Daniel Wilson v. Gary Boughton

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2938
DANIEL M. WILSON,
Petitioner-Appellant,
v.
GARY A. BOUGHTON,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:19-cv-1016 — William C. Griesbach, Judge.
____________________
ARGUED MAY 18, 2022 — DECIDED JULY 19, 2022
____________________
Before SYKES, Chief Judge, and HAMILTON and KIRSCH, Cir-
cuit Judges.
KIRSCH, Circuit Judge. A Wisconsin jury convicted Daniel
Wilson of sexually assaulting his girlfriend’s young daughter,
and the Wisconsin appellate courts affirmed. Wilson unsuc-
cessfully sought habeas relief in federal district court and now
appeals to us, arguing that the evidence could not support his
conviction and that his counsel’s representation was
2 No. 20-2938
constitutionally deficient. But the Wisconsin courts reasona-
bly found neither to be true, so we affirm.
I
In June 2013, Daniel “Trey” Wilson rekindled a romantic
relationship with Jeanette Yegger, with whom he shares a
child named Anthony. Yegger had four other children not fa-
thered by Wilson; the oldest was FT, who, at that time, was
seven years old and had special needs. At the outset of the
rekindled relationship, Yegger was living with her five chil-
dren and mother on Buffum Street in Milwaukee, and Wilson
stayed there only occasionally. But those living arrangements
changed in November 2013 when the couple moved with
Yegger’s five children into a house on 6th Street.
Within months of the move, the Bureau of Milwaukee
Child Welfare received reports of physical abuse and unex-
plained injuries on Yegger’s children. It therefore placed Yeg-
ger on a protective plan in May 2014, which required a pro-
tective adult to supervise Yegger’s continued custody of her
children. Originally, Yegger’s sister acted as that adult at the
6th Street house from May 5 to May 13. But that did not work
out, so Wilson’s mother, Armer Lloyd—whom FT called “An-
thony’s granny”—agreed to take over, and the family moved
to Lloyd’s house on 28th Street on May 13, 2014.
One week later, on May 20, the Bureau removed all five
children from Yegger’s custody for placement with foster
families. Each child received a medical checkup at the Chil-
dren’s Hospital of Wisconsin’s Child Protection Center; FT’s
checkup was with pediatric nurse practitioner Debra Bretl.
During the checkup, Bretl observed five genital lesions on FT.
As Bretl made that observation, FT cried in response:
No. 20-2938 3
“Someone did this to me,” and, presumably referring to the
instrument Bretl used during the exam, “Take it out.”
FT had a follow-up appointment with pediatrician Judy
Guinn three days later. Dr. Guinn observed genital and anal
lesions, and an antibody test later allowed her to diagnose
them as herpes.
Five days later, on May 28, FT spoke with Amanda Didier,
a forensic interviewer at the Hospital’s Child Protection Cen-
ter, in a recorded video interview. FT recounted eight times
that she had been sexually assaulted by Wilson, and police
arrested Wilson later that day.
The State charged Wilson with Engaging in Repeated Acts
of Sexual Assault of the Same Child in violation of Wis. Stat.
§ 948.025. One element of that offense requires at least three
qualifying acts to occur “within a specified period of time.”
Id. § 948.025(1). The State specified this period as January 1,
2013 through May 5, 2014.
During the three-day jury trial on this charge, FT, Wilson,
Yegger, Didier, and Guinn, among others, testified. The judge
instructed the jury that it could find Wilson guilty of the
lesser-included offense of First-Degree Sexual Assault of a
Child, Wis. Stat. § 948.02(b), which requires only a single
qualifying act, instead of the greater charged offense, which
requires three. But the jury found Wilson guilty of the greater
offense, § 948.025(1).
At sentencing, Wilson maintained his innocence to which
the judge, who also presided at trial, responded, “[T]here was
based upon my hearing of the case overwhelming testimony
that you committed these outrageous assaults against that
4 No. 20-2938
little girl.” The judge then sentenced Wilson to 37 years’ im-
prisonment with 13 years of extended supervision.
In a post-conviction motion, Wilson argued that the evi-
dence could not support his conviction and that his counsel’s
performance was constitutionally deficient. The trial court de-
nied his motion, the Wisconsin Court of Appeals affirmed,
and the Wisconsin Supreme Court denied Wilson’s subse-
quent petition for review.
Wilson then filed a habeas petition challenging his convic-
tion, again arguing that the evidence was insufficient and his
counsel’s performance inadequate. The district court denied
the petition but issued a certificate of appealability for each
claim, and Wilson appealed.
II
We start with Wilson’s sufficiency-of-the-evidence chal-
lenge. See Jackson v. Virginia, 443 U.S. 307 (1979). Under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), we can grant habeas relief only under a few, lim-
ited circumstances. See 28 U.S.C. § 2254(d). Wilson argues
that one such circumstance applies here. In his view, the Wis-
consin Court of Appeals reached its decision to reject his suf-
ficiency-of-the-evidence challenge “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” Id. § 2254(d)(2).
But Wilson has invoked the wrong AEDPA provision on
appeal. The Wisconsin Court of Appeals did not purport to
make any factual determinations in affirming his conviction.
See Lopez v. Smith, 574 U.S. 1, 8 (2014) (per curiam) (holding
that a court’s determination on whether a set of facts “meas-
ure[d] up to the [applicable legal] standard …. ranked as a
No. 20-2938 5
legal determination governed by § 2254(d)(1), not one of fact
governed by § 2254(d)(2)”). Instead, it merely cited the record
to reach its legal conclusion that the jury had enough eviden-
tiary support to find Wilson guilty of the charged offense un-
der Jackson v. Virginia. We thus address his challenge under
§ 2254(d)(1) rather than (d)(2). Under this provision, we can
grant habeas relief only if Wilson’s state adjudication “re-
sulted in a decision that was contrary to, or involved an un-
reasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
To succeed, “a petitioner must persuade a federal court
that no fairminded jurist could reach the state court’s conclu-
sion” under Supreme Court precedents. Brown v. Davenport,
142 S. Ct. 1510, 1525 (2022) (citation omitted and cleaned up).
“The question under AEDPA is thus not whether a federal
court believes the state court's determination was incorrect,
but whether that determination was unreasonable—a sub-
stantially higher threshold for a prisoner to meet.” Shoop v.
Twyford, 142 S. Ct. 2037, 2043 (2022) (citation omitted).
Under Jackson v. Virginia, the relevant Supreme Court
precedent, evidence is constitutionally sufficient if, “after
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” 443 U.S. at
319. This standard requires courts to presume that the trier of
fact resolved any conflicting inferences in the prosecution's
favor and to “defer to that resolution.” Id. at 326. Given these
two layers of deference under AEDPA and Jackson, habeas pe-
titioners pressing Jackson-based claims “face a high bar.” Cole-
man v. Johnson, 566 U.S. 650, 655–56 (2012) (per curiam).
6 No. 20-2938
The charge for which Wilson was convicted requires three
acts of “sexual intercourse with a person who has not attained
the age of 12 years.” Wis. Stat. §§ 948.025(1)(b); 948.02(1)(b).
The Wisconsin Court of Appeals held the evidence sufficient
to convict Wilson because the jury heard FT describe at least
three qualifying acts of sexual assault “at the homes where the
family had lived during the specified time frame.” Wilson ar-
gues that this explanation unreasonably construed the trial
record which resulted in an unreasonable application of Jack-
son v. Virginia. According to Wilson, FT testified that all but
one of the qualifying acts occurred when the family lived with
Wilson’s mother from May 13–20, 2014, a period after the
State’s specified timeframe ended on May 5.
We do not find the Wisconsin Court of Appeals’ explana-
tion unreasonable. It’s true that, at trial, FT clearly testified
about only one act that neatly fits Wisconsin’s definition of
“sexual intercourse” 1 during the State’s specified period. She
testified that Wilson “touched [her] behind with his mouth”
after pulling her pants down when she was asleep “at my
house,” not “Anthony’s granny’s house.” All agree that “my
house” refers to the 6th Street house, in which the family lived
until May 13, 2014. Although it’s possible that this assault oc-
curred during the eight days after the State’s specified period
ended (May 5) but before the family’s move from the 6th
Street house (May 13), we do not understand Wilson to
1 “[S]exual intercourse” is defined to mean: “vulvar penetration as well as
cunnilingus, fellatio or anal intercourse between persons or any other in-
trusion, however slight, of any part of a person’s body or of any object into
the genital or anal opening either by the defendant or upon the defend-
ant’s instruction. The emission of semen is not required.” Wis. Stat.
§ 948.01(6).
No. 20-2938 7
challenge the sufficiency of the evidence for this one act. At
oral argument, Wilson’s counsel agreed that this assault could
have occurred during the charging period. Indeed, we don’t
see how he could have argued otherwise. The jury heard that
Wilson lived with FT at the 6th Street house where the assault
occurred for 185 days within the State’s specified period.
That’s one qualifying act, but two more are needed. See
Wis. Stat. § 948.025(1)(b) (requiring “at least three” qualifying
acts). During her videotaped forensic interview (submitted to
the jury as substantive evidence), FT shared that Wilson per-
formed at least two other sex acts fitting Wisconsin’s defini-
tion of “sexual intercourse” without specifying when or
where those acts occurred. First, she said that Wilson “pulled
his pants down” and “put his private part in my mouth,”
which felt “nasty.” She said that he “tried to open [her] mouth
so that he could pee in [her] mouth” and that “he peed on
[her] hair,” which looked like “spit” that she had to wipe off.
Second, FT stated that, on another occasion, Wilson made
her “open up her legs,” touched her with his “nasty fingers”
and “digged in there,” and made her “touch his private part.”
And she went further, demonstrating Wilson’s actions by
placing a male doll on top of a little girl doll.
Given this video evidence, we disagree with Wilson’s con-
tention that FT’s trial testimony conclusively shows that the
rest of the qualifying acts occurred outside the State’s speci-
fied timeframe. If anything, FT’s statements at trial and in the
video were merely inconsistent. The jury could have resolved
that inconsistency by crediting FT’s testimony about what
acts occurred but discounting her accounts of where or when
they occurred.
8 No. 20-2938
At trial, FT testified about at least four different instances
of sexual abuse that occurred at “Anthony’s Granny’s house.”
But recall that FT stayed at that house for less than a week
before she and the other children were removed. Given the
limited timeframe in which she lived there with Wilson, a ra-
tional jury could have found FT mistaken on the location or
dates of her abuse. Such confusion would not be uncommon
for a child, especially one with special needs suffering from
repeated acts of sexual abuse across several homes. Cf. State
v. Schultz, 939 N.W.2d 519, 538 (Wis. 2020) (“[C]hildren are
often incapable of remembering traumatic incidents by the
day, week, or month … .”); State v. Fawcett, 426 N.W.2d 91, 94
(Wis. Ct. App. 1988) (“Young children cannot be held to an
adult's ability to comprehend and recall dates and other spe-
cifics.”).
Indeed, the jury saw for itself that this might have been the
case. In her forensic interview on May 28, 2014, FT repeatedly
referred to events happening “last night,” “this morning,”
“yesterday,” and “today,” even though she was living with a
foster family at the time of the interview. So a rational jury
could have easily inferred that the acts occurred during the
State’s specified timeframe. And we have no reason to doubt
that the jury carefully weighed the number of qualifying acts;
indeed, it rejected the lesser included offense instruction that
would have allowed it to convict Wilson for only one—rather
than three—acts.
In sum, the Wisconsin Court of Appeals reasonably found
that a rational jury could view the evidence before it as
enough to satisfy the three requisite acts of sexual assault.
AEDPA deference therefore applies, so we reject Wilson’s suf-
ficiency-of-the-evidence claim.
No. 20-2938 9
III
We now turn to Wilson’s second claim: that his counsel’s
performance fell below the constitutional minimum. Our re-
view is once again limited by AEDPA under 28 U.S.C.
§ 2254(d)(1). The clearly established precedent here is Strick-
land v. Washington, 466 U.S. 668 (1984), which held that a crim-
inal defendant’s Sixth Amendment right to counsel may be
violated by his counsel’s deficient performance.
To establish a Strickland violation, a prisoner must show:
(1) deficient performance and (2) prejudice resulting from it.
Id. at 687; Corral v. Foster, 4 F.4th 576, 581 (7th Cir. 2021). In
considering a Strickland-based habeas petition, which neces-
sarily involves “general, fact-driven standards,” “deference to
the state court should … be[] near its apex.” Sexton v.
Beaudreaux, 138 S. Ct. 2555, 2560 (2018) (per curiam); see
Brown, 142 S. Ct. at 1530 (“[W]hen it comes to AEDPA, the
more general the federal rule, the more leeway state courts
have in reaching outcomes in case-by-case determinations be-
fore their decisions can be fairly labeled unreasonable.”) (ci-
tation omitted and cleaned up).
Wilson contends that his trial counsel’s performance was
constitutionally deficient for two reasons. First, he argues that
his counsel should have objected to the admission of notes in
FT’s medical record on Confrontation Clause grounds. And
second, he insists that his counsel should have objected to cer-
tain “profile” testimony as unfairly prejudicial. We address
and reject each contention in turn.
A
During FT’s May 20, 2014 examination with pediatric
nurse practitioner Debra Bretl, Bretl took notes recording that
10 No. 20-2938
FT had five “lesions in her genital region” and that FT cried,
“Someone did this to me,” and “Take it out.” Laboratory test-
ing later revealed that FT had antibodies for Type I herpes (a
disease Wilson also had). At trial, FT’s medical records were
admitted without objection, and Dr. Guinn read Nurse Bretl’s
notes into the record. After the State closed its case, Wilson’s
counsel argued that Nurse Bretl needed to testify. But the trial
judge rejected that argument. On appeal, the Wisconsin Court
of Appeals found that Wilson’s counsel’s performance was
adequate because FT’s medical records were nontestimonial
and thus did not violate the Confrontation Clause.
Wilson argues that the Wisconsin Court of Appeals unrea-
sonably applied Strickland in reaching this holding. To start,
Wilson asks us to ignore the fact that his counsel did object to
the admission of Nurse Bretl’s notes due to her absence. But
even if we agreed to ignore that fact (say, because Wilson’s
counsel did not timely or clearly raise the objection), it’s evi-
dent that a fairminded jurist could reach the same conclusion
as the Wisconsin Court of Appeals. See Brown, 142 S. Ct. at
1525.
The Sixth Amendment guarantees the accused in a crimi-
nal prosecution “the right … to be confronted with the wit-
nesses against him,” which prevents the admission of testi-
monial evidence absent confrontation. U.S. Const. amend. VI;
Crawford v. Washington, 541 U.S. 36, 68 (2004). Yet the amend-
ment offers no similar protection for nontestimonial state-
ments. See Crawford, 541 U.S. at 68. Beyond certain “core” cat-
egories of protected testimonial statements, Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 310 (2009) (citing Crawford, 541
U.S. at 51–52), the Supreme Court determines whether a state-
ment is testimonial by looking to its “primary purpose,” Ohio
No. 20-2938 11
v. Clark, 576 U.S. 237, 244 (2015) (citation omitted). If a declar-
ant makes a statement primarily intending for it to establish
some fact in a criminal prosecution, then the statement is tes-
timonial. Cf. id. at 237, 244, 247 (holding that preschooler’s
statements to teacher were nontestimonial because the
teacher’s questions were aimed “to protect the victim from fu-
ture attacks” and not to “arrest or punish” the abuser).
As relevant here, the Court has said that “medical reports
created for treatment purposes … would not be testimonial.”
Melendez-Diaz, 564 U.S. at 312 n.2; see Bullcoming v. New Mex-
ico, 564 U.S. 647, 672 (2011) (suggesting that reports “neces-
sary to provide … medical treatment” are not testimonial);
Giles v. California, 554 U.S. 353, 376 (2008) (“[S]tatements to
physicians in the course of receiving treatment would be ex-
cluded, if at all, only by hearsay rules[.]”). To determine
whether a medical report has been made for treatment pur-
poses, we ask “whether there is an objectively ascertainable
medical reason for the inquiry.” United States v. Norwood, 982
F.3d 1032, 1050 (7th Cir. 2020). And we’ve said that when a
medical provider asks a “victim who has suffered assault or
injury” what happened, “[t]he primary purpose … is to pro-
vide medical treatment, not to further an investigation.” Id.In Wilson’s view, two admitted pieces of evidence were
testimonial: (1) Nurse Bretl’s notes about her examination of
FT and (2) FT’s positive herpes test. We think the Wisconsin
Court of Appeals reasonably found both nontestimonial.
A fairminded jurist could have found Nurse Bretl’s notes
nontestimonial for several reasons. First, Bretl took her notes
before any sexual abuse was suspected and before any sus-
pect, let alone Wilson, was identified. Nurse Bretl examined
FT on May 20, 2014, the day all five children were removed
12 No. 20-2938
from Yegger’s custody and evaluated at what was “basically
… a checkup at the doctor” and a “standard procedure for
when [a] child is removed [from a] home and placed in foster
care.” By the date of Bretl’s examination, no one had leveled
sexual abuse allegations against Wilson, nor had FT reported
any sexual abuse. It’s thus unlikely that Nurse Bretl recorded
her observations with an eye towards Wilson’s later trial. See
Williams v. Illinois, 567 U.S. 50, 58 (2012) (plurality opinion)
(finding it significant that DNA report “was produced before
any suspect was identified”).
Second, Nurse Bretl was not a law enforcement officer,
and the setting which generated Bretl’s notes did not resem-
ble a formal interrogation. Although the parties call Nurse
Bretl a “sexual assault nurse examiner” (SANE), see Norwood,
982 F.3d at 1046 (noting that a SANE “can serve both a medi-
cal and investigative function”), we haven’t found that term
in the record outside the government’s opening and closing
arguments. All we know from the record evidence is that Bretl
was a pediatric nurse practitioner. And even if Bretl were a
SANE, nothing suggests that she was “principally charged
with uncovering and prosecuting criminal behavior” rather
than performing medical care. Clark, 576 U.S. at 249. Without
contrary evidence, we presume that “physicians and nurses’
primary concern is the treatment of their patients.” Norwood,
982 F.3d at 1049.
Moreover, we lack evidence that the setting in which Bretl
performed her examination of FT resembled a formal interro-
gation. From what we can tell, no police officer joined FT for
the examination. See id. at 1049 (a statement is less likely to be
testimonial “when the only people in the room are the medi-
cal provider and the victim”). And if the examination was
No. 20-2938 13
anything like Dr. Guinn’s (performed at the same center three
days later), then it certainly did not resemble a formal inter-
rogation. Dr. Guinn testified that her examination did not
seek to prove sexual abuse and that she asked FT no questions
about what happened. In Dr. Guinn’s view, those tasks were
better performed by a professional, trained interviewer, such
as the one who questioned FT on May 28 (the day she first
identified Wilson as her abuser). For these reasons, a fair-
minded jurist could hold Nurse Bretl’s notes nontestimonial
because she made them for the primary purpose of providing
medical treatment, not to further a criminal investigation. See
id. at 1050.
We reach the same conclusion for FT’s herpes testing. Dr.
Guinn (who ordered the testing) testified that the Hospital
“routinely test[s] for” sexually transmitted diseases, that she
“did not ask [FT] about what happened when [she] examined
her,” and that she was “not looking to prove sexual abuse.”
There was thus “an objectively ascertainable medical reason”
for the testing—to diagnose FT so that she could receive
proper treatment for her lesions. Id. And even if Dr. Guinn
intended to address sexual abuse through the STD testing, a
fairminded jurist could conclude that she “primarily aimed at
identifying and ending the threat” and “meant … to protect
[FT] from future attacks,” rather than using this as evidence
in a later prosecution. Clark, 576 U.S. at 247. A fairminded ju-
rist, after finding no Confrontation Clause violation, could
also conclude that Wilson’s counsel was not deficient in fail-
ing to object to these medical records. So the Wisconsin Court
of Appeals’ decision requires deference under AEDPA.
14 No. 20-2938
B
We now turn to Wilson’s argument that his counsel
should have objected to certain “profile” testimony as un-
fairly prejudicial. One of the State’s experts testified that “in-
terfamilial sexual abuse” is the “most common type of sexual
abuse” she sees and agreed that a mother’s boyfriend would
fit into this category. Another testified that the “vast majority
of cases of sexual abuse” of children involve perpetrators
“who are either relatives or acquaintances” of the child. The
Wisconsin Court of Appeals found this evidence relevant and
concluded that counsel’s failure to object did not constitute
deficient performance or cause unfair prejudice.
We need address only the unfair prejudice aspect of the
Wisconsin Court of Appeals’ decision. Even if Wilson’s coun-
sel acted deficiently in not objecting, a fairminded jurist could
conclude that Wilson suffered no prejudice because there was
not “a reasonable probability” that, “but for counsel's … er-
ror[], the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. These experts added little to the
State’s case. A reasonable person would likely know that rel-
atives and acquaintances are a frequent source of child abuse
(after all, these are the people with unsupervised access to
children). And in any event, the rest of the evidence against
Wilson was far more damning than the expert testimony. In
her trial testimony and recorded interview taken near the
time of the abuse, FT described at least eight sex acts per-
formed by Wilson in graphic detail. Moreover, both Wilson
and FT had genital herpes, not a common diagnosis for an
eight-year-old child. With such powerful evidence before the
jury, we see no reasonable probability that a juror would
change their mind had the challenged expert testimony been
No. 20-2938 15
excluded. We thus hold that the Wisconsin Court of Appeals
did not unreasonably apply Strickland’s prejudice prong and
that we must accordingly defer to its denial of Wilson’s claim.
AFFIRMED