State v. Shane Allan Stroik , 2022 WI App 11 ( 2022 )

2022 WI App 11COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2021AP447-CR
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SHANE ALLAN STROIK,
DEFENDANT-APPELLANT.
Opinion Filed: February 24, 2022
Submitted on Briefs: November 19, 2021
JUDGES: Blanchard, P.J., Graham, and Nashold, JJ.
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Tristan S. Breedlove, assistant state public defender of Madison.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Loryn L. Limoges, assistant attorney general, and Joshua L. Kaul,
attorney general.
2022 WI App 11COURT 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 24, 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. 2021AP447-CR Cir. Ct. No. 2016CF321
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SHANE ALLAN STROIK,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Portage County: ROBERT J. SHANNON, Judge. Reversed and cause remanded.
Before Blanchard, P.J., Graham, and Nashold, JJ.
¶1 GRAHAM, J. Shane Stroik appeals a judgment of conviction for
first-degree sexual assault of “Amy,” who was five years old at the time of the
No. 2021AP447-CR
alleged assault, and an order that denied his postconviction motion for a new trial.1
Among other things, he argues that his trial counsel provided ineffective assistance
of counsel when he (1) failed to object to the prosecutor’s statements and
arguments as well as the witness testimony about Stroik’s “high sex drive” and
(2) failed to seek out and introduce evidence from which a jury could find that
Amy made a prior untruthful allegation that she had been sexually assaulted by a
cousin.
¶2 We conclude that the evidence about Stroik’s “sex drive” was
propensity evidence that was inadmissible under WIS. STAT. § 904.04. Therefore,
had trial counsel objected to the prosecutor’s statements and arguments and the
witness testimony on this topic, counsel’s objections should have been sustained.
However, under the circumstances presented here, Stroik has not met his heavy
burden to show that counsel’s performance was deficient because counsel
eventually and adequately addressed the statements, arguments, and evidence
about Stroik’s “sex drive” during his closing argument.
¶3 Separately, we conclude that Stroik’s trial counsel provided
ineffective assistance when he failed to seek out and introduce evidence at trial
regarding Amy’s prior allegation against the cousin, which was addressed in a
report by the county child protective services agency. For reasons we explain
below, we conclude that counsel’s failure to investigate was deficient because it
was not based on a reasonable strategic decision. Had counsel conducted a
1
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2019-20), we use a
pseudonym to protect the identity of the alleged victim, “Amy,” and her mother, who we refer to
as “Laura.” All references to the Wisconsin Statutes are to the 2019-20 version.
2
No. 2021AP447-CR
reasonable investigation, the evidence would have been admissible at trial and, if
pursued, there is a reasonable probability that the result of the trial would have
been different. We therefore reverse the judgment and order, and we remand for a
new trial.
BACKGROUND
¶4 The alleged assault at issue in this case occurred on or around
June 10, 2016. At that time, Amy’s parents were separated and going through a
difficult divorce. Amy’s father had sole custody and primary placement. As a
result, Amy lived with her father and his girlfriend most days. 2 Amy’s mother,
“Laura,” was residing with and in a romantic relationship with Stroik, and Amy
stayed with Laura and Stroik every other weekend.
The Allegations and Investigation
¶5 Amy’s father originally reported the allegation at issue in this case to
the family’s social worker in July 2016.3 He reported that, after an incident in
which Amy urinated on the floor of her aunt’s house, Amy disclosed that Stroik
had touched her vagina. The father also reported that Amy’s behavior had
changed; specifically, she had become more defiant within the last month.
2
By the time of the trial, Amy’s father had married the woman who had been his
girlfriend at the time of the alleged assault. For the sake of simplicity, we refer to her as Amy’s
father’s girlfriend throughout this opinion.
3
The social worker was employed by the county department of human services and was
working with the family due to what Amy’s father referred to at trial, without elaboration, as a
“no contact order” between Amy’s parents.
3
No. 2021AP447-CR
¶6 These allegations resulted in an investigation by the county child
protective services (CPS) agency. In the course of the investigation, Amy’s father
drove her to a child advocacy center approximately one month after the alleged
assault occurred, and a forensic interviewer conducted a video-recorded forensic
interview of Amy, who was five years old.
¶7 At the outset of the interview, immediately upon being asked what
was new, Amy said: “I am going to tell you about Shane [Stroik].” She went on
to say that, one time when her mother was in the bathroom, Stroik “pull[ed] down
[her] pants and touche[d] [her] meme.” At that point, Amy pointed to her vagina.
The interviewer clarified that Amy used the term “meme” to refer to her vagina.
¶8 Later in the interview, when asked for additional information about
how Stroik had touched her “meme,” Amy made the following statements. Amy
was on the bed watching a movie in the “middle bedroom” when Stroik came into
the room. Stroik was “laying on the bed,” and he “pulled [her] pants down and
touched [her] meme.” Before Stroik pulled Amy’s pants down, he told her to
“turn around” and that he “want[ed] to do something to [her].” Amy said “stop it”
but Stroik “didn’t stop it.” He said, “no, I’m not stopping.” He also said “don’t
tell [your] mom.” Stroik touched Amy’s “meme” with one hand, either on the
“side” or on the “inside” or both, with his hand not moving, and it made her
“meme” feel “not good.” At some point, Stroik stopped because of “the dog.” At
one point during the interview, when asked to describe Stroik, Amy indicated that
he was bald. However, it is undisputed that Stroik was not bald.4
4
It is also undisputed that Amy’s paternal grandfather was bald. This point takes on
potential significance given facts in the following paragraph of the text.
4
No. 2021AP447-CR
¶9 In response to a question by the forensic interviewer, Amy said, “It’s
not just Shane.” She stated that her paternal grandfather, who she referred to as
her “papa,” touched her “meme” on multiple occasions when they slept in the
same bed. Amy stated that he would put “his tongue on [her] meme” and move it
around, and that he would say, “Don’t tell daddy.” It is undisputed that Amy’s
grandfather had died several months before the interview, in March 2016.5
¶10 Law enforcement officers interviewed Stroik, Laura, and other
potential witnesses. During these interviews, which were memorialized in police
reports, Stroik and Laura both told police that Amy had previously made a
statement that her paternal cousin had touched her inappropriately. Laura told the
police that the allegation about the cousin had been investigated, but nothing came
of it. As discussed in greater detail below, Stroik’s trial counsel was aware that
there had been a CPS investigation into Amy’s statements about her cousin’s
conduct. However, trial counsel did not look further into the matter related to the
cousin and did not attempt to introduce evidence at trial about Amy’s prior
allegation against her cousin.
5
The State filed a pretrial motion to prevent Stroik from introducing evidence at trial
about alleged assaults by the grandfather under WIS. STAT. § 972.11(2)(b)3. That statute is
commonly referred to as Wisconsin’s rape shield law and is discussed in a different context
below. However, by the time of the trial, the parties stipulated that the entire video of Amy’s
forensic interview, including her statements about her grandfather, would be played for the jury.
Neither party challenges this stipulation on appeal.
5
No. 2021AP447-CR
The Trial
¶11 Stroik was charged with committing a single sexual assault against
Amy.6 Following several pretrial hearings and adjournments, the case proceeded
to a three-day jury trial in 2018. Multiple witnesses testified, including Amy,
Amy’s aunt, Amy’s father, Amy’s father’s girlfriend, Laura, law enforcement and
CPS employees who had been involved in the investigation, and Stroik. We do
not attempt to summarize all the evidence introduced and arguments made at trial;
we instead summarize only those portions of the trial that are necessary
background to understand the issues we address below.
¶12 During his opening statement and closing argument, the prosecutor
made several comments about Stroik’s “sex drive.” By way of example, during
his opening statement, the prosecutor asserted that Stroik had a “very high sex
drive” and therefore, according to the prosecutor, “the presumption of course is
that [he touched Amy] for a sexual purpose.” To give another example, during
trial, the prosecutor questioned Laura about aspects of her sex life with Stroik and
the frequency with which Stroik wanted to have sexual relations with Laura. We
discuss the prosecutor’s statements and arguments and the trial testimony about
Stroik’s “sex drive”—and trial counsel’s response to the statements, arguments,
and testimony—at length in the discussion section below.
6
More specifically, Stroik was charged with violating WIS. STAT. § 948.02(1)(e), which
provides in relevant part: “Whoever has sexual contact … with a person who has not attained the
age of 13 years is guilty of a class B felony.” During the course of the State’s investigation,
another young girl told law enforcement that Stroik had touched her vagina on one occasion, the
State charged Stroik with a second violation of § 948.02(1)(e), and the charges were joined for
trial. The jury ultimately acquitted Stroik of the charge related to the second victim. On appeal,
neither party suggests that the second allegation and acquittal are material to the issues in this
appeal, and we address the facts related to that charge no further.
6
No. 2021AP447-CR
¶13 Amy’s aunt testified that, on one occasion when she was babysitting
Amy, Amy urinated on the floor. Amy’s aunt, Amy’s father, and Amy’s father’s
girlfriend all testified about a subsequent conversation they collectively had with
Amy, during which, upon questioning, Amy said that Stroik had touched her
“meme.”
¶14 Amy’s recorded CPS interview was played for the jury in its
entirety. After the video was played, Amy, who was seven years old by the time
of trial, was subject to direct examination by the prosecutor and cross-examination
by Stroik’s trial counsel, which was followed by another round of direct
examination and cross-examination.7
¶15 During her testimony, Amy did not appear to have any clear memory
of the assault. When the prosecutor initially asked Amy if she knew “why we’re
here today,” she responded, “No.” Amy went on to testify that she remembered
“going to talk to a lady [that is, the forensic investigator] about something that
happened with Shane [Stroik],” but that she did not remember anything happening
between her and Stroik. The direct examination proceeded in pertinent part as
follows:
[Prosecutor:] But you remember talking to that lady about
it?
[Amy:] Yes.
[Prosecutor:] Do you remember telling that lady that
something happened with Shane?
7
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).
7
No. 2021AP447-CR
[Amy:] No.
[Prosecutor:] Do you remember that something happened
with Shane?
[Amy:] No.
[Prosecutor:] Do you know if Shane ever did anything to
you that you didn’t like?
[Amy:] No.
[Prosecutor:] No. Do you remember anything like that?
Do you remember any time that Shane did something you
didn’t like?
[Amy:] I don’t know.
[Prosecutor:] I’m sorry, can you say that a little bit louder?
[Amy:] I don’t know.
¶16 Later, in response to the prosecutor’s questioning on re-direct, Amy
testified that she remembered telling “the lady” that Stroik “touched my private.”
When the prosecutor asked if that was “true,” Amy responded, “Yes.” However,
during her re-cross-examination, Amy testified that she did not know where “it
happened” and that it was not in “the play room.” 8 She further testified that she
did not know whether Stroik had “touched” her:
[Trial counsel:] And so you don’t remember anything that
happened when you said Shane touched you, right?
[Amy:] No.
[Trial counsel:] And you don’t even remember if he did or
didn’t, do you?
8
Based on other evidence introduced at trial, it is apparent that the “middle bedroom”
that Amy referred to when talking to the forensic investigator, as referenced above, is the same
room that Amy testified about as the “play room.”
8
No. 2021AP447-CR
[Amy:] No, I do not.
By contrast, Amy testified unambiguously that her “papa” (that is, her paternal
grandfather) “did some pretty bad things” to her, and that she remembered those
things happening.
¶17 When Stroik testified, he denied that he had ever touched Amy for
sexual gratification. He testified that he generally believed that Amy was a “pretty
truthful” kid, but that she had not been truthful about the allegations she made
against him.
¶18 The jury found Stroik guilty of first-degree sexual assault.
The Postconviction Proceedings
¶19 Stroik filed a postconviction motion seeking a new trial on several
grounds. Among other things, he challenged his trial counsel’s handling of the
prosecutor’s statements and witness testimony about his “high sex drive.”9
Additionally, he argued that he was entitled to postconviction discovery regarding
Amy’s alleged prior statements about inappropriate touching by her cousin. To
this end, Stroik asked the circuit court to conduct an in camera review of a
confidential CPS report that had been compiled four months before Stroik
allegedly assaulted Amy and that “likely contains relevant and material evidence,
9
Stroik’s postconviction motion also alleged that his trial counsel was ineffective for
failing to impeach Amy’s aunt with a prior conviction; that the circuit court erred by failing to
properly strike testimony that commented on the credibility of witnesses in violation of State v.
Haseltine, 120 Wis. 2d 92, 97, 352 N.W.2d 673 (Ct. App. 1984); and that he was entitled to a
new trial in the interest of justice. Although Stroik renews these additional arguments on appeal,
we do not address them because we determine that Stroik is entitled to a new trial based on
another ground. Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (2013) (an appellate court need not address nondispositive issues).
9
No. 2021AP447-CR
specifically [Amy’s] prior untruthful allegation of sexual assault.” We refer to this
document as the “CPS report” throughout the opinion.
¶20 The circuit court held a Machner hearing, and trial counsel testified
at the hearing.10 The court determined that Stroik was not entitled to relief on his
claim about the “sex drive” evidence or any of the other claims presented in his
postconviction motion. We recount pertinent aspects of trial counsel’s testimony
and the court’s decision as needed below.
¶21 Regarding Stroik’s request for an in camera review of the CPS
report, the circuit court initially referred the matter to the juvenile court to
determine whether the CPS report was discoverable.11 The juvenile court
determined that, if the contents of the CPS report were relevant to the issues at
Stroik’s trial, the report “would be admissible as an exception” to Wisconsin’s
rape shield law.12
10
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.
11
See WIS. STAT. §§ 48.396 and 48.78; State v. Bellows, 218 Wis. 2d 614, 629-30, 582
N.W.2d 53 (Ct. App. 1998) (providing factors for the juvenile court to consider before releasing
confidential juvenile records). On appeal, neither party challenges the circuit court’s decision to
send the matter to the juvenile court for the Bellows determination or the determination made by
the juvenile court that the CPS report was discoverable in this criminal case.
12
See WIS. STAT. §972.11(2)(b) (providing a general bar against the admission of “any
evidence” of a sexual assault complainant’s “prior sexual conduct”); but see § 972.11(2)(b)
(providing an exception for evidence of prior untruthful allegations of sexual assault by the
alleged victim). As is the case with any of the statutory exceptions to the rape shield law,
evidence of prior untruthful allegations is also subject to WIS. STAT. § 971.31(11), which
provides that the circuit court may not allow the evidence unless it first determines that the
proffered evidence is “material to a fact at issue in the case and of sufficient probative value to
outweigh its inflammatory and prejudicial nature before it may be introduced at trial.”
10
No. 2021AP447-CR
¶22 The circuit court then conducted an in camera review of the CPS
report, which was eventually released to the parties and is part of the record in this
appeal. The report included the following information. It summarized CPS’s
investigation into “alleged sexual abuse of [Amy], age 5, by her male paternal
cousin, … age 9.” The allegation was originally reported to CPS by Amy’s
mother, Laura, in February 2016. Laura reported that Amy told Laura that Amy’s
cousin “touched her ‘mimi’ approximately two weeks ago” and that “[Amy] told
[him] to stop and he would not.” However, when interviewed by a CPS social
worker, Amy “denied that [her cousin] touched her ‘mimi’ or any other part of her
body.”13 According to the report, Amy told the social worker “that she did tell her
mother [that her cousin had touched her], but then indicated she didn’t know why
she told her mother that.” Following its investigation, CPS determined that the
allegation would “be entered as unsubstantiated” because Amy told the social
worker that the statement she made that led to the investigation was inaccurate and
because CPS was aware of no other evidence to support the original allegation.
¶23 Following its in camera review, the circuit court determined that the
CPS report “contains relevant information material to the defense relating to …
whether [Amy] made a prior untruthful allegation of sexual abuse.” The CPS
report was released to the parties under seal.
¶24 Stroik filed a supplement to his postconviction motion, which
addressed the contents of the CPS report. His supplemental motion argued, among
13
The author of the CPS report transcribed the word that Amy used to describe her
vagina using different spelling than was used in the transcripts and other documents from Stroik’s
trial. It is nevertheless apparent that in both situations, Amy was using the same word to describe
the same body part.
11
No. 2021AP447-CR
other things, that his trial counsel had been ineffective for failing to seek and
introduce the CPS report during Stroik’s trial.14 The circuit court denied the
supplemental motion, determining that counsel had not been ineffective because
counsel pursued a reasonable trial strategy of focusing on the sexual abuse by
Amy’s grandfather. Stroik appeals.
DISCUSSION
¶25 Stroik raises many arguments on appeal, but we focus our discussion
on his arguments that trial counsel was ineffective in two respects: first regarding
the prosecutor’s statements and arguments as well as the witness testimony about
his “high sex drive”; and second, regarding the CPS report.
¶26 A criminal defendant is guaranteed the right to the assistance of
counsel by the Wisconsin Constitution, see WIS. CONST. art. I, § 7, and the United
States Constitution, see U.S. CONST. amend. VI. State v. Klessig, 211 Wis. 2d
194, 201-02, 564 N.W.2d 716 (1997). “‘[T]he right to counsel is the right to the
effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 686
(1984) (quoted source omitted). 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. Id. at 687.
14
In his supplemental motion, Stroik also argued that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), when it failed to turn over the CPS report in pretrial discovery.
Although Stroik renews this argument on appeal, we do not address it further because we
determine that Stroik is entitled to a new trial based on another ground. Barrows, 352 Wis. 2d
436, ¶9.
12
No. 2021AP447-CR
¶27 When evaluating whether trial counsel’s performance was deficient,
we “apply[] a heavy measure of deference to counsel’s judgment,” id. at 690-91,
making “every effort” to “evaluate the [representation] from counsel’s perspective
at the time” and to “eliminate the distorting effects of hindsight,” id. at 689.
Counsel enjoys a “strong presumption” that his conduct “falls within the wide
range of reasonable professional assistance,” id., and counsel’s performance
“‘need not be perfect, indeed not even very good, to be constitutionally
adequate,’” State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305(quoted source omitted). To demonstrate deficient performance, the defendant
must show that his counsel’s representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
¶28 When evaluating whether trial counsel’s performance prejudiced the
defendant, we consider whether there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Such a probability “exists when there is ‘a “substantial,”
not just “conceivable,” likelihood of a different result.’” State v. Cooper, 2019 WI
73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192 (quoted source omitted).
¶29 “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).
13
No. 2021AP447-CR
¶30 We begin by addressing the prosecutor’s statements and arguments
as well as the witness testimony about Stroik’s “high sex drive.” After concluding
that the “sex drive” evidence was inadmissible propensity evidence and that trial
counsel could have successfully moved to prevent its admission, we nevertheless
conclude that Stroik has not proven that counsel was deficient with respect to that
evidence. We then address Stroik’s argument that counsel was ineffective for
failing to seek out the CPS report and introduce evidence at trial regarding Amy’s
prior allegation about a cousin. We conclude that Stroik is entitled to a new trial
on that basis.
I. The “Sex Drive” Evidence15
¶31 The topic of the magnitude of Stroik’s “sex drive” came up three
times during the trial, and we provide additional background about those incidents.
The first time was during the State’s opening statement. The prosecutor told the
jury that Stroik “has a very high sex drive. And so, the presumption of course is
that [the alleged assault] was for a sexual purpose.” Trial counsel did not object to
the prosecutor’s statement, and he was silent on that topic during his own opening
statement.
15
Given our conclusion that Stroik is entitled to a new trial on another ground, we could
decline to address the use of the “sex drive” evidence during his trial. We nevertheless take the
opportunity to address it here and provide guidance for two reasons. First, the role of character
and other acts evidence is a frequently litigated topic, the parties have fully briefed the issue, and
this case provides a helpful example of a situation in which the evidence is not relevant for any
permissible purpose and is relevant only to prove propensity. Second, we are remanding for a
new trial, and issues about the admissibility of evidence and argument of this type could arise
following the remand.
14
No. 2021AP447-CR
¶32 The second time was during the prosecutor’s direct examination of
Laura, which occurred on the first day of the trial. Laura testified that Stroik was a
“very sexual person,” that he “always wanted sex,” and that they would have sex
“daily,” even if Laura did not want to have sex because her kids were around:
[Prosecutor]: … when you met with [law enforcement],
they asked you questions about your sex life with Shane
[Stroik], is that right?
[Laura]: Yes.
[Prosecutor]: Do you remember saying that Shane is a very
sexual person?
[Laura]: Yes.
[Prosecutor]: Do you remember saying that it was more
sex than you ever had before?
[Laura]: Yes.
[Prosecutor]: Do you remember saying that’s true?
[Laura]: Yes.
[Prosecutor]: And can you describe for us, what do you
mean by that?
[Laura]: He always wanted sex.
[Prosecutor]: Okay. So how often would you have sex?
[Laura]: Daily.
[Prosecutor]: And even when your kids were there?
[Laura]: Yes.
[Prosecutor]: Do you remember telling Detective Tracy
that when your kids were there, you would tell him you
didn’t want to?
[Laura]: Yes.
15
No. 2021AP447-CR
After that line of questioning, the prosecutor asked Laura about Stroik’s use of
pornography.16 Trial counsel did not object to any of this questioning.
¶33 The third and final time that Stroik’s “high sex drive” was addressed
at trial was on the third day, during closing arguments. The prosecutor argued that
Stroik “is described by [Laura], his former girlfriend, as a very sexual person.
They had a lot more sex than she’s ever had before. There’s all this stuff about
pornography being discussed.” The prosecutor concluded this portion of his
closing argument by telling the jury: “I don’t know how [the alleged assault of
Amy] could be for something other than for a sexual purpose.”
¶34 This time, although trial counsel did not object to the prosecutor’s
argument, he addressed the topic in his own closing argument. Counsel argued:
The State, in the end and in its opening, said that because
Shane Stroik is highly sexual or watches pornography, he
somehow molested [Amy].
Ladies and gentlemen, that’s an absolute falsehood.
That’s an absolute lack of understanding of the issue of
sexual assault of children.…
….
You have to have a sexual attraction to a child to
commit an act of sexual assault of a child.…
… And who was attracted to the child? The person
that [Amy] had sexual contact by, her papa. The person
who was described by [Amy] by being bald. The person
that [Amy] remembered.
16
It appears to be undisputed that the pornography in question did not involve children.
To be clear, there is no suggestion in any aspect of the record that Stroik has ever possessed or
viewed child pornography.
16
No. 2021AP447-CR
¶35 With this background in mind, we now consider whether trial
counsel’s performance was deficient. Stroik argues that his counsel should have
objected to the prosecutor’s statements and the witness testimony about his
allegedly “high sex drive” (or, at the very least, counsel should have requested an
instruction cautioning the jury about how it could and could not consider this
evidence). Stroik contends that counsel’s failure to do so constituted deficient
performance. The State’s argument is difficult to discern. Although it makes a
passing and unsupported assertion that the evidence may have been admissible to
prove “intent,” the State’s primary argument appears to be that the “sex drive”
evidence and argument was so obviously irrelevant that it could not have
improperly swayed the jury.
¶36 An attorney’s performance may be deficient if the attorney could
have prevented the admission of evidence by making a timely objection but failed
to do so. State v. Domke, 2011 WI 95, ¶46, 337 Wis. 2d 268, 805 N.W.2d 364.
However, an attorney’s failure to make an objection that would have been
properly overruled by the court is not deficient performance. See State v.
Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110. This is
because attorneys are generally not required to advance losing arguments. State v.
Cameron, 2016 WI App 54, ¶27, 370 Wis. 2d 661, 885 N.W.2d 611 (“It is not
deficient performance for counsel not to make a pointless objection.”). Therefore,
in considering whether trial counsel’s failure to object to the statements,
arguments, and testimony on this topic was deficient performance, we consider
whether the evidence was admissible under Wisconsin’s rules of evidence.
¶37 Stroik contends that the evidence about his “sex drive” was general
character evidence, which was inadmissible pursuant to WIS. STAT. § 904.04(1).
He argues that his interest in having sex with age-appropriate women was not
17
No. 2021AP447-CR
relevant to the charge that he had sexual contact with a five-year-old child, and
that the prosecutor was in effect urging the jury to make the unfounded and
unfairly prejudicial inference that Stroik had a deviant character trait that made it
more likely that he would sexually assault a child. In its response, the State asserts
that the prosecutor offered the “sex drive” evidence as “other acts” evidence to
prove intent, and that, during the postconviction proceedings, the circuit court
determined that it had been admissible for that purpose under § 904.04(2).17
¶38 We begin with a brief explanation of the meaning of the term
“propensity inference,” and its relationship to the evidentiary rules set forth in
WIS. STAT. § 904.04. A “propensity inference” is the inference that a person acted
“‘in conformity with a particular character trait’” on a specific occasion. State v.
Tabor, 191 Wis. 2d 482, 490, 529 N.W. 2d 915 (Ct. App. 1995) (quoted source
omitted).
¶39 WISCONSIN STAT. § 904.04 provides rules for how and when
propensity evidence can be used during a trial. With exceptions that are
inapplicable here,18 § 904.04(1) (which addresses character evidence generally)19
17
Decisions about the admissibility of other acts evidence are often made pretrial,
following a motion by the proponent requesting a ruling on its admissibility. Here, the State filed
a pretrial motion seeking a ruling on the admissibility of different “other acts” evidence, but it did
not file a pretrial motion seeking a ruling on the “sex drive” evidence. The State’s failure to seek
a pretrial ruling on the admissibility of this evidence undermines any suggestion that the
prosecutor considered the “sex drive” evidence to be admissible as other acts evidence.
18
See, e.g., WIS. STAT. § 904.04(1)(a)-(c) (providing three specific circumstances in
which general character evidence is admissible to prove propensity, none of which are applicable
here); see also § 904.04(2)(b)2. (addressing the use of prior convictions for first degree sexual
assault and first degree sexual assault of a child for purposes of proving propensity during a
subsequent prosecution for first degree sexual assault or first degree sexual assault of a child); see
also State v. Dorsey, 2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158 (interpreting WIS. STAT.
§ 904.04(2)(b)1. and 2.).
18
No. 2021AP447-CR
and § 904.04(2) (which addresses other acts evidence)20 both prohibit the
admission of evidence of a person’s character trait for the purpose of proving that
person’s propensity to act in conformity with that character trait.21 An application
of these rules is that the prosecution cannot introduce evidence of a “deviant
character trait of the defendant” during a criminal trial and ask the jury to infer
that the defendant acted in conformity with that character trait on the charged
occasion. Tabor, 191 Wis. 2d at 492.
¶40 One reason for these rules is the “overstrong tendency [of a jury] to
believe the defendant guilty of the charge merely because [the defendant] is a
person likely to do such acts.” Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d
557 (1967). “[A]n invitation to focus on an accused’s character” rather than on
the accused’s conduct on a specific occasion “magnifies the risk that jurors will
punish the accused for being a bad person regardless of his or her guilt of the
crime charged.” State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998).
19
WISCONSIN STAT. § 904.04(1) prohibits the admission of “[e]vidence of a person’s
character or a trait of the person’s character … for the purpose of proving that the person acted in
conformity therewith on a particular occasion,” with three exceptions that are inapplicable here.
(Emphasis added.)
20
WISCONSIN STAT. § 904.04(2)(a) provides, in pertinent part: “Except as provided in
para. (b)2., [which is inapplicable here,] 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.” (Emphasis added.) However, subsec. (2)(a) “does not exclude the
evidence when offered for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
21
See State v. Payano, 2009 WI 86, ¶55, 320 Wis. 2d 348, 768 N.W.2d 832 (citing 7
DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 404.101 at 146 (3d
ed. 2008) for the proposition that WIS. STAT. § 904.04 “governs the admissibility of character
evidence as circumstantial evidence of conduct as well as the admissibility of ‘other acts’ to
prove something other than character” (emphasis added)).
19
No. 2021AP447-CR
¶41 For reasons we now explain, we conclude that the testimony about
Stroik’s “sex drive” is best described as general character evidence that was
inadmissible pursuant to WIS. STAT. § 904.04(1). However, to the extent that it
could be characterized as evidence of other acts governed by § 904.04(2), it was
not relevant to prove intent. Whether described as general character evidence or
other acts evidence, the prosecutor used the evidence for the purpose of asking the
jury to infer that Stroik had a character trait that would make it more likely that he
would sexually assault a child, and as such, it was propensity evidence that was
barred by § 904.04(1) and (2) alike.
¶42 Although our statutes do not define the term “character,” a leading
Wisconsin treatise explains that the term refers broadly to the “labels we attach to
other people” to describe their “disposition or generalized propensity to behave in
a certain manner.” 7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES:
WISCONSIN EVIDENCE § 404.101 at 172, 171 (4th ed. 2017). In this case, the
prosecutor’s statements and Laura’s testimony about Stroik’s “sex drive” did not
focus on any specific instances of his past conduct. Instead, while the testimony
purported to address multiple prior acts, the substance of the testimony and the
way it was used was directed at the kind of person Stroik is—a “very sexual”
person who “always wanted sex.” Although the State asserts in passing that the
“sex drive” evidence could be characterized as “other acts” evidence, its assertion
is conclusory, and the State does not develop any argument to support that
characterization. We agree with Stroik that, as it was used here, the “sex drive”
evidence introduced at trial is best described as general character evidence. This
determination is significant because, unlike other acts evidence, general character
evidence is not subject to the greater latitude rule or the exception for proving
intent. Compare WIS. STAT. § 904.04(1) with § 904.04(2)(a) and (b).
20
No. 2021AP447-CR
¶43 However, even if some portions of the “sex drive” evidence could be
characterized as other acts evidence, we now explain why it was not admissible
under WIS. STAT. § 904.04(2).
¶44 As stated above, evidence of other acts may be admissible for a non-
propensity purpose, including proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. WIS. STAT.
§ 904.04(2)(a). When a party seeks to introduce other acts evidence for a non-
propensity purpose, admissibility is determined under the three-pronged test
established in Sullivan, 216 Wis. 2d at 789. The proponent of the evidence must
demonstrate that: (1) the other acts evidence is offered for a permissible non-
propensity purpose; (2) it is relevant to that purpose; and (3) its probative value is
not substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence. Id. Additionally, in cases
involving charges that include child sexual assault, other acts evidence may be
admitted with “greater latitude.” See Tabor, 191 Wis. 2d at 488; see also
§ 904.04(2)(b).
¶45 In this case, the State asserts that the prosecutor introduced the “sex
drive” evidence to prove Stroik’s intent to sexually assault Amy, but the State does
not develop any argument to support the proposition that the evidence was
relevant to or probative of that purpose. Nor does the State argue that it was
offered for or relevant to any other permissible non-propensity purpose under WIS.
STAT. § 904.04(2)(a).
¶46 At trial, the State was required to prove that Stroik touched Amy
“for the purpose” of “arousing or gratifying” himself. WIS. STAT. § 948.01(5)(a).
21
No. 2021AP447-CR
Under some circumstances, specific instances of a defendant’s other conduct may
be admissible for that purpose. The Tabor case provides a helpful illustration of
such a situation. In Tabor, the defendant was charged with molesting a five-year-
old boy. Tabor, 191 Wis. 2d at 487. He had previously molested a nine-year-old
girl, and the prosecutor argued that evidence of the prior assault was admissible to
prove Tabor’s “intent” and “motive” in the charged case. Id. The circuit court
agreed that evidence of the prior assault was relevant for that purpose. Id. at 494.
It explained that the prosecutor had to prove that Tabor was “motivated by a desire
for sexual gratification,” and that the evidence of the prior assault is “directly
pertinent” to that element because “most folks wouldn’t even remotely consider it
sexually gratifying to have sexual relations with a small child.” Id. On appeal, we
affirmed the circuit court’s exercise of discretion, explaining that the prior conduct
was not introduced for the impermissible purpose of proving propensity, but was
instead for the acceptable purpose of proving intent. Id. at 494-95.
¶47 Here, by contrast, the State does not argue that evidence of Stroik’s
sexual interest in his age-appropriate girlfriend is directly relevant to whether he
would be sexually gratified by touching a child under the circumstances described
in WIS. STAT. § 948.01(5)(a). We agree with the argument that trial counsel
eventually made in his closing argument—the fact that Stroik was allegedly
interested in frequent sex with Laura was not relevant to or probative of whether
he would be sexually gratified by a prohibited touching of a five-year-old child.
Therefore, unlike in Tabor, the evidence introduced about Stroik’s “sex drive”
was not at all relevant to the intent element of the sexual assault crime charged in
this case. Accordingly, even if the testimony about Stroik’s “sex drive” could be
properly described as evidence of his other acts, it would not have been admissible
under WIS. STAT. § 904.04(2) to show intent. Nor would it have been admissible
22
No. 2021AP447-CR
under the greater latitude rule, which pertains to “evidence of any similar act[] by
the accused.” See § 904.04(2)(b)1.22
¶48 In sum, whether the evidence about Stroik’s “sex drive” is
considered to be “character evidence generally” or evidence of “other crimes,
wrongs, or acts,” the prosecutor should not have been allowed to present evidence
that Stroik was a “sexual” person. The “sex drive” evidence was not relevant for
any permissible purpose. The only conceivable purpose of introducing it was to
ask the jury to make a strained inference that, because Stroik was allegedly a very
sexual person who sought sex from his girlfriend on a daily basis, he was the type
of person who would sexually assault a child. This is the propensity inference that
is forbidden by WIS. STAT. § 904.04(1) and (2) alike.23 We therefore conclude
that, had trial counsel objected to the comments that the prosecutor made in his
opening statement, his questioning of Laura, or his closing argument, the circuit
court would have—or at least should have—sustained the objections.
¶49 Our analysis of whether trial counsel’s performance was deficient
does not end with our determination that trial counsel could have successfully
22
In reaching this conclusion, we respectfully disagree with the determinations made by
the circuit court judge during the postconviction hearing. In its oral ruling on this issue, the court
said that, although the line between character and other acts evidence can be difficult to
determine, the evidence about Stroik’s “sex drive” could be considered other acts evidence and
was admissible under the greater latitude rule because it was relevant and probative of intent.
23
As the Wisconsin treatise on evidence explains, “[i]t is one thing to be solicitous
toward the use of such proof [of other acts evidence for permissible purposes]; it is quite another
to turn a blind eye toward its misuse as bad character/propensity evidence.” 7 BLINKA, supra
§ 404.402 (4th ed. Supp. 2019); see also State v. Plymesser, 172 Wis. 2d 583, 592, 493 N.W.2d
367 (1992) (other acts evidence will not be admitted under § 904.04(2) “when the only inference
that can be drawn from that evidence is that ‘because a defendant committed prior act X, he is
therefore of such a character and disposition to commit present act Y’” (quoted source omitted)).
23
No. 2021AP447-CR
prevented the admission of the “sex drive” evidence. Here, although counsel did
not object to the statements and evidence on this topic, he did eventually address
the statements and evidence during his closing argument. And when he finally did
so, counsel was unequivocal. As stated above, counsel argued that the propensity
inference that the prosecutor was asking the jury to draw was an “absolute
falsehood” based on “an absolute lack of understanding of the issue of sexual
assault of children.” He argued that “[y]ou have to have a sexual attraction to a
child to commit an act of sexual assault of a child,” and he used the opportunity to
further his strategy of blaming the alleged assault by Stroik on the grandfather.
¶50 Thus, this is not a case in which counsel allowed inadmissible and
prejudicial evidence to be admitted during the trial and did nothing to counter it.
As the circuit court explained following the Machner hearing, counsel believed
that the evidence was irrelevant, and “he argued that to the jury.” With the benefit
of hindsight, it may have been preferable for counsel to raise this issue when it
arose on the first day of trial. Nevertheless, a defendant is not entitled to perfect
representation. Thiel, 264 Wis. 2d 571, ¶19. Consequently, while we are troubled
by the amount of character evidence that entered into this trial, we conclude that
counsel’s decision to counter the “sex drive” evidence with a targeted, common
sense, and potentially persuasive argument rather than an objection or request for a
cautionary instruction was within the “wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Therefore, we conclude that Stroik has
not met his burden to show that his counsel’s performance was deficient. See
Strickland, 466 U.S. at 700 (“Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim.”).
24
No. 2021AP447-CR
II. The CPS Report
¶51 We now address Stroik’s argument that trial counsel was ineffective
for failing to obtain a CPS report that detailed the investigation into Amy’s prior
statement that she was sexually assaulted by her paternal cousin.
¶52 We begin by providing additional background about the CPS report.
As discussed above, Laura reported to CPS that Amy said that a cousin “touched
her mimi,” that Amy told the cousin to stop, and that he would not stop. However,
when a CPS social worker interviewed Amy, CPS reported that Amy denied that
her cousin had touched her. In fact, according to CPS, Amy denied that anyone
had ever touched her inappropriately. Amy acknowledged to CPS that she told
Laura that her cousin touched her, and she said she did not know why she had
made that statement.
¶53 CPS ended its investigation, concluding that the allegation against
the cousin was “unsubstantiated.” As the author of the CPS report explained, the
allegation was determined to be unsubstantiated because Amy indicated that her
initial report to Laura was not true, and CPS was not aware of any other evidence
to corroborate the report. However, the record contains an alternative explanation
for Amy’s changed story. According to Laura’s statement to the police following
Stroik’s arrest, Amy denied the allegations to CPS because “her daddy told her to
say that [her cousin] didn’t do it.”
¶54 During the Machner hearing, trial counsel was questioned about his
reasons for not pursuing the CPS report. Counsel testified that he “vaguely”
recalled from the police report that Amy had reported that her cousin had sexually
assaulted her. Counsel testified that he “did not recall talk[ing] to anyone about
whether the allegation ever occurred,” and that he “assumed it didn’t occur, and
25
No. 2021AP447-CR
basically the [circuit court] wasn’t going to let [him] get it in.” Counsel testified
that his overall strategy was “focused on other issues,” specifically, the alleged
sexual assaults by Amy’s paternal grandfather, which “everybody took … for a
fact.” Counsel explained that his trial strategy was “to blame” the grandfather for
the sexual assaults that Amy attributed to Stroik in her video interview.
A. Deficient Performance
¶55 The parties dispute whether trial counsel’s failure to obtain the CPS
report constituted deficient performance. Stroik argues that trial counsel
performed deficiently by not obtaining the CPS report in pretrial discovery, and
that it would have been admissible at trial under WIS. STAT. § 972.11(2)(b)3.,
which, as discussed above, allows the admission of prior false allegations of
sexual assault by the alleged victim. He contends that the contents of the report
would have been helpful to his defense. He further contends that, had counsel
sought out the report and used it at trial, it would have enhanced counsel’s chosen
trial strategy. The State’s primary argument to the contrary is devoted to its
assertion that evidence of Amy’s prior allegation would not have been admissible
at trial.
¶56 For reasons we now explain, we agree with Stroik that, had his trial
counsel sought out the CPS report in pretrial discovery, it would have eventually
been released. We further agree that evidence of Amy’s prior allegations against
her cousin would have been admissible at trial, and that Stroik’s counsel would
have been able to use the evidence to suggest that the abuse that Amy allegedly
suffered from her grandfather had resulted in a false allegation against another
male relative.
26
No. 2021AP447-CR
¶57 The State asserts that “the CPS report does not conclusively
establish [Amy] lied or made a prior untruthful allegation.” Although this
assertion is accurate, conclusive proof is not required under WIS. STAT.
§ 972.11(2)(b)3. As our supreme court explained in State v. Ringer, 2010 WI 69,
¶30, 326 Wis. 2d 351, 785 N.W.2d 448, evidence of a prior false allegation is
admissible if it is “sufficient to support a reasonable person’s finding that the
complainant made prior untruthful allegations.” (Emphasis in original.) The
question is not whether the circuit court “is convinced by a preponderance of the
evidence” that the prior allegations were false, but rather, whether “a jury, acting
reasonably, could find that it is more likely than not that the complainant made
prior untruthful allegations of sexual assault.” Id., ¶32. The evidence may satisfy
this standard if, for example, the prior allegation “‘is later recanted by the
complainant’” or there is other evidence from which the jury “could reasonably
find” that the prior allegations were false. Ringer, 326 Wis. 2d 351, ¶39 (quoted
source omitted).
¶58 Here, Amy herself made contradictory statements about whether her
cousin had assaulted her, and she expressly recanted her prior accusation about her
cousin during her interview with the CPS social worker. 24 The State points to
Laura’s statement to police after Stroik’s arrest and argues that Amy may have had
a different motivation for recanting—that “her daddy told her to say that [her
24
In this respect, the unsubstantiated report in this case is unlike the unsubstantiated
allegations in two cases relied upon by the State. In State v. Leather, No. 2010AP354,
unpublished slip op. (WI App April 5, 2011), and State v. Jones, No. 2013AP1731, unpublished
slip op. (WI App July 30, 2014), there was no evidence that the alleged victim later disavowed an
initial allegation, nor was there any other evidence from which the jury could find that the prior
allegation was false.
27
No. 2021AP447-CR
cousin] didn’t do it.” But again, the question was not whether the circuit court
would have been “convinced by a preponderance of the evidence” that Amy’s
prior allegations were false. Id., ¶32. We conclude that, based on Amy’s
recantation, “a jury, acting reasonably, could find that it is more likely than not
that the complainant made prior untruthful allegations of sexual assault.” Id. Our
conclusion is bolstered by: (1) the post-trial determination by the juvenile court
that, if relevant, the CPS report would have been admissible under the exception to
the rape shield law; and (2) the post-trial determination by the circuit court that it
was relevant evidence of whether Amy had made a prior false allegation.
¶59 Having concluded that the CPS report was admissible, we further
conclude that, had trial counsel sought out the CPS report, he would have
determined that its contents were material to Stroik’s defense. Amy’s initial
statements about alleged assaults by her cousin and by Stroik were quite similar—
in both instances, she reported that her assailant put his hand on her vagina, she
told the assailant to stop, and the assailant did not stop. Accordingly, the CPS
report contained evidence that, several months before Amy made her report about
Stroik, she made a very similar allegation against her cousin that she later denied
was true.
¶60 The circuit court determined that counsel made a reasonable
strategic decision to focus the defense “on allegations involving prior abuse by the
child’s grandfather and not her cousin.” To the extent that the circuit court
determined that counsel’s failure to seek out the CPS report was not deficient
because it was based on a strategic choice, that conclusion is clearly erroneous
because it is not supported by law or fact.
28
No. 2021AP447-CR
¶61 As the State acknowledges, “[s]trategic choices made after less than
complete investigation are reasonable only to the extent that reasonable
professional judgment supports the limitations on the investigation.” See
Strickland, 466 U.S. at 691 (“counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations
unnecessary”); Thiel, 264 Wis. 2d 571, ¶¶46, 50 (concluding that “it was
objectively unreasonable for [trial] counsel not to pursue further evidence to
impeach” the alleged victim’s credibility). Here, trial counsel was aware of
Amy’s statement about her cousin. Counsel understood that prior false allegations
were admissible pursuant to an exception to the rape shield law, and in any event,
this exception is not an unsettled or obscure area of the law. Counsel may have
“assumed” that “the [circuit court] wouldn’t let [him] get it in,” but without
knowing what the CPS report contained, this assumption is unsupported by any
reasonable professional judgment. Trial counsel’s unsupported assumption that
evidence of the prior allegation would be inadmissible was therefore not a
reasonable strategic decision and is not entitled to any deference.
¶62 We agree with the circuit court’s general assessment that trial
counsel’s overall defense strategy to “blame” the grandfather was reasonable.
However, the court’s discussion about that strategy misses the point—as stated
above, counsel did not have a reasonable basis for foregoing an investigation.25
25
The circuit court’s discussion of trial counsel’s strategy was general and did not
purport to come to grips with the advantages of obtaining and potentially using the information
from the CPS report at trial. The court stated that “[c]ounsel’s strategy at trial was coherently
explained at the hearing on this motion and was appropriately carried out at trial which is clearly
born-out by the child-victim’s uncertainty as to her recollection of the abuse.” The court stated
that, “on the basis of the information which [counsel] possessed concerning the incident involving
the child-victim’s cousin,” the court could not conclude that counsel’s “decision to focus the
(continued)
29
No. 2021AP447-CR
And, as it turned out, the CPS report contained information that was not only
material but also could have significantly enhanced counsel’s chosen strategy.
Trial counsel wanted the jury to conclude the following. Amy had been sexually
abused by her grandfather, who she loved. This caused her to become confused
and to make a false allegation against Stroik. The information from the CPS
report would have provided a basis for the jury to find that Amy had made a
similar allegation, also false, about a different male relative after allegedly being
assaulted by her grandfather. Had counsel sought an in camera review of the CPS
report, it would have been provided to him as it was to appellate counsel, and
counsel should have immediately appreciated its probative value.
¶63 As such, we conclude that trial counsel did not provide a reasonable
strategic reason not to seek and introduce evidence of Amy’s allegedly false
statement regarding her cousin. Accordingly, we conclude that, although
counsel’s overall strategy was reasonable, his implementation of it was not, and
that counsel’s omissions constituted deficient performance.
B. Prejudice
¶64 Although Stroik has persuaded us that his trial counsel’s
performance was deficient, this alone does not entitle him to relief. Strickland,
466 U.S. at 687. Stroik must also “show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A reasonable probability is “a probability sufficient to
defense as he did—on allegations involving prior abuse by the child’s grandfather and not her
cousin”—was constitutionally deficient “in any way.”
30
No. 2021AP447-CR
undermine confidence in the outcome.” Id. For reasons we now explain, we
conclude that there is a reasonable probability that, but for counsel’s error, the jury
would not have found Stroik guilty of sexual assault.
¶65 The circuit court concluded that the outcome of Stroik’s trial was
“far from certain,” and the record bears this out. Although the State asserts that
the evidence against Stroik was “overwhelming,” we do not agree with the State’s
assessment. Our review of the record suggests that the jury could have easily
found that the State failed to meet its burden to prove the allegations beyond a
reasonable doubt. There was no physical evidence or witnesses to the alleged
assault, and Stroik consistently denied the allegations. Amy was quite young
when the alleged assault occurred, and there was evidence that she may have
reported the assault after having been asked leading questions by family members
embroiled in a family dispute following a contentious divorce. By the time of the
trial, Amy was unable or unwilling to testify to having a memory of the assault.
Under the circumstances, the verdict would necessarily depend on whom the jury
found to be most credible—Amy, when she gave her account to the forensic
investigator shortly after the assault, or Stroik, who consistently denied Amy’s
report.
¶66 The most compelling evidence of guilt came from the video of
Amy’s forensic interview, in which she consistently stated that Stroik took off her
pants and put his hand on her “meme,” she told him to stop, and he said, “No I am
not going to stop.” The credibility of this account was bolstered by several
witnesses, who indicated that Amy was a “truthful” kid. Amy’s mother, Laura,
testified that she was “generally truthful,” and Amy’s father testified that Amy
was “very” truthful. According to the police officer who interviewed Stroik, he
said that Amy was “very truthful, and [Stroik] pretty much believes everything
31
No. 2021AP447-CR
that [Amy] says.” The officer indicated that Stroik “never really changed his
tune” of the topic of Amy’s truthfulness, even after he knew that Amy had made
allegations against him. During trial, Stroik himself acknowledged that he thought
Amy was generally truthful, even though she had not been truthful about the report
she made about him.
¶67 However, as a result of counsel’s deficient performance, the jury did
not hear evidence that could have chipped away at these uniform accounts of
Amy’s truthfulness by showing that, on at least one prior occasion, she may have
made an untruthful report of sexual assault that was strikingly similar to the report
she made about Stroik. This evidence could have been particularly significant in
the face of the otherwise unanimous testimony that Amy was consistently truthful,
when the verdict in this case turned exclusively on credibility.26
¶68 We now address two arguments to the contrary posed by the State.
First, the State argues that the CPS report evidence would not have much mattered
because there was an alternative inference that the jury could have made based on
the evidence—that Amy’s initial report about her cousin was true, but that she
later said it was not true “due to familial pressure.” We agree that this is one
conceivable inference that the jury could draw from the evidence. But even if the
26
For the sake of completeness, we mention an additional piece of evidence that the
prosecutor featured during his closing argument. The prosecutor pointed to a statement that
Stroik made as he was being arrested, which the arresting officer believed to be incriminating.
Specifically, the officer testified that, as he was about to put Stroik in handcuffs, Stroik asked,
“What if I did do it? What if I did touch her and all of that?” The officer testified that he took
this statement to be an admission of guilt, but Stroik testified that he asked this question because
he was handcuffed and scared and did not know what the consequences of the arrest could or
would be. On appeal, the State does not argue that this statement, or for that matter any other
statement by Stroik, is part of what it characterizes as the “overwhelming” evidence of guilt.
32
No. 2021AP447-CR
jury viewed the evidence that way, the evidence still could have undermined the
otherwise unanimous accounts about Amy’s truthfulness and could have led the
jury to conclude that Amy was capable of making a false statement about the
incident with the cousin when encouraged to do so by her father. It is difficult to
see how an inference that Amy had made a false statement due to familial pressure
could have hurt Stroik’s defense.
¶69 Second, the State argues that introducing facts suggesting that Amy
may have endured yet another sexual assault would have increased the jury’s
sympathy for her. Perhaps so. Yet, we assume that the jury would do as it was
instructed to do—consider the evidence, and not be swayed by sympathy,
prejudice, or passion. The State’s argument does not undermine our conclusion
that the introduction of evidence of Amy’s prior allegation could have caused the
jury to question the credibility of the statements Amy made during her forensic
interview.
¶70 To prevail, Stroik need not prove that the outcome definitively
would have been different—just that there is a reasonable probability of a different
result but for counsel’s error. See State v. Smith, 207 Wis. 2d 258, 275, 558
N.W.2d 379 (1997). Under the circumstances, we conclude that he has met his
burden. Had jurors heard the additional evidence that Amy made a prior
allegation that she later denied, there is a reasonable probability that the jury
would have been unable to conclude beyond a reasonable doubt that Stroik was
guilty of sexual assault.
CONCLUSION
¶71 For the reasons discussed above, we conclude that the defendant is
entitled to a new trial. We reverse the circuit court’s judgment of conviction and
33
No. 2021AP447-CR
order, and we remand to the circuit court for further proceedings consistent with
this opinion.
By the Court.—Judgment and order reversed and cause remanded.
34