                                                            2020 WI 52

             SUPREME COURT               OF   WISCONSIN
CASE NO.:              2017AP2364-CR


COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       David Gutierrez,
                                 Defendant-Appellant.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 388 Wis. 2d 312,933 N.W.2d 133
                              PDC No:2019 WI App 41 - Published

OPINION FILED:         June 3, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 10, 2020

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Green Lake
   JUDGE:              Andrew E. Voigt

JUSTICES:
DALLET, J., delivered the majority opinion for a unanimous Court.
NOT PARTICIPATING:
HAGEDORN, J., did not participate. ANN WALSH BRADLEY, J., withdrew
from participation.

ATTORNEYS:



      For the plaintiff-respondent-petitioner, there were briefs
filed by Daniel J. O’Brien assistant attorney general, with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Daniel J. O’Brien.


      For the defendant-appellant, there was a brief filed by Chris
A. Gramstrup and Gramstrup Law Office, Superior. There was an oral
argument by Chris A. Gramstrup.
                                                                             2020 WI 52
                                                                      NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2017AP2364-CR
(L.C. No.      2012CF115)

STATE OF WISCONSIN                                 :                IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent-Petitioner,                            FILED
                                                                         JUN 3, 2020
          v.
                                                                          Sheila T. Reiff
David Gutierrez,                                                      Clerk of Supreme Court


               Defendant-Appellant.


DALLET, J., delivered the majority opinion for a unanimous Court.

HAGEDORN, J., did not participate. ANN WALSH BRADLEY, J., withdrew
from participation.




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

part, reversed in part.


      ¶1       REBECCA      FRANK   DALLET,   J.   This        is    a   review     of    a

published decision of the court of appeals1 reversing the judgment

of conviction entered against David Gutierrez.

      ¶2       Gutierrez was convicted of multiple counts of sexual

assault and enticement of his stepdaughter.                    In a postconviction


      1State v. Gutierrez, 2019 WI App 41, 388 Wis. 2d 312, 933
N.W.2d 133.
                                                                No.    2017AP2364-CR



motion, Gutierrez alleged the denial of his constitutional right

to an impartial jury and to effective assistance of counsel.

Gutierrez appealed the denial of his postconviction motion.                      He

also appealed his judgment of conviction on the grounds that the

circuit court2 erred in its decision to exclude unidentified DNA

evidence and to admit "other acts" evidence.               The court of appeals

reversed the circuit court's decision to exclude the unidentified

DNA   evidence   and   affirmed        its   decision     to   admit   other    acts

evidence.   The judgment of conviction was vacated and the case was

remanded for a new trial.         The State petitioned for review.

      ¶3    We   conclude   that       the   court   of    appeals     erroneously

reversed the circuit court's exercise of discretion in excluding

unidentified DNA evidence.            We further conclude that the court of

appeals properly affirmed the circuit court's admission of other

acts evidence.     Lastly, we conclude that Gutierrez was not denied

his right to an impartial jury or his right to effective assistance

of counsel. Accordingly, we reverse the court of appeals' decision

as to the unidentified DNA evidence and affirm its decision as to
the other acts evidence. We also affirm the circuit court's denial

of Gutierrez's postconviction motion.

                                 I.    BACKGROUND

      ¶4    On   November   2,    2012,      twelve-year-old      A.R.   told    her

cousin she was afraid to return home because her stepfather,

Gutierrez, touched her the night before.                In a forensic interview

conducted later that day, A.R. alleged that the prior evening,

      2The Honorable W. Andrew Voigt of the Green Lake County
Circuit Court presided.
                                         2
                                                   No.   2017AP2364-CR



November 1, Gutierrez removed her clothes, touched her genitals,

made her touch his genitals, performed oral sex on her, forced her

to perform oral sex on him, ejaculated in her mouth, and attempted

to penetrate her with his penis.        A.R. further alleged that

Gutierrez first sexually assaulted her when she was six years old

by luring her into a closet and performing oral sex on her.      A.R.

also provided specific details about an alleged sexual assault

that took place in a van some time between May and October 2011

and in a garage some time between September 2011 and May 2012.

     ¶5     After her forensic interview, A.R. submitted to a sexual

assault forensic exam where she indicated that in the 24 hours

since the assault she had urinated, defecated, washed her genital

area, taken a shower, drank liquid, brushed her teeth, swished out

her mouth, and changed her clothes. The nurse collected a perioral

swab from A.R. to test for DNA.3

     ¶6     Additional DNA swabs were taken from two pairs of A.R.'s

underwear seized during the execution of a search warrant on

November 3.    One pair, which A.R. indicated she wore during the
November 1 assault, was pulled mid-cycle from the washing machine.

It did not match the description A.R. had initially given to the

police.    The second pair, which was purportedly the underwear A.R.

wore on November 2, was retrieved from a pile of soiled laundry.

DNA from at least three unidentified males was detected on the

perioral swab, and DNA from at least five unidentified males was

     3   "Perioral" refers to the exterior area around a person's
mouth.     See Perioral, Attorney's Dictionary of Medicine (Oct.
2019).

                                   3
                                                                        No.     2017AP2364-CR



detected on the underwear swabs.                    The testing excluded Gutierrez

as    a       contributor      to   either    DNA    mixture.        The      testing   also

determined that none of the DNA was from semen or saliva.

          ¶7     Based on the three allegations of sexual assault that

took place between 2011 and 2012, Gutierrez was charged with three

counts of sexual assault of a child under the age of thirteen,

three counts of incest with a child by stepparent, three counts of

child enticement, and one count of exposing a child to harmful

material.4         Prior to trial, Gutierrez moved to admit the DNA test

results.         The State objected, arguing that the DNA evidence was

not   relevant       and       that   any    probative      value    was      substantially

outweighed by the danger of undue prejudice, confusion of the

issues, and misleading the jury. See Wis. Stat. §§ 904.01, 904.03.

Additionally,            the    State       asserted       that   the      indication     of

unidentified male DNA on the swabs would invite speculation as to

why male DNA would be around A.R.'s mouth and on her underwear, a

purpose         barred    by    Wisconsin's         rape    shield   law,       Wis.    Stat.

§ 972.11(2)(b).           Defense counsel argued that the unidentified DNA
evidence was highly probative to rebut the State's theory that

Gutierrez's DNA would not likely be found on A.R. since she had

washed and wiped herself in the time between the assault and when

the swabs were collected, and that this purpose was not contrary

to the rape shield law.


       See Wis. Stat. §§ 948.02(1)(e), 948.06(1m), 948.07(1),
          4

& 948.11(2)(a) (2017-18).   All subsequent references to the
Wisconsin Statutes are to the 2017-18 version unless otherwise
indicated.

                                               4
                                                                    No.    2017AP2364-CR



       ¶8         The circuit court ruled that Gutierrez could introduce

evidence only that DNA testing was performed on the perioral and

underwear swabs and that his DNA was not found on those swabs.

While       the    circuit      court    "agree[d]    with    [defense      counsel's]

analysis of the rape shield law," it precluded Gutierrez from

presenting the unidentified DNA evidence because the lack of

information surrounding the sources of the DNA and when it had

been       deposited     rendered       its   probative    value    "extraordinarily

limited."          The circuit court also raised concerns that expert

testimony on this issue could consume half a day and could take

the trial "down a rabbit hole."                   As an alternative, the court

allowed       defense      counsel       to   generally      explore      how   DNA   is

transferred, how long foreign DNA remains viable on another person,

and how easily DNA can be washed or wiped off with the expert

witness.

       ¶9         The   State   moved    to   admit   as   "other      acts"    evidence

allegations of prior sexual assaults dating back to when A.R. was

approximately six years old.                  In light of the greater latitude
rule applicable in child sexual assault cases,5 the circuit court

granted the State's motion in part, admitting only the first

incident of alleged assault for the limited purposes of proving



       The circuit court initially denied the State's motion to
       5

admit the other acts evidence but reversed that decision upon the
State's motion to reconsider.    Specifically, the circuit court
cited the greater latitude rule which permits a greater latitude
of proof as to other acts "in sexual assault cases, particularly
cases that involve sexual assault of a child . . . ." State v.
Davidson, 2000 WI 91, ¶36, 236 Wis. 2d 537, 613 N.W.2d 606.

                                              5
                                                                  No.   2017AP2364-CR



motive and providing context and background.                The court agreed to

instruct the jury that if it believed A.R., it could consider

Gutierrez's other act of child sexual assault for only these

limited purposes.6

       ¶10       With Gutierrez's trial only weeks away, defense counsel

disclosed a recent claim by Gutierrez's mother that while staying

with       her   in    Texas,   A.R.    confessed    that   she    fabricated    the

allegations           because   she    was   upset   with   Gutierrez.        While

Gutierrez's mother appeared on his amended witness list, defense

counsel announced at the outset of Gutierrez's case-in-chief that



       The circuit court modeled its cautionary instruction after
       6

Wis JI——Criminal 275 (2015). Specifically, the court instructed
the jury:

            Evidence has been presented regarding other conduct
       of the defendant for which the defendant is not on trial.
       Specifically, evidence has been presented that the
       defendant had sexual contact with [A.R.] in a closet
       when she was about six years old and living in the State
       of Texas and that the defendant told [A.R.] not to tell
       anyone because it was a secret. If you find that this
       conduct did occur, you should consider it only on the
       issues of motive, 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.

       . . .

            You may consider this evidence only for the
       purposes I have described, giving it the weight you
       determine it deserves. It is not to be used to conclude
       that the defendant is a bad person and for that reason
       is guilty of the offense charged.

                                             6
                                                            No.   2017AP2364-CR



he would not be calling her to testify.             Defense counsel opted

instead to confront A.R. with the claim on cross-examination.

     ¶11   During jury selection, defense counsel asked whether any

prospective juror felt they could not be fair and impartial given

the nature of the charges.      Juror R.G. responded, "I don't know if

I could be impartial.      I work with kids.       I drive school bus, so

I deal with kids all the time, and I just, I don't know if I can

be impartial."     Defense counsel moved the court to excuse Juror

R.G. for cause, but the State objected arguing that there needed

to be a "little more certainty."          The circuit court never ruled on

the motion.      Defense counsel did not renew the motion, question

Juror R.G. further, or exercise a peremptory strike on her.                She

subsequently served on Gutierrez's jury.

     ¶12   One of the witnesses called by the defense at trial was

State    Crime   Laboratory   DNA     Analyst    Samantha    Delfosse,     who

testified that Gutierrez's DNA was not present on A.R.'s perioral

or underwear swabs.      On cross-examination, the State elicited her

testimony that DNA can be washed, scrubbed, or wiped off, and the
more a person is washing or wiping, "the more likely you are

removing any kind of DNA that was deposited."          Defense counsel did

not conduct any redirect examination.

     ¶13   The    jury   ultimately   found     Gutierrez   guilty   on   nine

counts.7




     7 The jury found Gutierrez not guilty of exposing a child to
harmful material. See Wis. Stat. § 948.11(2)(a).

                                      7
                                                          No.      2017AP2364-CR



     ¶14    Gutierrez filed a postconviction motion, arguing that he

was denied his right to an impartial jury.           He also asserted that

his defense counsel was unconstitutionally ineffective because he

did not further question or exercise a peremptory strike on Juror

R.G., or call his mother as a witness.8           At the Machner9 hearing,

defense counsel testified that he did not remember Juror R.G., her

statement, or why he exercised each of Gutierrez's peremptory

strikes on other prospective jurors.            He admitted that "the best

I can say is I must have felt there were other people that I needed

off the jury more than her."          As for not calling Gutierrez's mother

as a witness, defense counsel stated that he did not make that

decision    until    the   defense's     case-in-chief.       In   making   that

decision, he considered that Gutierrez's mother could not recall

specifics surrounding the recantation such as why A.R. was at her

home in Texas, when the recantation was made, or why she did not

immediately report it.          Defense counsel described Gutierrez's

mother as a "loose cannon" who "loved to talk" and determined that

these characteristics would allow her credibility to be undermined
on cross-examination.          Finally, he expressed concern that by

calling the defendant's mother as a witness, the jury might infer

that the defense was desperate.

     ¶15    The     circuit   court    denied   Gutierrez's    postconviction

motion and affirmed the judgment of conviction. Gutierrez appealed

     8 Gutierrez also claimed his counsel was unconstitutionally
ineffective for not properly subpoenaing his wife to testify at
trial, but this claim was not pursued on appeal.
     9   State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
                                         8
                                                            No.   2017AP2364-CR



the denial of his postconviction motion and, by direct appeal,

also    challenged   the    circuit   court's   decision    to    exclude    the

unidentified DNA evidence and to allow the other acts evidence.

       ¶16   The   court    of   appeals   reversed   the   circuit   court's

judgment of conviction and remanded the case for a new trial.                The

court of appeals held that the circuit court erroneously exercised

its discretion in excluding the unidentified DNA evidence and that

the error was not harmless.10         State v. Gutierrez, 2019 WI App 41,

¶¶9-12, 388 Wis. 2d 312, 933 N.W.2d 133.              It reasoned that the

exclusion of this evidence "incorrectly led [the jury] to believe

that the underwear and mouth swabs contained no DNA evidence,"

thereby bolstering the State's theory that A.R. washed or wiped

Gutierrez's DNA off and preventing Gutierrez from rebutting that

theory.11    Id., ¶9.      For purposes of remand, the court of appeals

also decided that the circuit court did not erroneously admit the

other acts evidence in light of the greater latitude rule.                  Id.,


       The dissent concluded that the majority misapplied the
       10

standard of review because the circuit court properly exercised
its discretion to exclude the unidentified DNA evidence.
Gutierrez, 388 Wis. 2d 312, ¶¶16-38.

       The court of appeals, in a footnote, formulated a
       11

constitutional argument for Gutierrez based on the Confrontation
Clause and Compulsory Process Clause found in the United States
Constitution and Wisconsin Constitution.          Gutierrez, 388
Wis. 2d 312, ¶8 n.4 (citing U.S. Const. amend. VI; Wis. Const.
art. I, § 7).    As the court of appeals notes, however, this
argument is gleaned from a single reference in Gutierrez's reply
brief to the fundamental right of a criminal defendant to present
a defense. This amounts to a forfeiture of the issue and we do
not address it further.   See A.O. Smith Corp. v. Allstate Ins.
Companies, 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998)
("[A] party has to adequately, and with some prominence, argue an
issue in order for this court to decide it.").
                                       9
                                                        No.     2017AP2364-CR



¶¶13-15.   The court of appeals did not reach the juror bias or

ineffective assistance claims raised in Gutierrez's postconviction

motion since it remanded the case for a new trial.            Id., ¶12 n.8.

The State petitioned for review, which we granted.

                      II.   STANDARD OF REVIEW

     ¶17   A decision to admit or exclude evidence is within the

circuit court's discretion.     State v. Warbelton, 2009 WI 6, ¶17,

315 Wis. 2d 253, 759 N.W.2d 557.         This court will reverse that

decision only if the circuit court erroneously exercised its

discretion.   Id.

     ¶18   When reviewing a claim of juror bias, we "uphold the

circuit court's factual finding that a prospective juror is or is

not subjectively biased unless it is clearly erroneous."           State v.

Lepsch, 2017 WI 27, ¶23, 374 Wis. 2d 98, 892 N.W.2d 682.

     ¶19   Finally,   whether   a    defendant   received       ineffective

assistance of counsel is a mixed question of fact and law.             State

v. Wayerski, 2019 WI 11, ¶32, 385 Wis. 2d 344, 922 N.W.2d 468.

The circuit court's factual findings, including the circumstances
of the case and trial counsel's conduct and strategy, will be

upheld unless they are clearly erroneous.        Id.   Whether counsel's

performance satisfies the constitutional standard for ineffective

assistance of counsel is a question of law we review de novo.            Id.

                            III.    ANALYSIS

     ¶20   We first address whether the circuit court properly

exercised its discretion in excluding unidentified DNA evidence

and admitting other acts evidence of a prior child sexual assault.
Next we consider Gutierrez's postconviction claims that he was
                                    10
                                                    No.   2017AP2364-CR



denied the right to an impartial jury and effective assistance of

counsel.

                   A.   Unidentified DNA Evidence

     ¶21   The State argues that the court of appeals erred in

second-guessing the circuit court's discretionary decision to

exclude the unidentified DNA evidence found on A.R.'s perioral and

underwear swabs.    An appellate court upholds a circuit court's

exercise of discretion to admit or exclude evidence where it

"examined the relevant facts, applied a proper legal standard,

and, using a demonstrated rational process, reached a reasonable

conclusion."   State v. Chamblis, 2015 WI 53, ¶20, 362 Wis. 2d 370,

864 N.W.2d 806.

     ¶22   Here, the proper legal standard is the balancing test

set forth in Wis. Stat. § 904.03:     "Although relevant, evidence

may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence."      Applying
this proper legal standard to all of the relevant facts using a

demonstrated rational process, it was reasonable for the circuit

court to conclude that the probative value of the unidentified DNA

was "extraordinarily limited."

     ¶23   First and foremost, Gutierrez was not the source of the

DNA and no known male was identified as a contributor.        The DNA

was not semen or saliva as might be expected where the allegations

include oral sex, attempted vaginal penetration, and ejaculation.
As recognized by the circuit court, the DNA could have come from
                                 11
                                                                 No.    2017AP2364-CR



a skin cell, hair follicle, or some other source deposited during

an innocuous interaction.

       ¶24   Moreover, there was no evidence of when the DNA had been

deposited.     The perioral and underwear samples were not collected

until   roughly    24    and   48    hours   after   the    alleged        assault,

respectively.     Neither party could say whether the DNA found on

those samples was deposited before the time of the alleged assault,

or during the extended interim period afterwards.                      As the State

emphasized,     the     time   gap   also    presented     the     potential     for

contamination of the underwear, as one pair was pulled still wet

from a running washing machine and the other was taken from a pile

of soiled laundry.        The circuit court could reasonably conclude

that    without   knowing      the   critical    timeframe        for     when   the

unidentified DNA evidence was deposited, the evidence had limited

probative value in rebutting the State's theory that A.R. washed

or wiped off Gutierrez's DNA.

       ¶25   Finally, A.R.'s initial description of the underwear

worn during the alleged assault was inconsistent with the underwear
tested.      The questions regarding the timeframe, source of and

contributors to the DNA, and the high potential for contamination

of the underwear all gave the circuit court reasonable grounds to

conclude that the DNA had low probative value.

       ¶26   The circuit court could also reasonably conclude that

the limited probative value of the unidentified DNA evidence was

substantially outweighed by the dangers of confusion of the issues,

misleading the jury, and waste of time pursuant to Wis. Stat.
§ 904.03.    Specifically, the circuit court raised concern that the
                                       12
                                                            No.     2017AP2364-CR



questions surrounding the unidentified male DNA would lead the

trial down "a rabbit hole" calling for speculative testimony.                  A

jury could be confused or misled by the collateral issue of why

male DNA was present and therefore distracted from the pertinent

issue of whether Gutierrez's DNA had been present but was washed

or wiped off.     The circuit court also expressed apprehension that

the expert testimony on this collateral issue would consume a

significant portion of the trial.            The circuit court provided for

an alternative way to elicit the relevant information:                  defense

counsel could question the expert witness generally on how DNA is

transferred, how long foreign DNA remains viable on another person,

and how easily DNA can be washed or wiped off.

     ¶27      The court of appeals disagreed with the low probative

value the circuit court assigned to the unidentified DNA evidence.

The court of appeals also dismissed the factors considered by the

circuit court pursuant to Wis. Stat. § 904.03:                  the dangers of

confusion of the issues, misleading the jury, and wasting time.

Gutierrez, 388 Wis. 2d 312, ¶¶6, 9-10.           While the court of appeals
may have preferred that the circuit court give more weight to the

evidence's probative value, it "may not substitute its discretion

for that of the circuit court."         State v. Rhodes, 2011 WI 73, ¶26,

336 Wis. 2d 64, 799 N.W.2d 850.          Instead, appellate courts should

"look   for    reasons   to   sustain    a    trial   court's     discretionary

decision."     State v. Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120,

921 N.W.2d 730 (quoted source omitted).           Our review of the record

shows the circuit court applied the proper legal standard to the
relevant facts and reached a reasonable discretionary decision.
                                        13
                                                         No.     2017AP2364-CR



The court of appeals thus erred in reversing the circuit court's

decision to exclude the unidentified DNA evidence.

            B.    Other Acts Evidence of Child Sexual Assault

      ¶28   Gutierrez argues that the         circuit court erroneously

exercised its discretion in admitting evidence that he sexually

assaulted A.R. when she was approximately six years old.            We agree

with the court of appeals that the circuit court properly admitted

this other acts evidence of child sexual assault in light of the

greater latitude rule.

      ¶29   Evidence of other crimes, wrongs, or acts may be admitted

if:    (1) offered for an acceptable purpose under Wis. Stat.

§ 904.04(2); (2) relevant under Wis. Stat. § 904.01; and (3) its

probative value is not substantially outweighed by the danger of

unfair prejudice, confusion, or delay under Wis. Stat. § 904.03.

See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30

(1998). Alongside this general framework, courts accept a "greater

latitude of proof as to other like occurrences" of sexual assault,

particularly against children.           State v. Davidson, 2000 WI 91,
¶36, 236 Wis. 2d 537, 613 N.W.2d 606; see also § 904.04(2)(b)1.

(codifying the common law greater latitude rule).                The greater

latitude rule liberalizes each of Sullivan's three prongs in favor

of admitting similar acts of child sexual assault.             See Davidson,

236 Wis. 2d 537, ¶51.          The greater latitude rule, however, does

not relieve a court of the duty to ensure that the other acts

evidence is offered for a proper purpose, is relevant, and its

probative        value   is   not   substantially   outweighed    by   undue
prejudice.       Id., ¶52.
                                       14
                                                           No.   2017AP2364-CR



                          1.   Acceptable purposes

     ¶30   Under   Wis.    Stat.    § 904.04(2)(a),     evidence    of   other

"crimes, wrongs, or acts" is inadmissible unless offered for an

acceptable   purpose      such     as    "motive,    opportunity,    intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident." Here, the circuit court instructed the jury to consider

the other acts evidence only for the purposes of motive, context,

and background.

     ¶31   The other acts evidence of sexual assault was offered

for the admissible purpose of proving that Gutierrez's motive was

to intentionally touch A.R. for the purpose of sexual arousal or

gratification.     See     Wis.    Stat.     § 948.01(5)(a)   (defining    the

element of "sexual contact").           "When a defendant's motive for an

alleged sexual assault is an element of the charged crime, we have

held that other crimes evidence may be offered for the purpose of

establishing . . . motive."        State v. Hurley, 2015 WI 35, ¶72, 361

Wis. 2d 529, 861 N.W.2d 174 (alteration in original) (emphasis

omitted) (quoting State v. Hunt, 2003 WI 81, ¶60, 263 Wis. 2d 1,
666 N.W.2d 771); see also Davidson, 236 Wis. 2d 537, ¶¶57-59.              The

evidence further provided context for A.R.'s delayed disclosure

and a more complete story for the jury.             Context and background,

while not expressly listed in Wis. Stat. § 904.04(2)(a), can also

be acceptable purposes.        See State v. Marinez, 2011 WI 12, ¶27,

331 Wis. 2d 568, 797 N.W.2d 399 ("We have previously recognized

that context, . . . and providing a more complete background are

permissible purposes under Wis. Stat. § 904.04(2)(a).") (citing
Hunt, 263 Wis. 2d 1, ¶58).         The circuit court did not erroneously
                                        15
                                                                 No.     2017AP2364-CR



exercise   its   discretion    by     concluding     motive,           context,     and

background were acceptable purposes for the admission of other

acts evidence.

                              2.    Relevance

     ¶32   Other   acts   evidence      is    relevant      under       Wis.   Stat.

§ 904.01 if it:     (1) "relates to a fact or proposition that is of

consequence to the determination of the action"; and (2) is

probative because it "has a tendency to make a consequential fact

more probable or less probable than it would be without the

evidence." Sullivan, 216 Wis. 2d at 785–86. We consider relevancy

in the context of the greater latitude rule.                 See Davidson, 236

Wis. 2d 537, ¶51.

     ¶33   Several of the counts——sexual assault of a child under

the age of thirteen, incest with a child by stepparent, and child

enticement——required the State to prove "sexual contact," defined

under Wis. Stat. § 948.01(5)(a) as intentional touching for the

purpose of sexual arousal or gratification.                      See     Wis. Stat.

§§ 948.02(1)(e),    948.06(1m),       948.07(1).          This    motive,      as   an
element of the charges, is a fact of consequence.                 See Hurley, 361

Wis. 2d 529, ¶83 (citing Davidson, 236 Wis. 2d 537, ¶65).                           The

other acts evidence was also relevant to A.R.'s credibility, a

consequential    fact   in   this     case.        Id.,    ¶81     ("A     witness's

credibility is always 'consequential' within the meaning of Wis.

Stat. § 904.01.") (quoting Marinez, 331 Wis. 2d 568, ¶34).

     ¶34   The   probative    value    of    the   other     acts       evidence     is

measured by the factual similarities it shares with the charged
conduct.   See Davidson, 236 Wis. 2d 537, ¶67; see also Sullivan,
                                      16
                                                                 No.    2017AP2364-CR



216 Wis. 2d at 787.     Here, the charged conduct and the other acts

evidence share many factual similarities:                  the same victim and

assailant; similar alleged acts of sexual contact; and the secluded

location of all of the assaults.             These strong similarities are

highly probative as to Gutierrez's motive in the charged assaults

and as to A.R.'s credibility.

                          3.    Unfair prejudice

     ¶35    Lastly, Wis. Stat. § 904.03 requires the circuit court

to determine whether the probative value of the other acts evidence

"is substantially outweighed by the danger of unfair prejudice,

confusion    of   the   issues    or        misleading     the     jury,     or   by

considerations    of    undue    delay,      waste    of    time       or   needless

presentation of cumulative evidence."                Unfair prejudice occurs

when the evidence "influence[s] the outcome by improper means or

if it appeals to the jury's sympathies, arouses its sense of

horror, provokes its instinct to punish or otherwise causes a jury

to base its decision on something other than the established

propositions in the case." Davidson, 236 Wis. 2d 537, ¶73 (quoting
State v. Gray, 225 Wis. 2d 39, 64, 590 N.W.2d 918 (1999)).

     ¶36    The other acts evidence was highly probative as to

motive, context, and background because of the marked similarities

with the charged conduct.         See id., ¶¶75-76; supra, ¶34.                   The

danger of unfair prejudice based on the jury hearing evidence of

other, similar conduct did not substantially outweigh its high

probative value, especially in light of the greater latitude rule.

See, e.g, State v. Veach, 2002 WI 110, ¶91, 255 Wis. 2d 390, 648
N.W.2d 447 (holding that even "graphic, disturbing, and extremely
                                       17
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prejudicial" testimony detailing a similar other act of child

sexual assault is admissible under the greater latitude rule).

Additionally, the cautionary instruction mitigated the possibility

of unfair prejudice.     See Hurley, 361 Wis. 2d 529, ¶89 ("Limiting

instructions     substantially   mitigate     any   unfair   prejudicial

effect.").

     ¶37    Because the other acts evidence of child sexual assault

was probative as to motive, context, and background and was not

substantially outweighed by unfair prejudice, we affirm the court

of appeals in upholding the circuit court's admission of that

evidence.

                            C.   Juror Bias

     ¶38    Gutierrez argues that by not further questioning or

excusing an equivocating juror, the circuit court denied him his

constitutional right to an impartial jury. See U.S. Const. amends.

VI, XIV; Wis. Const. art. 1, § 7.      "To be impartial, a juror must

be indifferent and capable of basing his or her verdict upon the

evidence developed at trial."    Lepsch, 374 Wis. 2d 98, ¶21 (citing
State v. Faucher, 227 Wis. 2d 700, 715, 596 N.W.2d 770 (1999)).

     ¶39    There are three disqualifying forms of juror bias:        (1)

statutory; (2) subjective; and (3) objective. Faucher, 227 Wis. 2d

at 716.     Gutierrez's claim falls under subjective bias because it

turns on "the words and the demeanor of the prospective juror."

Id. at 717.     "A prospective juror is subjectively biased if the

record reflects that the juror is not a reasonable person who is

sincerely willing to set aside any opinion or prior knowledge that
the prospective juror might have."     State v. Williams, 2015 WI 75,
                                  18
                                                           No.    2017AP2364-CR



¶79, 364 Wis. 2d 126, 867 N.W.2d 736.             "Prospective jurors are

presumed impartial," and it is Gutierrez's burden to rebut this

presumption.    Lepsch, 374 Wis. 2d 98, ¶22 (quoting State v. Funk,

2011 WI 62, ¶31, 335 Wis. 2d 369, 799 N.W.2d 421).

     ¶40   Gutierrez argues that Juror R.G.'s statement "I don't

know if I could be impartial" is enough to establish subjective

bias and cites as support State v. Carter, 2002 WI App 55, 250

Wis. 2d 851, 641 N.W.2d 517.          In Carter, the court of appeals

concluded that a juror was subjectively biased based upon his

affirmative response when asked if his brother-in-law's experience

as a sexual assault victim would influence his ability to be fair

and impartial in a sexual assault trial.          Id., ¶¶3, 12-13.

     ¶41   Contrary     to   Gutierrez's    contention,         Juror   R.G.'s

uncertainty is distinguishable from the juror's definitive "yes"

in Carter.     We accept and tolerate that a prospective juror may

honestly equivocate in response to voir dire questions exploring

their fears, biases, and predilections.            See State v. Erickson,

227 Wis. 2d 758, 776, 596 N.W.2d 749 (1999) ("[W]e expect a circuit
court to use voir dire to explore a prospective juror's fears,

biases, and predilections and fully expect a juror's honest answers

at times to be less than unequivocal.").           A circuit court "is in

a far superior position to ascertain bias than is an appellate

court whose only link to the voir dire is through the 'bare words

on a transcript,'" and may properly determine a prospective juror

can be impartial despite a less than unequivocal affirmation of

impartiality.     Id.   at   775-77    (quoting    State   v.    Ferron,   219
Wis. 2d 481, 508, 579 N.W.2d 654 (1998) (Geske, J., dissenting)).
                                      19
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       ¶42       Here, the circuit court made no express finding and the

record is devoid of any questions that could clarify whether Juror

R.G. actually harbored any bias or, if she did, whether she was

credibly willing to set it aside.12          See Williams, 364 Wis. 2d 126,

¶79.    Gutierrez asks us to speculate as to how Juror R.G. would

answer unasked questions.            Such speculation is insufficient to

overcome         Juror   R.G.'s   presumed   impartiality.         See   In    re

Gutenkunst's Estate, 232 Wis. 81, 86-87, 286 N.W. 566 (1939) ("It

was for appellant to rebut the presumption . . . in this case, and

it is plain to us that he failed to bring the issue out of the

field       of   speculation   and   conjecture.    This   being    true,     the

presumption stands . . . .").           Considering the sparse record in

this case and in light of the presumption of juror impartiality,

the circuit court did not err by seating Juror R.G. as a juror.

                    D.   Ineffective Assistance of Counsel

       ¶43       Lastly, Gutierrez argues that he was denied effective

assistance of counsel based on his counsel's decisions not to

further examine or exercise a peremptory strike on Juror R.G., and
not to call Gutierrez's mother as a witness.                   Implicit in a

criminal defendant's right to counsel is the guarantee that such

counsel provides effective assistance.             See U.S. Const. amends.

VI, XIV; Wis. Const. Art I, § 7; see also Strickland v. Washington,




       As the circuit court itself recognized in its oral ruling
       12

denying postconviction relief, the better practice would have been
to follow up with an equivocating juror to elicit more definitive
answers to these important questions.

                                        20
                                                                   No.        2017AP2364-CR



466 U.S. 668, 686 (1984) ("[T]he right to counsel is the right to

the effective assistance of counsel." (quoted source omitted)).

       ¶44     To     demonstrate       that         counsel's     assistance          was

ineffective, the defendant must satisfy both prongs of the test

announced by the United States Supreme Court in Strickland, 466

U.S. at 687.         First, the defendant must demonstrate that counsel's

performance was deficient, which requires a showing that "counsel

made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment."                            Id.

Second, the defendant must show prejudice by establishing that

"there    is     a    reasonable     probability       that,     but    for     counsel's

unprofessional errors, the result of the proceeding would have

been different."          Id. at 694.           "A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

Id.     A failure to satisfy either prong eliminates the need to

consider the other.           Id. at 697.

       ¶45     As to counsel's decision not to further examine or strike

Juror    R.G.,       Gutierrez   cannot    establish      prejudice.            Prejudice
requires that counsel's performance resulted in the seating of a

biased juror.          See State v. Koller, 2001 WI App 253, ¶14, 248

Wis. 2d 259, 635 N.W.2d 838 (citing State v. Lindell, 2001 WI 108,

¶81,    245    Wis. 2d 689,      629    N.W.2d 223;       State    v.    Traylor,      170

Wis. 2d 393, 400–01, 489 N.W.2d 626 (Ct. App. 1992)).                         This record

does not support more than "rank speculation" that Juror R.G. was

biased,       see    supra,   ¶42,     which    is    insufficient       to     establish

prejudice.          Erickson, 227 Wis. 2d at 774; see also Lepsch, 374
Wis. 2d 98, ¶37.         Because Gutierrez cannot demonstrate that he was
                                           21
                                                                            No.    2017AP2364-CR



prejudiced as a result of his counsel's conduct, we need not

address     whether       his        counsel's       performance            was     deficient.

Strickland, 466 U.S. at 697.

      ¶46      Regarding counsel's decision not to call Gutierrez's

mother    as    a   witness,         Gutierrez      cannot       demonstrate         deficient

performance.          Deficient        performance         requires         that     counsel's

performance fell below "an objective standard of reasonableness."

Id. at 688.         Gutierrez must overcome "a strong presumption that

counsel's      conduct      falls      within      the    wide    range       of   reasonable

professional assistance."               Id. at 689.              Our review is "highly

deferential"        and   we    do    "not    second-guess         a    reasonable          trial

strategy, [unless] it was based on an irrational trial tactic or

based upon caprice rather than upon judgment." State v. Breitzman,

2017 WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93 (alteration in

original)       (quoting       State     v.     Domke,      2011       WI    95,     ¶49,     337

Wis. 2d 268, 805 N.W.2d 364).

      ¶47      Defense counsel articulated several reasons why he opted

not to call Gutierrez's mother as a witness at trial.                              Recognizing
that "this was obviously a case about credibility," defense counsel

was   concerned      that      Gutierrez's         mother's      credibility         would     be

undermined       because       she     did    not        immediately         report     A.R.'s

recantation and provided few details surrounding when A.R. made

her recantation and why A.R. was with her in Texas at the time.

Defense counsel stated that he judged Gutierrez's mother to be "a

loose cannon" who "loved to talk" and "would just go off on

something else" in response to any question.                                 Ultimately, he


                                              22
                                                                     No.   2017AP2364-CR



decided that calling her as a witness would not benefit Gutierrez's

case.13

     ¶48    In    a   trial    where    credibility          is   paramount,    it   is

reasonable not to call a witness whose perceived inability to give

clear, coherent responses may subject her to a damaging cross-

examination.      Defense counsel was legitimately concerned that the

jury would view the defendant calling his mother to the stand with

an unreliable story as a desperate measure.                  Since defense counsel

pursued     a    strategy     within     "the    wide        range    of    reasonable

professional assistance," Gutierrez has failed to establish his

counsel's        performance      was        unconstitutionally             deficient.

Strickland, 466 U.S. at 689.             Absent this showing, we need not

address his claim of prejudice.              Id. at 697.

                                IV.     CONCLUSION

     ¶49    We    conclude     that    the    court     of    appeals      erroneously

reversed the circuit court's exercise of discretion in excluding

unidentified DNA evidence.            We further conclude that the court of

appeals properly affirmed the circuit court's admission of the
other acts evidence.          Lastly, we conclude that Gutierrez was not

denied his right to an impartial jury or his right to effective

     13Gutierrez attempts to rebut defense counsel's articulated
rationale, citing his mother's post-trial testimony at the Machner
hearing.   However, these later statements tell us little about
what his counsel observed leading up to trial. See Strickland v.
Washington, 466 U.S. 668, 689 (1984) (emphasizing the need to
"evaluate the conduct from counsel's perspective at the time" to
"eliminate the distorting effects of hindsight"). Moreover, the
circuit court noted that Gutierrez's mother's testimony at the
Machner hearing was "littered with examples of the witness
answering unasked questions, veering away from the question asked
to some unrelated or tangential topic all while on direct."
                                         23
                                                 No.   2017AP2364-CR



assistance of counsel.    Accordingly, we reverse the court of

appeals' decision as to the unidentified DNA evidence and affirm

its decision as to the other acts evidence.   We also affirm the

circuit court's denial of Gutierrez's postconviction motion.

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

in part and reversed in part.

    ¶50   BRIAN HAGEDORN, J., did not participate.

    ¶51   ANN WALSH BRADLEY, J., withdrew from participation.




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