                                                            2017 WI 100

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1610-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Ginger M. Breitzman,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 371 Wis. 2d 760, 886 N.W.2d 593
                                       (2016 – Unpublished)

OPINION FILED:          December 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 20, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Rebecca F. Dallet

JUSTICES:
   CONCURRED:           ABRAHAMSON, J. concurs (opinion filed).
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Hannah Schieber Jurrs, assistant
state public defender.


       For the plaintiff-respondent, there was a brief filed by
Donald V. Latorraca, assistant attorney general, with whom on
the brief were Brad D. Schimel, attorney general, and Maura F.J.
Whelan, assistant attorney general.              There was an oral argument
by Donald V. Latorraca.
                                                                             2017 WI 100
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.       2015AP1610-CR
(L.C. No.    2013CF270)

STATE OF WISCONSIN                                 :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                        FILED
      v.                                                               DEC 1, 2017
Ginger M. Breitzman,                                                     Diane M. Fremgen
                                                                      Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                      Affirmed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.               This is a review of an

unpublished      decision        of   the      court     of    appeals,        State      v.

Breitzman, No. 2015AP1610-CR, unpublished slip op., (Wis. Ct.
App. Aug. 16, 2016), which affirmed the Milwaukee County circuit

court's1       denial       of        Ginger      Breitzman's            ("Breitzman")

postconviction      motion       challenging      her     convictions         for    child

neglect     under   Wis.   Stat.      § 948.21(1)(2013-14)2            and    disorderly

conduct under Wis. Stat. § 947.01(1).
      1
          The Honorable Rebecca F. Dallet presided.
      2
       All references to the Wisconsin Statutes are to the (2013-
14) version unless otherwise noted.
                                                                                No.        2015AP1610-CR



    ¶2         In    a     criminal       action       by   the     State,        Breitzman           was

charged with, and convicted of, five crimes relating to her

negative interactions, confrontations, abuse, and neglect of her

son, J.K., during the time period ranging from November 2011

through     December             2012:      (1)        Physical         Abuse         of     a   Child

(Intentional             Causation        of   Bodily       Harm)         under        Wis.         Stat.

§ 948.03(2)(b);            (2)      Physical       Abuse     of     a    Child         (Intentional

Causation       of       Bodily       Harm)    under        § 948.03(2)(b);                (3)      Child

Neglect (Bodily Harm) under Wis. Stat. § 921.21(1)(b); (4) Child

Neglect (Misdemeanor) under Wis. Stat. § 948.21(1)(a); and (5)

Disorderly Conduct under Wis. Stat. § 947.01(1).

    ¶3         In the circuit court, Breitzman filed a postconviction

motion    under          Wis.    Stat.     § 809.30(2)(h)           seeking           judgments        of

acquittal for counts three, four, and five.                               For all three, she

argued     that      there          was   insufficient         evidence          to        support     a

conviction.          Additionally, she argued that defense counsel at

trial    had    been        ineffective           because      he   failed            to     move    for

dismissal of count five for disorderly conduct on free speech
grounds,       pursued          a    defense       theory      of       reasonable            parental

discipline          in     opening        remarks       that      was     inconsistent              with

Breitzman's plan to deny striking J.K., and failed to object to

testimony regarding other-acts evidence.                                Following a Machner3

hearing, the circuit court granted the motion for judgment of

acquittal as to count three and denied the motion as to counts

    3
         State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).


                                                   2
                                                                        No.    2015AP1610-CR



four and five, concluding that there was sufficient evidence to

sustain the convictions on counts four and five and that counsel

had not been ineffective at trial.

       ¶4    In    the    court    of     appeals,       Breitzman       challenged     the

circuit court's denial of her postconviction motion as to counts

four and five, again challenging the sufficiency of the evidence

and    asserting         that     defense        counsel        at     trial    had     been

ineffective.       The court of appeals affirmed the circuit court.

       ¶5    On petition to this court, Breitzman seeks review of

the denial of her ineffective assistance of counsel claim.                               In

this regard, we note that Breitzman's claim does not raise a

facial      or    as-applied      challenge         to     the       disorderly    conduct

statute, Wis. Stat. § 947.01.                    A facial challenge would argue

that     "profane    conduct,"       as     listed        in     § 947.01(1),      is   not

actionable as a crime because profanity is protected speech.                             An

as-applied        challenge     would       argue        that    Breitzman's       profane

conduct in this case was not actionable as a crime because it

was protected speech.           Breitzman argues neither.                 Breitzman only




                                             3
                                                           No.     2015AP1610-CR



argues that her trial counsel rendered ineffective assistance.4

Thus, while this case touches on an interesting issue of free

speech law, we reserve full analysis of what constitutes profane

speech and whether profane speech is otherwise protected as free

speech for another day and confine our analysis here to the

ineffective assistance of counsel issue presented, briefed, and

argued by the parties.

     ¶6   The   ineffective     assistance       of   counsel    issue   raised

requires consideration of whether counsel was ineffective for

any of the following reasons: (1) failing to move to dismiss the

disorderly   conduct   charge     on       the   basis   that    it   violated

Breitzman's constitutional right to free speech; (2) failing to

     4
       We further note that the standard for establishing that a
statute is unconstitutional is high; because we assume the
constitutionality    of   statutes,   "the   party    challenging   a
statute's constitutionality must prove that the statute is
unconstitutional beyond a reasonable doubt."           See State v.
Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90.
Additionally,    where   a   statute    has   been    authoritatively
interpreted   by    this   court,   the   party    challenging   that
interpretation must establish that our prior interpretation was
"objectively wrong." See Progressive N. Ins. Co. v. Romanshek,
2005 WI 67, ¶45, 281 Wis. 2d 300, 697 N.W.2d 417 (noting that
"stare decisis concerns are paramount where a court has
authoritatively interpreted a statute").            Wisconsin Stat.
§ 947.01 has been upheld by this court against facial and as-
applied challenges on free speech grounds on numerous occasions.
See infra ¶52.     Moreover, when an authoritative interpretation
of a statute has stood for many years, stare decisis concerns
take on even greater significance.         See id., ¶52; see also
Bauman v. Gilbertson, 7 Wis. 2d 467, 469-70, 96 N.W.2d 854
(1959) (holding that it was not proper to depart from stare
decisis where the interpretation stood for 11 years). Here, our
interpretation of § 947.01 as constitutional has stood as law
for nearly 50 years. See infra ¶52.


                                       4
                                                                  No.     2015AP1610-CR



present opening remarks consistent with Breitzman's anticipated

testimony;     and    (3)   failing   to       object    to   testimony     regarding

other uncharged conduct.

    ¶7     As    to   the   first,    we       conclude   that    trial     counsel's

failure to move to dismiss the disorderly conduct charge on the

basis that it violated Breitzman's constitutional right to free

speech was not deficient performance, and thus not ineffective

assistance     of    counsel,    because       whether    profane       conduct     that

tends to cause or provoke a disturbance is protected as free

speech is unsettled law.

    ¶8     As to the second, we conclude that trial counsel's

theory    of    reasonable      parental       discipline,       as     presented     in

opening remarks, was not deficient performance, and thus not

ineffective assistance of counsel, because it reflected trial

counsel's reasonable expectations, which were rationally based

on discussions with Breitzman, and it was part of a reasonable

trial strategy.

    ¶9     As    to   the   third,    we       conclude   that    trial     counsel's
failure to object to testimony regarding uncharged conduct was

not deficient performance, and thus not ineffective assistance

of counsel, because declining to object was part of a reasonable

trial strategy.

    ¶10    Because we conclude that trial counsel's performance

was not deficient, we need not address whether, in the context

of ineffective assistance of counsel, there was prejudice to

Breitzman, and we decline to do so.
    ¶11    Thus, we affirm the decision of the court of appeals.
                                           5
                                                                  No.   2015AP1610-CR



                   I.    FACTUAL AND PROCEDURAL BACKGROUND

      ¶12     To give proper perspective on the narrow issues we

address     here,       it   is     important      to   outline     the     charges,

allegations, and evidence presented to the jury, as well as the

theory of defense and strategy of trial counsel.

      ¶13     The State charged Breitzman with the following five

counts: (1) Physical Abuse of a Child (Intentional Causation of

Bodily Harm) under Wis. Stat. § 948.03(2)(b), as to striking

J.K. in the face, resulting in a bloody nose, for J.K.'s failure

to wash the floor; (2) Physical Abuse of a Child (Intentional

Causation of Bodily Harm) under § 948.03(2)(b), as to striking

J.K. in the face, resulting in a bruise, for J.K.'s failure to

prepare a meal; (3) Child Neglect (Bodily Harm) under Wis. Stat.

§ 948.21(1)(b), as to Breitzman's failing to seek medical care

for J.K. when he was sick for a week with vomiting and diarrhea;

(4)   Child    Neglect       (Misdemeanor)      under   § 948.21(1)(a),         as   to

Breitzman's locking J.K. out of the house during the winter; and

(5)   Disorderly        Conduct     under   Wis.    Stat.    § 947.01(1),       as   to
Breitzman's engaging in "profane conduct, under circumstances in

which such conduct tended to cause a disturbance."5                        Breitzman

entered pleas of not guilty and the case was set for a jury

trial.        At   trial,     the    State's       primary   witness      was   J.K.,

Breitzman's son.

      5
       The criminal complaint was filed on January 12, 2013, and
Breitzman entered pleas of not guilty on May 20, 2013.        On
January 31, 2013, Breitzman waived her right to a preliminary
hearing. An amended information was filed on May 20, 2013.


                                            6
                                                         No.    2015AP1610-CR



    ¶14   As   to   the    first   charge,    for   physical   abuse,   J.K.

testified that he had been sweeping the floor while also trying

to keep an eye on his three-year-old little sister.               Breitzman

wanted him to hurry up sweeping the floor, but his sister was

running around the house and throwing things on the floor, in

J.K.'s words, "being a three year old."             Then, when Breitzman

came into the room and saw that he was not sweeping "right or

fast enough," she grabbed the broom and struck him on the side

of his head with her fist (she could not reach his face because

he had raised his hands defensively when she grabbed the broom),

telling him he never did anything right and calling him a "piece

of shit" and the "dog of the house."

    ¶15   As to the second charge, also for physical abuse, J.K.

testified that he could not recall the precise date on which

Breitzman struck him, but he remembered clearly the bloody nose

that resulted because it lasted three minutes and he had to go

find something to stem the flow.             He said that Breitzman had

seemed angry with him when she came into his room and then
struck him in the face when he would not get out of bed, calling

him a "fuck face" and a "retard."            When she left, he remembers

crying and that he did not know what he'd done wrong.

    ¶16   As to count three, for child neglect, J.K. testified

that, on or about November 18, 2012, he became very ill.             He had

been vomiting almost every hour and had diarrhea, both of which

appeared to have blood in them.          When he told Breitzman this,

she said she would get him a Gatorade at the end of the week if
he was still sick.        He testified that he was sick like this for
                                     7
                                                              No.   2015AP1610-CR



six-to-seven days, but when he asked Breitzman if he could go to

the doctor, she refused.          This prompted him to call friends and

post on Facebook seeking help.

    ¶17     As   to    count    four,   also   for    child     neglect,    J.K.

testified that, in the winter of 2011-2012, he could not get

into the house when he got home from school because his mother

had locked the doors.          The weather that morning had been warmer,

so he had not taken a coat with him to school; the weather grew

cooler over the course of the day, however, and it was cold when

he returned home at about 3:30 p.m.            Finding the house locked,

he testified that he knocked on the front and back doors and

rang the doorbell for about three minutes to no avail.                      J.K.

said he could tell that Breitzman was home because her car was

in the driveway, but she did not come to the door so he crawled

under the grill cover on the porch for shelter.               He continued to

ring the doorbell every fifteen minutes, but spent approximately

four hours outside, huddling under the grill cover to keep from

freezing.
    ¶18     As to the fifth charge, for disorderly conduct, J.K.

testified that, when he got home from school on December 4,

2012, he put a bag of popcorn in the microwave, but ended up

burning it and having to throw it away.              When Breitzman got home

about a half hour later, he was on the phone with his best

friend, D.M., and, when he heard Breitzman come through the

door, he hid his phone in his pocket because he was afraid she

would be mad.         He testified that, when she smelled the burned
popcorn and saw the bag in the trash can, she sought him out and
                                        8
                                                                 No.   2015AP1610-CR



told him he always messed things up, calling him a "fuck face,"

"retard," and a "piece of shit."                He defended himself by saying

that he had not done it on purpose, but Breitzman persisted

saying she "[didn't] give a fuck."                 He then asked Breitzman to

stop calling him names, which she responded to by threatening to

kick him out of the house.        Later that night he called D.M. back

crying and needing someone to talk to.

    ¶19    Over   the    course       of       J.K.'s   testimony,     he    further

testified that it was a daily occurrence to be called "retard"

and "fuck face."      He also testified that he had not had glasses

or treatment for his lazy eye since second grade and had not

been to the dentist since he was five; that there was a lock on

the refrigerator at home and he could not get lunch at school

because   Breitzman     would   not    complete         the   paperwork     for   free

lunches; and that Breitzman struck J.K. once when they were in

the car because he disagreed with her about who had taught him a

song when he was younger.              The latter came up during trial

counsel's cross-examination:

    Q     You just have a problem with frequent nosebleeds?

    A     From what it appears.     But this was after the
          incident when she hit me in the car and my nose was
          bleeding on me.

    Q     By the way, was she driving the car at the time?

    A     Yes, sir.

    Q     And where were you located?

    A     I was in the passenger's seat.



                                           9
                                                                     No.    2015AP1610-CR


    Q     And so it was her attempt to slap you, she was
          hitting you with the back of her hand at that time?

    A     She hit me with the back of her hand.

    Q     She couldn't have hit you with the palm of her hand
          because there wasn't quite a way to do that, right,
          so she actually had to go this way?

    A     Yes, sir.[6]
    ¶20       The   State    also   introduced        evidence       to     corroborate

J.K.'s testimony: J.K.'s best friend, D.M., testified that over

the course of about six months, J.K. went from "always happy and

nice"    to   "more   stressed      out   and    tired    and    just       more    sad."

Specifically,       when    J.K.    called      him   back      on    the     night     of

December 4, 2012, he said that J.K. seemed "beat down" and that

he had "never heard [J.K.] cry before."                      D.M. also testified

that J.K. had a bruise for about a week at the time of the

second    allegation        of   abuse;    J.K.'s     girlfriend,           A.G.,     also

verified this.

    ¶21       J.K.'s neighbor also testified.             She said she had sent

over Gatorade and crackers in response to J.K.'s Facebook post

about being ill——she had had some on hand because her daughter

had been sick with the flu.               She was also the one J.K. called

looking for a place to stay when Breitzman kicked him out on

December 4, 2012.

    ¶22       Additionally,      the   State     called      J.K.'s        high     school

counselor and the West Allis detective who investigated J.K.'s


    6
       In this exchange, the questions were asked by Breitzman's
trial counsel and were answered by J.K.


                                          10
                                                             No.    2015AP1610-CR



claims.     The   counselor       testified   that   J.K.   met    with   him    on

November 29, 2012, and told him about what had been going on at

home, that he was tired of being called "retarded" and a "[f]uck

face" and being "smacked in the head" by his mother.                  J.K. then

met with a detective from the West Allis Police Department on

December    11,    2012.          In   investigating     J.K.'s    claims,      the

detective interviewed Breitzman.              The detective testified that

Breitzman   admitted       that    she   called   J.K.   names,    slapped      and

backhanded J.K., and did not allow J.K. to have a key to the

house.

     ¶23    Breitzman's general defense to these allegations and

charges was that J.K. was lying and that he was a rebellious and

irresponsible teenager.            She attributed this behavior to the

fact that his father had rejected him and that J.K. had a new

girlfriend.7      Specifically, as to counts one and two, Breitzman

denied striking J.K., and said that the bruise had been the

result of him dropping a dumbbell on his face.                     As to count

three, Breitzman testified that J.K. was not sick for a week,
that she told him there were crackers and Gatorade available,

and that the redness in his vomit and diarrhea was fruit punch

Gatorade, not blood.        As to count four, Breitzman confirmed that


     7
       The defense called two additional witnesses, Ramona Smith
and Dan Percifield——both long-time friends of Breitzman. Smith
testified that J.K. had been well-behaved up until the last few
years, when he became more defiant.    Percifield also testified
that J.K.'s relationship with Breitzman had deteriorated
recently, attributing it to J.K.'s new girlfriend.


                                         11
                                                                                No.    2015AP1610-CR



she knew what time J.K. got home from school, that she had

locked the doors to the house, that she did not let J.K. have a

key, and that she chose to take a nap at that time; but she

defended her actions by pointing out that there were any number

of businesses close by where J.K. could have gone to wait.                                           As

to count five, Breitzman said that her conduct was justified

because     J.K.       had    scorched         the    microwave          when    he    burned       the

popcorn and he "was belligerent with [her]."

      ¶24    Breitzman          further        testified          that    she    did    call        J.K.

"retarded,"        a    "piece      of    shit,"          and   a   "fuck       face,"    but       not

regularly;8 that she did not get J.K. glasses because she did not

have insurance and because he would not wear them when he did

have them; that J.K. did not have lunch because he could not

remember to bring home the form and did not make his own lunch,

and   that    J.K.           always      had    the        code     to    the     lock        on     the

refrigerator, which was just in place to make him think before

eating; and that she did strike J.K. in the uncharged incident

in the car.            Breitzman also testified that she would generally
discipline J.K. by grounding him or by taking away phone and/or

video game privileges, but would resort to physical violence if

she   thought          he     was     lying          to    her,     talking           back,        being

belligerent, or if he did not check in when he was out.                                              She

testified that she never struck him just to hurt him.                                    In short,


      8
       Smith  characterized   this   name-calling as "jok[ing]
around." Percifield testified that he had heard Breitzman call
J.K. these names on numerous occasions.


                                                 12
                                                 No.   2015AP1610-CR



Breitzman's defense was that J.K. could not be believed, and

that, as a single parent, she "did what [she] thought [she] had

to do."

    ¶25   At trial, the testimony was bookended by attorneys'

arguments.   As pertains to the ineffective assistance of counsel

issue presented here, Breitzman's trial counsel argued in his

opening remarks as follows:

    [W]hat's really at the base of this is the question of
    the instructions that the Court gives you, have any of
    these been met or not? You will also be getting later
    on an instruction which is very important to this
    case, and it is going to be very important when you
    get to the defense case, and that is the question of
    reasonable parental discipline privilege, it's a jury
    instruction, number 950, 950, that's very important
    because this is eventually what this comes down
    to. . . .

    Was she intentionally trying to inflict pain beyond
    the right of a parent to inflict pain and, yes, read
    chapter or read Jury Instruction 950 when you get it,
    it actually refers to a parent's right to inflict,
    that means cause pain, and we know you can cause pain
    a million ways.    You can slap someone if they are
    disrespectful to you.   You can smack someone hard on
    the back of their butt. You can hit them on the side
    of their head. . . . You are going to have a couple of
    days of evidence to consider as to whether my client
    is a criminal or just a struggling parent, and I
    believe the evidence will show that she is not a
    criminal . . . .9
As is general practice, the circuit court instructed the jury

that attorney arguments are not evidence:

    9
       We note that, although Breitzman was present for opening
remarks and trial, neither the trial nor the Machner hearing
transcripts reflect that she expressed any dissatisfaction with
trial counsel's statement.


                               13
                                                                   No.    2015AP1610-CR


            Remarks of the attorneys are not evidence.     If
       the remarks suggested facts not in evidence, disregard
       the suggestion.

            Consider carefully closing arguments of                          the
       attorneys but their arguments and conclusions                         and
       opinions are not evidence.
       ¶26   On May 23, 2014, the jury convicted Breitzman of all

five counts.        After the verdict, the circuit court entered the

judgments of conviction.

       ¶27   On February 6, 2015, Breitzman filed a postconviction

motion, seeking judgments of acquittal for counts three, four,

and five.     For all three, she argued that there was insufficient

evidence to support a conviction.              Additionally, she argued that

defense counsel at trial had been ineffective because he failed

to move for dismissal of count five for disorderly conduct on

free   speech     grounds,     pursued   a    defense     theory     of   reasonable

parental     discipline    in    opening      remarks     that   was     inconsistent

with   Breitzman's      plan    to   deny     striking     J.K.,    and    failed   to

object to testimony regarding other-acts evidence.                        On May 29,

2015, the circuit court held a Machner hearing on the motion, at

which both trial counsel and Breitzman testified.

       ¶28   As to his failure to challenge the disorderly conduct

charge on free speech grounds, trial counsel testified that he

had contemplated moving to dismiss count five for disorderly

conduct on free speech grounds, but decided not to because it

was "too shallow and there wasn't enough guts to it."

       ¶29   As    to   his     assertion      of   the     reasonable       parental

discipline        theory   of     defense,      Breitzman's         trial     counsel
testified as follows:

                                         14
                                                  No.   2015AP1610-CR


    Q     Prior to the commencement of the actual jury trial,
          you asked for the Court to include within the
          opening   statements   the  reasonable   discipline
          defense; isn't that true?

    A     . . . yes.

    Q     Why did you ask for that?

    A     Because it was the only major defense position I
          believed we could take, regardless of all the
          charges, because jurors . . . [are] really trying
          to decide which side is telling the truth in the
          end . . . and the major morality of this case was
          whether he had a struggling mother doing the best
          she could or whether we had a mother engaged in
          abuse . . . .

          That's   why  I   included    the    recommendation
          originally, and the client    saw   the wisdom of
          it. . . .[10]
    ¶30    As to his failure to object to other-acts evidence,

Breitzman's trial counsel further testified as follows:

    Q     Was there a reason why you did not file a motion in
          limine pretrial to preclude any reference to these
          other allegations of her bad behavior?

    A     The heart of her defense was that she had a
          rebellious child. She was a single mom with very
          limited economic resources. She had another child
          she had to take care of.      She had had a very
          difficult set of circumstances she was dealing
          with.   She had loved her son and had had a good
          relationship with him until a point in time, a year
          or two before where he suddenly became rebellious,
          which she attributed to either school friends or
          girlfriends, and things had gone downhill from
          there.



    10
       In this exchange, the questions were asked by Breitzman's
appellate counsel and were answered by Breitzman's trial
counsel.


                                15
                                                                No.    2015AP1610-CR


                When we talked about how to approach the defense,
                her concern was that a jury would see that she was
                doing the best she could.    She did not think in
                advance   that  anything  she   did  to   him  was
                wrong. . . . And I believed her that she didn't at
                the time believe that she was engaged in criminal
                activity. She was just doing her best as a parent.

      Q         Was there any reason, other than that then, why you
                did not object when discussion of the things we've
                just talked about, these allegations of bad
                behavior on her part, were then brought up at
                trial?

      A         The plan for the defense is that we believe the
                son's story, or expression of these things, would
                go to such an extended or aggravated or aggrandized
                extent that he would lose credibility, and then she
                would take the stand and show what really happened,
                that she cared for her son, that these were
                difficult, times of rebellion.

                . . .

                So the best approach would be to be very
                transparent about it with the jury and to not sit
                there and make lots of objections on things that
                would be overruled and become obvious and rather
                let the jury see what is the other side here. . . .

                The facts were what they were, and we                   would
                approach the defense very transparently.[11]
      ¶31        Breitzman also testified at the Machner hearing; her

testimony         focused      on   her    understanding   of   the     reasonable

parental discipline defense and the other acts that might come

up.        As    to     the   reasonable   parental   discipline      defense,   she

testified as follows:


      11
       In this exchange, the questions were asked by Breitzman's
appellate counsel and were answered by Breitzman's trial
counsel.


                                            16
                                                                No.   2015AP1610-CR


    Q      Did [trial counsel] ever talk to you about arguing
           reasonable parental discipline in this case?

    A      Yes.

    Q      Okay. Did he tell you this is what he intended to
           argue?

    A      Yes.[12]
Breitzman said, however, that she told trial counsel she had not

struck J.K. on the two charged occasions.                  She also said that

she told him she would admit to striking J.K. in the uncharged

incident in the car if it came up, but that she did not want it

raised.         On    cross-examination,      Breitzman   confirmed     that   she

agreed     to        trial   counsel's   reasonable       parental    discipline

defense:

    Q      And did you agree to asserting                 the   reasonable
           discipline defense at trial?

    A      Yes . . . .[13]
    ¶32     As to other acts, Breitzman testified that she knew

her statements about striking J.K. to discipline him——which she

made in the interview with the detective——would likely come up,

and that she discussed with trial counsel the fact that the
trial would likely come down to her word against J.K.'s.                       She

also confirmed that, although she was present during opening

remarks, she never voiced any objection to the court regarding


    12
       In this exchange, the questions were asked by Breitzman's
appellate counsel and were answered by Breitzman.
    13
       In this exchange, the questions were asked by the State
and were answered by Breitzman.


                                         17
                                                             No.   2015AP1610-CR



her   trial    counsel's     introduction    of    the   reasonable    parental

discipline defense.

      ¶33     On    July    17,    2015,    the    circuit    court     granted

Breitzman's motion as to count three14 but denied Breitzman's

motion as to counts four15 and five.16               As to count four, the

circuit court held that there was sufficient evidence to sustain

the conviction because it is the "parent's responsibility to

provide shelter.           It's not a child's responsibility to find

alternative shelter."         As to count five, the circuit court held

that there was sufficient evidence to sustain the conviction

because     there    was   ample   testimony      that   Breitzman's    profane

conduct did tend to cause a disturbance, and in fact did cause a

disturbance.




      14
       Count three was the charge for Child Neglect (Bodily
Harm) under Wis. Stat. § 948.21(1)(b), as to Breitzman's failure
to seek medical care for J.K. when he was sick for a week with
vomiting and diarrhea.   The circuit court found that there was
insufficient evidence to sustain a conviction because the State
had not proven Breitzman's inaction was a substantial factor in
harming J.K., specifically that there was no evidence that, had
Breitzman taken J.K. to the doctor, it would have made a
difference. Judgment of acquittal on count three was entered on
July 24, 2015.
      15
       Count four was for Child Neglect (Misdemeanor) under Wis.
Stat. § 948.21(1)(a), as to Breitzman's locking J.K. out of the
house during the winter.
      16
       Count five was for Disorderly Conduct under Wis. Stat.
§ 947.01(1), as to Breitzman's engaging in "profane conduct,
under circumstances in which such conduct tended to cause a
disturbance."


                                       18
                                                               No.   2015AP1610-CR



       ¶34   As to the ineffective assistance of counsel claim, the

circuit court held that there was no ineffective assistance.

With    regard    to   the    failure    to    move   for    dismissal   of    the

disorderly conduct charge on free speech grounds, the circuit

court found that there was no prejudice because it would have

denied any motion made on the basis that Breitzman's profanity

had no social value and very clear detrimental effects.17                     With

regard to admission of other-acts evidence, the court found that

there was no deficient performance because it was J.K., not

Breitzman's trial counsel, who introduced the uncharged incident

in the car, and that her trial counsel's decision not to object

on that occasion and on others was part of a reasonable strategy

to challenge J.K.'s credibility.               Similarly, the circuit court

found that trial counsel's reasonable parental discipline theory

was not prejudicial because his discussion of it was vague and

brief during opening statements.              The circuit court further held

that    there    was   no    aggregate   prejudice,     in    part   because   it

specifically instructed the jury on other acts and limited its
instruction on reasonable parental discipline to the context of

other acts.

       ¶35   On August 3, 2015, Breitzman filed notice of appeal.

On August 16, 2016, the court of appeals affirmed the circuit


       17
       We note that this type of balancing has been rejected as
a valid method of determining constitutionality under the First
Amendment.   See United States v. Stevens, 559 U.S. 460, 470
(2010). Because we affirm on other grounds we need not address
the propriety of the circuit court's reasoning here.


                                         19
                                                                              No.     2015AP1610-CR



court's         denial    of       Breitzman's         postconviction              motion.        See

Breitzman, unpublished slip op., ¶26.                          The court of appeals held

that,      as    to    the    free       speech       claim,       there     was    no   prejudice

because the motion would have been unsuccessful, id., ¶22; that,

as    to    trial      strategy,          there       was     no     prejudice       because      the

reasonable         parental         discipline          theory        was     limited      to     the

uncharged incident where Breitzman did not deny striking J.K.,

id., ¶24; and that, as to other-acts evidence, there was no

deficient performance because counsel's decision not to object

was strategic, deliberate, and reasonable, id., ¶23.

       ¶36       On September 15, 2016, Breitzman filed a petition for

review      in    this       court.        On    March        13,    2017,     we    granted      the

petition.         Our review here is limited to Breitzman's ineffective

assistance of counsel claim, which argues that her trial counsel

was ineffective for failing to move to dismiss the disorderly

conduct         charge    on       the    basis        that     it    violated        Breitzman's

constitutional right to free speech, for failing to present a

theory of defense in opening remarks consistent with Breitzman's
anticipated testimony, and for failing to object to other-acts

evidence.

                                   II.    STANDARD OF REVIEW

       ¶37       "Under      the    Sixth       and    Fourteenth           Amendments       to   the

United States Constitution, a criminal defendant is guaranteed

the    right      to     effective         assistance          of     counsel."           State    v.

Lemberger,        2017       WI    39,    ¶16,    374       Wis. 2d 617,       893       N.W.2d 232

(quoting State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358,
805 N.W.2d 334).              The same right is guaranteed under Article I,
                                                  20
                                                                No.     2015AP1610-CR



Section 7 of the Wisconsin Constitution.                 Whether a defendant

was denied effective assistance of counsel is a mixed question

of law and fact.        See State v. Thiel, 2003 WI 111, ¶21, 264

Wis. 2d 571, 665 N.W.2d 305. The factual circumstances of the

case and trial counsel's conduct and strategy are findings of

fact, which will not be overturned unless clearly erroneous;

whether counsel's conduct constitutes ineffective assistance is

a question of law, which we review de novo.               Id.     To demonstrate

that counsel's assistance was ineffective, the defendant must

establish that counsel's performance was deficient and that the

deficient     performance      was    prejudicial.        See     Strickland         v.

Washington, 466 U.S. 668, 687 (1984).             If the defendant fails to

satisfy either prong, we need not consider the other.                        Id. at

697.

       ¶38   Whether   trial     counsel     performed     deficiently          is   a

question of law we review de novo.             See State v. Domke, 2011 WI

95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364.                  To establish that

counsel's    performance    was      deficient,   the    defendant       must    show
that it fell below "an objective standard of reasonableness."

See Thiel, 264 Wis. 2d 571, ¶19.             In general, there is a strong

presumption that trial counsel's conduct "falls within the wide

range of reasonable professional assistance."               State v. Carter,

2010 WI 40, ¶22, 324 Wis. 2d 640, 782 N.W.2d 695.                     Additionally,

"[c]ounsel's decisions in choosing a trial strategy are to be

given great deference."        Balliette, 336 Wis. 2d 358, ¶26.

       ¶39   Whether any deficient performance was prejudicial is
also a question of law we review de novo.                       See     Domke, 337
                                        21
                                                                       No.     2015AP1610-CR



Wis. 2d 268, ¶33.              To establish that deficient performance was

prejudicial, the defendant must show that "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."               See Thiel, 264 Wis. 2d 571, ¶20.

                                       III.    ANALYSIS

      ¶40    In    evaluating          Breitzman's      ineffective        assistance      of

counsel claim, we consider three acts——or failures to act——of

Breitzman's trial counsel:                (A) trial counsel's failure to move

for   dismissal         of    count    five     for   disorderly      conduct     on     free

speech grounds; (B) trial counsel's failure to present opening

remarks consistent with Breitzman's anticipated testimony; and

(C) trial counsel's failure to object to testimony regarding

other uncharged conduct.

      ¶41    As    to    the     first,       we    conclude   that    trial     counsel's

failure to move to dismiss the disorderly conduct charge on the

basis that it violated Breitzman's constitutional right to free
speech was not deficient performance, and thus not ineffective

assistance       of     counsel,       because      whether    profane       conduct     that

tends to cause or provoke a disturbance is protected as free

speech is unsettled law.

      ¶42    As to the second, we conclude that trial counsel's

theory      of    reasonable          parental      discipline,       as     presented     in

opening remarks, was not deficient performance, and thus not

ineffective assistance of counsel, because it reflected trial
counsel's reasonable expectations, which were rationally based
                                               22
                                                                  No.    2015AP1610-CR



on discussions with Breitzman, and it was part of a reasonable

trial strategy.

      ¶43   As   to   the    third,    we     conclude    that    trial    counsel's

failure to object to testimony regarding uncharged conduct was

not deficient performance, and thus not ineffective assistance

of counsel, because declining to object was part of a reasonable

trial strategy.

      ¶44   Because we conclude that trial counsel's performance

was not deficient, we need not address whether, in the context

of ineffective assistance of counsel, there was prejudice to

Breitzman, and we decline to do so.

      ¶45   Thus, we affirm the decision of the court of appeals.


          A. Trial Counsel Was Not Deficient For Failing
       To Move For Dismissal Of The Disorderly Conduct Count
                      On Free Speech Grounds.
      ¶46   We consider first whether trial counsel's failure to

move to dismiss the disorderly conduct charge on the basis that

it   violated    Breitzman's     constitutional          right    to    free   speech

constituted ineffective assistance of counsel.

      ¶47   Breitzman       argues    that    the   failure      to    raise   a   free

speech claim was ineffective assistance because the disorderly

conduct charge was based on the content of Breitzman's speech in

the privacy of her home, which did not fall within one of the

narrow categories of unprotected speech.                 The State argues that

the failure to raise a free speech claim was not ineffective

assistance because Breitzman has not demonstrated that, as a



                                         23
                                                                           No.    2015AP1610-CR



matter of settled law, she had a right to engage in profane

conduct that tends to cause or provoke a disturbance.18

       ¶48     We conclude that trial counsel's failure to move to

dismiss       the    disorderly     conduct       charge      on    the     basis       that   it

violated Breitzman's constitutional right to free speech was not

deficient performance, and thus not ineffective assistance of

counsel, because whether profane conduct that tends to cause or

provoke a disturbance is protected as free speech is unsettled

law.

       ¶49     At    the    outset,     we   note    that,         for    trial     counsel's

performance         to    have   been   deficient,       Breitzman          would       need   to

demonstrate that counsel failed to raise an issue of settled

law.        "[F]ailure to raise arguments that require the resolution

of     unsettled         legal   questions     generally           does     not     render      a

lawyer's       services      'outside    the      wide     range      of     professionally

competent           assistance'       sufficient         to        satisfy        the     Sixth

Amendment."          Lemberger, 374 Wis. 2d 617, ¶18 (quoting Basham v.

United States, 811 F.3d 1026, 1029 (8th Cir. 2016)).                                    Rather,
"ineffective assistance of counsel cases should be limited to

situations where the law or duty is clear . . . ."                                  Id., ¶33

(quoting State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621

(Ct. App. 1994)).            Thus, we turn to the question of whether the



       18
       We note that Wis. Stat. § 947.01(1) is not limited to
public places: "Whoever, in a public or private place . . . ."
Thus, the fact that Breitzman was in the privacy of her home
does not necessarily affect our analysis.


                                             24
                                                                    No.    2015AP1610-CR



law is clear that profane conduct that tends to cause or provoke

a disturbance is protected as free speech.                   It is not.

      ¶50    An individual is guaranteed the right to free speech

under Article I, Section 3 of the Wisconsin Constitution, which

states      in   relevant       part    that    "[e]very      person      may    freely

speak . . . his sentiments on all subjects, being responsible

for   the    abuse   of     that       right . . . ."         The   same     right    is

guaranteed       under    the    First    Amendment     of    the     United     States

Constitution, which states in relevant part that "Congress shall

make no law . . . abridging the freedom of speech."                             "Despite

the differences in language between these two provisions, we

have found no differences in the freedoms that they guarantee."

State v. Robert T., 2008 WI App 22, ¶6, 307 Wis. 2d 488, 746

N.W.2d 564.

      ¶51    The First Amendment case law applicable to profanity

and   disorderly         conduct       finds    root   in     Chaplinsky        v.   New

Hampshire, which held:

      There are certain well-defined and narrowly limited
      classes of speech, the prevention and punishment of
      which   have   never  been    thought  to  raise   any
      Constitutional problem.    These include the lewd and
      obscene, the profane, the libelous, and the insulting
      or "fighting" words——those which by their very
      utterance inflict injury or tend to incite an
      immediate breach of the peace. . . . [S]uch utterances
      are no essential part of any exposition of ideas, and
      are of such slight social value as a step to truth
      that any benefit that may be derived from them is
      clearly outweighed by the social interest in order and
      morality.    "Resort to epithets or personal abuse is
      not in any proper sense communication of information
      or opinion safeguarded by the Constitution, and its


                                           25
                                                                             No.    2015AP1610-CR


        punishment as a criminal act would raise no question
        under that instrument."
315     U.S.         568,     571-72       (1942)        (footnotes    omitted)           (quoting

Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940)).

        ¶52     In     a     series       of     cases    post-Chaplinsky,          this        court

upheld        Wis.         Stat.        § 947.01    against       numerous         free        speech

challenges.            In State v. Zwicker we held that § 947.01 (1967-

68)19    did     not       violate       defendants'       free   speech      rights       because

"[i]t rarely has been suggested that the constitutional freedom

for speech . . . extends its immunity to speech or writing used

as an integral part of conduct in violation of a valid criminal

statute."        41 Wis. 2d 497, 513, 164 N.W.2d 512 (1969).                              In State

v. Maker we again upheld § 947.01 (1967-68), noting that any

challenge        to     the    disorderly          conduct    statute        based      on     words

spoken or conduct engaged in must balance "the right to maintain

the      public            peace"         with      "the     imperative            to      protect

constitutionally assured personal freedoms."                                 48 Wis. 2d 612,

615, 180 N.W.2d 707 (1970).                         In State v. Werstein we upheld

§ 947.01 (1971-72) once again, emphasizing that "[i]t is the
combination           of    conduct       and     circumstances       that    is     crucial      in

applying the statute to a particular situation"; "convictions

for          being         'otherwise           disorderly'       result[]           from        the

inappropriateness                  of      specific        conduct     because            of      the

circumstances involved," namely, where "demeanor could be deemed


        19
       The operative language of subsection (1) of the statute,
which is at issue here, has not changed substantially since
these cases were decided.


                                                   26
                                                                   No.   2015AP1610-CR



abusive or disturbing in the eyes of reasonable persons."                          60

Wis. 2d 668, 672-74, 211 N.W.2d 437 (1973); see also State v.

Becker, 51 Wis. 2d 659, 664-65, 188 N.W.2d 449 (1971); State v.

Givens, 28 Wis. 2d 109, 121-22, 135 N.W.2d 780 (1965).

       ¶53     The United States Supreme Court, however, soon after

issuing Chaplinsky, narrowed its holding.                      See Terminiello v.

Chicago, 337 U.S. 1, 4 (1949).                 In Terminiello, the Court held

that        "freedom    of     speech,     though        not    absolute . . . is

nevertheless protected against censorship or punishment, unless

shown likely to produce a clear and present danger of a serious

substantive      evil   that    rises     far    above    public     inconvenience,

annoyance, or unrest."          Id.      But see Roth v. United States, 354

U.S. 476, 482-83 (1957) ("[At the time of ratification] all of

[the]       States   made    either   blasphemy     or    profanity,       or   both,

statutory crimes. . . . In light of this history, it is apparent

that the unconditional phrasing of the First Amendment was not

intended to protect every utterance.").20




       20
       In response, Breitzman cites to Duncan v. United States,
48 F.2d 128 (9th Cir. 1931), for the proposition that "[t]he
question of what constitutes profane language . . . is usually
dealt with as a branch of the common-law offense of blasphemy."
Presumably,   Breitzman  cites  this   case  to   undermine  the
constitutionality of a statute which regulates speech rooted in
archaic norms of propriety. We do not address this issue here,
however, as Breitzman has not raised a claim that her speech was
not profane, or that the statute is facially unconstitutional or
unconstitutional as-applied to her; her claim here is limited to
whether defense counsel was ineffective for failing to make such
a challenge.


                                          27
                                                                      No.    2015AP1610-CR



       ¶54    Similarly,     while     we        need   not        adopt    any   of   the

following tests for the purposes of our review today, we note

that    our    more    recent   case    law        could      be    read    to    restrict

statutory regulation of speech to the well-defined categories of

unprotected speech: fighting words,21 speech that incites others

into imminent lawless action,22 obscenity,23 libel and defamatory

speech,24 and true threats25.26             See State v. Douglas D., 2001 WI

47, ¶17, 243 Wis. 2d 204, 626 N.W.2d 725; State v. A.S., 2001 WI

48,    ¶16,    243    Wis. 2d 173,   626         N.W.2d 712        ("[The   defendant's]

speech can be prosecuted only if [it] is one of the limited


       21
            See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
       22
            See Brandenburg v. Ohio, 395 U.S. 444 (1969).
       23
            See Miller v. California, 413 U.S. 15 (1973).
       24
            See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
       25
            See Watts v. United States, 394 U.S. 705 (1969).
       26
       See also United States v. Alvarez, 567 U.S. 709, 717
(2012) (adding "speech integral to criminal conduct," "child
pornography," "fraud," and "speech presenting some grave and
imminent threat the government has the power to prevent" as
other content-based restrictions that have been permitted).
With regard to content-based restrictions, Breitzman also cites
Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660
(2004) for the proposition that the Constitution "demands that
content-based    restrictions     on    speech     be    presumed
invalid . . . and that the Government bear the burden of showing
their constitutionality." We express no opinion here, however,
as to the constitutionality of Wis. Stat. § 947.01 with regard
to whether it is a content-based restriction or otherwise,
because Breitzman has not made a facial or as-applied challenge
to the statute; her claim here is limited to whether defense
counsel was ineffective for failing to make such a challenge.


                                            28
                                                                   No.     2015AP1610-CR



categories of speech that fall outside the protections of the

First    Amendment.");      cf.    Douglas        D.,    243    Wis. 2d 204,          ¶24,

(noting that Wis. Stat. § 947.01 is "a recognition of the fact

that in some circumstances words carry with them proscribable

nonspeech elements," i.e., "conduct"); State v. Schwebke, 2002

WI 55, ¶¶29-31, 253 Wis. 2d 1, 644 N.W.2d 666 (holding that the

disorderly     conduct     statute       does     not    only    apply     to    public

disruptions).      The depth and breadth of these restrictions on

free speech are not so settled in Wisconsin law that counsel's

performance could be deemed deficient in this case.

    ¶55    Additionally,      the        United    States       Supreme    Court      has

rejected   any    balancing       test    that    may    be     inferred       from   its

historical descriptions of unprotected categories of speech as

being "of such slight social value . . . that any benefit that

may be derived from them is clearly outweighed by the social

interest in order and morality."                See United States v. Stevens,

559 U.S. 460, 470 (2010) (quoting R.A.V. v. St. Paul, 505 U.S.

377, 383 (1992) (quoting Chaplinsky, 315 U.S. at 572)); see also
Brown v. Entm't Merch. Ass'n, 564 U.S. 786, 792 (2011); cf.

Brown,   564   U.S.   at   792     (quoting       Stevens,      559     U.S.    at    472)

("'Maybe there are some categories of speech that have been

historically     unprotected,      but     have    not   yet     been     specifically

identified or discussed as such in our case law.'").

    ¶56    This body of case law does not promulgate a clear

standard as to whether a charge under Wis. Stat. § 947.01, based

on profane conduct that tends to cause or provoke a disturbance,
violates the constitutional right to free speech.                        And, because
                                          29
                                                               No.    2015AP1610-CR



Breitzman does not raise a facial or as-applied challenge to the

disorderly conduct statute,27 we are confined to considering the

narrower    issue   of   whether   the   law    was    so   well     settled   that

counsel's    performance    was    legally     deficient.          See   State   v.

Castillo,     213   Wis. 2d 488,     492,      570    N.W.2d 44      (1997)    ("An

appellate court should decide cases on the narrowest possible

grounds.").     In that regard, trial counsel was not ineffective

for not moving to dismiss the disorderly conduct charge, because

doing so would have required that there be a resolution of an

unsettled question of law.         See Lemberger, 374 Wis. 2d 617, ¶18.

    ¶57     We recognize, however, that the use of profanity alone

is not enough to sustain a charge for disorderly conduct.                        A

charge for disorderly conduct has two elements: first, that the

defendant    "engage[d]    in   violent,     abusive,       indecent,    profane,

boisterous, unreasonably loud or otherwise disorderly conduct";

second, that the defendant's conduct "tends to cause or provoke

a disturbance."       See Wis. Stat. § 947.01(1).              Profanity alone

might satisfy the first element, but it does not likely satisfy
the second element.        Thus, it is not profanity alone that is

being regulated by the statute.

    ¶58      We also note that the charge against Breitzman was

not just that she engaged in "profane conduct," but that she

"did engage in profane conduct, under circumstances in which




    27
         See supra ¶5, n.4.


                                      30
                                                                 No.     2015AP1610-CR



such conduct tended to cause a disturbance . . . ."28                            To be

clear, the crime of disorderly conduct under Wis. Stat. § 947.01

requires      more       than    profane    speech    alone.      See     Cohen     v.

California,        403    U.S.   15,   22   (1971)   (holding    that     wearing    a

jacket bearing the words "Fuck the Draft" did not disturb the

peace where the words were the only conduct, in part because

there      was     "no    evidence     that      persons    powerless     to     avoid

appellant's conduct did in fact object to it").                          But, as is

clear from the testimony here, Breitzman was not charged with

disorderly conduct solely because she swore at her son in the

privacy of her home; rather she was charged and convicted of

disorderly conduct because her profane conduct was that which,

under the circumstances presented, tended to cause or provoke a

disturbance.         See Werstein, 60 Wis. 2d at 673-74 ("[C]onvictions

for        being     'otherwise        disorderly'         result[]      from      the

inappropriateness           of     specific       conduct      because      of     the

circumstances involved," namely where "demeanor could be deemed

abusive or disturbing in the eyes of reasonable persons").
      ¶59     Here, the jury heard evidence of other occasions where

Breitzman called J.K. a "fuck face," "retard," and "piece of

shit"——and on two of the five occasions charged, this profanity

was punctuated by physical abuse.                 Conviction on count one, for


      28
       Additionally, we note that the State could have charged
Breitzman with more than "profane conduct," as it is one of many
options under the statute.    Had the State done so, Breitzman
acknowledged at oral argument that the constitutional question
here would not be in issue.


                                            31
                                                            No.     2015AP1610-CR



physical abuse, was supported by testimony that Breitzman struck

J.K. on the side of the head when he was not sweeping "right or

fast enough," calling him a "piece of shit" and the "dog of the

house."    Conviction on count two, also for physical abuse, was

supported by testimony that Breitzman came into J.K.'s room and

struck him in the face when he would not get out of bed, calling

him a "fuck face" and a "retard."

    ¶60        The jury also heard testimony from J.K.'s best friend

about the impact this had on J.K., who went from "always happy

and nice" to "more stressed out and tired and just more sad."29

A situation need not escalate to violence for the reasonable

person    to    determine   that    the   profanity     tended    to   cause   or

provoke a disturbance.30           Simply stated, were this case about

profanity alone, isolated from the context and conduct out of

which the charge arose, and had Breitzman made a constitutional

challenge to the validity of the statute vis-à-vis profanity

alone, we might be confronted with the need to resolve a free

speech    argument.      But   that   is   just   not    this     case;   rather

    29
       Additionally, J.K. testified that these interactions with
his mother made him feel worthless, often making him cry,
ultimately causing him to report this home situation to his
counselor at school and to the police.
    30
       "It is not necessary that an actual disturbance must have
been committed from the defendant's conduct.    The law requires
only that the conduct be of the type that tends to cause or
provoke a disturbance under the circumstances as they then
existed. You must consider not only the nature of the conduct,
but also the circumstances surrounding that conduct.     What is
proper under one set of circumstances may be improper under
other circumstances." See Wis JI——Criminal 1900 (2016).


                                      32
                                                                          No.        2015AP1610-CR



Breitzman's conduct, "because [of] the circumstances involved,"

could rightfully "be deemed abusive or disturbing in the eyes of

reasonable persons."             Werstein, 60 Wis. 2d at 673-74.

       ¶61    In    sum,    Breitzman        has    failed         to   demonstrate            that

counsel's performance was deficient because the law in this area

is unsettled.          Additionally, Breitzman's conduct was more than

just profanity, and the law does not support the notion that,

because      Breitzman      engaged     in    profane         conduct,      she       is     to    be

protected      from    prosecution          regardless        of    the    fact        that       the

circumstances tended to cause or provoke a disturbance.                                      Thus,

her trial counsel's performance did not fall below the objective

standard of reasonableness.

             B.     Trial Counsel Was Not Deficient For Failing
                  To Present Opening Remarks Consistent With
                       Breitzman's Anticipated Testimony.
       ¶62    We    consider       second     the     issue        of     whether          defense

counsel's      theory      of    reasonable        parental        discipline          at    trial

constituted        ineffective        assistance         of    counsel          in     light       of

Breitzman's        denial    that     she    struck      J.K.      on     the    two       charged

occasions.

       ¶63    Breitzman argues that it was inconsistent to argue in

opening      remarks      that    striking        J.K.    was      reasonable           parental

discipline where she planned to testify that she did not strike

J.K.   on    the    two     charged    occasions,         and      that,    but        for     this

inconsistency, the jury would have been presented with a more

straightforward credibility comparison.                        The State argues that
Breitzman's counsel's theory of reasonable parental discipline,


                                             33
                                                                           No.     2015AP1610-CR



as    presented         in   the   opening          remarks,      was      not    ineffective

assistance because it was short, vague, and struck a careful

balance between Breitzman's plan to deny that she struck J.K. on

the     two    charged        occasions      and      trial       counsel's        reasonable

anticipation that the uncharged incident in the car would likely

arise    during      testimony;        moreover,         Breitzman       agreed     with    this

strategy and any unfair prejudice was addressed by the circuit

court's       jury      instruction      that        attorney       arguments         are    not

evidence.

      ¶64     We        conclude    that       defense           counsel's         theory     of

reasonable parental discipline, as presented in opening remarks,

was     not    deficient        performance,             and     thus    not      ineffective

assistance      of      counsel,    because         it    reflected        trial     counsel's

reasonable         expectations,         which        were       rationally         based     on

discussions with Breitzman, and it was part of a reasonable

trial strategy.

      ¶65     At     the     outset,    we   note        that,     for     trial     counsel's

performance        to    have   been    deficient,             Breitzman    would     need    to
overcome the strong presumption of reasonableness of her defense

counsel's       trial        strategy     by        demonstrating          that      counsel's

incorporation of the reasonable parental discipline defense was

irrational or based on caprice.                     Trial strategy is afforded the

presumption of constitutional adequacy.                            See, e.g., Balliette

336 Wis. 2d 358, ¶26; State v. Maloney, 2005 WI 74, ¶43, 281

Wis. 2d 595,         698     N.W.2d 583.            "Reviewing          courts     should     be

'highly deferential' to counsel's strategic decisions and make
'every      effort . . . to        eliminate             the    distorting        effects     of
                                               34
                                                                       No.          2015AP1610-CR



hindsight,         to    reconstruct       the     circumstances               of     counsel's

challenged conduct, and to evaluate the conduct from counsel's

perspective at the time.'"                  See    Domke, 337 Wis. 2d 268, ¶36

(quoting Carter, 324 Wis. 2d 640, ¶22).                       "This court will not

second-guess a reasonable trial strategy, [unless] it was based

on an irrational trial tactic or based upon caprice rather than

upon   judgment."          Id.,     ¶49.     In     fact,     where        a    lower       court

determines that counsel had a reasonable trial strategy, the

strategy "is virtually unassailable in an ineffective assistance

of counsel analysis."              State v. Maloney, 2004 WI App 141, ¶23,

275 Wis. 2d 557, 685 N.W.2d 620.                  Thus, we turn to the question

of whether trial counsel's defense theory of reasonable parental

discipline was an irrational trial tactic or based on caprice.

It was not.

       ¶66   The parties focus their arguments on defense counsel's

opening      remarks,      which     discussed          the   jury    instruction             for

reasonable parental discipline and framed the issue as "whether

[Breitzman] is a criminal or just a struggling parent[.]                                        I
believe      the        evidence     will        show     that       she        is      not     a

criminal . . . ."

       ¶67   Trial counsel testified at the Machner hearing that he

pursued      the    reasonable       parental       discipline        theory           in    part

because of his concern about the credibility battle that would

play out at trial.            He also testified that he discussed the

reasonable         parental   discipline          theory      with     Breitzman,             and

Breitzman testified that she agreed to it.                           Trial counsel did
not    specifically        recall    whether       Breitzman         had       categorically
                                            35
                                                                             No.     2015AP1610-CR



denied     striking        J.K.       on   the   two       charged       occasions,       but    did

recall     that     it     was    important         to      Breitzman       to    bring    up    the

uncharged       incident         in    the    car        to    explain      J.K.'s     level      of

animosity toward his mother such that he would falsely accuse

her of abuse and neglect.31

      ¶68       Given this testimony, defense counsel's decision to

incorporate the theory of reasonable parental discipline in his

opening remarks was not ineffective assistance.                                    First, "[i]n

light      of    the       not    uncommon         practice       of      lawyers     to    argue

inconsistent theories, we cannot say that the decision [to do

so]   deprive[s        a    defendant]        of      the      right   to    constitutionally

effective assistance, irrespective of whether we or the trial

court view that strategy as the best."                           State v. Marks, 2010 WI

App 172, ¶17, 330 Wis. 2d 693, 794 N.W.2d 547; see also Brown v.

Dixon, 891 F.2d 490, 494–95 (4th Cir. 1989) (holding that it was

not ineffective assistance of counsel where the defense theory

was that "Brown either did not commit the murders or did so

while      drunk"      because        "the    use     of      inconsistent         defenses      was
objectively reasonable under prevailing professional norms").

      ¶69       Second,      trial         counsel's          decision      was    based    on     a

discussion with Breitzman about her relationship with J.K. and

the evidence that she expected and wanted to come out at trial;


      31
       At the Machner hearing, defense counsel testified that
"[s]he also told me that she believed that [the car incident]
was part of the . . . animus [] he had against her to try to
create these other issues such as when he was injured lifting
dumbbells and claimed she had struck him, et cetera."


                                                 36
                                                                       No.       2015AP1610-CR



therefore, it was not based on caprice.                        Nor was it irrational:

the record reflects that the State pled a number of other acts

in its criminal complaint, including the uncharged incident in

the car; that Breitzman in fact wanted this other act to come in

to establish J.K.'s motive to lie; and that Breitzman never

unequivocally        told    trial    counsel          that    she   intended       to    deny

striking J.K. on the two charged occasions.32                                Thus, it was

rational for her trial counsel to formulate a strategy and argue

a theory of defense with the expectation that some other acts

would come out at trial.             Such a strategy had to account for the

possibility that Breitzman's credibility would be undermined by

evidence of other acts, and giving the jury an alternate ground

for     acquittal     in     the     event        that    they       had    doubts       about

Breitzman's credibility and questions about the other acts was a

reasonable means of accommodating such contingency.

      ¶70    Additionally, there are many aspects of a trial which

make its outcome uncertain and we cannot let our judgment of

trial strategy be clouded by the clarity of hindsight.                                    See,
e.g.,       Domke,     337      Wis. 2d 268,             ¶36     ("Reviewing          courts

should . . . make           every    effort       to     eliminate         the   distorting


      32
       In this regard, we note that the circuit court found that
defense counsel's testimony at the Machner hearing was credible.
In light of Breitzman's bias, both from hindsight and as an
interested party, we cannot hold that such a finding was clearly
erroneous. See State v. Shata, 2015 WI 74, ¶31, 364 Wis. 2d 63,
868 N.W.2d 93 ("[T]his court will not exclude the circuit
court's articulated assessments of credibility and demeanor,
unless they are clearly erroneous.").


                                             37
                                                                  No.   2015AP1610-CR



effects of hindsight.")            We have concluded here that defense

counsel's decision to argue the reasonable parental discipline

defense in his opening remarks was not ineffective based on the

record.     We note that the record also reflects that Breitzman's

trial counsel adjusted his strategy based on the development of

evidence at trial: after Breitzman's testimony concluded, her

trial counsel adjusted course, successfully advocating for the

inclusion     of    reasonable    parental     discipline    as     a   therapeutic

instruction        for   other   acts   and    limiting     his     discussion     of

reasonable parental discipline during closing argument to the

other acts.33       These adjustments were appropriate.

     ¶71     In sum, Breitzman has failed to demonstrate that her

trial     counsel's      performance    was   deficient   because       pursuing    a

theory of reasonable parental discipline was rationally based on

counsel's discussions with Breitzman and his expectations for

what evidence would come out at trial.             Additionally, when trial


     33
       After testimony concluded on day two, and before
testimony began on day three, the circuit court conferred with
the parties outside the presence of the jury regarding jury
instructions.   The court expressed concern that there was not
enough evidence to give the reasonable parental discipline
instruction because Breitzman was denying striking J.K. on the
two charged occasions.    The State agreed.     Defense counsel
argued that the instruction was appropriate because the State
had introduced other acts, namely the uncharged incident in the
car, which entitled Breitzman to assert the reasonable parental
discipline defense. The court ultimately agreed to incorporate
part of the jury instruction for the reasonable parental
discipline defense, see Wis JI——Criminal 950 (2014), as a
therapeutic instruction responsive to other acts.     See infra
¶78.


                                         38
                                                                         No.     2015AP1610-CR



did not proceed in accordance with counsel's expectations, he

adjusted course and the court's limiting instructions——discussed

below——appropriately           addressed        any    potential         juror    confusion.

Thus,     trial   counsel's        performance          did     not      fall     below      the

objective standard of reasonableness.

  C.    Trial Counsel Was Not Deficient For Failing To Object To
            Testimony Regarding Other Uncharged Conduct.
       ¶72    We consider third the related issue of whether trial

counsel's      failure     to     object        to     testimony         regarding          other
uncharged conduct constituted ineffective assistance of counsel.

       ¶73    Breitzman        argues        that     the    failure       to     object      to

testimony about acts other than those underlying the charges was

ineffective assistance because the testimony was inadmissible

"other acts" evidence under Wis. Stat. § 904.04 and, but for

admission,      the     jury    would     have       been    presented         with     a    more

straightforward credibility comparison.                        The State argues that

the failure to object was not ineffective assistance because

allowing this testimony was a reasonable means of accomplishing

trial   counsel's       strategy        to    undermine       J.K.'s      credibility          by
depicting him as a rebellious teenager who was making grandiose

allegations; moreover, Breitzman agreed with this strategy.

       ¶74    We conclude that trial counsel's failure to object to

testimony      regarding         uncharged          conduct        was     not        deficient

performance,      and    thus    not     ineffective          assistance         of    counsel,

because      declining    to     object       was     part    of   a     reasonable         trial

strategy.



                                              39
                                                                      No.        2015AP1610-CR



       ¶75    At the outset, we note that this is again a question

of trial strategy, and, as such, that Breitzman must overcome

the    strong    presumption       of     reasonableness        afforded           to    trial

counsel's       decisions        regarding      trial     strategy;              for     trial

counsel's performance to have been deficient, Breitzman would

need to demonstrate that counsel's decision not to object to

other acts was inconsistent with a reasonable trial strategy,

that is, that it was irrational or based on caprice.                                As noted

above,       trial   strategy        is      afforded     the         presumption             of

constitutional adequacy.            See, e.g., Balliette 336 Wis. 2d 358,

¶26; Maloney, 281 Wis. 2d 595, ¶43.               "Reviewing courts should be

highly    deferential      to    counsel's      strategic       decisions          and       make

every effort 'to eliminate the distorting effects of hindsight,

to     reconstruct      the      circumstances      of        counsel's          challenged

conduct, and to evaluate the conduct from counsel's perspective

at the time.'"       See Domke, 337 Wis. 2d 268, ¶36 (quoting Carter,

324 Wis. 2d 640, ¶22).              "This court will not second-guess a

reasonable      trial      strategy,       [unless]      it     was     based           on    an
irrational trial tactic or based upon caprice rather than upon

judgment."      Id., ¶49.         In fact, where a lower court determines

that counsel had a reasonable trial strategy, the strategy "is

virtually unassailable in an ineffective assistance of counsel

analysis."      Maloney, 275 Wis. 2d 557, ¶23.                 Thus, we turn to the

question of whether trial counsel's failure to object to other-

acts    evidence     was    an    irrational      trial       tactic        or     based      on

caprice.      It was not.


                                           40
                                                                        No.     2015AP1610-CR



     ¶76    Here, the trial strategy was to demonstrate that J.K.

was making false and grandiose allegations against Breitzman.

As a part of this strategy, trial counsel did not object to

other acts involving slapping, failing to provide medical care,

and/or    profanity,       because     he     intended         for    that     evidence     to

undermine    J.K.'s       credibility       and    cast        Breitzman      as    a    single

parent doing the best she could with a rebellious teenager.                                  In

other words, the testimony as to other acts was central to the

defense's strategy for bolstering Breitzman's credibility, and

its theory of reasonable parental discipline, because, for the

defense to be successful, the jury needed to understand the

context of the relationship between Breitzman and J.K. so as to

appropriately       assess     credibility             and     determine       culpability.

Thus,     failing    to     object     to     other          acts    testimony      was    not

deficient performance because it was rational in light of trial

counsel's strategy and theory.

     ¶77    In general, it can be quite effective for a defendant

to say 'I did this and I did that, but I did not do what the
State has charged me with,' because it tends to establish a

defendant's credibility.           But, there are many aspects of a trial

which make its outcome uncertain and we cannot let our judgment

of trial strategy be clouded by the clarity of hindsight.                                  See,

e.g.,      Domke,     337      Wis. 2d 268,              ¶36        ("Reviewing          courts

should . . . make          every     effort       to     eliminate       the       distorting

effects of hindsight.").              Furthermore, Breitzman agreed to the

defense    theory     of    reasonable        parental          discipline         and    "[a]n
accused cannot follow one course of strategy at the time of
                                            41
                                                 No.   2015AP1610-CR



trial and if that turns out to be unsatisfactory complain [she]

should be discharged or have a new trial."    Cross v. State, 45

Wis. 2d 593, 605, 173 N.W.2d 589 (1970).   Thus, Breitzman cannot

now complain just because a strategy that was reasonable at the

outset turned out to be unsuccessful.

    ¶78   Additionally, the circuit court gave jury instructions

that limited any unfair prejudice that may have resulted from

the other acts testimony.   With regard to other acts, the court

instructed as follows:

         Evidence has been presented regarding other
    conduct of the defendant for which the defendant is
    not on trial. . . . If you find that this conduct did
    occur, you should consider it only on the issues of
    intent and context or background.        You may not
    consider this evidence to conclude that the defendant
    has a certain character or a certain character trait
    and that the defendant acted in conformity with that
    trait or character with respect to the offense charged
    in this case.

         The evidence was received by [sic] the issues of
    intent, that is, whether the defendant acted with the
    state of mind that is required for the offense
    charged, and to prove context or background that is to
    provide a more complete presentation of the evidence
    related to the offense charged.
With regard to the uncharged incident in the car, the court

additionally instructed as follows:

         As to [the] striking of [J.K.] with the back of
    the hand in the car, discipline of a child is an
    issue.   The law allows a person responsible for the
    child's welfare to use reasonable force to discipline
    that child.   Reasonable force is that force which a
    reasonable person would believe is necessary.

         Whether a reasonable person would have believed
    that the amount of force used was necessary and not

                               42
                                                                          No.     2015AP1610-CR


      excessive must be determined from the standpoint of
      the defendant at the time of the defendant's acts.

           The standard is what a person of ordinary
      intelligence and prudence would have believed in the
      defendant's position under circumstances that existed
      at the time of the alleged offense.
These    limiting           instructions       were     sufficient        to     address    any

unfair prejudice that may have resulted from the other acts

testimony, and in fact bolstered Breitzman's defense regarding

reasonable parental discipline.                      See State v. Marinez, 2011 WI

12,   ¶41,      331     Wis. 2d 568,          797    N.W.2d 399         ("We    presume    that

juries      comply       with     properly          given    limiting      and     cautionary

instructions,          and    thus     consider       this    an    effective       means   to

reduce   the         risk    of   unfair      prejudice       to    the    party       opposing

admission of other[-]acts evidence.").

      ¶79       In    sum,    Breitzman        has     failed      to    demonstrate       that

counsel's performance was deficient because admission of other

acts testimony was central to a reasonable defense theory and

strategy.        Additionally, any unfair prejudice was appropriately

addressed       by     limiting        instructions         from    the    court.         Thus,

defense counsel's performance did not fall below the objective

standard of reasonableness.

                 D.     We Need Not Consider Prejudice Because
                         Trial Counsel Was Not Deficient.
      ¶80       To    succeed     on    an    ineffective       assistance        of    counsel

claim,      a        petitioner        must    establish        both       that     counsel's

performance was deficient and that the deficient performance was

prejudicial.          See Strickland, 466 U.S. at 687.



                                                43
                                                                     No.     2015AP1610-CR



       ¶81   Where the petitioner fails to satisfy either prong of

the   ineffective       assistance        of    counsel       analysis     we    need   not

consider the other.             See Strickland, 466 U.S. at 697.                   Because

we    conclude     that    Breitzman        has    not    established       that     trial

counsel's     performance          was     deficient,         we   need    not     address

whether, in the context of ineffective assistance of counsel,

the    alleged     errors       individually        or    cumulatively          prejudiced

Breitzman, and we decline to do so.

                                   IV.     CONCLUSION

       ¶82   On petition to this court, Breitzman sought review of

the denial of her ineffective assistance of counsel claim.                               In

this regard, Breitzman's claim did not raise a facial or as-

applied challenge to the disorderly conduct statute, Wis. Stat.

§ 947.01.     A facial challenge would have argued that "profane

conduct," as listed in § 947.01(1), is not actionable as a crime

because profanity is protected speech.                     An as-applied challenge

would have argued that Breitzman's profane conduct in this case

was not actionable as a crime because it was protected speech.
Breitzman argued neither.                Breitzman only argued that her trial

counsel rendered ineffective assistance.                       Thus, while this case

touched on an interesting issue of free speech law, we confined

our   analysis     to     the    ineffective       assistance       of    counsel    issue

presented, briefed, and argued by the parties.

       ¶83   The   ineffective           assistance      of    counsel     issue    raised

required consideration of whether counsel was ineffective for

any of the following reasons: (1) failing to move to dismiss the
disorderly       conduct        charge     on     the    basis     that    is    violated
                                            44
                                                               No.     2015AP1610-CR



Breitzman's constitutional right to free speech; (2) failing to

present opening remarks consistent with Breitzman's anticipated

testimony;     and    (3)   failing   to    object    to   testimony     regarding

other uncharged conduct.

    ¶84    As    to   the   first,    we    conclude   that    trial     counsel's

failure to move to dismiss the disorderly conduct charge on the

basis that it violated Breitzman's constitutional right to free

speech was not deficient performance, and thus not ineffective

assistance     of    counsel,    because    whether    profane       conduct     that

tends to cause or provoke a disturbance is protected as free

speech is unsettled law.

    ¶85    As to the second, we conclude that trial counsel's

theory    of    reasonable      parental    discipline,       as     presented     in

opening remarks, was not deficient performance, and thus not

ineffective assistance of counsel, because it reflected trial

counsel's reasonable expectations, which were rationally based

on discussions with Breitzman, and it was part of a reasonable

trial strategy.
    ¶86    As    to   the   third,    we    conclude   that    trial     counsel's

failure to object to testimony regarding uncharged conduct was

not deficient performance, and thus not ineffective assistance

of counsel, because declining to object was part of a reasonable

trial strategy.

    ¶87    Because we conclude that trial counsel's performance

was not deficient, we need not address whether, in the context

of ineffective assistance of counsel, there was prejudice to
Breitzman, and we decline to do so.
                                       45
                                                           No.   2015AP1610-CR



    ¶88     Thus, we affirm the decision of the court of appeals.



    By    the   Court.—The   decision   of   the   court    of   appeals   is

affirmed.




                                   46
                                                                             No.    2015AP1610-CR.ssa


       ¶89   SHIRLEY S. ABRAHAMSON, J.                            (concurring).              The court's

opinion is a very narrow decision limited to the facts of the

case and the issues the defendant raised.

       ¶90   This      case       does       not       decide        a    facial    or        as-applied

challenge        to    the     disorderly                  conduct        statute,           Wis.     Stat.

§ 947.01.     Breitzman made no such challenge.

       ¶91   Additionally,              in        this       court,        Breitzman           does        not

challenge        the   sufficiency                of       the     evidence        supporting            the

conviction;        Breitzman        accepts                the     jury's    finding           that        her

profane conduct tended to cause or provoke a disturbance within

the meaning of the statute.

       ¶92   The       claim       in        the           instant        case     is        ineffective

assistance of counsel.               Breitzman claims that trial counsel was

ineffective because counsel failed to raise a First Amendment

defense to Breitzman's disorderly conduct charge.

       ¶93   The majority opinion holds against Breitzman on this

claim,   relying on the             "unsettled law"                      rubric.         The majority

opinion asserts that defense counsel was not ineffective because
"whether     profane      conduct            that          tends     to    cause        or    provoke       a

disturbance       is    protected            as    free          speech     is     unsettled          law."

Majority op., ¶7.

       ¶94   I    write      to    make       two          points:         (1)     Nothing          in   the

majority opinion should be read as commenting on the merits of

the underlying First Amendment defense; and (2) The "unsettled

law"     doctrine        guiding             the           determination           of        ineffective

assistance       of    counsel       is       not          sufficiently          protective           of    a



                                                       1
                                                                       No.   2015AP1610-CR.ssa


defendant's       constitutional           and       statutory      rights    to      effective

counsel.

    ¶95      The      bench    and    bar       should       be    working   for      a       better

standard for determining the adequacy of representation.

    ¶96      I    write     further        on    a    different       topic,     namely,            my

practice     in       participating         or       not    participating        in       a    case

depending        on    my   participation             in     various      aspects         of       the

decision-making process.              I write on this topic in the instant

case in which I am participating because a majority of the court

insists that a justice who does not participate in a case merely

state   on   the       court      record    the       fact    of    non-participation              or

withdrawal from participation and not state grounds for non-

participation.

    ¶97      Lawyers        and    litigants          should       know   that     it         is   my

practice not to participate in a decision when I do not fully

participate       in    every      stage        of    the     decision-making           process.

Thus, for example, if I were present at oral argument but did

not participate in the decision conference, I would be shown as
not participating in the decision.

    ¶98      For the reasons set forth, I write separately.




                                                 2
    No.   2015AP1610-CR.ssa




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