State v. Eric J. Debrow , 2023 WI 54 ( 2023 )

2023 WI 54SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1732-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Eric J. Debrow,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 404 Wis. 2d 511, 979 N.W.2d 817(2022 – unpublished)
OPINION FILED: June 23, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 17, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: John D. Hyland
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, DALLET, and HAGEDORN,
JJ., joined. ROGGENSACK, J., filed a concurring opinion in which
REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by John A. Blimling, assistant attorney general, with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by John A. Blimling, assistant attorney general.
For the defendant-appellant, there were briefs filed by
Megan Lyneis, assistant state public defender. There was an oral
argument by Megan Lyneis, assistant state public defender.
2023 WI 54NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1732-CR
(L.C. No. 2018CF202)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. JUN 23, 2023
Eric J. Debrow, Samuel A. Christensen
Clerk of Supreme Court
Defendant-Appellant.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, DALLET, and HAGEDORN,
JJ., joined. ROGGENSACK, J., filed a concurring opinion in which
REBECCA GRASSL BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 JILL J. KAROFSKY, J. Here we are asked to decide
whether the circuit court1 erroneously exercised its discretion
when it denied Eric J. Debrow's motion for a mistrial after a
witness, who was testifying about his suspicion of Debrow,
1The Honorable John D. Hyland of the Dane County Circuit
Court presided.
No. 2021AP1732-CR
stated that he "looked on CCAP."2 Debrow believed this testimony
implicated his prior sexual assault conviction, which the
circuit court had already ruled inadmissible. The court of
appeals held that the circuit court erroneously exercised its
discretion and reversed Debrow's conviction. The State seeks
review of the court of appeals' decision. We conclude that the
circuit court did not erroneously exercise its discretion when
it denied Debrow's request for a mistrial. Therefore, we
reverse the court of appeals' decision and affirm the judgment
of conviction.
I. BACKGROUND
¶2 Debrow was charged with second-degree sexual assault
of a child under the age of 16 as a persistent repeater3 after
Mary,4 his girlfriend's daughter, reported that Debrow sexually
assaulted her in January 2018. Later, Debrow was additionally
charged with first-degree sexual assault of a child under the
age of 135 for the sexual assault of Nancy, Mary's sister. The
cases were consolidated for trial.
2CCAP, which stands for Consolidated Court Automation
Programs, makes certain information about circuit court and
appellate court cases available to the public.
3 See Wis. Stat. §§ 948.02(2) & 939.62(2m)(2017-18).
4To protect the privacy and dignity of the victims in this
case, we refer to them using pseudonyms. Wis. Stat. § 809.86(2021-22).
5 See Wis. Stat. § 948.02(1)(e) (2017-18).
2
No. 2021AP1732-CR
¶3 Prior to trial, Debrow sought to exclude evidence of
his 2004 child sexual assault conviction on the grounds that its
probative value was substantially outweighed by the danger of
unfair prejudice. The State agreed, and the circuit court
granted Debrow's motion to exclude the evidence.
¶4 At trial, the State first called Mary, who testified
that Debrow was her mother's boyfriend and lived with the family
in January 2018. She reported that she awoke early in the
morning on January 17, 2018 to a person "touching [her] butt and
thigh," and that she was "100 percent" sure that person was
Debrow. Mary testified that she screamed, the dogs in the house
started barking, and Debrow left her room.
¶5 When asked whether she had awoken to Debrow in her
room before, Mary testified that she had once woken up to Debrow
sitting on her bed, at which point Debrow told her, "shh, it's
just a game," and directed her not to tell her mother. Mary
also testified that she had a conversation with her mother about
what to do if "anything were to happen" in her room in the
middle of the night, and that "the general consensus was that I
would scream."
¶6 The State then called its second witness——Isaac,
Mary's brother. Isaac testified that as he was lying awake in
bed on January 17th, he saw Debrow enter Mary's bedroom. Five
to ten minutes later, Isaac heard his sister scream and saw
Debrow exit the room immediately after. Isaac testified that he
"had the feeling of something that was going on" and that he
called the police after he got home from school that same day.
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No. 2021AP1732-CR
¶7 During Isaac's redirect examination, the State
requested a sidebar. During the sidebar, the State sought to
ask Isaac leading questions about why he thought "something
strange was going on inside of [Mary's] room." The State
explained that it wanted to rebut the idea that Isaac was
"jumping to conclusions based on absolutely nothing." According
to the State, Isaac knew about Debrow's prior conviction, but he
would avoid discussing it in accordance with the court's ruling.
Instead, Isaac would testify as to why he was vigilant about
Debrow and his sisters. Debrow's counsel expressed concern that
the proposed line of questioning would elicit inadmissible
evidence concerning the 2004 conviction and indicated that he
would move for a mistrial if Isaac gave "the wrong answer." The
court said it would allow the State to pursue its proposed line
of questioning "in not a directly leading fashion but in a very
direct or indirect but not leading manner." The court also
noted that it would be "on pins and needles as well to jump in"
if Isaac began to reference the prior conviction.
¶8 Soon after the State's redirect of Isaac resumed, the
following exchange occurred:
[Prosecutor]: . . . At any point . . . had you learned
anything or heard anything that led you to be on alert
that night on January 17th of 2018?
[Isaac]: Yes.
Q And were those based on things your sisters had
mentioned?
A No.
4
No. 2021AP1732-CR
Q Are those things that you heard from your mom?
A It's things that I --
Q -- I don't want to get into that --
(Unreportable simultaneous interjections by Counsel.)
. . . .
[Defense]: -- Objection, Your Honor. Objection, move
to strike. Another motion in a minute.
THE COURT: I'll -- I'll move to strike. The question
was were those things you heard from your mother, and
if you can just give yes or no . . . . We can't get
into what they are, because that's hearsay.
[Isaac]: Well, my mom did tell me --
THE COURT: -- all right, that's fine. That's
all . . . We can't -- we can't put her words into your
mouth in front of the jury. That's why she's a witness
if she testifies.
[Prosecutor]: Your Honor, I have no further questions.
The court then addressed the jury and gave the following
curative instruction:
THE COURT: . . . And -- and to the extent that -- as
the State was -- was raising an interjection the
answer beyond what he gave just now will be -- I'll
direct the jury to strike anything else that they --
they heard beyond the witness's statement that he
heard from his mother but not the content of anything.
¶9 After this exchange, the jury was excused, and the
parties met to discuss Isaac's testimony. Although the court
reporter was unable to record Isaac's response to the State's
question about why he was on alert, the parties and the court
agreed that he said, "I looked on CCAP."
¶10 Debrow moved for a mistrial on the grounds that
Isaac's statement was inadmissible as it pertained to Debrow's
5
No. 2021AP1732-CR
prior sexual assault conviction. More specifically, Debrow
argued that the jury would assume that Isaac's reference to CCAP
meant that Isaac had learned about Debrow's criminal record and
that "it's going to be an easy assumption and leap to the idea
that -- that what he found on CCAP was a sexual assault."
Debrow argued that no curative instruction would be adequate to
remedy the situation because the jury is "not going to unlearn
what they learned." In response, the State argued that the jury
may not have heard the reference to CCAP over the interjection
by the court and the attorneys, that the State had attempted to
characterize the problem as a hearsay issue to draw the jury's
attention away from the substance of the statement, and that a
curative instruction would be "probably the most drastic thing
that is necessary."
¶11 The circuit court denied the motion for mistrial.
It explained that the jury may not be familiar with CCAP, saying
"to them, it might mean nothing," and emphasized that Isaac did
not say what he found on CCAP. The court continued "if any
juror is thinking to themselves, well, I know on CCAP you can
find out about any public court record, then they may be
presuming criminal, they may be presuming small claims, they may
be presuming civil, whatever –- divorce, whatever." The circuit
court concluded that "on this record with that minimal bit of
information that the jury picked up upon if they were listening
carefully . . . certainly doesn't say for example, well, I knew
he had a prior conviction, I knew he had done this before."
6
No. 2021AP1732-CR
¶12 The circuit court further mentioned that the jury's
attention was quickly directed to a possible hearsay issue
rather than the substance of Isaac's statement, saying: "it was
stopped based upon people pointing out that you can't get into
hearsay, and not saying you can't say that, you can't say that
part, but just -- but directing it towards a hearsay that can't
be brought before the jury." Finally, the circuit court then
discussed available remedies, saying "we're open to striking, I
already told them to strike anything, we're open to giving the
instruction on striking, we're open to curative instructions
that don't redirect their attention to it two days from now."
¶13 The trial proceeded to its conclusion, and Debrow did
not renew his motion for mistrial. Debrow requested the
standard jury instruction regarding stricken testimony at the
close of trial, which was given, but he did not request any
additional jury instructions specifically related to Isaac's
testimony. The jury convicted Debrow of second-degree sexual
assault of Mary and acquitted him of the charges related to
Nancy. Consistent with the persistent repeater enhancer, the
court sentenced Debrow to life imprisonment without the
possibility of extended supervision.
¶14 Debrow appealed the circuit court's denial of his
mistrial motion. In granting Debrow's request for a new trial,
the court of appeals held that the circuit court's attempt at a
curative instruction for Isaac's statement regarding CCAP was
insufficient and therefore that "the circuit court erroneously
exercised its discretion in denying Debrow's motion for
7
No. 2021AP1732-CR
mistrial." State v. Debrow, No. 2021AP1732-CR, unpublished slip
op., ¶36 (Wis. Ct. App. July 21, 2022). We granted the State's
petition for review and reverse the court of appeals' decision.
II. ANALYSIS
¶15 When faced with a motion for mistrial, "the circuit
court must decide, in light of the entire facts and
circumstances, whether . . . the claimed error is sufficiently
prejudicial to warrant a mistrial." State v. Ford, 2007 WI 138,
¶29, 306 Wis. 2d 1, 742 N.W.2d 61. We review a circuit court's
decision to grant or deny a motion for mistrial for an erroneous
exercise of discretion. Id. "An erroneous exercise of
discretion may arise from an error in law or from the failure of
the circuit court to base its decisions on the facts in the
record." Id., ¶28 (quoting State v. Raye, 2005 WI 68, ¶16, 281
Wis. 2d 339, 697 N.W.2d 407). "Discretion is not synonymous
with decision-making. Rather, the term contemplates a process
of reasoning." State v. Gallion, 2004 WI 42, ¶3, 270 Wis. 2d
535, 678 N.W.2d 197 (quoting McCleary v. State, 49 Wis. 2d 263,
277, 182 N.W.2d 512 (1971)).
¶16 Here, the circuit court did not erroneously exercise
its discretion when it determined, in light of the facts and
circumstances of the case, that Isaac's statement regarding CCAP
was not so prejudicial as to warrant a mistrial. Before the
circuit court denied Debrow's mistrial motion, it first
considered arguments and counterarguments from both parties,
allowing each attorney ample time to make their case outside the
presence of the jury. The circuit court then considered the
8
No. 2021AP1732-CR
possible extent of prejudice to the defendant. In finding the
error was not sufficiently prejudicial to warrant a mistrial,
the court highlighted two things. First, it was not reasonable
to assume that Isaac's statement regarding CCAP would lead a
juror to infer that Debrow had a prior sexual assault
conviction. Second, Isaac's statement was mitigated when the
circuit court immediately struck the testimony and drew the
jury's attention away from the substance of Isaac's statement
and towards a hearsay issue.
¶17 The circuit court also considered the various
alternatives to what it correctly deemed the "most serious of
remedies," a mistrial. It concluded that striking the testimony
was appropriate, which it had already done. The circuit court
also invited the defense to request an appropriate jury
instruction. However, the defense requested only the standard
jury instruction regarding stricken testimony at the close of
trial.
¶18 All of this evinces an appropriate process of
reasoning. The circuit court considered the facts and
circumstances in the record, heard arguments from both parties,
assessed available remedies, and concluded that the error was
not so prejudicial as to warrant a mistrial. No error of law is
evident. As such, we conclude that the circuit court properly
exercised its discretion in denying Debrow's request for
mistrial.
¶19 The court of appeals reached a different result and
erroneously focused on the sufficiency of the court's curative
9
No. 2021AP1732-CR
instruction to "strike anything else that they [the jury] --
they heard beyond the witness's statement that he heard from his
mother but not the content of anything," rather than whether the
circuit court erroneously exercised its discretion in denying
Debrow's mistrial motion. See Debrow, No. 2021AP1732-CR, at ¶36
(Wis. Ct. App. July 21, 2022) ("The court's attempts to cure the
prejudicial effect of this testimony were insufficient and did
not properly instruct the jury to disregard that testimony when
deliberating."). The question of whether the court erroneously
exercised its discretion in denying the mistrial is separate
from the question of whether its instruction actually cured the
error. Debrow challenged the court's decision to deny a
mistrial. He did not alternatively challenge the adequacy of
the court's curative instruction, so that issue is not before us
today.
III. CONCLUSION
¶20 The circuit court did not erroneously exercise its
discretion in denying Debrow's mistrial motion. It considered
the facts and circumstances of the case, heard arguments from
both sides, considered alternative remedies, and determined that
the error was not so prejudicial as to warrant a mistrial.
Accordingly, the court of appeals' decision is reversed.
By the Court.—The decision of the court of appeals is
reversed.
10
No. 2021AP1732-CR.pdr
¶21 PATIENCE DRAKE ROGGENSACK, J. (concurring). A jury
convicted Eric J. Debrow of second-degree sexual assault of a
child under the age of 16 at the conclusion of a three-day
trial.1 Debrow moved for a mistrial following the second
witness's testimony, which the circuit court denied. The court
of appeals reversed and ordered a new trial, concluding that the
jury instruction given was insufficient to address the prejudice
caused by the second witness's statement.2
¶22 I conclude that the circuit court did not erroneously
exercise its discretion in denying Debrow's mistrial motion when
reviewed in light of the entire trial, including the sufficiency
of the jury instruction. Accordingly, I would reverse the court
of appeals decision and conclude that Debrow is not entitled to
a new trial.
¶23 I concur in the result reached by the majority
opinion, but I do not join the opinion. It lacks a full
analysis of the entire proceeding, which is necessary in
addressing the court of appeals' reversal of the circuit court.
I. BACKGROUND
¶24 On January 17, 2018, officers from the City of Madison
Police Department responded to Debrow's residence to investigate
the sexual assault of a child that Debrow reportedly committed
earlier that day. At the time of his arrest, Debrow resided
1 The Honorable John D. Hyland of the Dane County Circuit
Court presided.
2 State v. Debrow, No. 2021AP1732-CR, unpublished slip op.,
¶4 (Wis. Ct. App. July 21, 2022).
1
No. 2021AP1732-CR.pdr
with his girlfriend, Kathy,3 and her three children: Isaac, 17;
Mary, 13; and Nancy, 11.
¶25 Debrow was charged with second-degree sexual assault
of a child under the age of 16 based on the report that he had
touched Mary's buttocks in the early morning. See Wis. Stat.
§ 948.02(2). Due to a prior 2004 conviction for child sexual
assault, Debrow also was charged as a persistent repeater
pursuant to Wis. Stat. § 939.62(2m)(a) and (b), which imposes a
mandatory sentence of life imprisonment without possibility of
parole. The State later charged Debrow in a separate case with
first-degree sexual assault of a child under the age of 13 as a
persistent repeater contrary to §§ 948.02(1)(e) and
939.62(2m)(a) and (b) for sexual assault of Nancy. The two
cases were consolidated for trial.4 Debrow pled not guilty to
all charges.
¶26 The circuit court ruled on a number of motions in
limine prior to the jury trial. Relevant to our review, the
court granted Debrow's motion to exclude evidence of his 2004
conviction of child sexual assault on grounds that the
3 I use pseudonyms for the victims and their family members
in this case pursuant to Wis. Stat. § 950.04(dr) and § (Rule)
809.86 (2021-22). For consistency, I use the same pseudonyms
the parties used before this court.
All subsequent references to the Wisconsin Statutes are to
the 2021-22 version unless otherwise indicated.
4 Because Debrow challenges his conviction on charges
relevant to Mary alone, I do not address the merits or evidence
related to Debrow's charges related to Nancy.
2
No. 2021AP1732-CR.pdr
conviction was more prejudicial than probative. The State
agreed the conviction was "too prejudicial."
¶27 Trial commenced, and Mary was the first witness. She
testified that Debrow came into the bedroom she shared with
Nancy early one morning. Mary disclosed that she woke to Debrow
massaging or gripping her buttocks over her clothes, and that he
rubbed her thighs as she slept on her stomach. Mary stated she
screamed at Debrow to get out "numerous times at the top of
[her] lungs," and the dogs started barking. After she screamed,
Debrow stopped touching her and left her bedroom. She explained
she knew Debrow rather than Isaac was the person in her bedroom
because of identifiable physical differences between the two
men.
¶28 Mary also testified that on an earlier occasion she
woke to find Debrow sitting on her bed, and Debrow said, "[S]hh,
it's just a game . . . you don't have to tell your mom about
it." She did not tell her mom that Debrow was in her bedroom
that first time. However, based on conversations with her
mother, Mary testified that she was instructed to scream "if
anything were to happen" in her bedroom. The defense cross-
examined Mary about interviews she gave as part of the
investigation, and she admitted that she had told Debrow many
times that she "did not like him." Mary stated that she did not
want to be thinking about Debrow touching her.
¶29 Isaac testified next. Although Isaac knew Debrow had
been convicted of child sexual assault in 2004, Isaac also was
aware that he could not testify about Debrow's prior conviction
3
No. 2021AP1732-CR.pdr
"unless and until" the court allowed the prosecutor to bring it
up. Isaac testified he lay awake in bed early one morning with
his bedroom door open, and he saw Debrow enter the girls' room.
Five to ten minutes later, Isaac heard Mary repeatedly scream
"get out," the dogs began to bark, and Isaac saw Debrow leave
his sisters' bedroom.
¶30 Isaac testified that he called the police later that
afternoon to report Debrow, even though he did not hear anything
from the room besides Mary yelling "get out," and his sisters
did not mention anything to him. Isaac stated he "wanted to
call the police the whole day when [he] was at school" and that
he "had the feeling of something that was going on." Isaac said
that when he got home from school he told his mom and Debrow
that he was going to call police, and Debrow told him not to
call the police. Isaac testified that Debrow was like "a father
figure until all this stuff happened," after which Isaac did not
like Debrow anymore. Isaac stated he and Debrow had gotten into
physical altercations on six occasions.
¶31 During Isaac's re-direct, the State requested a
sidebar in which it expressed its desire to provide the jury an
explanation for why Isaac thought "something strange was going
on inside of [his sisters'] room," and why he later called the
police; the prosecution wanted to show that Isaac did not
"jump[] to conclusions based on absolutely nothing."
¶32 Subsequent to a lengthy sidebar, in which Debrow
contended the State's proposed inquiry would surely bring out
"evidence that had already been ruled inadmissible," the court
4
No. 2021AP1732-CR.pdr
allowed the State to pursue its proposed line of questioning "in
a very direct or indirect but not leading manner." The court
noted the State should be cautious, and that it would sustain
any defense objections because the defense already opposed the
line of questioning. The court stated it would be on "pins and
needles [and would] jump in" if Isaac started to testify about
the 2004 conviction. The defense made its intent clear to move
for a mistrial if Isaac gave the "wrong answer."
¶33 After three questions, defense counsel objected:
[Prosecutor]: . . . At any point . . . had you learned
anything or heard anything that led you to be on alert
that night on January 17th of 2018?
[Isaac]: Yes.
Q And were those based on things your sisters had
mentioned?
A No.
Q Are those things that you heard from your mom?
A It's things that I –-
Q -- I don't want to get into that –-
(Unreportable simultaneous interjections by
Counsel.)
. . . .
[Defense]: -- Objection, Your Honor. Objection,
move to strike. Another motion in a minute.
THE COURT: I'll – I'll move to strike.
. . . .
[Isaac]: Well, my mom did tell me –-
THE COURT: -- all right, that's fine. That's
all.
5
No. 2021AP1732-CR.pdr
. . . .
We can't -– we can't put her words into your
mouth in front of the jury. That's why she's a
witness if she testifies.
. . . .
[Prosecutor]: Your Honor, I have no further
questions.
THE COURT: . . . And –- and to the extent that
–- as the State was –- was raising an interjection the
answer beyond what he gave just now will be –- I'll
direct the jury to strike anything else that they –-
they heard beyond the witness's statement that he
heard from his mother but not the content of anything.
The jury was excused for the day.
¶34 Outside the presence of the jury, the parties
discussed what occurred. Although the court reporter did not
catch what Isaac said, the parties agreed they heard Isaac say
"I looked on CCAP," which is the Consolidated Court Automation
Programs. Among other things, CCAP enables the public to access
some information about circuit court and appellate cases. The
court stated "the jury couldn't possibly have heard anything
else."
¶35 Debrow moved for a mistrial. He argued that the jury
would assume Isaac found information about a prior sexual
assault on CCAP, and that the assumption would be so "damaging"
that "there's no way around it," the jury cannot "unlearn what
they learned." Debrow asserted striking the statement or a
curative instruction would be insufficient to remedy Isaac's
statement.
¶36 The State argued that it was hard to know "what, if
any, of that the jury could have heard and made out."
6
No. 2021AP1732-CR.pdr
Accordingly, the State's position was that the statement did not
require a mistrial or even a curative instruction; striking the
statement would sufficiently cure any error.
¶37 Following a lengthy colloquy in which both parties
developed their positions, the court acknowledged that mistrial
is "the most serious of remedies." In initially denying
Debrow's motion for mistrial, the circuit court placed its
reasons for denial on the record, which I discuss below. The
court stated that, upon Debrow's request, it was "open to giving
the instruction on striking" and "open to curative instructions
that don't redirect [the jury's] attention to it two days from
now."
¶38 The trial proceeded for two more days, during which
Nancy, Kathy, two officers, and two detectives testified for the
State. Nancy testified that on January 17, 2018, her sister
woke her up because she screamed "get out," and Nancy saw a
"shadow go outside the room and the door closed." Nancy
identified the shadow as Debrow because of physical differences
between Debrow and Isaac.
¶39 Kathy testified she had a "ground rule" that the boys
and girls were not allowed in each others' bedrooms, and Kathy
instructed the girls to be loud enough to "wake all of Madison
up" if something were to happen. The State read and published
to the jury text messages between Kathy and Debrow. The State
also played a recorded phone call Debrow made to Kathy from
jail. In both the text messages and the phone call, Kathy
confronted Debrow about a pornographic video he had watched, the
7
No. 2021AP1732-CR.pdr
graphic title of which implied a stepfather sexually abusing a
stepdaughter while his wife was asleep.
¶40 An officer testified he informed Debrow of probable
cause to charge him with second-degree sexual assault of a child
as he arrested Debrow. Debrow asked the officer why it "had to
be second-degree . . . and not just fourth degree sexual
assault," which the officer clarified for the jury is a
misdemeanor involving nonconsensual sexual contact between
adults.
¶41 A detective testified that she knew Mary from
occasions prior to Debrow's arrest, and that she responded to
the apartment on January 17, 2018. The detective stated that
once Mary recognized her, Mary "put[] her head in [the
detective's] chest and cried for about a minute-and-a-half."
Another detective testified that the girls each had a Safe
Harbor interview.5
¶42 Debrow did not testify, and the defense did not call
any witnesses. Debrow did not renew his motion for mistrial at
the circuit court; however, he appealed contending that the
circuit court erroneously exercised its discretion in denying
his motion for mistrial. The defense also did not challenge or
request a specially drafted jury instruction related to Isaac's
testimony. The jury convicted Debrow of second-degree sexual
Safe Harbor is a child advocacy center that provides for
5
the forensic interviewing of children who are victims of sexual
and physical abuse. Safe Harbor forensic interviews are video-
recorded for court use, though children are still required to
testify.
8
No. 2021AP1732-CR.pdr
assault of Mary, but acquitted him for the charges related to
Nancy. Consistent with the persistent repeater enhancer, the
court sentenced Debrow to life imprisonment without the
possibility of parole.
¶43 Relevant to our review, the court of appeals concluded
Isaac's statement, "I looked on CCAP," was unfairly prejudicial
to Debrow, and that the court's instruction relevant to Isaac's
testimony was insufficient. It therefore concluded that "the
circuit court erroneously exercised its discretion in denying
Debrow's motion for a mistrial."6 The court of appeals granted
Debrow a new trial. The State petitioned us for review.
II. DISCUSSION
A. Standard of Review
¶44 "A motion for mistrial is committed to the sound
discretion of the circuit court." State v. Ford, 2007 WI 138,
¶28, 306 Wis. 2d 1, 742 N.W.2d 61. In ruling on a motion for
mistrial, a circuit court determines "in light of the whole
proceeding, whether the claimed error was sufficiently
prejudicial" to deprive the defendant of a fair trial. State v.
Ross, 2003 WI App 27, ¶47, 260 Wis. 2d 291, 659 N.W.2d 122;
State v. Sigarroa, 2004 WI App 16, ¶24, 269 Wis. 2d 234, 674
N.W.2d 894. See also Ford, 306 Wis. 2d 1, ¶29; State v. Doss,
2008 WI 93, ¶¶69-71, 312 Wis. 2d 570, 754 N.W.2d 150. "An
erroneous exercise of discretion may arise from an error in law
or from the failure of the circuit court to base its decisions
6 State v. Debrow, No. 2021AP1732-CR, ¶36.
9
No. 2021AP1732-CR.pdr
on the facts in the record." State v. Raye, 2005 WI 68, ¶16,
281 Wis. 2d 339, 697 N.W.2d 407.
B. Debrow's Motion for Mistrial
¶45 The Constitution does not guarantee an error-free
trial, United States v. Hasting, 461 U.S. 499, 508-09 (1983),
and not all errors warrant a mistrial. In order to preserve
review of a claimed evidentiary error, the disadvantaged party
must make a contemporaneous objection and move for a mistrial.
State v. Guzman, 2001 WI App 54, ¶25, 241 Wis. 2d 310, 624
N.W.717. When improper evidence comes before the jury, the
circuit court decides whether a curative instruction is
necessary as part of the exercise of its discretion in ruling on
a mistrial motion. Sigarroa, 269 Wis. 2d 234, ¶¶24-26. "[T]he
law prefers less drastic alternatives [than mistrials], if
available and practical." State v. Adams, 221 Wis. 2d 1, 17,
584 N.W.2d 695 (Ct. App. 1998).
¶46 Accordingly, I review whether the circuit court
erroneously exercised its discretion in determining that Isaac's
statement fell short of the high prejudicial bar to warrant a
mistrial.7 Sigarroa, 269 Wis. 2d 234, ¶27. As part of this
review, I examine the sufficiency of the jury instructions
relative to the objected-to testimony. Hardison v. State, 61
Wis. 2d 262, 273, 212 N.W.2d 103 (1973).
7Neither party argues that Isaac's statement rises to
structural error; therefore, automatic reversal is not
appropriate. State v. Ford, 2007 WI 138, ¶42, 306 Wis. 2d 1,
742 N.W.2d (quoting Neder v. United States, 527 U.S. 1, 8
(1999)).
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¶47 We previously have explained that sound discretion
includes "acting in a deliberate manner taking sufficient time"
to respond to a request, giving both parties a "full
opportunity" to argue their positions, and "considering
alternatives such as a curative instruction or sanctioning
counsel." State v. Seefeldt, 2003 WI 47, ¶36, 261 Wis. 2d 383,
661 N.W.2d 822. A court that "reason[s] its way to a rational
conclusion" while considering the relevant law and facts
exercises sound discretion. Id. See generally State v. Moeck,
2005 WI 57, ¶¶43, 72, 280 Wis. 2d 277, 695 N.W.2d 783. The
question is not whether we would have reasoned identically to
the circuit court, but rather, whether the court arrived at its
conclusion "by the consideration of the relevant law, the facts,
and a process of logical reasoning." Hartung v. Hartung, 102
Wis. 2d 58, 66, 306 N.W.2d 16 (1981).
¶48 Directly following Debrow's mistrial motion, both
parties argued their positions at length outside the presence of
the jury, with considerable counterargument from both sides. In
short, both parties had a "full opportunity" to advance their
arguments, and the court devoted sufficient time to the issue.
It also weighed "less drastic" alternatives to address the
"blurted out" and "stopped" statement. The court noted
striking, which it had done, and a curative instruction were
available alternatives.
¶49 The circuit court further reasoned there was no way to
know whether any of the jurors were familiar with CCAP. A juror
who was familiar with CCAP may have had familiarity due to small
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claims, civil, divorce, or other court record, not necessarily a
criminal conviction. In addition, Isaac's response was
overridden by directing the jury's attention to hearsay
concerns. All of those reasons "lessen[ed] the necessity of
granting" Debrow's mistrial motion. Lastly, the circuit court
stated it could not grant a mistrial for "that minimal bit of
information" that the jury may have heard.
¶50 The court correctly noted that Isaac's interrupted
testimony did not state anything about a prior criminal
conviction, let alone a conviction for sexual assault of a
child. Although Debrow argues the phrase "I looked on CCAP"
leads to a string of inferences necessarily culminating in the
most prejudicial assumption, we have said before that "this
court cannot assume that more specific information of a
prejudicial nature was involved." Johnson v. State, 75 Wis. 2d
344, 366, 249 N.W.2d 593 (1977). Instead, the focus must remain
on whether the error was so prejudicial that the only remedy
capable of addressing it is granting a mistrial. See generally
Lobermeier v. Gen. Tel. Co. of Wis., 119 Wis. 2d 129, 136, 349
N.W.2d 466 (1984). See also McClinton v. State, 464 S.W.3d 913,
914 (Ark. 2015) ("Declaring a mistrial is proper only where the
error is beyond repair and cannot be corrected by any curative
relief."). Here, the court properly exercised its discretion by
unpacking the string of potential inferences to conclude Isaac's
comment was capable of remedy by less drastic means.
¶51 The circuit court appropriately, but narrowly, based
its decision on the record before it. Factually, all we have
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here is the statement, "I looked on CCAP." The court reporter
did not capture this statement because of "[u]nreportable
simultaneous interjections by Counsel." That is a far cry from
disclosure that in 2004 Debrow was convicted of sexual assault
of a child.
¶52 However, more analysis is needed because whether the
circuit court appropriately exercised its discretion when
denying a motion for mistrial includes assessing whether the
circuit court gave reasoned consideration to the possibility of
a curative instruction relative to the claimed error. State v.
Williams, 2004 WI App 56, ¶31 n.3, 270 Wis. 2d 761, 677 N.W.2d
691. In Moeck, 280 Wis. 2d 277, we again addressed the
importance of cures other than mistrial for errors during trial.
We concluded that "the circuit court did not exercise sound
discretion in declaring a mistrial when it failed to give
adequate consideration to the State's ability to refer to the
defendant's silence and to the effectiveness of a curative jury
instruction." Id., ¶71.
¶53 In Debrow's trial, I conclude that review of the
complained-of statement in the context of the whole proceeding
confirms that the statement was not so prejudicial as to affect
the fairness of his trial. One central question with mistrials
"is to determine under the facts if the error is
prejudicial . . . in light of the whole proceeding. If the
evidence presented in a case was extremely weak and the same
error occurred, it could justifiably be deemed grounds for a
mistrial." Oseman v. State, 32 Wis. 2d 523, 528-29, 145 N.W.2d
13No. 2021AP1732-CR.pdr
766 (1966). See also Ford, 306 Wis. 2d 1, ¶50; Adams, 221
Wis. 2d at 17. Therefore, I consider the strength of the
State's evidence against Debrow and the sufficiency of the
instruction given to the jury that relates to Isaac's testimony.
¶54 Mary, Isaac, Nancy, and Kathy consistently testified
that on the morning of January 17, 2018, Mary repeatedly
screamed "get out," which caused the dogs to bark. Mary, Nancy,
and Isaac all identified Debrow as in the girls' bedroom when
that happened, and the sisters both explained how they knew the
person in their room was Debrow. Testimony from officers and
detectives who interviewed Mary as part of the investigation
confirmed that Mary's account of Debrow's actions had been
consistent.
¶55 The jury heard Mary testify that she woke to find
Debrow in her room on a prior occasion, but that he told her
"it's just a game, [so] you don't have to tell your mom." Mary
did not tell Kathy. Mary and Kathy both testified that Kathy
had instructed her daughters to scream if anything of concern
were to happen in their bedroom. Kathy testified that there was
a "rule" in the home prohibiting the girls and boys from
entering one another's bedrooms.
¶56 The jury heard a phone recording in which Debrow told
Kathy, "I got something in my mind that I need help," and in
which Kathy confronted Debrow about a pornographic video he had
watched, the graphic title of which implied a stepfather
sexually abusing a stepdaughter while his wife was asleep.
Jurors saw text messages about the same conversations.
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¶57 An officer testified that Debrow specifically
questioned the degree of sexual assault for which he was
arrested——asking why it was second-degree and not fourth.
¶58 Jurors also heard impeachment evidence. For instance,
they heard Mary and Isaac state they did not like Debrow. Isaac
disclosed that he and Debrow had gotten into multiple physical
altercations, and Kathy testified that she and Debrow got back
together briefly some weeks after the January 2018 incident,
although they were not together at the time of trial.
¶59 The circuit court offered to consider a specially
drafted curative instruction that Debrow did not request when
counsel and the court had their instructions conference. The
court also offered standard Civil Jury Instruction 150, which
was given and provided: "During the trial, the Court has
ordered certain testimony to be stricken. Disregard all
stricken testimony." This instruction directly addressed
Isaac's testimony which was stricken as soon as it was given.
¶60 Last, the jury simultaneously convicted Debrow for
assaulting Mary while it acquitted him of assaulting Nancy.
Accordingly, when considered in the context of the "whole
proceeding," it is "quite clear" that whatever prejudice the
statement "I looked on CCAP" may have caused Debrow, it fell
short of the high bar to warrant a mistrial. Oseman, 32 Wis. 2d
at 529. "[N]o reasonable jury could have fairly come to any
other decision." Id. at 530.
C. Court of Appeals Decision
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¶61 The court of appeals concluded that the jury
instruction was insufficient to ameliorate Isaac's statement and
therefore Debrow was entitled to a new trial. See State v.
Debrow, No. 2021AP1732-CR, unpublished slip op., ¶36
(Wis. Ct. App. July 21, 2022) ("The court's attempts to cure the
prejudicial effect of this testimony were insufficient and did
not properly instruct the jury to disregard that testimony when
deliberating."). Debrow did request standard Civil Jury
Instruction 150, which was given and focuses on Isaac's
testimony because his statement was stricken immediately on
Debrow's objection and motion for a mistrial. I conclude under
the entire proceedings, Instruction 150 was sufficient.
III. CONCLUSION
¶62 A jury convicted Debrow of second-degree sexual
assault of a child under the age of 16 following a three-day
trial. Debrow moved for a mistrial at the conclusion of the
second witness's testimony, which the circuit court denied. I
conclude that the circuit court did not erroneously exercise its
discretion in denying Debrow's mistrial motion when reviewed in
light of the entire trial, including the sufficiency of the jury
instruction. Accordingly, I would reverse the court of appeals
decision and conclude that Debrow is not entitled to a new
trial.
¶63 I concur in the result reached by the majority
opinion, but I do not join the opinion. It lacks a full
analysis of the entire proceeding, which is necessary in
addressing the court of appeals reversal of the circuit court.
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¶64 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
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