted, Bell argues that the trial court had no authority under the
restitution statute to award restitution for what he argued were past and future life
coaching expenses. He further argues that, if it did have such authority, the award
is not supported by the record. By contrast, the State contends that the trial court

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No. 2024AP2108-CR

had the authority to award restitution for both past and future life coaching
expenses under WIS. STAT. § 973.20(4m) and (5) and the trial court’s award was
supported by Mary’s testimony. We agree with the State.

¶30 Pursuant to WIS. STAT. § 973.20(4m) in the restitution statute, upon
a violation of WIS. STAT. § 948.02 and other similar types of violations, “if the
court finds that the crime was sexually motivated, … the restitution order may
require that the defendant pay an amount, not to exceed $10,000, equal to the cost
of necessary professional services relating to psychiatric and psychological care
and treatment.” The life coaching fees awarded as restitution fall under the
umbrella of “professional services relating to psychiatric and psychological care
and treatment.” There is no requirement that this award be for treatment from a
state licensed psychologist or psychiatrist, as Bell contends. The award must
simply be for “professional services” related to “psychiatric and psychological
care and treatment.” Mary’s life coaching constitutes a professional service
related to her psychiatric and psychological treatment, and therefore, the trial court
had the authority to award restitution for life coaching expenses under
§ 973.20(4m).

¶31 Additionally, the restitution statute may require the defendant to
“[p]ay all special damages, but not general damages, substantiated by evidence in
the record, which could be recovered in a civil action against the defendant for his
or her conduct in the commission of a crime considered at sentencing.” WIS.
STAT. § 973.20(5)(a). Bell argues that the trial court had no authority here to
award expenses for life coaching as special damages. However, special damages
“as used in the criminal restitution context encompass ‘harm of a more material or
pecuniary nature’ and represent the victim’s actual pecuniary losses.’” Holmgren,
229 Wis. 2d at 365 (citation omitted). “Any readily ascertainable pecuniary

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No. 2024AP2108-CR

expenditure paid out because of the crime is appropriate as special damages.” Id.
Expenses for life coaching clearly fits within this definition when the need for the
life coaching was necessitated by Bell’s crimes. Therefore, the trial court also had
authority to award restitution for life coaching expenses under § 973.20(5)(a).

¶32 Finally, Bell argues that the record does not support the trial court’s
awarded amount of restitution. However, Mary testified at the restitution hearing
that she was receiving services from Dr. Berry. She testified that she had already
paid $2,380 “out-of-pocket” and the services she has received related to her
reporting of the sexual assaults and her overly restrictive parenting style that has
resulted from “the crimes that [she] testified about at trial.” She additionally
testified that she was continuing treatment with Dr. Berry and Dr. Berry referred
her to additional psychiatric services for anxiety and depression. She testified that
she was currently seeing Dr. Berry one to two times per week and Dr. Berry’s rate
was $125 per hour. Based on this testimony, we discern no erroneous exercise of
discretion in the amount of the restitution awarded.

CONCLUSION

¶33 In sum, we conclude that the trial court did not erroneously exclude
the photograph of Mary, properly denied Bell’s postconviction motion alleging
ineffective assistance of counsel, and properly awarded restitution. We, therefore,
affirm.

By the Court.—Judgment and order affirmed.

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

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