                                                                2014 WI 102

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2012AP2185-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       James R. Hunt,
                                 Defendant-Appellant.




                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 349 Wis. 2d 789, 837 N.W.2d 178
                                  (Ct. App. 2013 – Unpublished)

OPINION FILED:         August 1, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         March 19, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Jefferson
   JUDGE:              Randy R. Koschnick

JUSTICES:
   CONCURRED:
   DISSENTED:          BRADLEY, J., ABRAHAMSON, C.J., PROSSER, J.,
                       dissent. (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Eileen W. Pray, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.


       For the defendant-appellant, there was a brief by Shelley
M. Fite, assistant state public defender, and oral argument by
Shelley M. Fite.
                                                                        2014 WI 102
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2012AP2185-CR
(L.C. No.    2010CF320)

STATE OF WISCONSIN                            :             IN SUPREME COURT


State of Wisconsin,

              Plaintiff-Respondent-Petitioner,
                                                                      FILED
      v.                                                          AUG 1, 2014

James R. Hunt,                                                      Diane M. Fremgen
                                                                 Clerk of Supreme Court

              Defendant-Appellant.




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



      ¶1      MICHAEL J. GABLEMAN, J.         We review an unpublished,

per   curiam    decision   of   the   court   of     appeals1      reversing       the

Jefferson County Circuit Court's judgment of conviction against

the defendant, James R. Hunt.2            At trial, a jury found Hunt

guilty of one count of causing a child under 13 to view or




      1
       State v. Hunt, No. 2012AP2185-CR, unpublished slip op.
(Wis. Ct. App. July 18, 2013).
      2
          Judge Randy R. Koschnick presided.
                                                                 No.    2012AP2185-CR



listen to sexual activity in violation of Wis. Stat. § 948.055

(2009-10).3

     ¶2    Two    issues   are      presented    for    our    consideration:       1)

whether the circuit court erred in excluding the testimony of

Hunt's friend, Matt Venske, that he never sent Hunt a video of a

man and woman engaging in sexual intercourse, and if so, whether

the error was harmless; and 2) whether Hunt's trial counsel

provided ineffective assistance.

     ¶3    Because     Venske's      testimony     was       relevant    to    Hunt's

theory of defense and corroborated his version of events, we

hold that the circuit court erred in excluding the testimony.

However, we conclude that the State met its burden of proving

that it is "clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error," State

v. Harvey, 2002 WI 93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189

(quoting Neder v. United States, 527 U.S. 1, 18 (1999)), and

thus, the error was harmless.            We further determine that Hunt's

ineffective assistance of counsel arguments fail under the two-
part inquiry of        Strickland v. Washington, 466 U.S. 668, 687

(1984).    We    conclude      that,     under         the    totality        of   the

circumstances, Hunt received a fair trial, and our confidence in

the judgment is not undermined.                 Accordingly, we reverse the

decision   of    the   court   of    appeals     and    reinstate       the   circuit




     3
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                        2
                                                             No.    2012AP2185-CR



court's judgment of conviction and affirm its denial of Hunt's

post-conviction motion.

              I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY

    ¶4       On November 11, 2010, James R. Hunt was charged with

one count of sexual assault of a child under 13 in violation of

Wis. Stat. § 948.02(1), and one count of causing a child under

13 to view or listen to sexual activity in violation of Wis.

Stat.   § 948.055(1)       and   (2)(a).     The   complaining      witness   was

Hunt's adopted daughter, A.H.          A.H. alleged that Hunt had placed

her hand on his penis when she was six years old, and that when

she was twelve, he had shown her three inappropriate images on

his cell phone.          The first image was a cartoon depiction of a

woman in a dress bending over.              The second image was a picture

of a woman undressed from the waist up posing over a deer head

and holding the antlers.           The third image was a video of a man

and a woman engaged in sexual intercourse.

    ¶5       Hunt pled not guilty to both charges, and the case was

tried   in   the    Jefferson     County     Circuit    Court.      During    the
preliminary hearing, A.H. testified that when Hunt had shown her

the graphic images, he told her "this is the stuff that Matt

sends me," referring to Hunt's friend, Matt Venske, who would

later testify at trial for the defense.                   This testimony was

supported by A.H.'s account of events to Police Officer Terrance

Nachtigal    of    the   Fort    Atkinson   Police     Department   during    his




                                        3
                                                                    No.    2012AP2185-CR



initial investigation of the incident, as recorded in his police

report.4

       ¶6        Prior to trial, the court ruled the first two images

described above did not constitute "sexually explicit conduct"

under Wis. Stat. § 948.055(1).5                 However, the court determined

that       the    video   of   the   man       and   woman   engaged       in   sexual

intercourse could satisfy the statutory requirements.                           Hunt's

counsel filed a pretrial motion in limine arguing for exclusion

of testimony regarding any images other than the video of sexual

intercourse, citing Wis. Stat. § 906.08(2),6 but did not mention


       4
       Officer Nachtigal's police report, which recounted his
initial interview with A.H. on October 11, 2010, was admitted
into evidence as Def. Ex. No. 2.
       5
       "Sexually          explicit   conduct"        is   defined     as   actual    or
simulated:

       (a) Sexual intercourse, meaning vulvar penetration as
       well as cunnilingus, fellatio or anal intercourse
       between persons or any other intrusion, however
       slight, of any part of a person's body or of any
       object into the genital or anal opening either by a
       person or upon the person's instruction. The emission
       of semen is not required;

       (b) Bestiality;

       (c) Masturbation;

       (d)   Sexual   sadism or  sexual  masochistic  abuse
       including, but not limited to, flagellation, torture
       or bondage; or

       (e) Lewd exhibition of intimate parts.

Wis. Stat. § 948.01(7).
       6
           Wis. Stat. § 906.08(2) provides:

                                           4
                                                           No.     2012AP2185-CR



the     motion   during    the     final   pretrial       motion      hearing.

Nevertheless,    Hunt's   counsel    objected    at   trial   to    statements

regarding the two other images described by A.H. and also moved

for a mistrial on that basis on two occasions.                     The circuit

court    ruled   that   evidence    concerning    these   two      images   was

relevant and admissible, explaining:

      Well, these two images are           not    sexually       explicit
      conduct under the statute.

      They are, however, inappropriate images for an adult
      male to show to a minor female.

      Mr. Hunt allegedly displayed these images to [A.H.] in
      a very short period of time on one particular
      occasion. So, all these three images are relevant to
      provide context and to fill out the picture of what
      occurred at that time.

      These are not separate or remote incidents. All three
      images were allegedly displayed at about the same
      time.

      Only one fits the definition of sexually explicit
      conduct.   The other two, however, are inappropriate
      given the circumstances and are relevant to allow the
      State   to  explain   the  entire  relevant   set  of
      circumstances to the jury.
Hunt's counsel continued to object that the other images were

irrelevant each time A.H. testified regarding their content.


      Specific instances of the conduct of a witness, for
      the purpose of attacking or supporting the witness's
      credibility . . . may not be proved by extrinsic
      evidence. They may, however, subject to s. 972.11(2),
      if probative of truthfulness or untruthfulness and not
      remote in time, be inquired into on cross-examination
      of the witness or on cross-examination of a witness
      who testifies to his or her character for truthfulness
      or untruthfulness.

                                      5
                                                                 No.    2012AP2185-CR



         ¶7     At trial, A.H. testified that Hunt had shown her the

images in question in the basement of her grandparents' house.

She explained that Hunt walked across the room and held the cell

phone in his hand and laughed as he showed her the images, and

he   admonished        her   to     never   tell   her    mother.           On   cross-

examination, Hunt's counsel asked A.H. the following question:

"When your father showed you the pictures on his cell phone, he

said something like, hey, do you want to see the kind of stuff

that Matt sends me?"          The State objected on hearsay grounds, and

Hunt's counsel countered that the evidence was admissible as a

statement against interest.                 The circuit court sustained the

State's objection.

         ¶8     Hunt testified that he had never shown A.H. any of the

images        she   described.      Hunt    explained    that,   on     the      day   in

question, he received a text message from Venske that said "just

be glad you don't have a hernia like this."                      Accompanying the

message was a picture of a testicular hernia.                 Hunt had recently

undergone surgery for an umbilical hernia, and he believed the
message was meant as a joke.                    Hunt testified that A.H. was

standing next to him when he received the text, but he did not

intentionally show it to her, and he immediately turned his cell

phone off after viewing the picture.               Hunt also stated the image

of   a    woman     posing   with    a   deer    head   described      by    A.H.      was

actually the screensaver on his cell phone for approximately a

year and a half, and although he never purposefully showed it to

A.H., she had seen it on his cell phone during that period.
Hunt maintained he had never possessed any image of a cartoon
                                            6
                                                                  No.     2012AP2185-CR



depiction    of    a   woman   bending       over   or   any   videos      of    sexual

intercourse, and he denied ever receiving text message images

from anyone other than Venske.7

     ¶9     Hunt's theory of defense was that A.H. had seen the

image of the testicular hernia and embellished the event to

include other, more explicit images.                Hunt believed the charges

against     him    stemmed     from    his     recent     divorce       from     A.H.'s

biological mother and the ensuing battle for custody of their

biological daughter, J.H.              Hunt also testified that, several

months    before    A.H.   leveled     accusations        against   him,        she   had

gotten into a fight with Hunt's mother during a family trip and

did not see Hunt for several months after that incident.

     ¶10    Officer Nachtigal also testified at trial.                          Officer

Nachtigal initially interviewed A.H. at the Fort Atkinson Police

Department    regarding        her    complaint     against       Hunt.         Officer

Nachtigal explained that, based on his interview with A.H., he

had reason to believe Venske was the source of the inappropriate

images    allegedly     sent    to    Hunt's   cell      phone.     Following         his
interview with A.H., Officer Nachtigal interviewed Venske and


     7
       None of the images at issue in this case were recovered
from Hunt's cell phone or otherwise admitted into evidence at
trial.    While Hunt acknowledges that the image of the naked
woman posing with a deer head and image of the testicular hernia
were, at one time, in his cell phone, he denies that he ever
possessed the other images that A.H. alleges he showed her.
Because the circuit court determined the image described by A.H.
of the cartoon depiction of a woman bending over did not meet
the statutory criteria for "sexually explicit conduct," and was
never offered into evidence, the image's existence was not
established at trial and remains disputed by the parties.

                                         7
                                                           No.     2012AP2185-CR



asked him whether he had ever sent any videos to Hunt from his

cell phone or computer.       Officer Nachtigal testified that Venske

denied sending any videos from his cell phone.              Hunt's counsel

then asked Officer Nachtigal if Venske admitted sending videos

to Hunt from his computer, but the State objected on hearsay

grounds.

      ¶11    The   circuit   court    overruled    the   State's     objection

after issuing the following hearsay instruction to the jury:

      A witness is not allowed to tell us what somebody else
      told him to prove that it happened. But the officer,
      or   any  witness,   is  allowed   to   discuss  other
      conversations simply to establish who said what to
      whom.

      So, if somebody wants           to prove that Mr. Venske -–
      . . . . Did something          or didn't do something, they
      either need to have a          witness who saw him do it or
      have Mr. Venske come in        and testify himself.

      When the Officer is being allowed to testify about
      this conversation, it's not to be used by you to
      determine whether Mr. Venske actually sent something
      from his phone or not.

      It's being admitted simply so               you understand      the
      conversation that took place                between these       two
      gentlemen. . . .

      A statement is not hearsay if it's not used to prove
      the truth of the matter asserted, is the technical
      legal definition.
      ¶12    Hunt's counsel then called Venske, who testified he

had   sent    Hunt    text   messages      that    occasionally      contained

pictures.      Venske explained he had sent Hunt a picture of a

testicular hernia as a joke following Hunt's hernia surgery, and
he also had sent Hunt a picture of a topless woman posing with a


                                       8
                                                                    No.     2012AP2185-CR



deer head.       Hunt's counsel then attempted to ask Venske the

following      question:   "There     has      been     allegations         against    my

client that you sent something to Mr. Hunt and he showed it to

his daughter involving a man and woman engaging in intercourse.

Did you ever send such——"             The court interrupted counsel mid-

question and pointed out that there was no allegation that the

disputed video came from Venske.

      ¶13    Hunt's   counsel     replied       that     Officer      Nachtigal       had

recently testified that A.H. told him Venske was the source of

the   video.      Therefore,     it   was     important       for   the     defense    to

counter that statement with Venske's own testimony that he had

never sent the video.        The circuit court disagreed, noting that

the   question    posed    by    Hunt's       counsel       to   Officer         Nachtigal

centered on the issue of where A.H. claimed Hunt obtained the

video.      The court explained, "It seems to me that you are the

one who is introducing it in the first place and you are the one

that is also introducing contradictory evidence concerning the

source."       The circuit court concluded the source of the video
was a collateral issue and irrelevant to the defense.

      ¶14    During the jury instruction conference, the circuit

court    suggested    adding      language       to     a     pattern       instruction

indicating that the video of sexual intercourse was the only

image    supporting    the      charges       against       Hunt.         Both    parties

accepted the proposed instruction, and the jury was instructed

as follows:

      The second count of the information charges that
      between September 1st, 2009, and June 30th, 2010, in

                                          9
                                                                   No.   2012AP2185-CR


      the   City   of  Fort   Atkinson,  Jefferson   County,
      Wisconsin, the defendant did commit the crime of
      causing a child to view or listen to sexual activity,
      specifically, a video clip of a man and woman engaging
      in sexual intercourse.
(Emphasis added).        The circuit court also suggested that the

parties     specify    which     image        was     disputed      during    closing

arguments.        In    addition,     the           circuit      court   recommended

additional      clarifying       language       to        the    jury    instruction

describing the elements of causing a child to view or listen to

sexual activity.         If accepted, the circuit court would have
delivered the following instruction to the jury:

      Element Number 1, the defendant caused [A.H.] to view
      or listen to sexually explicit conduct.      Sexually
      explicit conduct means actual or simulated sexual
      intercourse, masturbation, lewd exhibition of an
      intimate part.

      In this case, the State alleges that the video clip of
      a man and woman engaging in sexual intercourse is
      sexually explicit conduct.

(Emphasis added).
      ¶15   Hunt's     counsel    objected           to   this     latter    proposed

instruction, however, providing the following explanation:

      I think [the instruction] amplifies it and gives some
      validity of the State's argument when we tell [the
      jury] an element of this is what the State is
      alleging.   It's like me adding that what the defense
      is alleging is a defense as well.
The   circuit    court    agreed,        and        the   second     proposed    jury

instruction was rejected.

      ¶16   Hunt was found not guilty of the sexual assault charge

but guilty of causing a child under 13 to view or listen to
sexual activity in violation of Wis. Stat. § 948.055.                        Hunt was

                                         10
                                                                    No.    2012AP2185-CR



sentenced     to     seven    years    of    probation        and     one    year    of

conditional jail time.

    ¶17      Hunt appealed his conviction, arguing that the circuit

court improperly excluded Venske's testimony regarding the video

and that his trial counsel rendered ineffective assistance.                         The

court of appeals reversed Hunt's conviction and remanded to the

circuit court for a new trial.              The court of appeals determined

that the circuit court's decision to exclude Venske's testimony

was erroneous, because the evidence was relevant and would have

corroborated Hunt's version of events.                  The court of appeals

also concluded that the circuit court's error was not harmless,

because the outcome of the case turned on the credibility of the

parties.

    ¶18      Although        the    State    argued      Officer           Nachtigal's

testimony     regarding       his   interview    with     Venske          functionally

conveyed the same information as Venske's excluded testimony,

the court of appeals reasoned that the circuit court's hearsay

instruction prevented the jury from considering "whether Venske
did or did not send anything from his phone to Hunt . . . ."

State   v.   Hunt,    No.    2012AP2185-CR,     unpublished          slip    op.,   ¶13

(Wis. Ct. App. July 18, 2013).               Further, the court of appeals

noted that the circuit court's instruction specifically informed

jurors "that proof of what Venske did or did not do would have

to be established through Venske's testimony, only highlighting

the lack of that testimony from Venske."                Id.    Because the court

of appeals reversed Hunt's conviction based on his evidentiary
claim, it did not address Hunt's ineffective assistance claims.
                                        11
                                                                        No.     2012AP2185-CR



      ¶19     Hunt    petitioned       this      court     for     review,        which   we

granted on December 17, 2013.               We now reverse.

                                II.    STANDARD OF REVIEW

      ¶20     This court will not disturb a circuit court's decision

to    admit    or     exclude      evidence         unless       the     circuit      court

erroneously exercised its discretion.                    State v. Ringer, 2010 WI

69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448.                           "A circuit court

erroneously exercises its discretion if it applies an improper

legal standard or makes a decision not reasonably supported by

the facts of record."             Weborg v. Jenny, 2012 WI 67, ¶41, 341

Wis. 2d 668, 816 N.W.2d 191 (citing Johnson v. Cintas Corp. No.

2, 2012 WI 31, ¶22, 339 Wis. 2d 493, 811 N.W.2d 756).

      ¶21     A circuit court's erroneous exercise of discretion in

admitting evidence is subject to the harmless error rule.                               State

v. Harris, 2008 WI 15, ¶85, 307 Wis. 2d 555, 745 N.W.2d 397.

Whether the error was harmless presents a question of law that

this court reviews de novo.              State v. Jackson, 2014 WI 4, ¶44,

352 Wis. 2d 249, 841 N.W.2d 791.
      ¶22     This case also requires us to determine whether Hunt's

trial counsel rendered ineffective assistance.                         Whether a person

was   deprived       of   the    constitutional          right     to     the     effective

assistance of counsel presents a mixed question of law and fact.

State    v.   Trawitzki,        2001   WI     77,   ¶19,     244       Wis. 2d 523,       628

N.W.2d 801.      The circuit court's findings of fact will be upheld

unless    they   are      clearly      erroneous.          State        v.    Pitsch,     124

Wis. 2d 628,     634,     369    N.W.2d 711         (1985).        Whether        counsel's
performance was deficient and prejudicial to his or her client's
                                            12
                                                                  No.     2012AP2185-CR



defense is a question of law that we review de novo.                         Trawitzki,

244 Wis. 2d 523, ¶19.

    ¶23      In   Strickland,      466    U.S.    at   687,    the     United     States

Supreme Court set forth a two-part test for determining whether

counsel's actions constitute ineffective assistance.                         First, the

defendant     must      demonstrate       that     counsel's      performance         was

deficient.        Id.;    State    v.    McDowell,      2004     WI    70,    ¶49,    272

Wis. 2d 488,      681    N.W.2d 500.             Second,   the        defendant      must

demonstrate that counsel's deficient performance was prejudicial

to his or her defense.            Strickland, 466 U.S. at 687; McDowell,

272 Wis. 2d 488, ¶49.             This requires a showing that counsel's

errors were "so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable."                  Strickland, 466 U.S.

at 687.

                                    III. DISCUSSION

    ¶24      We first consider whether the circuit court erred in

excluding Venske's testimony and conclude that it did.                          We then

address whether the error was harmless and hold that it was.
Finally, we examine Hunt's three ineffective assistance claims

and determine that each argument fails under Strickland's two-

part test.

      A.           The Circuit Court's Decision to Exclude Venske's

                                  Testimony was Harmless Error

    ¶25      As a threshold matter, we agree with the court of

appeals    and    both    parties       that   the     circuit    court       erred    in

excluding Venske's testimony that he never sent the video of
sexual intercourse to Hunt.                Venske's testimony was directly
                                          13
                                                                                  No.    2012AP2185-CR



relevant           to    Hunt's      theory    of    defense.8          As    explained         above,

Hunt's theory of defense at trial was that A.H. saw an image of

a    testicular            hernia     on     Hunt's       cell    phone,          and    A.H.    later

embellished that event by alleging that Hunt had also shown her

other,         more       sexually        explicit,       images.            At     trial,      Venske

corroborated Hunt's testimony regarding sending Hunt the photo

of   a       testicular         hernia,      but    the    circuit          court       excluded   his

testimony that he had never sent Hunt any videos, including the

video of sexual intercourse.                        Venske's excluded testimony would

have         corroborated           Hunt's    testimony          and   lent        credibility      to

Hunt's version of events.

         ¶26       Thus,       we   must     consider     whether       the       circuit       court's

error         in    excluding         Venske's       testimony         was        harmless.        The

erroneous           exclusion        of    testimony       is    subject       to       the   harmless

error rule.                See Wis. Stat. § 901.03(1) ("Error may not be

predicated              upon    a   ruling     which      admits       or    excludes         evidence

unless a substantial right of the party is affected . . . .").

Harmless error analysis requires us to look to the effect of the
error on the jury's verdict.                        State v. Weed, 2003 WI 85, ¶29,

263 Wis. 2d 434, 666 N.W.2d 485.                            For the error to be deemed

harmless, the party that benefited from the error——here, the

         8
       Evidence is relevant if it has "any tendency to make the
existence   of  any   fact  that  is  of   consequence  to  the
determination of the action more probable or less probable than
it would be without the evidence."       Wis. Stat. § 904.01.
Evidence is deemed to be relevant if it bears "upon any one of
[the] countless . . . factors which are of consequence to the
determination of the action." Holmes v. State, 76 Wis. 2d 259,
268, 251 N.W.2d 56 (1977).

                                                    14
                                                                       No.    2012AP2185-CR



State——must        prove     "beyond    a   reasonable        doubt    that       the   error

complained       of    did    not     contribute    to       the    verdict       obtained."

Harris, 307 Wis. 2d 555, ¶42 (quoting Chapman v. California, 386

U.S. 18, 24 (1967)).            Stated differently, the error is harmless

if it is "clear beyond a reasonable doubt that a rational jury

would     have     found      the     defendant     guilty         absent    the    error."

Harvey, 254 Wis. 2d 442, ¶49 (quoting Neder, 527 U.S. at 18).

       ¶27     This court has previously articulated several factors

to    assist     in    a    harmless    error     analysis,         including       but    not

limited      to:      the    importance     of    the    erroneously         admitted       or

excluded       evidence;        the     presence        or    absence        of     evidence

corroborating          or    contradicting        the    erroneously         admitted       or

excluded evidence; the nature of the defense; the nature of the

State's case;          and the overall strength of the State's case.

State v. Norman, 2003 WI 72, ¶48, 262 Wis. 2d 506, 664 N.W.2d

97.     Although non-exhaustive, these factors assist in our review

of whether the exclusion of Venske's testimony was harmless.                                We

consider each in turn.
       ¶28     The State and Hunt naturally dispute the importance of

the erroneously excluded evidence at issue in this case.                                  Hunt

contends       the     exclusion       of   Venske's         testimony       was    vitally

important because it corroborated his theory of defense.                                  In a

case    that     largely      turns    on   credibility        determinations,            Hunt

argues the court's error in excluding testimony that would have

lent credibility to his version of the facts cannot be harmless.

       ¶29     To be sure, Venske's testimony was relevant to Hunt's
theory of defense.             This is why we agree with the parties and
                                            15
                                                                               No.     2012AP2185-CR



the court of appeals that it was error for the circuit court to

exclude       the      evidence.           The    exclusion         of     relevant        evidence,

however,       does        not    automatically          trigger         the   need       for     a    new

trial.         Harmless           error    analysis       is       not    intended        to    simply

identify errors, but instead is meant to determine whether the

error    was       consequential           to    the     verdict         obtained.          For       this

reason,      we     examine        the    totality       of     the      circumstances,           which

requires the reviewing court to gauge whether the admitted or

excluded evidence contributed to the trial's outcome.

       ¶30     In determining the import of the erroneously excluded

evidence,         we       find    another      factor     in      particular         informs         our

analysis——that              is,     the      presence         or      absence        of     evidence

corroborating              or     contradicting        the      erroneously           admitted          or

excluded evidence.                  Hunt     testified at trial that Venske had

never sent him any videos and, specifically, had never sent him

a   video     of       a    man    and    woman    engaging         in    sexual      intercourse.

Although Venske's testimony on this point was excluded by the

circuit court, we agree with the State that Officer Nachtigal's
testimony functionally served the same purpose by corroborating

Hunt's version of events.                       See State v. Everett, 231 Wis. 2d

616, 631, 605 N.W.2d 633 (Ct. App. 1999) (holding that exclusion

of evidence was harmless where other evidence was heard by the

jury    that       "functionally           conveyed       the      same    theory      of       defense

 . . . .").

       ¶31     Hunt argues that Officer Nachtigal's testimony could

not    have    corroborated              Hunt's    testimony          because      the      jury       was
instructed          by      the    circuit       court    that       it    could      use       Officer
                                                  16
                                                                           No.    2012AP2185-CR



Nachtigal's testimony only to determine "who said what to whom,"

and not as evidence to ascertain "whether Venske actually sent

something from his phone or not."                       Hunt claims this instruction

to    the     jury    rendered      Officer        Nachtigal's           testimony       "wholly

irrelevant"          because   it    was    "stripped          of    the     truth       of    its

content."

       ¶32     Hunt's    argument      overstates          the      implications         of    the

circuit court's hearsay instruction.                        Simply because the jury

could not use Officer Nachtigal's testimony as evidence to prove

the truth of what Venske had told him does not render Officer

Nachtigal's      testimony       immaterial.             The     jury     could    still        use

Officer Nachtigal's testimony as evidence to prove that Venske

had    told    Officer     Nachtigal       that     he    sent      no    videos       to     Hunt.

Undoubtedly,          Venske's   excluded          testimony        had    some        probative

value to Hunt's defense.              However, with respect to corroborating

Hunt's testimony that Venske did not send the video of sexual

intercourse to Hunt, we conclude that there is little meaningful

difference between Venske's assertion that he did not send Hunt
a video and Officer Nachtigal's testimony that Venske told him

he did not send Hunt a video.                  The circuit court's instruction

accurately informed the jury that it could not conclude, based

solely on Officer Nachtigal's testimony, that Venske did not

send the video.           However, the jury still heard that Venske had

represented to the police that he did not send the video, which

corroborated what Hunt had already alleged at trial.

       ¶33     Further, the erroneously excluded evidence would not
have    assisted        Hunt's      defense        by    contradicting           the     State's
                                              17
                                                                 No.    2012AP2185-CR



evidence regarding the source of the images.                     The State never

suggested at trial that Hunt obtained the images from Venske.

In fact, no evidence regarding the source of the images was ever

introduced    by    the   State     at   trial.     So,       while    the    excluded

evidence    would    have    lent    credibility         to   Hunt's    version     of

events, it would not have served to weaken the State's case on

the issue of where Hunt obtained the sexually explicit video,

because the State never alleged it was sent by Venske.

      ¶34   We conclude our harmless error analysis by examining

the nature of the defense, the nature of the State's case, and

the overall strength of the State's case.                     Norman, 262 Wis. 2d

506, ¶48.    Hunt was charged with one count of causing a child to

view or listen to sexual activity in violation of Wis. Stat.

§ 948.055(1).       The statute prohibits "intentionally caus[ing] a

child who has not attained 18 years of age . . . to view or

listen to sexually explicit conduct . . . ."                      Id.        Under the

plain language of the statute, the State is not required to

establish the source of the sexually explicit conduct shown to
the   complainant.        The   State    need     only    demonstrate        that   the

defendant showed sexually explicit conduct to a child under 18

years of age.       Since the source of the video was not a required

element of the State's case, the value of Venske's excluded

testimony    lay    solely   in   its    potential       to    corroborate      Hunt's

version of events.        Thus, any harm arising from the exclusion of

Venske's testimony was minimized by the admission of Officer

Nachtigal's testimony.


                                         18
                                                                          No.     2012AP2185-CR



      ¶35      Moreover, the fact that Officer Nachtigal's testimony

could not be considered for the purpose of determining whether

Venske actually sent Hunt the video is not decisive, because it

is clear from a review of the record that the State's case

against Hunt was not predicated on whether Hunt received the

video of sexual intercourse from Venske.                             The strength of the

State's     case        was    largely       dependent          on      the    specific       and

consistent       testimony       of    A.H,      who      was   the     State's       principal

witness     at    trial.        Notably,         A.H.     never      testified       about     the

source of the images on Hunt's cell phone, and the State never

raised the issue while making its case to the jury.                              The crux of

the   State's       case       was    not     who       sent     the     video       of     sexual

intercourse to Hunt, but rather, whether Hunt showed the video

of sexual intercourse to A.H.                      Consequently, A.H.'s testimony,

and the State's case, focused on A.H.'s detailed description of

the   circumstances           surrounding        Hunt     showing       her     inappropriate

images    on     his    cell    phone,      as    well     as     the    content      of     those

images.          Therefore,          the    importance          of      Venske's          excluded
testimony was its value in corroborating Hunt's testimony that

Venske never sent him a video, a purpose that was effectively

achieved by the admission of Officer Nachtigal's testimony.

      ¶36      In sum, we conclude that the exclusion of Venske's

testimony was harmless error.                    The jury heard direct testimony

from Hunt that Venske did not send him the video of sexual

intercourse.            This     testimony          was       corroborated       by       Officer

Nachtigal's       testimony      that       Venske      had     told     him    in    a     police
interview        that    he    did    not    send       any     videos    to     Hunt,       which
                                              19
                                                                   No.       2012AP2185-CR



bolstered Hunt's version of the facts and was favorable to the

defense.     Further, the record shows that the State's case did

not hinge on establishing the source of the inappropriate images

on Hunt's cell phone.            The strength of the State's case rested

largely on A.H.'s testimony, and the State never raised the

issue at trial of where the images on Hunt's phone originated

from in proving the essential elements of the crime for which

Hunt was convicted.          For these reasons, we conclude that it is

clear "beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained."                       Harris, 307 Wis.

2d 555, ¶42 (quoting Chapman, 386 U.S. at 24).

               B.        Hunt's Ineffective Assistance Argument

      ¶37    Hunt's second argument on appeal is that his trial

counsel rendered constitutionally ineffective assistance.                                To

support his claim, Hunt points to three separate incidents at

trial that he contends amount to ineffective assistance.                            First,

Hunt asserts trial counsel was ineffective for failing to argue

an   applicable      hearsay     exception       that     would    permit       A.H.    to
testify     that    Venske    sent     the     images    to    Hunt's       cell    phone.

Second, Hunt maintains trial counsel did not effectively argue

to prevent testimony regarding the two images described by A.H.

that the circuit court determined did not constitute "sexually

explicit     conduct"    as      a    matter     of     law.       See      Wis.     Stat.

§ 948.055(1).           Finally,        Hunt     argues        trial     counsel        was

ineffective for failing to accept the circuit court's invitation

to   include        additional        clarifying        language       in     the      jury
instructions.         Because        Hunt's    ineffective       assistance         claims
                                          20
                                                                            No.     2012AP2185-CR



implicate distinct facts from his evidentiary argument discussed

above, we address each individually below.                                We conclude that,

regarding       Hunt's       first          two    ineffectiveness           claims,      Hunt's

defense was not prejudiced by the performance of trial counsel.

On     Hunt's      third     ineffectiveness              claim,     we    conclude       Hunt's

counsel was not deficient.

                           i. Applicable Legal Principles

       ¶38    Criminal           defendants         are     guaranteed          a     right    to

effective assistance of counsel under the Sixth and Fourteenth

Amendments to the United States Constitution.                                Strickland, 466

U.S. at 685-86; State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d

358,    805     N.W.2d     334.        In     Strickland,        a   seminal        decision    on

ineffective          assistance        of    counsel      claims,      the      United   States

Supreme Court set forth a two-part test for establishing that

counsel's performance was ineffective: (1) counsel's performance

was deficient; and (2) the defendant was prejudiced as a result.

466    U.S.     at    687.       "The       benchmark      for     judging      any   claim     of

ineffectiveness must be whether counsel's conduct so undermined
the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result."                                   Id. at

686.          In      addition,        "a    court       need    not      determine      whether

counsel's        performance           was        deficient      before      examining         the

prejudice suffered by the defendant as a result of the alleged

deficiencies."             Id.    at    697;       see   also    State     v.     Johnson,     153

Wis. 2d 121, 128, 449 N.W.2d 845 (1990).

       ¶39    Regarding the first prong of the Strickland test, the
Supreme Court explained counsel's performance is deficient when
                                                   21
                                                                                      No.        2012AP2185-CR



"in    light         of    all     the     circumstances,                the    identified          acts    or

omissions            were        outside       the       wide        range       of     professionally

competent assistance."                        Id.    at 690.              "[C]ounsel is strongly

presumed         to       have    rendered          adequate         assistance         and        made    all

significant decisions in the exercise of reasonable professional

judgment."            Id.         In assessing counsel's performance, a court

must      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."                             Id. at 689.

          ¶40    Under         the   second          prong          of    the     Strickland              test,

deficient        performance             by    counsel         is    prejudicial            only     if     the

"errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable."                                          Id.       at 687.          A

defendant must demonstrate "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."         Id. at 694.

                      ii. Hunt's First Ineffective Assistance Claim

          ¶41    Hunt first asserts his trial counsel was ineffective

for       failing         to     argue     that         certain          testimony          by     A.H.     was

admissible under the present sense impression exception to the




                                                        22
                                                             No.   2012AP2185-CR



hearsay rule.9          During the trial, Hunt's counsel asked A.H. the

following question: "When your father showed you the pictures on

his phone, he said something like, hey, do you want to see the

kind       of   stuff   that   Matt   sends   me?"   The   State   objected   on

hearsay grounds, and Hunt's counsel argued the testimony was

within the scope of cross-examination and admissible under the

exception to the hearsay rule for statements against interest.10

The circuit court sustained the State's objection, noting that

Hunt's counsel sought to "introduce a statement of your own

client against your own client's interests."                 On appeal, Hunt

argues counsel performed deficiently by failing to argue the

evidence was admissible as a present sense impression, and his

defense was prejudiced as a result.




       9
       Hearsay evidence is generally inadmissible at trial. Wis.
Stat. § 908.02.    However, Wis. Stat. § 908.03(1) provides for
the admission of hearsay evidence that describes a present sense
impression, defined as "[a] statement describing or explaining
an event or condition made while the declarant was perceiving
the event or condition, or immediately thereafter."
       10
       Wisconsin Stat. § 908.045(4) provides that a statement
against interest is admissible as an exception to the general
rule against hearsay evidence. A statement against interest is
defined as "[a] statement which was at the time of its making so
far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or
criminal liability . . . that a reasonable person in the
declarant's position would not have made the statement unless
the person believed it to be true."         Id.   However, this
provision only applies if the declarant is unavailable to
testify.   Wis. Stat. § 908.045.  The exception would not apply
in this case because the declarant, Hunt, testified on his own
behalf shortly after A.H.

                                         23
                                                           No.     2012AP2185-CR



    ¶42     The   State    concedes     the   present     sense    impression

exception   applied   to    A.H.'s    testimony.11      However,    the   State

argues that "cho[osing] the wrong exception" to the hearsay rule

does not rise to the level of deficient performance.                The State

also asserts that any deficiency by counsel did not prejudice

Hunt for purposes of an ineffective assistance claim.

    ¶43     We conclude Hunt was not prejudiced by trial counsel's

failure to cite an applicable hearsay exception.                  The State's

case against Hunt was not predicated on whether he received the

video from Venske.         Hunt was charged with causing a child to

view or listen to sexual activity in violation of Wis. Stat.

§ 948.055(1).     The source of the sexually explicit image is not

an essential element of the statute.                 Had the State brought

charges against Venske, the issue of whether Venske sent the

video would be unquestionably central to his defense.                     As it

stands, however, the relevant question for the jury to consider

was whether Hunt showed A.H. the video, not from whom it was

received.




    11
       We note that, while the State has conceded the present
sense impression exception applied to A.H.'s testimony, the
question of whether a statement is admissible under a hearsay
exception is a question of law.     Horak v. Bldg. Servs. Indus.
Sales Co., 2012 WI App 54, ¶11, 341 Wis. 2d 403, 815 N.W.2d 400.
Because it is our constitutional duty to say what the law is, we
are not bound by a party's concessions of law.       Lloyd Frank
Logging v. Healy, 2007 WI App 249, ¶15 n.5, 306 Wis. 2d 385, 742
N.W.2d 337. However, for the sake of argument, we assume,
without deciding, that A.H.'s testimony was admissible under the
present sense impression exception to the hearsay rule.

                                      24
                                                                      No.     2012AP2185-CR



    ¶44     Therefore, any testimony relating to whether Venske

sent the video to Hunt could relate only to the credibility of

each party's respective version of events.                          The testimony that

was admitted at trial conveyed two stories: Hunt testifying that

Venske     did    not    send     him    a     video,      and      Officer     Nachtigal

testifying that A.H. told him in her police interview that the

video     came    from    Venske.12            Officer         Nachtigal's      testimony

functionally conveyed the same information as A.H.'s excluded

testimony.        Although A.H.'s version of events might have been

stronger     if    she    had     been       allowed      to     corroborate       Officer

Nachtigal's testimony, such an outcome would certainly not be

helpful to Hunt.         If Hunt's counsel had successfully argued for

admission of A.H.'s testimony, the jury would have heard her

provide only more detailed information about where Hunt obtained

the video.        Such additional evidence would have been utterly

inconsistent       with     Hunt's       own        testimony,        and      far       from

strengthening      his    case,    might      instead        have    undercut      his    own

credibility.        Counsel       cannot      be    ineffective       for     failing     to
successfully introduce testimony that might very well have been

damaging to Hunt and that was functionally conveyed from another

source.      We    therefore      conclude         that   Hunt's      counsel      was    not

ineffective       for    failing    to       argue     for      admission     of     A.H.'s

testimony as a present sense impression.
    12
       Officer Nachtigal's testimony was further collaborated by
the police report recounting his interview with A.H. The police
report——which was admitted into evidence at trial——explained
A.H. told Officer Nachtigal that when Hunt showed her the video,
he remarked, "this is the kind of stuff that [Hunt's] friend
[Venske] sends him."
                                             25
                                                                No.    2012AP2185-CR



                 iii. Hunt's Second Ineffective Assistance Claim

      ¶45    Hunt's second ineffective assistance argument is that

trial    counsel   failed     to    provide    the    circuit   court    with    the

strongest    argument     for     excluding    evidence      regarding   the    cell

phone image of a topless woman posing with a deer head and the

alleged image of a woman bending over.                 Hunt's counsel filed a

pretrial     motion      in   limine     arguing     for     exclusion    of    this

evidence, but did not mention the motion during the pretrial

motion hearing.          During the trial, Hunt's counsel objected to

A.H.'s testimony describing these two images on the basis that

they were extrinsic and irrelevant.

      ¶46    Hunt contends his trial counsel performed deficiently

in failing to invoke Wis. Stat. § 904.03, which provides for

exclusion of evidence "if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues,     or   misleading     the     jury . . . ."        Specifically,      Hunt

argues    that    Wis.    Stat.    § 904.03    was    applicable      because    the

evidence in question posed a high likelihood of confusing or
misleading the jury.          According to Hunt, because the other two

images described by A.H. also featured offensive sexual conduct,

the   jury   could    easily       be   confused     about   which    image    could

support a conviction.           As a result, there was a high risk that

Hunt would be convicted based on images which the circuit court

had already ruled were not "sexually explicit conduct" as a

matter of law.        See Wis. Stat. § 948.055(1).              Hunt also points

out that the probative value of the evidence was minimal because


                                          26
                                                             No.   2012AP2185-CR



it was admitted for the purpose of providing context to A.H.'s

testimony.

       ¶47   The State argues that, even assuming Hunt's counsel

performed deficiently in failing to invoke Wis. Stat. § 904.03,

the deficiency did not prejudice his defense.

       ¶48   We agree with the State.13      Hunt's argument is premised

on the possibility that the jury could have convicted him based

on images that did not meet the statutory criteria in Wis. Stat.

§ 948.055(1).      However, the circuit court's instruction to the

jury specified that the only unlawful image was the video of

sexual intercourse:

       The second count of the information charges that
       between September 1st, 2009, and June 30th, 2010, in
       the   City   of  Fort   Atkinson,  Jefferson   County,
       Wisconsin, the defendant did commit the crime of
       causing a child to view or listen to sexual activity,
       specifically, a video clip of a man and woman engaging
       in sexual intercourse.
(Emphasis added).     For Hunt's argument to succeed, we would have

to assume that the jury failed to adhere to the circuit court's

instruction.       However,   as    Hunt    points    out    in    his   brief,

"[j]urors    are   presumed   to   have    followed   jury     instructions."

State v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d

780.


       13
        As we have previously observed, because the defendant
must prove both deficient performance and prejudice under
Strickland's two-part test in order to establish ineffective
assistance of counsel, courts "may reverse the order of the two
[Strickland] tests or avoid the deficient performance analysis
altogether if the defendant has failed to show prejudice[.]"
State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990).
                                     27
                                                             No.      2012AP2185-CR



    ¶49     In   addition,      during   the     supplemental    postconviction

motion hearing, the circuit court explained that even if Hunt's

counsel had raised the confusion argument at trial, the outcome

would have been no different:

    I   don't  think   that  the               confusion    argument      is
    particularly compelling.

    . . . . Even if it were made, I would not have granted
    the objection on that basis because the danger of
    confusion is really relatively low here.    Especially
    given the fact that I instructed the jury that the
    image of the two people allegedly engaging in a sex
    act is the image that constitutes the basis for that
    criminal charge.

    . . . . The other two images, as they have been
    referred to today and elsewhere on the record, were
    highly probative for the reasons I have previously
    indicated.

    That highly probative value substantially outweighs
    whatever danger of confusion might have been present
    and I find that any risk of confusion was relatively
    low.
    ¶50     In arguing that evidence of the two images described

by A.H. posed a significant risk of confusing the jury, Hunt

overlooks    that   he   also    introduced      evidence   of   an   additional

offensive image at trial——that is, the picture of a testicular

hernia.     If there was a risk of confusion to the jury, it was

created equally by both sides.                Hunt cannot convincingly argue

that his own evidence posed "no real danger" of confusion, but

that comparable evidence introduced by the prosecution should

have been excluded.

    ¶51     For these reasons, we conclude that Hunt failed to
meet his "burden of showing that the decision reached would

                                         28
                                                                   No.   2012AP2185-CR



reasonably likely have been different absent the errors" under

his second ineffective assistance of counsel claim.                      Strickland,

466 U.S. at 696.

                iv. Hunt's Third Ineffective Assistance Claim

       ¶52    Hunt's   final   ineffective         assistance       claim    is    that

trial    counsel   was   deficient     for    failing       to    ensure     the   jury

instructions clearly distinguished between the images that were

discussed at trial.        During the jury instruction conference, the

circuit court suggested adding clarifying language to the jury

instruction describing the elements of causing a child to view

or listen to sexual activity.               The proposed instruction would

have specified that the contested image in this case was the

video of sexual intercourse, not the other images described by

A.H.     If accepted, the circuit court would have delivered the

following instruction to the jury:

       Element Number 1, the defendant caused [A.H.] to view
       or listen to sexually explicit conduct.      Sexually
       explicit conduct means actual or simulated sexual
       intercourse, masturbation, lewd exhibition of an
       intimate part.

       In this case, the State alleges that the video clip of
       a man and woman engaging in sexual intercourse is
       sexually explicit conduct.
(Emphasis      added).      Hunt's     trial       counsel       objected     to    the

additional     language,    and    Hunt     now    argues     his    trial    counsel

lacked    a   valid    strategic     reason       for   the      objection.        Hunt

maintains that, due to the nature of the images described by

A.H., there was a heightened risk the jury would convict him



                                       29
                                                                        No.     2012AP2185-CR



based on an image that did not meet the statutory criteria for

"sexually explicit conduct" under Wis. Stat. § 948.055(1).

      ¶53    The State asserts that counsel's decision to object to

the   instruction      was    a    legitimate      strategic           decision,      and    as

such, it cannot form the basis for an ineffective assistance

claim.

      ¶54    We agree with the State that counsel's performance was

not deficient.         During the jury instruction conference, Hunt's

counsel     provided    the       following      rationale        in    support       of    his

objection to the proposed instruction:

      I think [the instruction] amplifies it and gives some
      validity of the State's argument when we tell [the
      jury] an element of this is what the State is
      alleging.   It's like me adding that what the defense
      is alleging is a defense as well.
Hunt's counsel also referred to the circuit court's previous

amended jury instruction, which already clarified that the video

of sexual intercourse was the basis for the State's charge.                                  In

response     to   Hunt's      objection,         the    circuit        court     explained,

"Okay, I don't mind if we take that one out. . . . I want the

jury to be on notice of what image we are talking about, and I

think       we     have           covered        that        in         [the       previous

instruction]. . . . I'm agreeing with you."

      ¶55    Hunt's     counsel       weighed          the   possibility         of    juror

confusion against the likelihood that the proposed instruction

would appear to legitimize the State's allegations, and he made

a   reasonable    strategic        choice     to   object      to      the     instruction.
Hunt's counsel concluded that the circuit court's other amended


                                            30
                                                                             No.        2012AP2185-CR



jury    instruction       would          rectify       any   possible        confusion         about

which image formed the basis for the State's complaint.                                     We find

no reason for concluding that counsel's strategic decision "fell

below an objective standard of reasonableness."                              Strickland, 466

U.S. at 688.       To the contrary, the circuit court later expressed

agreement with the reasoning of Hunt's counsel.14                                  "A strategic

trial decision rationally based on the facts and the law will

not    support     a    claim       of     ineffective        assistance           of     counsel."

State v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App.

1996).        We       will    not        "second-guess[]         the      trial          counsel's

considered     selection            of    trial    tactics      or   the      exercise         of   a

professional judgment in the face of alternatives that have been

weighed by trial counsel."                    State v. Felton, 110 Wis. 2d 485,

502,    329   N.W.2d          161    (1983).           Therefore,       we     conclude         that

counsel's     decision         to        object   to    the     circuit       court's        second




       14
       In Hunt's              postconviction           motion    hearing,          the      circuit
court explained:

       [Hunt's trial counsel's] stated strategy was that he did
       not want that to be in the instruction because it might
       convey to the jury that the Court believed that the video
       image in question was, in fact, sexually explicit conduct.

       That's a legitimate strategy decision. . . . [I]n
       hindsight, I think [Hunt's trial counsel] was right about
       that.    It probably would have been detrimental to the
       defense to have that explanation in [the jury instruction],
       because it could have placed that quality on the assertion
       in the instruction that this has been endorsed by the Court
       as constituting sexually explicit conduct.

                                                  31
                                                             No.     2012AP2185-CR



amended     jury     instruction    was    not   deficient   performance      for

purposes of an ineffective assistance of counsel claim.15

                                    IV.    CONCLUSION

      ¶56     Because    Venske's    testimony     was   relevant    to    Hunt's

theory of defense and corroborated his version of events, we

hold that the circuit court erred in excluding the testimony.

However, we conclude that the State met its burden of proving

that it is "clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error," Harvey,

254 Wis. 2d 442, ¶49 (quoting Neder, 527 U.S. at 18), and thus,

the   error    was    harmless.      We    further   determine      that   Hunt's

ineffective assistance of counsel claims fail under the two-part


      15
       Hunt also argues that his trial counsel's alleged
deficiencies, taken in the aggregate, had a significant,
prejudicial impact on his defense. It is true that we consider
the cumulative effect of counsel's deficiencies when assessing
whether the prejudice standard in Strickland has been satisfied.
State v. Thiel, 2003 WI 111, ¶59, 264 Wis. 2d 571, 665 N.W.2d
305.   As this court has previously explained, "[j]ust as a
single   mistake   in   an   attorney's   otherwise  commendable
representation may be so serious as to impugn the integrity of a
proceeding, the cumulative effect of several deficient acts or
omissions may, in certain instances, also undermine a reviewing
court's confidence in the outcome of a proceeding."    Id., ¶60.
This approach is inapplicable, however, in situations——such as
this case——where the reviewing court concludes that the alleged
errors, taken in isolation, did not constitute a deficient act
or omission.   "[E]ach alleged error must be deficient in law——
that is, each act or omission must fall below an objective
standard of reasonableness——in order to be included in the
calculus for prejudice."   Id., ¶61.    Because we conclude that
one of the alleged errors raised by Hunt are not deficient as a
matter of law, we cannot address Hunt's aggregacy argument, as
we do not find any, let alone multiple, instances of deficient
performance.

                                          32
                                                                    No.    2012AP2185-CR



inquiry of Strickland, 466 U.S. at 687 (1984).                            We conclude

that, under the totality of the circumstances, Hunt received a

fair     trial,     and    our    confidence        in     the   judgment      is    not

undermined.        Accordingly, we reverse the decision of the court

of     appeals     and    reinstate     the    circuit      court's       judgment   of

conviction        and    affirm   its   denial      of     Hunt's   post-conviction

motion.

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

reversed.




                                          33
                                                                          No.    2012AP2185-CR.awb




       ¶57     ANN WALSH BRADLEY, J.                   (dissenting).             The     State       of

Wisconsin seeks review of an unpublished per curiam opinion of

the court of appeals that reversed the defendant's conviction.

       ¶58     This is not a close case on the relevant issue of law,

that is, whether the circuit court committed error in excluding

key    witness          testimony         necessary     to     support          the    defendant's

version of events.                  Rather, this is a case where both parties,

the court of appeals, the majority, and I all conclude that it

was error.1

       ¶59     I    part       ways       with   the    majority,          however,          when    it

concludes that the error is harmless.                            Its conclusion is based

on     the    faulty          assertion      that      there       is     "little       meaningful

difference"         between         the    probative      value     of     Venske's          excluded

testimony          and       the    probative         value    of       Officer        Nachtigal's

admitted testimony.                 Majority op., ¶32.

       ¶60     To support this conclusion the majority has to ignore

both       logic    and       the    law   of    evidence.          When        an    out-of-court
statement          is        admitted      to    show        the        event        occurred       but

specifically            is    not    admitted       for    the      truth       of     the    matter

asserted, its probative value in ascertaining the truth of the

matter asserted is minimal, if any.                           Contrary to the majority's

assertion, it is meaningfully different in probative value than



       Accordingly, there is no law development function that we
       1

engage in here.    The test for determining whether the error is
harmless is well established.    We are left to address only an
error correction function, one that this court does not normally
perform. See Wis. Stat. § (Rule) 809.62(1r).

                                                  1
                                                                 No.   2012AP2185-CR.awb


relevant in-person testimony which is offered for the truth of

the assertion.

    ¶61     This        was   a    he-said——she-said         case.         The   excluded

evidence was the only evidence available to corroborate either

version    of     the    events——and           it    corroborated    the    defendant's

version.

    ¶62     After       reviewing        all    of    the   relevant   factors         in   a

harmless error analysis, I conclude that the exclusion of key

testimony       supporting         the    defendant's        credibility         was    not

harmless.       Accordingly, I respectfully dissent.2

                                                I

    ¶63         Hunt was charged with showing an obscene video on his

cell phone to his stepdaughter.                     She told police that the video

had been sent by Hunt's friend, Venske.                      Hunt testified that he

never had a video like the one she described and that he had not

received any such video from Venske.                    The circuit court excluded

Venske's corroborating testimony that he never sent any videos

to Hunt.
    ¶64     The majority determines as a threshold matter that the

circuit    court    erred         in   excluding      Venske's   relevant        testimony

"that he had never sent Hunt any videos, including the video of

sexual intercourse."              Majority op., ¶25.          It acknowledges that


    2
       Because this issue is dispositive, I do not address the
majority's ineffective assistance of counsel analysis. However,
I note that the majority's analysis appears to continue a
troubling trend of paying lip service to Strickland v.
Washington, 466 U.S. 668 (1984), while deviating from the
principles of Strickland itself.   See State v. Starks, 2013 WI
69, ¶82, 349 Wis. 2d 274, 833 N.W.2d 146 (Bradley, J.,
dissenting).
                                2
                                                                    No.   2012AP2185-CR.awb


"Venske's testimony was directly relevant to Hunt's theory of

defense"      because        "Venske's        excluded       testimony        would        have

corroborated        Hunt's    testimony       and     lent    credibility          to    Hunt's

version of events."            Nevertheless, it concludes that the error

was harmless.         Id.

      ¶65     The     majority        notes        that     although      the        excluded

testimony      had    value    in     corroborating          Hunt's    testimony,          that

purpose "was effectively achieved by the admission of Officer

Nachtigal's testimony."              Id., ¶35.        Specifically, it determines

that Officer Nachtigal's testimony that Venske told him that he

had   not     sent    Hunt    the     video       "functionally       served       the     same

purpose as Venske's excluded testimony by corroborating Hunt's

version of events."            Id.,    ¶30. Even though the circuit court

instructed      the    jury    not     to     use    the     officer's       testimony       to

determine "whether Venske actually sent something from his phone

or    not,"    the      majority       concludes          that   there       was        "little

meaningful difference" between the probative value of Venske's

excluded      testimony        and     the         probative     value        of        Officer
Nachtigal's admitted testimony.                   Id., ¶¶31, 32.

                                              II

      ¶66     The majority's determination of harmless error rests

primarily on its erroneous conclusion that Officer Nachtigal's

testimony was essentially as valuable to the defense as Venske's

excluded      testimony       would      have       been.        Id.,        ¶¶10,       30-32.

Undermining the majority's conclusion is the fact that the jury

was specifically instructed not to consider for the truth of the
matter   asserted       Nachtigal's         testimony       about     what    Venske       told

                                              3
                                                 No.   2012AP2185-CR.awb


him.    The circuit court's instruction was detailed and unusually

specific, and bears repeating in its entirety:

       A witness is not allowed to tell us what somebody else
       told him to prove that it happened. But the officer,
       or   any  witness,   is  allowed   to   discuss  other
       conversations simply to establish who said what to
       whom.

       So, if somebody wants to prove that Mr. Venske ——

       [COUNSEL]:   That is correct.

       THE COURT: Did something or didn't do something, they
       either need to have a witness who saw him do it or
       have Mr. Venske come in and testify himself.

       When the Officer is being allowed to testify about
       this conversation, it's not to be used by you to
       determine whether Mr. Venske actually sent something
       from his phone or not.

       It's being admitted simply so     you understand       the
       conversation that took place      between these        two
       gentlemen.

       That's the best explanation I can give you for
       hearsay.   You spend about three months on it in law
       school, and that's the nutshell version.

       A statement is not hearsay if it's not used to prove
       the truth of the matter asserted, is the technical
       legal definition.
(Emphasis supplied.)     It is difficult to imagine what else the

circuit court could have done to communicate to the jury that it

could not consider Officer Nachtigal's testimony as probative of

whether or not Venske actually sent the video to Hunt.

       ¶67   In light of this detailed jury instruction, there is

no logical way to reconcile the majority's suggestion that the

jury could use Officer Nachtigal's testimony as probative in
proving what Venske told him, with the court's instruction that

                                   4
                                                            No.   2012AP2185-CR.awb


it could not use it for that purpose.                  The court instructed:

"it's not to be used by you to determine whether Mr. Venske

actually sent something from his phone or not."

       ¶68 The only way to make any sense of the conclusion that

the majority embraces is that the majority assumes that the jury

did not heed the court's instruction.                  However, the jury is

presumed to have followed the court's instructions.                       State v.

LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780; see

also State v. Gary M.B., 2004 WI 33, ¶33, 270 Wis. 2d 62, 676

N.W.2d 475 ("When a circuit court gives a proper cautionary

instruction,      appellate   courts    presume      that   the   jury    followed

that instruction and acted in accordance with the law."); State

v.   Poellinger,    153   Wis.   2d    493,   507,    451   N.W.2d    752   (1990)

("[O]nce the jury has been properly instructed on the principles

it must apply to find the defendant guilty beyond a reasonable

doubt, a court must assume on appeal that the jury has abided by

those instructions.").        The majority undermines the presumption

and calls into question whether the circuit court's instructions
had any effect.

                                       III

      ¶69   The     majority's        conclusion       also       rests     on   a

misperception of the law of evidence.                The majority mistakenly

treats Officer Nachtigal's testimony about Venske's out-of-court

statement, admitted to prove that a conversation occurred, as

having essentially the same probative value as direct testimony

from Venske.      In his instruction to the jury, the circuit court
correctly explained the difference.

                                        5
                                                                No.   2012AP2185-CR.awb


       ¶70    Hearsay is "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted."                         Wis. Stat.

§ 908.01(3).         Here the statement was that Venske did not send

Hunt the video.            As the circuit court specifically instructed,

this statement by Venske to Officer Nachtigal was not admitted

into evidence for the truth of the statement.                          Rather it was

admitted      to    explain       how    Officer's     Nachtigal's         investigation

proceeded.         State v. Wilson, 160 Wis. 2d 774, 779, 467 N.W.2d

130 (Wis. Ct. App. 1991)                 ("Where a declarant's statement is

offered for the fact that it was said, rather than for the truth

of its content, it is not hearsay.").                  This type of evidence has

been held admissible under res gestae, which literally means

that the thing happened, "things done" or "thing transacted."

Black's Law Dictionary 1310 (7th ed., 1999).

       ¶71    Nachtigal's testimony has little, if any, probative

value in regards to proving the truth of the statement that

Venske did not send a video to Hunt.                   "Probative value" has been
defined       as    "the     tendency       of    evidence      to    establish        the

proposition        that    it     is    offered   to    prove."        1     Charles    T.

McCormick on Evidence 774 (4th ed. 1992).                    Even if there is some

minimal      probative      value,      proving   that    the     conversation     took

place is different than proving as true what was said in the

conversation.        See State v. Payano, 2009 WI 86, ¶81, 320 Wis. 2d

348,    768    N.W.2d       832    (2009)    ("Essentially,          probative     value

reflects the evidence's degree of relevance. Evidence that is



                                             6
                                                                   No.   2012AP2185-CR.awb


highly relevant has great probative value, whereas evidence that

is only slightly relevant has low probative value.").

       ¶72    In light of the circuit court's jury instruction that

Officer Nachtigal's testimony could not be used for the truth of

the    matter       asserted,     the     majority's       conclusion       of    "little

meaningful difference" between the probative value of Venske's

excluded      testimony         and     the        probative    value       of    Officer

Nachtigal's admitted testimony is baffling.                        Majority op., ¶32.

Contrary to the majority's conclusion, there is a vast probative

difference.          It takes both a leap of logic and the law to

conclude otherwise.

                                              IV

       ¶73    This court has repeatedly stated that a harmless error

analysis considers the totality of the circumstances.                            State v.

Beamon, 2013 WI 47, ¶3, 347 Wis. 2d 559, 830 N.W.2d 681 ("A

harmless error analysis asks whether, based on the totality of

the circumstances, it is clear beyond a reasonable doubt that a

rational      jury,     properly        instructed,       would      have    found     the
defendant guilty."); State v. Patricia A.M., 176 Wis. 2d 542,

556-57, 500 N.W.2d 289 (1993) ("[A]                      reviewing court must look

to    the    totality    of     record    and       determine     whether     the     error

contributed to the trial's outcome.").

       ¶74    The majority correctly observes that this court has

previously         articulated    a     number      of   factors    to    assist      in   a

harmless      error     analysis,        including        the   importance       of    the

erroneously         admitted     or    excluded       evidence,     the     presence       or
absence       of     evidence         corroborating        or     contradicting         the

                                              7
                                                            No.   2012AP2185-CR.awb


erroneously admitted evidence, the nature of the State's case,

the overall strength of the State's case, and the nature of the

defense.    Majority op., ¶27 (citing State v. Norman, 2003 WI 12,

¶48, 262 Wis. 2d 605, 664 N.W.2d 97).

       ¶75 Although the majority pays lip service to the totality

of the circumstances, its focus appears narrow.                   In all but one

of the factors it considers, the majority relies on the strength

of Officer Nachtigal's testimony.            This almost singular focus is

contrary to our harmless error jurisprudence.

      ¶76   In    considering   the    first      factor,     importance,        the

majority determines it is informed by the presence or absence of

corroborating     evidence.     Id.,       ¶30.    It   notes     that    although

Venske was not allowed to testify, Officer Nachtigal's testimony

served the same function.       Id., ¶¶32, 35.

      ¶77   In addressing the nature of the case, the majority

again relies on the strength of Officer Nachtigal's testimony.

It reasons that because the State was not required to prove how

Hunt obtained the video, the only value in Venske's testimony
was   to    corroborate      Hunt's    version     of    events.         Thus,    it

determines, "any harm arising from the exclusion of Venske's

testimony was minimized by the admission of Officer Nachtigal's

testimony."      Id., ¶34.

      ¶78   Next, in its discussion of the nature and strength of

the State's case against Hunt, the majority observes that the

State's case was not predicated on whether Hunt received the

video from Venske.      Id., ¶35.      It then reiterates that the value
of Venske's testimony was in corroborating Hunt's testimony, "a

                                       8
                                                                        No.   2012AP2185-CR.awb


purpose       that    was      effectively       achieved        by     the       admission     of

Officer Nachtigal's testimony."                     Id.

       ¶79     The   only      point    at     which      the    majority         relies   on   a

different basis is in its discussion of Hunt's defense.                                       Id.,

¶33.     There, it notes that the State never suggested at trial

that Hunt obtained the video from Venske.                               Thus, it reasons,

although the excluded evidence would have lent credibility to

Hunt's version of events, it would not have weakened the State's

case.    Id.

       ¶80     Overall, the majority's conclusion that the error in

excluding Venske's testimony was harmless relies fundamentally

on its erroneous assertion that Officer Nachtigal's testimony

was     the    functional           equivalent       of    Venske's.              The   majority

continuously         emphasizes         its      focal      point          that     Nachtigal's

testimony filled the void left by the exclusion of Venske's

testimony.           It   is    hard     to    square      what       is    essentially       the

singular focus in the majority's harmless error analysis with

the directive to consider the totality of the circumstances.
                                                V

       ¶81     Contrary        to     the     majority,         after       considering       the

totality of the circumstances, I conclude that the State has not

shown     beyond      a     reasonable        doubt       that    the       circuit      court's

erroneous exclusion of Venske's testimony was harmless.

       ¶82     In assessing whether an error is harmless, "we focus

on the effect of the error on the jury's verdict."                                      State v.

Weed, 2003 WI 85, ¶29, 263 Wis. 2d 434, 666 N.W.2d 485.                                  We have
described the test as "whether it appears beyond a reasonable

                                                9
                                                                   No.    2012AP2185-CR.awb


doubt that the error complained of did not contribute to the

verdict obtained."           Id. (quoting State v. Harvey, 2002 WI 93,

¶44, 254 Wis. 2d 442, 647 N.W.2d 189, quoting in turn Neder v.

United States, 527 U.S. 1, 15-16 (1999)).                      To conclude that an

error "did not contribute to the verdict . . . a court must be

able to conclude 'beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error.'" Id.

(quoting Harvey, 254 Wis. 2d 442, ¶48 n.14).

    ¶83         As previously noted, we are to consider the totality

of the circumstances when conducting a harmless error analysis.

Beamon, 347 Wis. 2d 559, ¶3.                     This court has articulated a

number of factors which include: the nature of the case, the

importance of the erroneously admitted or excluded evidence, the

nature of the error and the alleged harm caused, the presence or

absence        of    evidence       corroborating        or        contradicting       the

erroneously          admitted      or     excluded      evidence,          whether     the

erroneously admitted evidence duplicates untainted evidence, the

nature of the defense, the nature of the State's case, and the
overall strength of the State's case.                   Norman, 262 Wis. 2d 506,

¶48; Weed, 263 Wis. 2d 434, ¶30; see also State v. Rhodes, 2011

WI 73, ¶33, 336 Wis. 2d 64, 799 N.W.2d 850.

    ¶84        Considering        the   nature    of   the     case,       the   excluded

evidence       was    of   high    importance.         This        case    presents    two

versions of what happened: the events as relayed by A.H. and the

events    as    relayed     by    Hunt.     There      was    no    evidence     of   what

happened on the day in question other than their statements.                            In



                                            10
                                                                       No.       2012AP2185-CR.awb


these circumstances, the primary focus is on the credibility of

these witnesses.

       ¶85       "Corroborating evidence is often the key to breaking

credibility deadlocks."                 Daniel D. Blinka, 7 Wisconsin Practice

Series: Wisconsin Evidence, § 420.5 at 294 (3d ed. 2008); see

also State v. Daniels, 160 Wis. 2d 85, 109, 465 N.W.2d 633

(1991)      (error       not     harmless      when    the     excluded          evidence       "was

needed      to    bolster        the    defendant's          credibility").              Venske's

testimony would have corroborated Hunt's version of events and

thus        was        important        to     the         credibility           determination.

Accordingly, the nature of the case and the importance of the

excluded evidence weigh against a determination that the error

was harmless.

       ¶86       In     this     context,       the        nature     of     the        error     is

particularly onerous. Defendants have a constitutional right to

present      a    defense.         As    the   United        States    Supreme          Court   has

repeatedly observed, "few rights are more fundamental than that

of     an    accused       to    present       witnesses       in     his        own    defense."
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (citations

omitted).

       ¶87       Our    caselaw     stresses         the    importance           of    allowing    a

defendant to "produce supporting evidence" to corroborate his or

her version of events.                 Daniels, 160 Wis. 2d at 104 (a defendant

should not be "limited merely to his own assertion but should be

allowed      to        produce    supporting         evidence"        to    corroborate          his

testimony).             Here,     the    excluded      testimony           was    necessary       to



                                                11
                                                             No.    2012AP2185-CR.awb


bolster     Hunt's   version      of   events.       This    weighs     against    a

determination that excluding Venske's testimony was harmless.

      ¶88    There   was   no     admitted    evidence      that    duplicated    or

corroborated the erroneously excluded evidence.                      In this case

the   only   evidence      that    could     be   considered       duplicating    or

corroborating the excluded testimony was Officer's Nachtigal's

testimony    about   what    Venske     told      him.      Given    that    Officer

Nachtigal's testimony could not be considered for the truth of

"whether Venske actually sent something from his phone or not"

it was of no value as corroborating evidence.                        There was no

other evidence to take the place of the erroneously excluded

evidence.     Further, the jury instruction explaining that proof

of what Venske did or did not do would have to be established

through Venske's testimony only highlighted the lack of such

testimony from Venske.          As such, this factor also cuts against a

conclusion of harmless error.

      ¶89    The other factors this court has offered to assist in

harmless error analysis also demonstrate that the State has not
met its burden of showing beyond a reasonable doubt that the

error did not contribute to the verdict.                 The majority briefly

alludes to the "strength of the State's case" which it frames as

"largely dependent on the specific and consistent testimony of

A.H., who was the State's principal witness at trial."                      Majority

op., ¶35.     However, it omits any specific discussion of A.H.'s

testimony, and the strength of any other evidence of guilt.

Compare id. with State v. Evers, 139 Wis. 2d 424, 450, 407
N.W.2d 256 (1987) (examining the record as a whole, finding that

                                        12
                                                                  No.   2012AP2185-CR.awb


the "evidence of guilt was overwhelming," and concluding that

the   error    of    admitting      prior    crimes     testimony         was    harmless

beyond a reasonable doubt).              A closer look at the State's case

reveals that the fact that it was dependent on A.H.'s testimony

was part of its weakness.            This was a case of he-said——she-said,

and the excluded evidence was the only available evidence to

corroborate either version of the story.

      ¶90     These factors, considered in light of the totality of

the circumstances, create a reasonable doubt that a rational

jury would have found the defendant guilty had the erroneously

excluded      evidence      been    admitted.          Hunt's       sole      conviction

depended on the jury's belief that he had the video on his

phone,   despite     Hunt's      testimony       to   the   contrary.           The    case

turned   on    the    relative       credibility       of    Hunt       and   A.H.,    and

Venske's excluded testimony was the only testimony offered to

bolster either story.

                                            VI

      ¶91      In sum, I conclude that the State failed to meet its
burden of proving that the erroneous exclusion of testimony was

harmless.       It    was    "directly       relevant       to    Hunt's      theory    of

defense" and "would have corroborated Hunt's testimony and lent

credibility to Hunt's version of events."                   Majority op., ¶25.

      ¶92     Contrary      to     the   majority,      I        conclude       that   the

exclusion of key testimony going to the defendant's credibility,

in this case involving two competing versions of events, was not

harmless.      Accordingly, I respectfully dissent.



                                            13
                                              No.   2012AP2185-CR.awb


    ¶93   I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice DAVID T. PROSSER, JR., join this dissent.




                               14
    No.   2012AP2185-CR.awb




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