State v. Jeromy M. Mathews ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 15, 2021
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. 2019AP2319-CR Cir. Ct. No. 2017CF381
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEROMY M. MATHEWS,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Eau Claire County: MICHAEL A. SCHUMACHER, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Jeromy Mathews appeals a judgment of conviction
for repeated sexual assault of a child and an order denying his postconviction
No. 2019AP2319-CR
motion. Mathews argues he is entitled to a new trial because the prosecutor
engaged in misconduct, he received constitutionally ineffective assistance from his
trial counsel, and the victim was incredible as a matter of law. We reject
Mathews’ arguments and affirm.
BACKGROUND
¶2 Eric1 confided to his fourth-grade classmate that Mathews, his
father, had repeatedly sexually assaulted him years ago when he was five and six
years old. The classmate reported the allegation to her mother, who then reported
it to the school counselor. Ultimately, Eric was asked to attend a forensic
interview with Pierce County social worker Michelle Harris, at which time he
recounted that Mathews had oral and anal intercourse with him on several
occasions when he was younger and visiting his father.2
¶3 In 2017, Mathews was charged with a single count of repeated
sexual assault of a child, with the offense dates allegedly occurring between
January 2010 and December 2012. At trial, Eric affirmed the claims he made
during the forensic interview, and he also admitted that he had previously falsely
accused his father of killing two of Eric’s cousins. The defense called as a witness
the school counselor, Jon Strand, to whom Eric had made the false homicide
allegations. During closing arguments, Mathews’ trial counsel highlighted the
lack of physical evidence and argued that Eric was not credible. The jury returned
1
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2019-20), we use
pseudonyms to refer to the victim and his family members. All references to the Wisconsin
Statutes are to the 2019-20 version unless otherwise noted.
2
Mathews and Eric’s mother were separated, and Eric spent Saturdays overnight with
Mathews during the charged time period between 2010 and 2012.
2
No. 2019AP2319-CR
a guilty verdict, and Mathews was given a total sentence in excess of thirty years’
imprisonment.
¶4 Prior to sentencing, Mathews’ trial attorney filed a motion
challenging the sufficiency of the evidence and seeking to change the verdict
answer to not guilty. That motion was denied after Mathews obtained
postconviction counsel.3 Counsel then filed a postconviction motion raising four
issues: (1) prosecutorial misconduct; (2) various instances of ineffective
assistance of counsel; (3) improper witness opinions vouching for the victim’s
credibility; and (4) the inherent incredibility of the victim’s testimony. The circuit
court denied the motion following a Machner hearing.4 Mathews now appeals,
renewing the same claims he made in his postconviction motion.
DISCUSSION
I. Prosecutorial Misconduct
¶5 Eric’s mother, Tanya, testified during the trial. During
cross-examination, Mathews’ trial attorney asked her whether she noticed that Eric
had trouble sitting down or had “problems with bowel movements” after returning
from Mathews’ care. Tanya testified that over time, Eric’s stools “became
extremely large, like, they would start plugging toilets kind of thing,” which
ultimately caused them to seek medical care. Mathews’ attorney also asked if it
3
Mathews does not appeal from the order denying his motion challenging the
sufficiency of the evidence. Nonetheless, no postconviction motion is necessary to raise such a
challenge on appeal. See WIS. STAT. § 974.02(2). To the extent Mathews argues the evidence
was insufficient to support his conviction, such an argument is effectively foreclosed by our
conclusion that the victim’s testimony was not incredible as a matter of law.
4
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
3
No. 2019AP2319-CR
was correct that she had not noticed blood spots in his underwear, pants or bed
sheets when she was doing laundry. She testified, “That is correct—I mean, not
anything that was excessive to where I was, like, oh, my gosh, this is blood stained
or … anything like that.”
¶6 During the defense’s closing argument, Mathews’ trial attorney
repeatedly urged the jury to apply common sense to find Eric’s sexual assault
allegations incredible given the lack of accompanying physical injuries, among
other reasons. In rebuttal, the prosecutor contended that there was physical
evidence that consisted of “large stools” and “blood, a little bit.” The prosecutor
added that it was speculative for defense counsel to suggest “that there must be an
injury in order for there to have been a sexual assault,” adding:
I will also say one final thing, again, using your common
sense and whatever experience you have with penises and
their size, when erect or not, what comes out is about the
same size and certainly was that size by what [Tanya] was
describing to you was coming out of her son when she did
take him to a doctor.
So if something can come out, something we do every
single day, something can go in without injury. Please use
your common sense.
Mathews contends this line of rebuttal argument constituted prosecutorial
misconduct.
¶7 We review a circuit court’s decision on a motion for a new trial
based on prosecutorial misconduct for an erroneous exercise of discretion. State v.
Patterson, 2010 WI 130, ¶56, 329 Wis. 2d 599, 790 N.W.2d 909. As the State
notes, Mathews’ counsel did not object to the prosecutor’s rebuttal argument that
Mathews now challenges. This omission typically operates as a forfeiture of the
issue, and we are required to analyze it using the ineffective assistance of counsel
4
No. 2019AP2319-CR
framework. See State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613
N.W.2d 606; see also State v. Counihan, 2020 WI 12, ¶28, 390 Wis. 2d 172, 938
N.W.2d 530.
¶8 In his reply brief, Mathews argues that the challenged rebuttal
argument constitutes “plain error” for which no objection was necessary. Plain
error is an error so fundamental that a new trial or other relief must be granted
even though the action was not objected to at the time. State v. Jorgensen, 2008
WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. When a defendant alleges a
prosecutor’s statements constitute plain error, we must determine whether the
statement so infected the trial with unfairness that the resulting conviction
constitutes a denial of due process. Davidson, 236 Wis. 2d 537, ¶88.
¶9 Having considered the prosecutor’s statements at issue, we conclude
they do not rise to the level of plain error. We use the plain error doctrine
sparingly. Jorgensen, 310 Wis. 2d 138, ¶21. Here, for reasons we explain more
fully below, we conclude the prosecutor’s statements were not so impermissible as
to taint the trial with unfairness. The gist of the prosecutor’s statements was to
urge the jurors to use their common sense in evaluating the evidence, just as
defense counsel had suggested during his closing argument. Accordingly, any
assertion that the prosecutor overstepped the permissible boundaries of argument
was forfeited and must be addressed under the ineffective assistance of counsel
framework.
II. Ineffective Assistance of Counsel
¶10 To demonstrate constitutionally ineffective assistance, a defendant
must show both that counsel’s performance was deficient and that it prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate
5
No. 2019AP2319-CR
deficient performance, a defendant must show that counsel’s performance fell
below an objective standard of reasonableness by demonstrating that counsel made
errors so serious that he or she was not functioning as the counsel guaranteed by
the Sixth Amendment. State v. Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1, 951
N.W.2d 838. We afford great deference to trial counsel’s conduct and presume
that it fell within the wide range of reasonable professional assistance. Id.¶11 To demonstrate prejudice, a defendant must show that counsel’s
errors were so serious that the defendant was deprived of a fair trial. Id., ¶32.
There must be “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. A reasonable probability is a probability sufficient to undermine our
confidence in the outcome. See id.¶12 We review ineffective assistance claims using a mixed standard of
review. Savage, 395 Wis. 2d 1, ¶25. We will not overturn the circuit court’s
findings regarding the factual circumstances of the case and trial counsel’s
conduct and strategy unless those findings are clearly erroneous. Id. We
determine de novo, however, whether trial counsel provided constitutionally
deficient performance and, if so, whether that performance prejudiced the
defendant. Id. If the defendant fails to satisfy either prong, we need not consider
the other. Id.A. Prosecutor’s Rebuttal Closing Argument
¶13 Reviewing the prosecutorial misconduct issue under the ineffective
assistance of counsel framework, we conclude Mathews has failed to demonstrate
either deficient performance or prejudice arising from his trial attorney’s failure to
object to the prosecutor’s closing argument or to move for a mistrial. During the
6
No. 2019AP2319-CR
postconviction proceedings, Mathews’ trial counsel testified he did not object to
the prosecutor’s statements because he viewed them as permissible argument and
“didn’t see it as being as what the case hinged upon.”
¶14 Considering the challenged argument in context, we do not share
Mathews’ concern that it was improper commentary upon matters not in evidence.
Rather, the argument was based upon inferences that could be drawn from Tanya’s
testimony, was consistent with the jury’s instruction to use common sense when
evaluating the evidence, and was responsive to defense counsel’s emphasis on
“common sense” during his closing argument. Moreover, we will not
second-guess trial counsel’s affirmative decision to forgo an objection because the
challenged statements were not likely to influence the jury’s deliberations. See
State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93. The jury
was also instructed that the arguments of the attorneys are not evidence, and we
presume the jury obeyed that instruction. See State v. LaCount, 2008 WI 59, ¶23,
310 Wis. 2d 85, 750 N.W.2d 780.
¶15 Mathews raises a related allegation of ineffective assistance of
counsel pertaining to his trial counsel’s cross-examination of Tanya. Essentially,
Mathews argues that when his trial attorney questioned Tanya about Eric’s stools,
he inadvertently wound up discrediting his assertion that there was no physical
evidence that would support a finding that the sexual assaults occurred. Mathews
argues that his trial counsel therefore committed constitutional error by “help[ing]
the State prove its case.”
¶16 We conclude that Mathews’ trial counsel’s conduct in this regard
was neither deficient nor prejudicial. During the postconviction hearing, counsel
testified it was an “off-the-cuff” question that backfired. The trial transcript
7
No. 2019AP2319-CR
supports counsel’s testimony that he “was looking at more whether there was
incontinence, injury, contusions, complaint of pain issues.” Although the line of
questioning led to the inadvertent testimony regarding stool size, it was a
reasonable trial strategy for defense counsel to attempt to elicit testimony that
supported the theory that Eric lied about the assaults. Moreover, counsel
successfully elicited Tanya’s testimony that the medical examination revealed no
obvious injuries, no infections, and no fissures or scarring. Regarding prejudice, it
is not reasonably probable that, absent Tanya’s testimony about large stools, the
jury would have disbelieved Eric’s testimony and rejected his sexual assault
allegations.
B. Investigation and Witness Preparation
¶17 Mathews raises a bevy of issues, with the main theme being that his
trial attorney failed to conduct adequate pretrial investigation and engaged in
unreasonable trial strategy by calling only one witness during the defense’s case.
Within this theme, Mathews specifically argues his trial counsel should
have: (1) called as witnesses the family members involved in Eric’s false
homicide claims to diminish Eric’s credibility; (2) contacted Mathews’ former
roommates and neighbors, who would have purportedly testified that they never
saw the assaults or witnessed Eric alone outside for long periods of time after he
fled the house; (3) presented evidence that Eric and his brother had reenacted a sex
scene in April 2011 from a film they had watched; and (4) presented more than a
single witness as part of the defense case, which consisted solely of the school
counselor to whom Eric had made the false homicide allegations.
¶18 We conclude that none of these allegations establish that trial
counsel was deficient, nor has Mathews shown that he was prejudiced by any
8
No. 2019AP2319-CR
alleged deficiency. Eric admitted at trial that he had previously fabricated murder
allegations against his father, a point that the defense highlighted repeatedly.
Additional testimony from family members that those homicides had not occurred
would therefore have been redundant. Whatever “bolstering” effect the testimony
might have had was marginal at best, given that Eric conceded at trial that the
homicide allegations were false. It was neither deficient performance nor
prejudicial for trial counsel to decide not to call those individuals to testify at trial.
¶19 Mathews’ trial counsel also did not perform deficiently by failing to
further investigate or call as witnesses Mathews’ former roommates or neighbors.
Mathews’ trial counsel decided that it would not have substantially contributed to
the defense case to call former roommates to “say what they saw or did not see,”
because the State could easily rebut that testimony by eliciting, during
cross-examination, that the person had not been present with Mathews to observe
his conduct at all times. Similarly, trial counsel stated that, because of the time
lapse involved, he elected not to attempt to contact neighbors who had lived near
the locations of the alleged assaults nearly ten years prior.
¶20 Moreover, Mathews has not suggested that any individual he claims
his trial counsel was supposed to interview could testify to anything more than that
the individual had not witnessed anything out of the ordinary. 5 As trial counsel
noted in his postconviction testimony, the State could easily rebut any such
5
It appears to be merely Mathews’ supposition that his former roommates and neighbors
could testify even in that manner. Mathews did not attach any affidavits to his postconviction
motion, nor did anyone other than Mathews and his trial counsel provide testimony at the
Machner hearing. See State v. Arredondo, 2004 WI App 7, ¶40, 269 Wis. 2d 369, 674 N.W.2d
647 (“When a defendant claims that trial counsel was deficient for failing to present testimony,
the defendant must allege with specificity what the particular witness would have said if called to
testify.”).
9
No. 2019AP2319-CR
testimony by pointing out that the witness was not present with Mathews at all
times or by making the argument that “just because you didn’t see it doesn’t
mean … it didn’t happen.” Testimony of the nature Mathews desires from former
roommates and neighbors was not reasonably probable to alter the jury’s
assessment of Eric’s credibility.
¶21 Mathews also faults his trial counsel for failing to present evidence
at trial that Eric and his brother had reenacted, in April 2011, a sex scene they saw
in a film. On appeal, Mathews argues it was deficient performance not to argue
that Eric’s brother was “a possible alternative source of [sexual] knowledge.”
However, Mathews’ trial counsel testified at the Machner hearing that he chose
not to introduce that evidence because he was aware that Tanya claimed Eric was
reenacting a scene from a pornographic film he had watched while at Mathews’
residence. Counsel testified he “certainly didn’t want to open up the door to that
sort of testimony.” We conclude Mathews has failed to establish either deficient
performance or prejudice arising from trial counsel’s refusal to present Eric’s
brother’s testimony.6
¶22 Finally, we reject Mathews’ assertion that his trial attorney
performed deficiently in preparing his defense. Mathews argues the defense
strategy of attacking Eric’s credibility by showing he had previously made false
allegations against his father was irrational and capricious because “[e]vidence
that a witness has lied once in the past is not proof that the witness is lying again.”
6
Additionally, we note Eric admitted at trial that he had researched sexual topics on the
internet, including rape. Thus, trial counsel successfully introduced alternative evidence that
would have allowed the jury to draw the inference that Mathews desires—i.e., that Eric had an
alternative source of knowledge. Trial counsel emphasized this point during his closing
argument.
10
No. 2019AP2319-CR
To the contrary, highlighting what trial counsel referred to as Eric’s prior
“outrageous lie” against his father was a reasonable strategic approach. Moreover,
trial counsel cross-examined Eric about various inconsistencies and
implausibilities in his versions of how the assaults occurred, and he emphasized
the lack of physical evidence or injuries supporting that an assault had occurred.
To the extent Mathews claims his trial counsel failed to adequately investigate or
prepare Strand to testify, the record belies this claim.7
¶23 Although Mathews broadly criticizes his trial attorney’s strategy, we
perceive it to be well within the bounds of constitutionally competent assistance.
As Mathews’ trial counsel testified at the Machner hearing, the focus of the
defense case was to highlight the lack of physical evidence and Eric’s prior false
allegations against his father. Counsel stated that, in his experience, it was not a
good trial tactic to “throw everything at the wall and let the jury pick,” but rather
“it’s better to give them one reasonable hypothesis consistent with innocence.”
This was a reasonable trial strategy. See Breitzman, 378 Wis. 2d 431, ¶65.
Further, Mathews has presented no reason to believe that, even if his trial counsel
had done everything he proposes, there was a reasonable probability that the result
of the proceeding would have been different.
7
Mathews suggests his trial counsel was deficient because he was not certain Strand
would be permitted to testify until the State had presented its case. This suggestion ignores that
his trial counsel’s cross-examination successfully elicited Eric’s denial of certain matters, thereby
ensuring that Strand could testify.
Mathews briefly suggests that his trial attorney should have obtained
“potentially-exculpatory employment records.” Despite this assertion being undeveloped, we
note that Mathews’ trial counsel testified that Mathews had not supplied any information about
his employment records, nor would such records have been probative given the lack of specificity
about when the assaults occurred and the fact that Mathews undisputedly had weekly overnights
with Eric.
11
No. 2019AP2319-CR
C. Impermissible “Vouching” Testimony
¶24 Next, Mathews claims that there were two violations of State v.
Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), to which his trial
counsel failed to object. Under Haseltine, “[n]o witness, expert or otherwise,
should be permitted to give an opinion that another mentally and physically
competent witness is telling the truth.” Id. at 96. At trial, Tanya testified that Eric
has “never been a big storyteller. He’s more of a child of truth, sometimes in that
he gets himself into more trouble, but he’s also been a truth teller.” After the
defense called Strand to testify, the prosecutor asked him whether Eric was “also
known as a truth teller,” to which Strand responded, “Yes.”
¶25 The State responds that Tanya’s and Strand’s testimony was
admissible under WIS. STAT. § 906.08(1). Under that statute, and as relevant here,
a witness’s credibility may be supported by reputation or opinion evidence
establishing that the witness has a character for truthfulness. Sec. 906.08(1)(a).
Such character evidence is admissible “only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.”
Sec. 906.08(1)(b). “Haseltine places limits on the type of evidence that may be
used to support a witness’s character for truthfulness.” State v. Tutlewski, 231
Wis. 2d 379, 386, 605 N.W.2d 561 (Ct. App. 1999).
¶26 We conclude the challenged character evidence was admissible
under WIS. STAT. § 906.08.8 From the very first moments of his opening
statement, defense counsel placed Eric’s credibility at issue, thereby opening the
8
Because we conclude the challenged character evidence was admissible, it necessarily
follows that it was not plain error to admit such evidence, contrary to Mathews’ claims.
12
No. 2019AP2319-CR
door for evidence regarding Eric’s character for truthfulness. See State v.
Eugenio, 219 Wis. 2d 391, 402, 579 N.W.2d 642 (1998). The assertions
regarding Eric’s credibility pertained not only to the allegations at hand, but also
to other instances in which Eric was found to have lied, thereby constituting an
attack upon Eric’s general character for truthfulness. See id. at 404-05. The
challenged testimony did not go so far as to violate Haseltine and was limited to
Eric’s general character for truthfulness.
¶27 Mathews has failed to demonstrate his trial attorney was ineffective
under these circumstances. “It is well-established that trial counsel could not have
been ineffective for failing to make meritless arguments.” State v. Allen, 2017 WI
7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 245. Mathews’ assertion that this case is
analogous to Earls v. McCaughtry, 379 F.3d 489 (7th Cir. 2004), is unavailing.
Earls recognized that “there is a line between admissible testimony that goes to a
witness’s general reputation for truthfulness and inadmissible testimony that goes
to whether a witness is being truthful in a specific instance.” Id. at 495. Certain
testimony in Earls was of the latter nature, see id. at 493, whereas the challenged
testimony here falls entirely within the former category.
D. Eric’s Cross-Examination
¶28 Mathews also argues his trial attorney’s efforts to cross-examine
Eric were insufficient. In particular, Mathews argues his trial counsel should have
asked Eric about medications that “potentially” could have impaired Eric’s
cognition and memory. He also asserts his counsel should have pressed Eric
further on the improbability of the sexual acts occurring when he and Mathews
were physically positioned as he had described. Finally, Mathews argues his
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No. 2019AP2319-CR
attorney “failed to follow up with [Eric’s] multiple contradictions at trial” and
“failed to impeach several inconsistencies in [Eric’s] testimony.”
¶29 We agree with the State’s explanation of why Mathews has failed to
demonstrate ineffective assistance of counsel in any of these respects. Regarding
the medications, Mathews’ trial counsel testified that he would have so questioned
Eric if he had noticed any indication of impairment at trial, but he saw no such
signs. Mathews does not explain what information he believes would have been
probative had it been elicited by his attorney, nor does he explain why any such
information would have been reasonably probable to change the jury’s assessment
of Eric’s credibility. In any event, the jury could reasonably infer that Eric was on
some medication, as Eric testified during cross-examination, “[B]efore I was on
pills, I used to, like, just break everything and sit and pout at the dog for hours.”
¶30 Regarding Mathews’ trial attorney’s efforts to impeach Eric, our
review of the record demonstrates that his performance was within permissible
constitutional boundaries. During Eric’s cross-examination, Mathews’ trial
counsel laid the foundation for Strand’s testimony, in part by questioning Eric
about his prior false accusations of homicide against his father and exactly what he
had told Strand about those events. During closing argument, trial counsel noted
that during cross-examination Eric had denied telling Strand some things, whereas
Strand had affirmed that Eric had, in fact, made those statements to him.
¶31 Moreover, Mathews’ trial counsel elicited testimony during
cross-examination recounting details of the assaults that Eric had not mentioned
during the forensic interview. This testimony allowed counsel to further impugn
Eric’s credibility during closing argument by asserting it was improbable that
Eric’s memory was now better, two years later. Trial counsel also noted that Eric
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No. 2019AP2319-CR
made claims at trial that “we’ve never heard before” and that Eric had “never
mentioned [to Strand]. He says he was able to remember it today though.”
¶32 Counsel also elicited extensive testimony on cross-examination
regarding the precise physical positions Eric claimed that he and Mathews were in
when the assaults occurred and how Eric was able to escape. During closing
argument, counsel emphasized repeatedly the point that “[c]ommon sense tells you
that the accusations we heard on that video are implausible in the way they were
described.” Counsel further argued that the details Eric added at trial to his
statements from the forensic interview were, at best, improbable regarding how
the assaults occurred. Counsel emphasized: “Every time we get a vague
description how this occurred. Every time this five-year-old child is able to
physically knock back his fully grown father by pushing, hitting him, kicking him,
and every time he runs away, and that’s the end of the story.” Counsel’s
arguments questioned how Eric could have had time to dry off from the shower,
clothe himself, and escape from the residence if his father was still chasing after
him, as Eric had described. And counsel also repeatedly cast doubt that the
assaults could have happened in the positions Eric described, arguing at various
points that he did not know how Eric’s description “would work” or “how the
mechanics of that one are even possible here.”
¶33 To the extent Mathews suggests his trial attorney should have done
more, we reject the notion that the failure to do so rendered his trial counsel
constitutionally deficient. At the Machner hearing, counsel testified that he did
not attempt to impeach “every single inconsistency in the video” because he
“didn’t want to rehash the entire forensic interview. The jury heard it. They saw
it. I thought it a better tactic to point out the big, major points and then talk about
everything else in closing.”
15
No. 2019AP2319-CR
¶34 Although Mathews suggests this tactic was contrary to State v.
Coleman, 2015 WI App 38, 362 Wis. 2d 447, 865 N.W.2d 190, we disagree with
the notion that that case is analogous. The “minor detail” at issue there was a
police report containing the father’s statement that, the evening following an
alleged sexual assault of his daughter, he witnessed the victim sitting with the
defendant watching television. Id., ¶¶36, 39. This statement directly contradicted
the victim’s trial testimony that she went to bed early to avoid the defendant.
Id., ¶36. Although this case, like Coleman, primarily turned on the victim’s
credibility, none of the alleged failures of Mathews’ trial counsel during
cross-examination involve facts of nearly as much import.
¶35 In sum, we conclude the challenged conduct by Mathews’ trial
counsel was within the wide range of professionally competent assistance
guaranteed by the Sixth Amendment. Moreover, none of the alleged errors, either
individually or in combination, undermine our confidence in the outcome of the
trial.
III. Victim’s Credibility
¶36 Mathews asserts the victim’s trial testimony was incredible as a
matter of law, and therefore his conviction cannot stand. “[O]nly when testimony
is inherently or patently incredible will this court substitute its judgment for that of
the fact finder.” State v. Jacobs, 2012 WI App 104, ¶17, 344 Wis. 2d 142, 822
N.W.2d 885. Evidence is inherently or patently incredible when it is “in conflict
with nature or fully established or conceded facts.” Id., ¶20 (citation omitted).
¶37 Mathews argues this standard has been met because the physical
positions in which Eric described the assaults occurring, as well as his
explanations of how he was able to overpower Mathews, are “improbable if not
16
No. 2019AP2319-CR
impossible” given Mathews’ “size and lack of flexibility.” Assessments of this
nature are best left to the jury. See Nabbefeld v. State, 83 Wis. 2d 515, 529, 266
N.W.2d 292 (1978). Suffice it to say, we do not perceive Eric’s testimony to
conflict with the laws of nature such that he should be deemed incredible as a
matter of law.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
17