State v. Lamont Donnell Sholar , 381 Wis. 2d 560 ( 2018 )

2018 WI 53
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP897-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Lamont Donnell Sholar,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 377 Wis. 2d 337, 900 N.W.2d 872
(2017 – unpublished)
OPINION FILED: May 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 23, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Rebecca F. Dallet and Thomas J. McAdams
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by and an oral argument by Hannah Schieber Jurrs,
assistant state public defender.
For the plaintiff-respondent, there was a brief filed by
Lisa E.F. Kumfer, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by Lisa
E.F. Kumfer.
2018 WI 53
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP897-CR
(L.C. No. 2011CF4807)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v.
MAY 18, 2018
Lamont Donnell Sholar,
Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Lamont Donnell Sholar
seeks review of the court of appeals decision1 affirming the
circuit court's2 order ruling that his trial counsel's failure to
1
State v. Sholar, No. 2016AP897-CR, unpublished slip op.
(Wis. Ct. App. June 20, 2017) ("Sholar II").
2
The Honorable Thomas J. McAdams, Milwaukee County Circuit
Court, presided over the Machner hearing and entered the order
vacating one of Sholar's six convictions. See State v. Machner,
92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). The Honorable
Rebecca F. Dallet, Milwaukee County Circuit Court, presided over
the jury trial and entered the order denying Sholar's
postconviction motion.
No. 2016AP897-CR
object to an exhibit sent to the jury during deliberations
constituted ineffective assistance only with respect to one of
the six counts for which he was convicted. He contends that his
trial counsel's ineffective assistance should result in vacatur
of all six of his convictions. He also asserts the State
forfeited its right to argue the prejudice prong of the
ineffective assistance test at his Machner hearing because the
State did not petition this court for review after the court of
appeals' original decision remanding for a Machner hearing.3 We
affirm.
¶2 We hold that circuit courts reviewing claims of
ineffective assistance of counsel following multiple-count
trials may conclude that deficient performance prejudiced only
one of the multiple convictions. Strickland v. Washington, 466
U.S. 668, 695-96 (1984), clearly contemplates such a result and
does not require reversal on all counts when the prejudice
proven affected only a single count. We further hold the State
did not forfeit its right to challenge the prejudice prong of
the ineffective assistance test when it did not petition this
court for review following the court of appeals' decision in
Sholar I. The issue decided adversely to the State in Sholar I
3
See State v. Sholar, No. 2014AP1945-CR, unpublished slip
op., ¶40 (Wis. Ct. App. June 30, 2015) ("Sholar I") (reversing
Judge Dallet's order summarily denying Sholar's postconviction
motion on the ground that Sholar presented sufficient evidence
to warrant a Machner hearing "at least as to the sexual assault
charge").
2
No. 2016AP897-CR
was not whether prejudice existed, but whether Sholar was
entitled to a Machner hearing. If the State wanted to challenge
whether a Machner hearing should occur at all, it would have
needed to petition this court for review, but no petition was
needed to contest prejudice. Finally, we reiterate that the
Strickland prejudice test is distinct from a sufficiency of the
evidence test.
I. BACKGROUND
¶3 In late September 2011, Sholar and his life-long
friend, Shawnrell Simmons, were arrested after two victims, E.C.
and S.G., separately reported to police that they had been
victims of sex trafficking by Sholar (and that other girls had
been trafficked by Simmons) out of several motel rooms near the
Milwaukee airport, including the Econolodge on 13th Street. The
State charged both men, but their cases proceeded separately.
The State charged Sholar with six counts: (1) trafficking a
child (victim E.C. who was 17 years old at the time); (2)
soliciting a child for prostitution (E.C.); (3)
pandering/pimping (E.C.); (4) human trafficking (victim S.G.,
who was 21 years old at the time); (5) second-degree sexual
assault, use of force (S.G.); and (6) pandering/pimping (S.G.).4
¶4 Sholar pled not guilty, and in April 2012 his case
went to trial. Both victims testified. During E.C.'s
testimony, the jury heard:
4
We hereinafter refer to counts 1, 2, 3, 4 and 6 as
"trafficking/pimping" counts.
3
No. 2016AP897-CR
 E.C. met Simmons through a mutual friend after which he
pressured her to work for him as a prostitute. She
initially refused, but, after two of her friends went to
work for Simmons, and because she was desperate for
money, she called Simmons. He sent her to work for
Sholar because Simmons already had enough girls
prostituting for him.
 Sholar picked up E.C. and her 13-year-old friend and both
girls went to work for Sholar.
 Sholar, other girls, or E.C. would take "half-naked"
pictures, which Sholar posted on the "Backpage" website
to solicit customers.5 In the pictures, E.C. wore
lingerie or a bra and underwear.
 E.C. identified six Backpage ads, each of which had
multiple pictures, depicting the girls Sholar and Simmons
were trafficking——including several ads with pictures of
E.C. and S.G. The ads had titles such as "Chula Ready
For You-19," "Fun And Sexy Red-22," "Let's Sparkle Dazzle
You-21," and "Roxy Limited Time Only Specials-19." The
ads listed a contact phone number.
The jury learned through other witnesses that the contact phone
number appearing in the ads matched the phone Sholar had in his
possession when he was arrested.
¶5 E.C.'s testimony also revealed:
5
Backpage is a classified advertising website.
4
No. 2016AP897-CR
 There were more Backpage ads in addition to the six
previously discussed and the two additional ones E.C.
identified depicting Simmons' trafficking victims,
"Nicki,"6 and another girl whose name E.C. could not
remember.
 An "out-call" involved Sholar driving her to a customer
who would pay her for sex while an "in-call" meant the
customer would come to her motel room and pay her for
sex.
 Simmons and Sholar worked together at times to transport
girls to out-calls.
 Sholar gave E.C. a cell phone to use for the customer
calls and to set up appointments. When the customer
arrived, he would text her phone and she would either
meet him and bring him to her motel room or send him her
room number.
 During every appointment, which she estimated at possibly
200, she had sexual intercourse with the customer for
money. She got the money upfront, $80-$100 for half-an-
hour, $150-$200 for an hour. She would hide the money,
give the man a condom that Sholar supplied, and have sex.
When the man left, she texted Sholar so he could come
back to the room and take the money.
6
During trial, some individuals were referenced by their
first names only. We use only first names for others for
privacy reasons.
5
No. 2016AP897-CR
 Some nights she only had one or two calls, but could have
as many as seven to ten.
 One time she worked a party with two girls working for
Simmons after which Sholar and Simmons split the money.
 When S.G. started working for Sholar, E.C. took pictures
of S.G. that Sholar posted on Backpage.
 E.C. was afraid of Sholar and the way he looked at her
and screamed at her. Sometimes he punched her, which
left bruises. A picture of one of her bruises was shown
to the jury. He threatened her and told her she could
not leave. She testified she wanted to stop prostituting
"[r]ight away" but she did not have anywhere to go and
she was scared. She told Sholar that she wanted to stop
but he said he would find her if she tried to leave. He
sent her threatening texts if he could not find her. He
showed up at various places kicking and banging on doors
looking for her.
 Sholar "was prostituting girls every age. The lowest age
was 13." She saw three other girls who stayed at the
motel——S.G., Roxy, and Nicki——also give Sholar money.
Depending on the month, Sholar had up to four or five
girls working for him.
¶6 E.C. testified that her work as Sholar's trafficking
victim ended when E.C. borrowed her friend A.F.'s car and Sholar
suggested instead of returning the car, they should sell it.
E.C. said Sholar asked her if A.F. had anything else they could
sell and E.C. told him about a 50-inch television she had seen
6
No. 2016AP897-CR
in A.F.'s apartment. Sholar, E.C., and another man known as
Cookie drove to A.F.'s home in Sholar's red car. E.C. waited in
the car and Sholar and Cookie brought down the television, and
some hats and shoes stolen from A.F.'s apartment. They put the
television in the back seat and the other items in the trunk.
Sholar went back into the apartment to steal a smaller
television, but A.F. came home, caught Sholar in the act, and
called police.
¶7 E.C. testified that before police arrived, she drove
Sholar's car with the stolen goods to the house where "Chrissy,"
the mother of Sholar's child, resided. When E.C. arrived,
Chrissy told her where to park the car, and then E.C. headed
back to the Econolodge because Nicki (one of Simmons'
trafficking victims) called her and said the police were at the
motel threatening to take Nicki's children if E.C. did not come
back.
¶8 E.C. told the jury that when she returned to the
Econolodge, the police had left, but the desk clerk gave her a
police business card with a detective's number. E.C. called the
number, but the detective was not available. The next day, the
police came to the Econolodge and arrested E.C. for the
burglary. She told them where Sholar's car was parked with the
stolen television. The prosecutor then asked E.C. to look at
several photographs, which E.C. identified as pictures of
Sholar's red car with the stolen television in the back seat,
and the stolen hats and shoes in the trunk. E.C. next explained
that she told Detective Barbara O'Leary about working as
7
No. 2016AP897-CR
Sholar's prostitute. When asked why E.C. never called police
for help to leave Sholar, E.C. said she was scared. She said
that even if Sholar was in jail, Simmons could still hurt her.
She testified Simmons previously hurt her: he "smacked" and
"choked" her, "spit on [her] face," and held a gun to her head.
She also disclosed that Simmons sexually assaulted her. She
explained that Sholar also had sex with her but that was
expected because she worked for him. E.C. testified that Sholar
had sex with her almost every day.
¶9 S.G. also testified. When she first took the stand,
she was scared and the transcript indicates she was crying. She
said she was afraid that Sholar would harm her or her family
because she was testifying against him. The prosecutor had to
ask her background questions to calm her. After regaining
composure, S.G. told the jury:
 She met Sholar, whom she called "L," when he came to help
her roommate move out. Sholar seemed "very nice" and
"was continuously complimenting" her and her friend.
After that meeting, they started texting. At the end of
July 2011, Sholar came over to "hang out for a little
bit" at her place.
 Sholar started telling her and her friend about how "he
had some girls that would, you know, go and do stuff for
money" and that "he was a pimp." S.G. said they thought
he was joking. She felt comfortable with Sholar because
he was acting like a good friend, popping up when she
needed a ride, and helping out "kind of like Superman."
8
No. 2016AP897-CR
As a result, she "confided in him about where [her]
family stayed," about the struggles she had experienced
in life, and about how she had worked as an exotic dancer
in the past.
 After getting close to Sholar, he started telling her she
could make $300 if she gave private half-hour dances for
people he knew. She thought this would be an easy way to
make a lot of money and agreed to the dancing. Her first
job went smoothly and was just dancing. Later, however,
Sholar took pictures of her at Econolodge with his cell
phone and posted them on Backpage. Sholar gave her a
cell phone and she started getting texts and calls from
men who saw her Backpage ads and wanted to pay her to
have sex.
 Sonya was the name S.G. had used when she danced. S.G.
identified two Backpage ads, one depicting her and E.C.
together, titled "Satin & Silk-21" and an ad with
multiple pictures of S.G. labeled "Miss Fiery Sonya-21."
 She was shocked and told Sholar she did not want to do
this, but he threatened her, saying he would harm her
family, harm her, and get her evicted. Sholar told her
he had broken the jaw of a girl who tried to get away
from him.
 Sholar was controlling and mean and if she did not listen
to him, he threatened to kill her and her family. He
would remind her he knew where her family lived. He
9
No. 2016AP897-CR
showed up at her parents' home looking for S.G. and
threatened her mother.
 Sholar set the price men paid to have sex with her, and
she had sex with 10-15 men a night at $300/hour. These
encounters were usually at the Econolodge, but sometimes
Sholar took her to the men for "out-calls." She did this
for about two weeks. She would take the money when the
man arrived, hide it, and then have sexual intercourse
with the man. Sometimes the man wanted to fulfill "weird
fantasies" and that would require S.G. to call Sholar,
who would tell her how much extra money the man needed to
pay to complete those requests.
 Sholar gave S.G. food, drugs, alcohol, and clothes. She
testified he provided her with Ecstasy, which she took
because she could not have done "any kind of that stuff"
sober.
 Occasionally, she and another girl would work together
and have sex with the same man. She did this once with
E.C. and once with Nicki, who worked for Simmons.
 Although S.G. did not want to have sex with Sholar, this
happened "[p]retty often." She testified about one
particular night when Sholar wanted to have sex with her,
but she was tired. She tried to go to the bathroom to
avoid it, but Sholar grabbed her arm "[i]n a way that
made me not want to fight back," pushed her onto the bed,
and forced penis-to-vagina sex on her. After that time,
10
No. 2016AP897-CR
she did not fight Sholar when he wanted to have sex with
her.
 When S.G.'s boyfriend got out of jail, she tried to leave
Sholar, but Sholar threatened to tell S.G.'s boyfriend
how she "was sleeping with so many men." S.G. said she
agreed to come back to Sholar because she did not want
her boyfriend to know what she was doing. Sholar agreed
to tell her boyfriend that Sholar was selling drugs for
S.G., so S.G. would not have to sell them herself.
 Then one day, S.G. left the cell phone Sholar had given
her with a friend thinking Sholar would be so mad, it
would give S.G. a way out of the situation. S.G. went
home and fell asleep. While she was asleep, Sholar
called her repeatedly, leaving threatening voicemails,
said he was going to set her house on fire, went to her
roommate's place of work, threatened to get the roommate
fired, and told the roommate she should kick S.G. out of
the house or Sholar would get them both evicted and set
the house on fire. Sholar came back to S.G.'s house and
pounded on her bedroom windows, knocked on the doors, and
harassed the neighbors looking for S.G. S.G. was inside
the house with the lights off hiding in a closet.
 While in that closet, she called her mother, who called
the police. Sholar had been to the mother's house
earlier looking for S.G. and demanding her mother give
back a cell phone Sholar gave to S.G.
11
No. 2016AP897-CR
 The police arrived at S.G.'s home and she quickly packed
what she needed so the police could take her to her
mother's home. At first, S.G. was too scared to tell the
police the truth, but then told them a little bit about
what had been happening. A few weeks later, the police
came back and she disclosed more information.
¶10 On cross-examination, S.G. testified Sholar most often
drove her to out-calls, but on occasion Sholar and Simmons did
so together. She disclosed that on one occasion when she tried
to leave without telling Sholar where she was going, he pulled
her hair. She also saw him get rough with E.C. on one occasion.
¶11 S.G.'s mother testified and confirmed S.G.'s version
of events. The mother testified that she received a
"hysterical" call from her daughter saying there was a "man
outside who wanted to kill" S.G. The mother also told the jury
about how Sholar came to the mother's home looking for S.G. and
asking for the phone he had given to S.G. She testified that
Sholar asked for S.G. by name.
¶12 The State also called several police witnesses, who
corroborated E.C.'s and S.G.'s testimony. Detective Lynda Stott
testified about human trafficking and how the pimp-prostitute
relationship evolves, which matched both victims' experience.
Stott explained how the pimp befriends the victim, helps her,
earns her trust, but when she starts working for him, everything
changes. The pimp is controlling, makes her dependent on him,
and threatens her if she wants to stop or wants to leave. Stott
also told the jury about taking the hard drive from the
12
No. 2016AP897-CR
Econolodge's lobby computer, which had been used to post the
Backpage ads, and she testified about the women's clothing and
other items collected from the rooms being used by Sholar at the
Econolodge. The jury saw pictures of these items, which
included lingerie, high-heeled shoes, condoms, and an explicit
magazine titled "Straight Stuntin."
¶13 Detective Richard McQuown, a detective with the
Milwaukee Police High Technology Unit who had experience
investigating human trafficking, testified about his review of
E.C.'s cell phone. He created both a disk containing the
contents of E.C.'s phone as well as a printout. He told the
jury that the texts on E.C.'s phone evidenced human trafficking
because much of the content revealed attempts to arrange
meetings for sexual encounters between people who had never met.
He read several of the texts to the jury, including ones that
referenced "Star"——which E.C. said was her prostitute name, and
one looking for "Star" and "Sonya"——referring to E.C. and S.G.
McQuown also testified that the photos on this phone with girls
in "various poses and semi-sexually suggestive poses" without
the person's head are typically the type that get posted on
Backpage or a similar site.
¶14 The State presented Detective Richard McKee as a
witness. McKee also worked in the Milwaukee High Technology
Unit and had experience investigating human trafficking. He
examined the cell phone taken from Sholar when he was arrested.
This phone's number was listed as the contact number on one of
the Backpage ads posted for purposes of trafficking Sholar's
13
No. 2016AP897-CR
victims. McKee also examined the desktop computer taken from
the lobby at the Econolodge, another laptop computer, S.G.'s
cell phone, and Nicki's cell phone. McKee composed a summary of
the contents of all these devices and created a PowerPoint
presentation that was shown to the jury on a television during
his testimony. McKee's presentation showed:
 Metadata from pictures of girls on Sholar's cell phone
indicating the photos were taken in September 2011 at the
Econolodge. These same pictures then appeared in ads
posted on Backpage.
 Data recovered from the desktop computer taken from the
Econolodge's lobby including Backpage ads with pictures
matching images on Sholar's cell phone; these ads were
uploaded to Backpage from the Econolodge computer and the
internet history of the Econolodge desktop showed "234
visits to Backpage.com pages and 22 pages that were
specifically relating to posting."
 Text messages from S.G.'s phone indicating the user was
"Sonya" and messages referencing "in-calls" and "out-
calls."
 Photos from other cell phones and a laptop computer
depicting more Backpage ads and text messages referencing
prostitution.
¶15 McKee testified that he examined Sholar's phone and
printed its contents, which became Exhibit 79. The printout
included the phone's contact list, text messages, call log,
photos, and listed the audio and video files. The prosecutor
14
No. 2016AP897-CR
took McKee through each text that referenced "L." He testified
about several incoming texts on that phone texting someone named
"L," including from someone with E.C.'s first name and phone
number. For example, there was an outgoing message to someone
with E.C.'s first name that said "just so you know I also put
you down as a special of $100 hour just to increase the calls
'cause something got to give; I can't keep paying for that room
on my own." E.C. texted back that other girls were working from
that room too: "every other girl just goes, handles business
and that's it."
¶16 McKee explained the exhibit showed 1,384 total text
messages between September 14, 2011 and September 28, 2011.
Exhibit 79 was admitted into evidence, but was not published in
its entirety to the jury during trial. The jury did, however,
see and hear much of the exhibit's contents through witness
testimony, McKee's PowerPoint presentation, and the individual
Backpage ads, which were admitted as separate exhibits.
¶17 Detective O'Leary also testified. She confirmed much
of E.C.'s version of events, including details about the A.F.
burglary. She also told the jury about her interview with
Sholar after his arrest for the burglary, and how he consented
to the search of "his" phone, the same phone that generated
Exhibit 79. She told the jury that she had left her contact
card with the desk clerk at the Econolodge, which led to E.C.'s
arrest for burglary. O'Leary testified that when she
interviewed E.C., E.C. confessed to working as Sholar's
prostitute and told O'Leary the police could find evidence of
15
No. 2016AP897-CR
prostitution on Sholar's phone. O'Leary explained how E.C.
assisted O'Leary in locating and printing the Backpage ads of
women who were trafficked by Sholar or Simmons.
¶18 "Nicki" also testified for the State, corroborating
much of what the victims said, although she described herself as
an "escort" rather than a prostitute. She admitted that
sometimes she had sex with her escort dates, but claimed she
worked independently. She told the jury she lived at the
Econolodge and would ask Simmons for a ride if she had an "out-
call." She identified three other girls, including E.C., who
worked in rooms at the Econolodge. Nicki testified that E.C.
stayed in a motel room with Sholar, whom she knew as "L."
¶19 Finally, Peter Wargolet, the desk clerk and night
auditor at the Econolodge testified. He confirmed that E.C. was
staying in Room 157 and that Sholar was paying cash for that
room. Sholar paid for that room from August 15, 2011 to
September 28, 2011. He also told the jury that Sholar rented a
second room for two weeks in August 2011 and two other rooms for
one night each in September 2011. Wargolet confirmed that
another room associated with Sholar was paid for by either
someone named "Nicole" or Simmons.
¶20 Sholar was the only witness for the defense. He
testified that Simmons, his friend for 20 years, was the pimp.
Sholar denied any involvement. He claimed the phone found on
him when he was arrested belonged to Simmons, who had loaned it
to Sholar because Sholar's phone had broken. Sholar admitted
befriending E.C., but claimed he met S.G. only one time when he
16
No. 2016AP897-CR
was helping out her roommate, and a second time at the motel
when she was working for Simmons. Sholar denied ever having sex
with S.G. Sholar testified that he was staying at the
Econolodge because his 14-year old son accidentally burned the
kitchen in his apartment. Sholar told the jurors he sold K2,
which was like marijuana but legal, but he did not drink or do
drugs. He claimed he did not steal the television; rather, E.C.
sold it to him. He told the jury he had been convicted four
times.
¶21 In rebuttal, the State played part of the audio
recording from O'Leary's interview with Sholar, during which
Sholar acted as if the cell phone was his, consented to a search
of it, and blamed E.C. for the burglary. O'Leary testified that
Sholar identified for her both the number of the cell phone and
the security code needed to unlock the phone. The State also
called another police officer who responded to the A.F. burglary
scene and testified that Sholar claimed he came to A.F.'s
apartment to "sell some weed and then all this happened."
¶22 Detective Steve Wells testified during the State's
rebuttal case that when he interviewed Sholar, Sholar told a
different story about his cell phone. Sholar said nothing about
his cell phone breaking; instead, Sholar claimed Simmons' cell
phone had broken. Sholar told Wells that Simmons had to borrow
Sholar's cell phone, which is why pictures of the girls matching
the Backpage ads were found on Sholar's phone. The video
recording of this interview was played for the jury. The
recording showed Sholar explaining that the Backpage pictures
17
No. 2016AP897-CR
were on his phone not because he was involved in this
trafficking ring, but simply because he was helping Simmons get
pictures of his prostitutes since Simmons' phone was broken.
¶23 During deliberations, the jury sent a question to the
circuit court: "Can we request Lamont's phone
records? . . . Looking for in/outbound re: 'I got $' txt msgs
while with client." In discussing the question with both
attorneys, the circuit court asked:
[I]sn't it all contained in the one exhibit that
Detective McKee had, has put in the one big thick one,
would all those things be answered in there? Because
I don't want to be parceling out. I just want to give
them the exhibit that they seem to be requesting.
The exhibit referred to was Exhibit 79. All agreed to send the
entire exhibit into the jury room. The jury later asked for
E.C.'s phone records, which composed Exhibit 70, and that was
also sent to the jury room.
¶24 The jury returned guilty verdicts on all six counts
and Sholar was sentenced. His lawyer filed a postconviction
motion seeking a new trial based on ineffective assistance.7 As
material here, Sholar claimed his trial lawyer gave him
ineffective assistance by failing to object "when hundreds of
text messages" referencing drug dealing and other illegal
activity were admitted into evidence and given to the jury
during deliberations. In support of the motion, appellate
7
Sholar's motion alleged additional errors not pertinent to
this review.
18
No. 2016AP897-CR
counsel attached pages 10-109 of Exhibit 79, which contained the
text messages from Sholar's cell phone. The rest of Exhibit 79,
including the pictures from the cell phone depicted on pages
130-173 of the exhibit, were not included in support of the
postconviction motion.
¶25 The circuit court denied Sholar's ineffective
assistance claims without holding a Machner hearing, reasoning
that even if parts of Exhibit 79 should have been excluded as
other acts evidence, Sholar failed to prove prejudice. Sholar
appealed, and the court of appeals reversed the circuit court.
The court of appeals held Sholar's motion alleged sufficient
facts to warrant a Machner hearing, and remanded to the circuit
court.
¶26 At the Machner hearing, Sholar's trial counsel
testified he filed a suppression motion seeking to exclude
Sholar's cell phone, but the circuit court denied the
suppression motion. Trial counsel explained that after the
failed suppression motion, he felt the phone evidence was
admissible and there was no basis to object to its admission.
At trial, the defense theory was that Simmons, rather than
Sholar, was the pimp and that the cell phone belonged to
Simmons, not Sholar. Only a handful of the messages on the cell
phone could be linked directly to Sholar while hundreds of them
could be linked to Simmons. When the jury asked for Sholar's
phone records, trial counsel did not object to the entire
exhibit going to the jury because parceling down the exhibit to
19
No. 2016AP897-CR
only the messages linked to Sholar would be damaging to his
client.
¶27 The circuit court ruled that Sholar failed to prove
Exhibit 79 prejudiced his defense of the counts relating to sex
trafficking and pimping: "So as to the trafficking counts which
would be Counts 1, 2, 3, 4 and 6 I find that the performance was
certainly not prejudicial as the evidence on those counts was
overwhelming." The circuit court explained that "virtually all
of the things Mr. Sholar complains of here came in in this trial
in more than one way." That is:
There was violence testified to by the girls. There
was testimony about drug use to make it through the
night. There was testimony from the girls about
threats, there was testimony about burglary, there was
testimony about a potential car theft. There was
testimony about fetishes and there was testimony about
group sex parties and the list seems to go on and on.
Given that circumstance, I believe there was no chance
of a different result on the trafficking counts.
The circuit court discussed Sholar's trial lawyer's strategy to
not object to the admission of the texts as "sound trial
strategy" given the defense theory of blaming Simmons. The
circuit court noted that "[m]uch of what is in these messages is
mundane."
¶28 The circuit court, however, saw the impact of Exhibit
79's admission on the sexual assault conviction quite
differently. Although Sholar's argument rested on the text
messages, the circuit court was most troubled by the pictures in
the exhibit, which the circuit court viewed as "child porn" that
"serve[d] to inflame the jury." It did not "see how a fair
20
No. 2016AP897-CR
trial could be had on the sexual assault count with the jury
being given these photos." Specifically with respect to that
count, the circuit court commented: "The messages and the
pictures are in my opinion so inflammatory that I think a jury
then and there might have convicted him of virtually anything.
I do not have confidence in the result as to that count." The
circuit court ruled that "as to the sexual assault count the
defense clearly has shown deficient performance and prejudice."
The circuit court vacated the sexual assault conviction.
¶29 The circuit court gave seven reasons why the law
allowed it to distinguish the human trafficking counts from the
sexual assault count and uphold the former while vacating the
latter: (1) the court of appeals decision suggested the split
analysis; (2) this case involved multiple counts with more than
one victim and an ineffective assistance analysis must be a
charge-specific decision; (3) judicial economy dictates
upholding the counts that would result in the same outcome on
retrial; (4) vacating the unaffected counts would "waste the
time and effort of the parties"; (5) a totality of the
circumstances analysis means looking at "specific facts and
specific charges"; (6) the sexual assault count is "separate and
apart" from the others; and (7) Strickland and the singular
verdict forms support the distinction, allowing vacatur of a
weakly supported conviction while upholding an overwhelmingly
supported conviction.
¶30 Unhappy with the distinction, Sholar sought vacatur of
all of his convictions. The court of appeals rejected Sholar's
21
No. 2016AP897-CR
arguments and affirmed the circuit court. We accepted Sholar's
petition for review.
II. ANALYSIS
A. Ineffective Assistance
¶31 Sholar contends the prejudice he proved to support his
ineffective assistance claim should result in vacatur of all of
his convictions, not just the sexual assault conviction. He
argues the court of appeals should be reversed because it
conducted a "count-by-count" sufficiency of the evidence
analysis, contrary to Strickland. The State counters that guilt
is decided count-by-count and Strickland expressly permits a
reviewing court to examine prejudice in the context of an
ineffective assistance claim in the same way. It contends that
the trafficking/pimping counts were not affected by Exhibit 79
because of overwhelming properly-admitted evidence supporting
those convictions and because "virtually all of the things"
Sholar claims prejudiced him from Exhibit 79 were already
presented to the jury through properly-admitted evidence. We
agree with the State.8
8
We note that the State did not appeal the vacatur of the
sexual assault conviction nor did it appeal the circuit court's
ruling that trial counsel acted deficiently in allowing Exhibit
79 to go to the jury. Although the court questions the legal
correctness of both decisions based on our review of the record,
given the State's choices to forgo challenging either, we let
both decisions stand without further discussion.
22
No. 2016AP897-CR
1. Legal Principles
¶32 A criminal defendant has the constitutional right to
effective assistance of counsel. See State v. Balliette, 2011
WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334 (citing Strickland,
466 U.S. at 686). To establish the assistance a defendant
received was ineffective, he must prove two elements: (1) his
counsel's performance was deficient, and (2) the deficient
performance prejudiced the defense. Id.
¶33 To prove prejudice, a defendant must establish that
"particular errors of counsel were unreasonable" and "that they
actually had an adverse effect on the defense." Id., ¶24
(quoting Strickland, 466 U.S. at 693). In assessing whether a
defendant proves prejudice, the court considers the surrounding
circumstances because "an act or omission that is unprofessional
in one case may be sound or even brilliant in another." Id. We
evaluate whether "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694. In other words, we
examine whether there is "a reasonable probability that, absent
the errors, the factfinder would have had a reasonable doubt
respecting guilt." Id. at 695. Our concern is whether the
error rendered the trial unfair and unreliable. Id. at 687,
689, 693-96.
¶34 In reviewing the prejudice prong, Strickland directs:
23
No. 2016AP897-CR
Some errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or
conclusion only weakly supported by the record is more
likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected
findings as a given, and taking due account of the
effect of the errors on the remaining findings, a
court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the
decision reached would reasonably likely have been
different absent the errors.
466 U.S. at 695-96.
¶35 Ineffective assistance claims present mixed questions
of fact and law. Balliette 336 Wis. 2d 358, ¶19. The circuit
court's factual findings will be upheld "unless shown to be
clearly erroneous," but "[t]he ultimate conclusion as to whether
there was ineffective assistance of counsel is a question of
law." Id.
2. Application
¶36 In this case, there are two related issues underlying
the ineffective assistance claim: (1) whether a defendant who
proves ineffective assistance as to one count, after being
convicted of multiple counts, should get a new trial on all
counts; and (2) whether Sholar has proven that publication of
Exhibit 79 to the jury prejudiced him on the trafficking/pimping
counts.
¶37 The first is an issue of first impression: if a
defendant convicted of six counts proves his trial counsel's
deficient performance prejudiced him on one of his convictions,
is he entitled to a new trial on all six convictions? Under
24
No. 2016AP897-CR
Strickland, the answer is no. Strickland specifically
recognizes that some errors will have a pervasive effect and
others will have an "isolated, trivial effect." 466 U.S. at
695-96. Of particular importance in this case, Strickland
acknowledges that some factual findings will be altogether
unaffected by defense counsel's error. Id. at 695. A "verdict
or conclusion" based on weak evidence is more likely to be
affected by the error than a decision based on overwhelming
evidence. Strickland, 466 U.S. at 695-96. Strickland speaks in
terms of the "verdict" or "conclusion" and the "decision
reached." Id. In single-count cases, the "verdict,"
"conclusion," or "decision" will be a single conviction. In
contrast, in multi-count trials, the "verdict," "conclusion," or
"decision" will be count-specific.
¶38 When this jury deliberated, it did not answer the
single question——"is Sholar guilty or not guilty?" Instead, it
rendered six separate verdicts, answering six separate
questions. It determined whether Sholar was guilty or not
guilty of six separate crimes. There is no basis in law or
logic to require a new trial on all six convictions if the error
affected only one. The circuit court gave seven legally valid
and factually logical reasons supporting the split result. See
supra ¶29. We ratify each of them.
¶39 Sholar cites three cases he claims support his "all or
nothing" position: (1) State v. Jenkins, 2014 WI 59, 355
Wis. 2d 180, 848 N.W.2d 786; (2) State v. Thiel, 2003 WI 111,
264 Wis. 2d 571, 665 N.W.2d 305; and (3) State v. Honig, 2016 WI
25
 No. 2016AP897-CR
App 10, 366 Wis. 2d 681, 874 N.W.2d 589. In Jenkins, the
defendant was convicted of three crimes——first-degree
intentional homicide, first-degree reckless injury, and felon in
possession of a firearm. 355 Wis. 2d 180, ¶2. We overturned
all three convictions, ruling that trial counsel provided
ineffective assistance for failing to call a bystander witness
who "would contradict or impeach the eyewitness upon whom the
prosecution's entire case relied." Id., ¶¶40-48, 59 (emphasis
added). In Thiel, the defendant was convicted of seven counts
of sexual exploitation by a therapist, and all of the
convictions were based on the credibility of a single witness.
264 Wis. 2d 571, ¶¶2-4, 13-16. We overturned all of the
convictions, ruling that trial counsel provided ineffective
assistance by failing to discover and use substantial
impeachment evidence in cross-examining the crucial witness.
Id., ¶¶26-32, 46. In Honig, the defendant was convicted of two
child sexual assault charges based on the testimony of the five-
and three-year-old child victims, and their Uncle Raymond. Id.,
¶¶1, 33. The court of appeals overturned the convictions,
ruling that trial counsel provided ineffective assistance for
failing to call a witness who heard Uncle Raymond admit to
framing the defendant by telling each of the child victims to
make the false accusations. Id., ¶¶6, 26, 29, 33.
¶40 Sholar correctly notes that in all three of these
cases, the reviewing court did not do a count-by-count prejudice
analysis, but simply ordered a new trial on all the convictions.
All three of these cases, however, are distinguishable from
26
No. 2016AP897-CR
Sholar's case. In Jenkins, Thiel, and Honig, the multiple
charges depended on the same evidence and the deficient
performance affected the reliability of that evidence.
Significantly, no one argued in Jenkins, Thiel, or Honig that
the prejudice affected only one count, but not others. In each
case, both sides presented the argument as an all or nothing
proposition. None of these cases involved circumstances where
the prejudice attached to the defense of only one count, or
involved one charge substantively separable from the other
charges and the evidence presented, or involved one charge with
less evidentiary support and other charges with overwhelming
evidentiary support. Accordingly, Jenkins, Thiel, and Honig do
not preclude the split-prejudice conclusion reached in Sholar's
case.
¶41 Having concluded that a split result is lawful, we
turn to the second issue——whether the error here prejudiced the
trafficking/pimping counts. This is not a close question. The
State presented overwhelming evidence to support the
trafficking/pimping counts. Both victims reported independently
of each other and told consistent narratives about how Sholar
trafficked them. Other witnesses materially corroborated the
victims' testimony, including the Econolodge desk clerk, whose
testimony supplied corroborating details. Physical and forensic
evidence further verified the victims' version of events.
Backpage ads tied to Sholar's cell phone number, Sholar's cell
phone itself, and his admission to police that the cell phone
was his all supported the victims' testimony.
27
No. 2016AP897-CR
¶42 Sholar argues that Exhibit 79's publication to the
jury prejudiced the trafficking/pimping convictions because the
exhibit depicted him as a violent drug dealer with 150 illicit
pictures on his cell phone. But the jury saw "virtually all" of
the exhibit's contents, which already had been admitted into
evidence. The jury heard testimony: (1) from police witnesses
about the damning text messages connecting Sholar to the
trafficking ring; (2) from the victims that Sholar was violent
and provided them with illegal drugs; and (3) about Sholar's
threats of harm to the trafficking victims and their families.
During the trial, the jury already viewed many Backpage
pictures, most of which were identical to the ones contained in
the exhibit. During Detective McKee's testimony, the jury
viewed many of the illicit photos from Sholar's cell phone on a
television during McKee's PowerPoint presentation. The jury saw
evidence of physical harm Sholar caused to E.C. And the jury
heard and saw the fear E.C. and S.G. exhibited when each
testified at trial.
¶43 In order to prove Exhibit 79 prejudiced his defense of
the trafficking/pimping counts, Sholar must show that but for
Exhibit 79 going to the jury, there is a reasonable probability
the jury would have had a reasonable doubt as to his guilt on
those charges. The record clearly thwarts Sholar's ability to
do so. There is no reasonable probability that absent Exhibit
79's publication, the jury would have had a reasonable doubt as
to Sholar's guilt on the trafficking/pimping convictions. One
witness after the next told the same story, with specific
28
No. 2016AP897-CR
details corroborating other witnesses. The physical and
forensic evidence including the photos, the Backpage ads, the
metadata, and the Econolodge records reinforced the State's
case. The result of the trial as to the trafficking/pimping
convictions was fair and reliable. Sholar advances nothing to
shake our confidence in the outcome of these convictions.
3. Clarification
¶44 Finally, we address briefly Sholar's concern that
reviewing courts are incorrectly applying the Strickland
ineffective assistance prejudice test. Sholar claims reviewing
courts are improperly denying ineffective assistance claims by
measuring prejudice under a sufficiency of the evidence test or
holding defendants to a strict outcome-determinative test. We
reiterate that the Strickland prejudice test is distinct from a
sufficiency of the evidence test and we confirm that a defendant
need not prove the outcome would "more likely than not" be
different in order to establish prejudice in ineffective
assistance cases. See Strickland, 466 U.S. at 693.
¶45 In reviewing a sufficiency of the evidence claim, a
court upholds a conviction unless "the evidence, viewed most
favorably to the state and the conviction, is so insufficient in
probative value and force that it can be said as a matter of law
that no trier of fact, acting reasonably, could have found guilt
beyond a reasonable doubt." State v. Poellinger, 153
Wis. 2d 493, 501, 451 N.W.2d 752 (1990). To succeed on a
sufficiency claim, a defendant must show a record devoid of
evidence on which a reasonable jury could convict. In contrast,
29
No. 2016AP897-CR
to succeed in proving ineffective assistance, a defendant must
show that but for his lawyer's deficient performance, there is a
reasonable probability the outcome would have been different.
"Reasonable probability" is tied to confidence in the outcome.
Both standards require a reviewing court to examine the
evidence, but in sufficiency challenges, convictions are upheld
when the record shows a bare modicum of evidence from which a
reasonable jury could find guilt. In ineffective assistance
challenges, a defendant must establish that but for his lawyer's
error, there is a reasonable probability the jury would have had
a reasonable doubt as to guilt.
¶46 Accordingly, a defendant need not prove the jury would
have acquitted him, but he must prove there is a reasonable
probability it would have, absent the error. If there is no
reasonable probability that the jury would have reached a
different verdict, then a defendant has not proven prejudice.
See Strickland, 466 U.S. at 695-96.
B. Forfeiture
¶47 Sholar contends the State forfeited its right to argue
prejudice at the Machner hearing because the State did not
petition this court for review after the court of appeals'
decision in Sholar I. The State denies forfeiture occurred
because Sholar I did not decide the merits of the prejudice
prong and had the State petitioned for review after Sholar I,
the only issue "would have been whether Sholar sufficiently pled
his motion to entitle him to a Machner hearing." The State is
correct.
30
No. 2016AP897-CR
1. Legal Principles
¶48 Forfeiture is a rule of judicial administration that
may be applied when a party fails to assert a right. State v.
Ndina, 2009 WI 21, ¶¶28, 30, 315 Wis. 2d 653, 761 N.W.2d 612.
It is primarily asserted when a party fails to object to an
error at trial; its purpose "is to give the opposing party and
the circuit court an opportunity to correct any error." State
v. McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 881 N.W.2d 258.
¶49 The forfeiture rule has also been applied when a party
asserts new issues before this court that were not raised in a
petition for review, a response to a petition for review, or a
cross-petition. See, e.g., State v. Smith, 2016 WI 23, ¶41, 367
Wis. 2d 483, 878 N.W.2d 135; State v. Sulla, 2016 WI 46, ¶7 n.5,
369 Wis. 2d 225, 880 N.W.2d 659. The purpose for forfeiture in
Smith and Sulla, however, arose from the general rule that an
issue not raised in the petition for review, response, or cross-
petition is not properly before us. A petitioner's arguments
are limited to the issues on which we granted review, unless
this court orders otherwise. See Sulla, 369 Wis. 2d 225, ¶7
n.5.
¶50 A Machner hearing is a prerequisite for consideration
of an ineffective assistance claim. State v. Machner, 92
Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979); see also State
v. Curtis, 218 Wis. 2d 550, 554, 555 n.3, 582 N.W.2d 409 (Ct.
App. 1998) ("assuming there are factual allegations which, if
found to be true, might warrant a finding of ineffective
assistance of counsel, an evidentiary hearing is a prerequisite
31
No. 2016AP897-CR
to appellate review of an ineffective assistance of counsel
issue"). A defendant is entitled to a Machner hearing only when
his motion alleges sufficient facts, which if true, would
entitle him to relief. State v. Allen, 2004 WI 106, ¶14, 274
Wis. 2d 568, 682 N.W.2d 433. If a defendant's motion asserting
ineffective assistance "does not raise facts sufficient to
entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the
discretion to grant or deny a hearing." Sulla, 369 Wis. 2d 225,
¶23 (citations omitted).
¶51 When a circuit court summarily denies a postconviction
motion alleging ineffective assistance of counsel without
holding a Machner hearing, the issue for the court of appeals
reviewing an ineffective assistance claim is whether the
defendant's motion alleged sufficient facts entitling him to a
hearing. See, e.g., State v. Love, 2005 WI 116, ¶2, 284
Wis. 2d 111, 700 N.W.2d 62.
2. Application
¶52 Sholar argues the forfeiture rule should have barred
the State from challenging prejudice at the Machner hearing. He
premises his argument on the belief that the court of appeals in
Sholar I decided the merits of the prejudice prong and simply
sent the case back to the circuit court to decide whether trial
counsel acted deficiently. He claims the State "sandbagged" him
by not filing a motion for reconsideration with the court of
appeals seeking clarification of Sholar I and by not filing a
32
No. 2016AP897-CR
petition for review to alert him the State believed "the
question of prejudice remained open for debate." The law does
not support Sholar's position.
¶53 First, the court of appeals could not decide Sholar's
ineffective assistance claim because no Machner hearing had
occurred. A Machner hearing is required before a court may
conclude a defendant received ineffective assistance. Curtis,
218 Wis. 2d at 554-55. In Curtis, the defendant argued his
"trial counsel's errors were so obvious and could not possibly
have been trial tactics, no Machner hearing was required." Id.
at 554. The Curtis court of appeals correctly rejected that
argument, noting:
The hearing is important not only to give trial
counsel a chance to explain his or her actions, but
also to allow the trial court, which is in the best
position to judge counsel's performance, to rule on
the motion.
Id.9 We cited Curtis with approval in addressing whether a
defendant was prejudiced when his counsel failed to object to
the admission of evidence, and as a result whether this court
should remand for a Machner hearing. See State v. Beuchamp,
2011 WI 27, ¶39 & n.32, 333 Wis. 2d 1, 796 N.W.2d 780.
9
There are rare circumstances when prejudice may be
presumed, such as when counsel was actually or constructively
denied altogether, or when a more limited presumption of
prejudice is warranted, such as when counsel was burdened by an
actual conflict of interest. See Strickland v. Washington, 466
U.S. 668, 692 (1984). None of these circumstances apply in the
matter before us.
33
No. 2016AP897-CR
¶54 We acknowledge that appellate courts frequently
decide——even in the absence of a Machner hearing——that the
record conclusively demonstrates a defendant was not prejudiced
by alleged deficient conduct, often presuming without deciding
that counsel's performance was deficient. Id. But when an
appellate court remands for a Machner hearing, it must leave
both the deficient performance and the prejudice prongs to be
addressed, because whether a defendant was prejudiced depends
upon the existence of deficient performance. If trial counsel
testifies at the Machner hearing that the choice under attack
was based on a trial strategy, which the circuit court finds
reasonable, it is "virtually unassailable" and the ineffective
assistance claim fails. See generally State v. Breitzman, 2017
WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93, citing State v.
Maloney, 2004 WI App 141, ¶23, 275 Wis. 2d 557, 685 N.W.2d 620;
see also United States v. Curtis, 742 F.2d 1070, 1074-75 (7th
Cir. 1984) (noting defendant abandoned ineffective assistance
claim because a strategic choice is "virtually unassailable.").
Consequently, an appellate court should not decide prejudice
exists in an ineffective assistance claim without a Machner
hearing. Doing so would put the cart before the horse. For
purposes of determining whether counsel was ineffective,
prejudice cannot exist without being attached to an error on the
part of counsel. Presuming prejudice could result in the
untenable scenario of an appellate court prematurely deciding a
defendant was prejudiced by an act without knowing the reason
for the act, followed by a Machner hearing where trial counsel
34
No. 2016AP897-CR
gives a reasonable strategic choice for the act——meaning the
defendant was not prejudiced at all, in the context of an
ineffective assistance claim. Under Strickland, a court
evaluates the prejudicial impact of defense counsel's errors,
not counsel's reasonable strategic choices. 466 U.S. at 687
("[T]he defendant must show that the deficient performance
prejudiced the defense." (emphasis added)); Balliette, 336
Wis. 2d 358, ¶21 (defendant must show "that the deficient
performance resulted in prejudice to the defense.").
¶55 Second, the forfeiture rule does not apply here.
Although the forfeiture rule has been used to foreclose parties
in this court from making arguments not raised in petitions for
review, responses, or cross-petitions, it is primarily used to
ensure parties voice objections at trial to give the circuit
court and the opposing party the opportunity to correct any
error. Sholar does not provide, nor can we locate, any
authority suggesting the forfeiture rule should be extended to
preclude the State from challenging prejudice because it did not
petition this court for review following the court of appeals'
decision remanding for a Machner hearing.
¶56 Third, the only issue decided adversely to the State
in Sholar I was whether Sholar's postconviction motion entitled
him to a Machner hearing. Thus, the only issue the State could
have petitioned this court to review was the court of appeals'
determination that Sholar alleged sufficient facts in his
postconviction motion to entitle him to a Machner hearing. As
35
No. 2016AP897-CR
already noted, the court of appeals did not, nor could it,
decide in Sholar I that prejudice had been established.
¶57 Finally, the court of appeals in Sholar II confirmed
that it did not decide the prejudice part of the ineffective
assistance claim in Sholar I: "This court did not rule that
trial counsel's performance was deficient in any manner nor did
this court rule there was prejudice as to any of the charges."
Sholar II, ¶19. That is the law of the case and we see no basis
upon which to reject the court of appeals' own interpretation of
its prior decision, particularly because the law does not
support any other interpretation.
III. CONCLUSION
¶58 We hold Strickland authorizes analyzing the prejudice
prong of ineffective assistance claims on a count-by-count
basis. We affirm the court of appeals' decision upholding the
circuit court's finding that Exhibit 79 was prejudicial only
with respect to the sexual assault conviction, but not the
trafficking/pimping convictions. We agree with the court of
appeals and the circuit court that Sholar failed to prove his
lawyer's deficiency prejudiced him on the trafficking/pimping
convictions, which were supported by overwhelming evidence. We
further hold the State did not forfeit its right to argue the
prejudice prong because the only issue it could have raised in a
petition for review after Sholar I was whether a Machner hearing
should occur at all.
By the Court.—The decision of the court of appeals is
affirmed.
36
No. 2016AP897-CR.ssa
¶59 SHIRLEY S. ABRAHAMSON, J. (dissenting). The
majority holds that Sholar's ineffective assistance of counsel
claim fails because he is unable to demonstrate that he was
prejudiced by trial counsel's failure to object to the
submission of Exhibit 791 to the jury during deliberations.
¶60 Unlike the majority, I find the instant case to be a
close call. On the whole, I conclude that Exhibit 79 is so
prejudicial that my confidence in the outcome of Sholar's entire
trial is undermined.
¶61 Although the majority correctly concludes that
prejudice may be determined on a count-by-count basis, the
majority acknowledges that there may be circumstances in which
trial counsel's deficient performance results in errors that are
so prejudicial that the result of the entire trial is
undermined.2
¶62 In State v. Sullivan, the court set forth what
constitutes "unfair prejudice." The Sullivan court explained:
Unfair prejudice results when the proffered evidence
has a tendency to influence the outcome by improper
means or if it appeals to the jury's sympathies,
arouses its sense of horror, provokes its instinct to
punish or otherwise causes a jury to base its decision
on something other than the established propositions
in the case. In this case the danger of unfair
prejudice was that the jurors would be so influenced
by the other acts evidence that they would be likely
1
Exhibit 79 is composed of the printed contents of Sholar's
phone, including the phone's contact list, text messages, call
log, photos, audio files, and two videos. Majority op., ¶15.
2
Majority op., ¶¶37-40.
1
No. 2016AP897-CR.ssa
to convict the defendant because the other acts
evidence showed him to be a bad man.
State v. Sullivan, 216 Wis. 2d 768, 789-90, 576 N.W.2d 30
(citations omitted).
¶63 The submission of Exhibit 79 to the jury is an example
of an error with such a substantial prejudicial impact that
confidence in the result of the entire trial is undermined.
¶64 The circuit court aptly recounted the prejudicial
nature of Exhibit 79. It described several of the photos
contained in Exhibit 79 as "child porn" that "serve[d] to
inflame the jury." The circuit court did not "see how a fair
trial could be had on the sexual assault count with the jury
being given these photos." The circuit court opined that "[t]he
messages and the pictures are in my opinion so inflammatory that
I think a jury then and there might have convicted him of
virtually anything. I do not have confidence in the result as
to [the sexual assault] count."
¶65 It is hard to imagine anything more prejudicial than
submitting child pornography extracted from the defendant's
phone to the jury for its consideration during deliberations.
Such inflammatory evidence creates a legitimate concern that the
jury convicted Sholar not because the State proved every element
of the charged crimes beyond a reasonable doubt, but instead to
punish Sholar for being a bad man with child pornography on his
phone.3
3
See State v. Sullivan, 216 Wis. 2d 768, 789-90, 576
N.W.2d 30.
2
No. 2016AP897-CR.ssa
¶66 As the circuit court put it, the content of Exhibit 79
is "so inflammatory that I think a jury then and there might
have convicted [Sholar] of virtually anything." I agree with
the circuit court, and for that reason, I would reverse the
court of appeals and remand the instant case to the circuit
court for a Machner hearing.
¶67 Accordingly, I dissent.
3
No. 2016AP897-CR.ssa
1