                                                             2018 WI 28

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP2667-CR & 2015AP2668-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Gerrod R. Bell,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 373 Wis. 2d 310, 895 N.W.2d 104
                                       (2017 – Unpublished)

OPINION FILED:          April 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 23, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Monroe
   JUDGE:               Michael J. Rosborough

JUSTICES:
   CONCURRED:           ZIEGLER, J. concurs (opinion filed).
   DISSENTED:           A.W. BRADLEY, J. dissents (opinion filed).
   NOT PARTICIPATING:   ROGGENSACK, C.J. withdrew from participation.
                        ABRAHAMSON, J. did not participate.

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by and an oral argument by Suzanne L. Hagopian, assistant
state public defender.


       For the plaintiff-respondent, there was a brief filed by
Daniel       J.   O’Brien,   assistant     attorney   general,   and   Brad   D.
Schimel, attorney general.          There was an oral argument by Daniel
J. O'Brien.
                                                                                 2018 WI 28
                                                                         NOTICE
                                                           This opinion is subject to further
                                                           editing and modification.   The final
                                                           version will appear in the bound
                                                           volume of the official reports.
Nos.    2015AP2667-CR & 2015AP2668-CR
(L.C. Nos.       2001CF239 & 2001CF249)


STATE OF WISCONSIN                                     :            IN SUPREME COURT

State of Wisconsin,

                 Plaintiff-Respondent,
                                                                              FILED
       v.                                                                APR 10, 2018

Gerrod R. Bell,                                                             Sheila T. Reiff
                                                                         Clerk of Supreme Court

                 Defendant-Appellant-Petitioner.




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



       ¶1        DANIEL KELLY, J.           Gerrod Bell says he is entitled to

a new trial because the first one, which resulted in convictions

for the sexual assault of two victims, was unfair——a violation
of his due process rights.                  He believes it was unfair because

the State told the jurors they could not find him not guilty

unless they thought the victims lied about the sexual assaults,

and that they should not disbelieve the victims because there

was no motive for them to lie.                        This, he says, shifted the

burden       of       proof      and      distorted        the    jury's       credibility

determinations.            He also claims the jury based its verdict, at

least       in     part,    on    inadmissible        evidence      contained        in    two
                                                     No. 2015AP2667-CR & 2015AP2668-CR



exhibits        sent    to    the    jury        room       during     deliberations.         We

conclude that Mr. Bell is not entitled to a new trial and affirm

the decision of the court of appeals.1

                                     I.      BACKGROUND

       ¶2       The State charged Mr. Bell with sexually assaulting

two victims——T.P., who was fourteen years of age at the time,

and    her      older    sister,         A.L.,       who    was    then      seventeen.     The

incidents came to light when, in August of 2001, T.P.'s mother

reported        to     Sergeant      Dale        Stickney         of   the     Sparta     Police

Department        that       Mr.    Bell,        a       family    friend,      had     sexually

assaulted T.P. in the backyard of T.P.'s home after a birthday

party for A.L.

       ¶3       Detective LaVern Erickson and a social worker met with

T.P.       to    interview         her     about         the      incident.     Subsequently,

Detective       Erickson      questioned             A.L.   about      her    sister's    sexual

assault.         In the course of that interview, A.L. revealed to

Detective Erickson that she had herself been the victim of three

sexual assaults by Mr. Bell, all of which had occurred around
the time of the incident with T.P.2                            Approximately five months
       1
       This is a review of an unpublished decision of the court
of appeals, State v. Bell, Nos. 2015AP2667-CR & 2015AP2668-CR,
unpublished slip op. (Wis. Ct. App. Dec. 1, 2016), affirming the
Monroe   County   Circuit   Court's    denial   of   Mr.   Bell's
postconviction motion.      The Honorable Michael Rosborough
presided over both the jury trial and the postconviction motion.
       2
       It is somewhat unclear whether A.L. revealed all of this
conduct during the course of a single interview with Detective
Erickson; however, it appears that she reported these three
incidents within approximately one to two weeks of T.P. having
reported her assault.


                                                     2
                                       No. 2015AP2667-CR & 2015AP2668-CR



after reporting these incidents, A.L. further disclosed that Mr.

Bell had also sexually assaulted her in the bathroom of her

mother's home in early July 2001——prior to the incidents she had

previously reported and prior to the sexual assault of T.P.                  Of

the   four   incidents,   only   the   one      occurring   in   the   bathroom

involved sexual intercourse.

      ¶4     The State initiated two cases against Mr. Bell, one

for each of the victims, but joined them for trial.3                       With

respect to T.P., the State charged Mr. Bell with one count of

sexual assault as a persistent repeater contrary to Wis. Stat.

§§ 940.225(2)(a) (2001-02),4 939.50(3)(bc), and 939.62(2m) (Count

1); one count of second-degree sexual assault of a child as a

persistent     repeater   contrary         to   Wis.   Stat.     §§ 948.02(2),

939.50(3)(c), and 939.62(2m)(b)2. (Count 2); and one count of

misdemeanor bail jumping as a repeater contrary to Wis. Stat.

§§ 946.49(1)(a), 939.51(3)(a), and 939.62(1)(a) (Count 3).                 With

respect to A.L., the State charged Mr. Bell with two counts of

sexual assault as a persistent repeater contrary to Wis. Stat.
§§ 940.225(2)(a), 939.50(3)(bc), and 939.62(2m) (Counts 1 and

2);5 and two counts of attempted second degree sexual assault as

      3
       Monroe County Circuit Court Case No. 2001CF239 (T.P.);
Monroe County Circuit Court Case No. 2001CF249 (A.L.).
      4
       All subsequent references to the Wisconsin Statutes are to
the 2001-02 version unless otherwise indicated.
      5
       Count 1 pertained to sexual contact without consent by use
of threat or force and Count 2 pertained to non-consensual
sexual intercourse with use of threat or by force.


                                       3
                                             No. 2015AP2667-CR & 2015AP2668-CR



a persistent repeater contrary to Wis. Stat. §§ 940.225(2)(a),

939.50(3)(bc),      and    939.62(1)(c)         (Counts    3     and    4).      Before

submitting the case to the jury, the circuit court dismissed

Count 3 for lack of sufficient evidence, and then dismissed

Count 4 at the State's request.

     ¶5     During deliberations, the jury requested that certain

documents be delivered to it for review.                   Two of the documents

indicated that T.P. had not had sexual intercourse until she was

assaulted    by    Mr.    Bell.       Neither    the     prosecutor      nor   defense

counsel    asked    for    that    information      to    be   redacted       from   the

exhibits.

     ¶6     The    jury     returned     guilty      verdicts      on    all    counts

submitted    to    it,    and   Mr.   Bell     received    his    sentence      in   due

course.     He then moved to vacate the judgments of conviction and

requested     a    new     trial      pursuant      to    Wis.     Stat.       § (Rule)

809.30(2)(h) (2015-16)6 on July 13, 2015.7                 His motion claimed he


     6
         Wisconsin Stat. § (Rule) 809.30(2)(h) (2015-16) provides:

     Notice of appeal, postconviction or postdisposition
     motion.   The person shall file in circuit court and
     serve on the prosecutor and any other party a notice
     of   appeal  or   motion  seeking   postconviction   or
     postdisposition relief within 60 days after the later
     of the service of the transcript or circuit court case
     record.     The person shall file a motion for
     postconviction or postdisposition relief before a
     notice of appeal is filed unless the grounds for
     seeking relief are sufficiency of the evidence or
     issues previously raised.       A postconviction or
     postdisposition motion under this section may not be
     accompanied by a notice of motion and is made when
     filed.   A notice of appeal filed under this section
                                                      (continued)
                                          4
                                         No. 2015AP2667-CR & 2015AP2668-CR



did not receive a fair trial because:                  (1) the prosecutor's

comments regarding motive and evidence of lying during closing

argument    shifted     the    burden   of   proof;   and   (2)   the    jury   was

allowed to view two inadmissible exhibits during deliberation.8

As to his first argument, Mr. Bell argued he was entitled to

relief     based   on    the    plain    error     doctrine   or    ineffective

assistance of counsel, and as to his second argument, he sought

relief     based   on    the    interests     of    justice   or    ineffective

assistance of counsel.           The circuit court conducted a Machner9

hearing at which trial counsel testified.               The court denied the

motion because it concluded the trial was free from harmful


    shall conform         to    the   requirements    set   forth   in    s.
    809.10.
    7
       The  procedural   history  in   these  cases   is  long,
complicated, and but for the portions we have recounted, not
relevant to the issues sub judice.   For our purposes, it will
suffice that the case is before us on direct appeal,
notwithstanding the nearly 13 years between the verdict and Mr.
Bell's postconviction motion.
    8
       Mr. Bell also sought resentencing on Count 1 in the case
related to T.P. (2001CF239). He asserted that if the court
denied his request for a new trial, he was entitled to
resentencing on this count because the persistent repeater had
been incorrectly applied. The persistent repeater had also been
applied incorrectly to Counts 1 and 2 in the case related to
A.L. (2001CF249), which error was corrected in 2014.     At the
conclusion of the postconviction motion hearing, the circuit
court agreed that resentencing on Count 1 in 2001CF239 would be
necessary in the event the appellate courts upheld Mr. Bell's
convictions.   The resentencing issue is not currently before
this court.
    9
         State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).


                                         5
                                                No. 2015AP2667-CR & 2015AP2668-CR



error.      The court of appeals affirmed, and we granted Mr. Bell's

petition for review.

                             II.       STANDARD OF REVIEW

       ¶7     Mr.    Bell    asks        us    to     review     the     State's   trial

commentary under the plain error doctrine or, alternatively, for

a    determination        that    he     received      ineffective       assistance     of

counsel.       With respect to his attorney's failure to request

redaction of the exhibits sent to the jury room, he asks us to

determine     only    whether       he   received      ineffective       assistance     of

counsel.

       ¶8     The "plain error" Mr. Bell claims is at issue is a

violation of his due process rights, which is a question of law

we   review    de    novo.         State      v.    Burns,   2011      WI 22,   ¶23,   332

Wis. 2d 730, 798 N.W.2d 166.                  However, we will not remedy errors

under this doctrine unless they are "obvious and substantial[,]"

and "so fundamental that a new trial or other relief must be

granted even though the action was not objected to at the time."

State    v.    Jorgensen,        2008     WI 60,      ¶21,     310   Wis. 2d 138,      754
N.W.2d 77 (citation and internal marks omitted).

       ¶9     A claim of ineffective assistance of counsel presents

a mixed question of fact and law.                       State v. Tourville, 2016

WI 17,      ¶16,    367   Wis. 2d 285,          876   N.W.2d 735.         We    will   not

reverse the circuit court's findings of fact unless they are

clearly erroneous.          Id.     We independently review, as a matter of

law, whether those facts demonstrate ineffective assistance of

counsel. Id.


                                               6
                                                      No. 2015AP2667-CR & 2015AP2668-CR



                                             III. DISCUSSION

          ¶10        Mr. Bell says his right to a fair trial was violated

by:            (1)    the    State's          trial     commentary,         which     he   believes

improperly            shifted         the    burden     of    proof    to    him;   and    (2)    the

jury's           review          of         certain       unredacted         documents       during

deliberations.               We will address each issue in turn.

                            A.        The State's Trial Commentary10
          ¶11        The essence of Mr. Bell's argument is that the State

impermissibly shifted the burden of proof by framing this case

as    a        binary    proposition:             The     jury      must    convict    him   if    it

believes the victims, and may find him not guilty only if it

does not.11             Mr. Bell maintains there are other reasons the jury

legitimately could have chosen to acquit him, and so the State's

commentary misstated the law.12                         Because the defense did not move

for       a     mistrial         on    that    basis,        this    alleged    error      was    not




          10
       When we refer to the State's "trial commentary," we mean
it to include comments and questions during voir dire, the
opening statement, examination of witnesses, and closing
arguments.
          11
       Mr. Bell says the State compounded this error by also
telling the jurors they should not believe the victims unless
they could discern a reason for them to lie.
          12
       Mr. Bell's brief purports to identify other reasons the
jury could have acquitted him, but each one was just a different
way of describing the jury's failure to believe the victims'
testimony.


                                                      7
                                            No. 2015AP2667-CR & 2015AP2668-CR



preserved       for     appellate    review.13     Mr.   Bell    says    we     should

nonetheless reach and decide this issue under our "plain error"

doctrine, or conclude that the failure to request a mistrial

deprived him of the effective assistance of counsel during the

trial.

       ¶12     The "plain error" doctrine allows us to review errors

even when they were not properly preserved at trial.                          State v.

Mayo, 2007 WI 78, ¶29, 301 Wis. 2d 642, 734 N.W.2d 115; see also

Wis.        Stat.     § 901.03(4)     (2015-16)    ("Nothing       in    this     rule

precludes taking notice of plain errors affecting substantial

rights although they were not brought to the attention of the

judge.").           To qualify for this doctrine's application, however,

the    error        "must   be   'obvious    and   substantial[,]'"       and     "'so

fundamental that a new trial or other relief must be granted

even    though        the   action   was   not   objected   to   at     the    time.'"

Jorgensen, 310 Wis. 2d 138, ¶21 (citation and one set of marks

omitted).       We employ this doctrine sparingly.           Id.

       ¶13     We can also address unpreserved claims of error if the
error is of such a nature that it deprived the defendant of "the


       13
        See State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537,
613 N.W.2d 606 (defendant who objects to a prosecutor's closing
argument but fails to timely move for a mistrial waives his
objection to the prosecutor's closing argument statements);
State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611
N.W.2d 727 ("It is a fundamental principle of appellate review
that issues must be preserved at the circuit court. Issues that
are   not   preserved  at   the  circuit  court,   even  alleged
constitutional errors, generally will not be considered on
appeal.").


                                            8
                                              No. 2015AP2667-CR & 2015AP2668-CR



effective assistance of counsel."                 See Strickland v. Washington,

466 U.S. 668, 686 (1984).             If the failure to move for a mistrial

based    on    the     State's      trial     commentary     comprised        deficient

performance, and that deficiency was prejudicial, Mr. Bell would

be entitled to a new trial.                 See   id. at 687; State v. Pitsch,

124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985).

      ¶14     There can be neither a deficiency nor plain error,

however,      unless    the       State's    trial    commentary       was    improper.

Therefore, whether we analyze this case under the "plain error"

doctrine or as an ineffective assistance of counsel claim, our

first step is to determine whether the State's trial commentary

was   improper.        If    it    was,     our   analysis   would     then    turn   to

whether counsel's failure to request a mistrial:                          (1) was an

error so obvious, substantial, and fundamental that a new trial

is    necessary;       or    (2)     comprised       deficient    and     prejudicial

performance.

      ¶15     We begin with the fundamental tenet that Mr. Bell is

guaranteed the right to due process of law.                        See U.S. Const.
amend. XIV, § 1 ("No State shall . . . deprive any person of

life,       liberty,        or     property,       without       due     process      of

law . . . ."); Wis. Const. art. I, § 8 ("No person may be held

to    answer    for    a     criminal       offense    without     due    process     of

law . . . .").         This guaranty extends to the State's comments

during trial:          "When a defendant alleges that a prosecutor's

statements      and     arguments         constituted    misconduct,          the   test

applied is whether the statements 'so infected the trial with
unfairness as to make the resulting conviction a denial of due
                                             9
                                                      No. 2015AP2667-CR & 2015AP2668-CR



process.'"              Mayo,    301     Wis.        2d   642,   ¶43    (quoting       State    v.

Davidson,       2000      WI 91,        ¶88,       236    Wis. 2d 537,        613    N.W.2d 606)

(some internal marks omitted); see also Darden v. Wainwright,

477 U.S. 168, 181 (1986) (same).

       ¶16     These       due    process           considerations       do    not,     however,

prevent the State from energetically pressing its case.                                        The

State's      attorney       is        free    to     "prosecute       with    earnestness      and

vigor——indeed, he should do so."                          Berger v. United States, 295

U.S. 78, 88 (1935).               But in conducting a trial, he must keep in

mind    that       he    represents           "a    sovereignty       whose    obligation       to

govern impartially is as compelling as its obligation to govern

at all; and whose interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice shall be

done."       Id.        For that reason, "while he may strike hard blows,

he is not at liberty to strike foul ones. It is as much his duty

to     refrain       from       improper           methods   calculated        to    produce    a

wrongful conviction as it is to use every legitimate means to

bring about a just one."                 Id.
       ¶17     Mr.      Bell     says        the    State    struck     foul    blows    in    his

trial,    the      result        of    which        was   that   he    bore    the    burden    of

proving to the jury he was not guilty——a burden that does not

belong to him.              The burden to prove guilt beyond a reasonable

doubt belongs to the State.                        Barrera v. State, 109 Wis. 2d 324,

329, 325 N.W.2d 722 (1982) (citing In re Winship, 397 U.S. 358

(1970)) ("The state bears the burden of proving all elements of

a crime beyond reasonable doubt."); see also State v. Kuntz, 160
Wis. 2d 722, 736, 467 N.W.2d 531 (1991) ("It is axiomatic that
                                                     10
                                                  No. 2015AP2667-CR & 2015AP2668-CR



the    State    must       prove   all     the       elements      of     a   crime    beyond   a

reasonable doubt to convict a defendant.").                                Specifically, Mr.

Bell says the State's comments throughout trial (including its

closing argument) required the jury to convict him unless he

could    prove       the    victims      lied        about   the        sexual   assaults    and

prevented the jury from questioning the victims' veracity unless

it could divine a reason for them to lie.

       ¶18     We cannot, of course, look at the State's comments in

isolation.         We must examine them in the context of the entirety

of    the    trial——including         the       nature       of    the     defense     Mr.   Bell

presented.           It is fair to say that in evaluating Mr. Bell's

claim, context is everything.

                                      1.        The Trial

       ¶19     To provide the proper context, we will recount, at

length,      the     relevant      parts        of    the    trial       proceedings.        The

purpose      for     doing    so   is      to    compare          the    State's      commentary

against the relevant facts and law.                          Our analysis will inquire

into whether there is such a meaningful discrepancy between the
two that it could have caused the jury to convict Mr. Bell

without finding him guilty beyond a reasonable doubt.                                   Mr. Bell

says    the        State's      improper             commentary          started      with    the

examination of potential jurors, so we will begin there.

                                      a.        Voir Dire

       ¶20     The     prosecutor          introduced         the        idea    that     people

generally don't lie without reason early in the proceedings.                                    He

queried the prospective jurors closely on the truthfulness of
teenagers and the reasons they might lie.                           For example, he asked
                                                 11
                                                No. 2015AP2667-CR & 2015AP2668-CR



if any of the prospective jurors had "ever known a teenager to

lie[,]" whether anyone had "ever not known a teenager to have

lied[,]" and "what are some of the typical things you might

expect      a    teenager       to   lie       about?".            After      hearing    from

prospective jurors who acknowledged that teenagers likely do lie

in some circumstances but are less likely to do so in others,

the prosecutor asked:

      Would everybody agree here that——that, though, that if
      you're going to lie, you're going to have a reason
      like jealousy of some sort; there's going to be a
      reason why you would lie? Everybody agree with that?
      Everybody is nodding their head.
      ¶21       The prosecutor then asked "what are some reasons that

a teenage girl might falsely accuse someone of sexual assault?"

One     juror     responded      that      a        teenage     girl    might      lie     for

"attention," another answered "[l]ack of understanding of the

gravity of accusing someone," another answered "revenge," and

one prospective juror responded that teenage girls might lie

about a sexual assault if they were afraid "that they'd get in

trouble with their parents for having sex in the first place if

they got caught."           So the State asked the prospective jurors if

they would "expect there would be some evidence that somebody

would    have     a    reason   to   lie?           There     would    be   some    sort   of

evidence that this person would have a reason to lie about——[.]"

Two prospective jurors responded that they would expect there to

be some type of evidence that the person had lied.                                 The State

cautioned        the     prospective        jurors          they      would     hear     jury
instructions telling them that they would not be allowed to


                                               12
                                                 No. 2015AP2667-CR & 2015AP2668-CR



speculate      and    that     their       verdict     would      need       to   be    based    on

evidence or the lack of evidence.

       ¶22     The     defense        was       similarly           interested           in     the

prospective          jurors'      impression          of     teenagers'           truthfulness.

After asking each prospective juror the ages of their children,

he asked "How many people believe that a child 14 years old, 18

years    old    can——can       lie     about      a    sexual       assault?"            He   then

reminded       the     prospective          jurors         that     the      prosecutor         had

mentioned the concept of someone omitting certain details and

asked if "anybody [has] heard of lying by omission?"                                   He pursued

this theme as he inquired into:                      (1) whether the jurors believed

that    someone       might    lie     because        she    does      not    understand        the

repercussions; (2) whether someone might tell a lie and then

continue       telling      the      lie    because         it    is    too       difficult      to

backtrack; and (3) whether someone might "lie to gain attention

because they want the love and attention from that person[.]"

        b.      Opening Statements And Evidence Adduced at Trial

       ¶23 During his opening statement, defense counsel signaled
that he would be concentrating on the victims' veracity.                                      Part

of     his   remarks        referred       to    testimony          that     he    said       would

establish T.P. had lied about the amount of alcohol she drank on

the    night    of    the     assault,      that      she    lied      about      the    assaults

having occurred, that A.L. had admitted prior to trial that she

previously lied about how much alcohol T.P. consumed the night

of the assault, and concluded by telling the jury that "the

evidence will show at the end of this, that in fact . . . [T.P.]
and [A.L.] did not know what the truth is."
                                                13
                                            No. 2015AP2667-CR & 2015AP2668-CR



      ¶24    Central to the State's case was the testimony of T.P.

and A.L., who testified extensively and in great detail about

the sexual assaults.           T.P. not only recounted details of the

actual assault, she also described the circumstances surrounding

it.   So, for example, she testified that on the day Mr. Bell

sexually assaulted her, she had multiple alcoholic beverages and

felt intoxicated at some point during the evening.                     T.P. then

explained that when her mother asked her to go make sure the

bonfire was out, Mr. Bell came out and sat on the picnic table

with her.     She then gave a moment by moment description of how

Mr. Bell sexually assaulted her.                She said that, afterwards, Mr.

Bell demanded that she tell no one what he had done and warned

her that if she did, it would happen again.

      ¶25    Mr. Bell's counsel questioned T.P. closely.                  Part of

the cross-examination focused on potential motives for lying.

So, for example, he obtained T.P.'s admission that she "ha[d]n't

had   the   best    life"     and   that     she   had    received   comfort    and

attention    from     her   mother,   and       others,    after   reporting    the
assaults.     He also took direct aim at her credibility, getting

her to admit she had previously lied about the amount of alcohol

she had consumed on the night of the assault and that——despite

her earlier statements——she was, in fact, intoxicated at some

point that evening.         T.P. also confirmed she had previously lied

regarding the extent of her knowledge about sexual matters, and

defense     counsel    also    identified        other    discrepancies   between

T.P.'s trial testimony and her previous statements.


                                           14
                                          No. 2015AP2667-CR & 2015AP2668-CR



    ¶26     A.L.    provided      testimony     both    about      the    evening    her

sister was assaulted and about her own assaults.                          With respect

to T.P.'s assault, she said there was alcohol at her (A.L.'s)

birthday party, that she (A.L.) had "a slight buzz," and that

T.P. had been drinking, too, and was "kinda tipsy."                         A.L. said

she (A.L.) left the party at some point with Mr. Bell and three

other men and that they were "getting stoned," and she explained

that after the group returned to the house around 7:00 p.m., she

and one of the other men left again around midnight.                         When she

returned    shortly      thereafter,     she    noticed       a   change    in    T.P.'s

countenance and described her as seeming more sober and "off to

herself."

    ¶27     A.L. also testified that she herself had been sexually

assaulted by Mr. Bell on four occasions.                  She said three of the

assaults occurred around the time Mr. Bell assaulted T.P.                           The

fourth assault (the one she did not originally report to the

police)    involved      sexual    intercourse     (unlike         the    other   three

events).     She said she did not initially report this assault
along with the others because she was "ashamed to talk about" it

and "didn't want to remember it."                Additionally, she said Mr.

Bell had threatened to do the same thing to her sister if she

told anyone what had occurred.

    ¶28     During       his   cross-examination         of       A.L.,    Mr.    Bell's

counsel focused on her credibility.                    He questioned her about

discrepancies between her trial testimony and the statements she

gave to police and her preliminary hearing testimony as to what
occurred    on     the    night    Mr.   Bell    had     non-consensual           sexual
                                         15
                                       No. 2015AP2667-CR & 2015AP2668-CR



intercourse with her, and he also questioned A.L. about whether

she had previously lied about how much alcohol she consumed on

the night of T.P.'s sexual assault.                 A.L. confirmed she had

previously lied about the amount she consumed because she was

afraid of getting in trouble for drinking.              A.L. also confirmed

that after reporting the first three incidents involving Mr.

Bell——which did not include sexual intercourse——she had lied to

investigators when she told them that no other incidents had

occurred.     When asked whether her mother had been supportive of

her after she had reported the fourth incident, A.L. confirmed

that she had been and that her mother's support "was different"

from what she had experienced in the past.

    ¶29     Dr. Ann Budzak, the pediatrician who examined T.P.,

also testified.      She explained that although she performed a

pelvic exam of T.P., she did not perform a forensic exam——which

would include collecting specimens such as hair and semen if

possible——because    the    exam    occurred   approximately    five      weeks

after the alleged assault.          Dr. Budzak further testified that
based upon a reasonable degree of medical certainty, there was

evidence that T.P. may have had sexual intercourse at some point

because she had tolerated the pelvic exam and because there was

a lack of hymenal tissue.          She also testified, however, that a

lack of hymenal tissue "is not specific or proof of having had a

penetration    experience    such    as    sexual    intercourse"   and    that

although that was generally the most common explanation for its

absence or disruption, "there are other ways hymenal tissue can
be disrupted[.]"
                                      16
                                         No. 2015AP2667-CR & 2015AP2668-CR



       ¶30    Through    cross-examination,      defense     counsel   elicited

that Mr. Bell had told the police he had not assaulted T.P. and

A.L.         In   an   attempt    to   bolster   the   credibility     of    this

statement, defense counsel called Sergeant Stickney as a witness

to recount Mr. Bell's offer to undergo a Computer Voice Stress

Analysis.         According to Sergeant Stickney, measuring the stress

in an individual's voice can help in determining whether the

person is telling the truth.             However, Sergeant Stickney never

followed up on Mr. Bell's offer to take the test.                        Defense

counsel also attacked A.L.'s credibility by calling a private

investigator to explain how the physical layout of the bathroom

where A.L. said she had been sexually assaulted contradicted her

testimony.

                             c.    Jury Instructions

       ¶31    Prior     to   closing     arguments,    the     circuit      court

instructed the jury, in relevant part, as follows:

            Consider only the evidence received during this
       trial and the law as given to you by these
       instructions and from these alone, guided by your
       soundest reason and best judgment, reach your verdict.

       . . . .

            The burden of establishing every fact necessary
       to constitute guilt is upon the State. Before you can
       return a verdict of guilty, the evidence must satisfy
       you beyond a reasonable doubt that the defendant is
       guilty.

            If you can reconcile the evidence upon any
       reasonable hypothesis consistent with the defendant's
       innocence, you should do so and return a verdict of
       not guilty.


                                        17
                                            No. 2015AP2667-CR & 2015AP2668-CR


           The term "reasonable doubt" means a doubt based
      upon reason and common sense. It is doubt for which a
      reason can be given, arising from a fair and rational
      consideration of the evidence or lack of evidence. It
      means such a doubt as would cause a person of ordinary
      prudence to pause or hesitate when called upon to act
      in the most important affairs of life.

           A reasonable doubt is not a doubt which is based
      on mere guesswork or speculation.        A doubt which
      arises merely from sympathy or from fear to return a
      verdict of guilt is not a reasonable doubt.          A
      reasonable doubt is not a doubt such as may be used to
      escape the responsibility of a decision.

           While it is your duty to give the defendant the
      benefit of every reasonable doubt, you are not to
      search for doubt. You are to search for the truth.
      ¶32   The    court      defined      evidence   as:          (1)   "the     sworn

testimony of witnesses, both on direct and cross-examination";

(2) "exhibits the court has received"; and (3) "any facts to

which the lawyers have agreed or stipulated or which the court

has   directed     you   to     find."      The   court     emphasized     that    the

"[r]emarks of the attorneys are not evidence" and that while the

jury should "[c]onsider carefully" the closing arguments, the

attorneys'    "arguments        and    conclusions     and    opinions      are    not
evidence."

      ¶33   The court also identified the various factors the jury

should consider in determining a witness's credibility and the

weight to give the witness's testimony.                   Among the factors the

court    identified        were       "possible     motives        for    falsifying

testimony" and "all other facts and circumstances during the

trial   which     tend     to     either    support    or     to     discredit     the
testimony."       In doing so, the court instructed the jury to use


                                           18
                                    No. 2015AP2667-CR & 2015AP2668-CR



"your   common   sense   and   experience.     In   everyday    life    you

determine for yourselves the reliability of things people say to

you.    You should do the same thing here."

                           d. Closing Arguments

       ¶34   As the prosecutor commenced his closing argument, he

reminded the jurors of the instructions they had just heard.            He

then reprised the theme of his case:         The jury shouldn't return

a verdict of "not guilty" unless it believed T.P. and A.L. had

lied:

       I think it's interesting to start from this point of
       view.   What must we believe, what things must we
       believe for the defendant to be not guilty?    After
       hearing all the evidence that we've heard, what are
       the things that we must believe true if he is not
       guilty?

            First of all, when it comes to [T.P.], who's 13
       [sic], that she first lied to Sergeant Stickney about
       the defendant raping her. We have to believe that she
       then proceeded in the videotape that occurred over two
       days——one of those videotapes we saw, the first one——
       that she then lied to the social worker . . . about
       the rape.    That the defendant, when the defendant
       assaulted her.

            We then have to believe that she lied to us.         You
       have to believe that.

            We have to then believe when we look at [A.L.]
       and her testimony, we would have to believe if the
       defendant is not guilty, that she first lied to
       Detective LaVern Erickson when she told him about the
       incident on the couch when the defendant held her down
       and grabbed her breast. And that the first thing that
       she came forward with.

            The other instances when they were investigating
       the night of the party, we have to believe she lied
       about that.


                                   19
                                         No. 2015AP2667-CR & 2015AP2668-CR



At   that    point,   trial   counsel    objected;    however,   the   circuit

court overruled the objection and the prosecutor resumed his

argument:

       We must believe that she [A.L.] lied to Detective
       LaVern Erickson about that. We must believe then six
       months later, for some reason, she just decided to
       pile on another story and that she lied to Sergeant
       Stickney when he said there was a pool of tears, there
       was a wet spot there when she got done testifying——or
       telling him about the rape in the shower on July 2d.
       We have to believe that she lied about that.

            And we have to then believe that she lied at the
       preliminary hearing back in February of this year when
       she had to discuss both of those instances.

            We have to believe that she lied to us over the
       course of two days when she was up there for a number
       of hours, that she intentionally lied to us this week.
       That's what we'd have to believe.
The prosecutor further argued that, to believe T.P. and A.L.

were   lying,   the   jury    would   have   "to   believe   that   those    two

girls, [A.L. and T.P.] are simply two of the best actors——or

actresses we have ever seen.            Could Meryl Streep have done any

better?      The reason their testimony is so compelling is because

they weren't acting."

       ¶35   The prosecutor encouraged the jurors not to disbelieve

the victims unless they found a motive to lie.               He said that "if

somebody is going to lie about something, they're going to have

a reason.      They're going to have some evidence of that reason."

He argued that in this case, however, defense counsel had "no

idea" why A.L. and T.P. might lie and that because he had no

idea, he "just begins to speculate.                He just begins to make
guesses after he says he has no idea why [T.P.] would make this

                                        20
                                                 No. 2015AP2667-CR & 2015AP2668-CR



up."     The prosecutor further argued that "[i]f a person lies

about something, they must have a reason.                         And the reason why

there is no evidence in this case about why anybody would lie is

because they're not lying.                 [T.P.] and [A.L.] are not lying."

       ¶36     Defense counsel's closing argument focused exclusively

on whether T.P. and A.L. should be believed.                       He argued that the

police       had     not        thoroughly    investigated        T.P.'s    and    A.L.'s

allegations and that "much like the Salem Witch Trials of 1962

(sic), certain people were believed and that was it, that was

all     that       was     necessary.         And       apparently,   unfortunately——

unfortunately for [Mr.] Bell, that it was assumed that the girls

were telling the truth."                   Trial counsel also juxtaposed A.L.'s

testimony about the layout of the bathroom where one of the

sexual    assaults          occurred      with    the    testimony    of   the    private

investigator Mr. Bell hired to argue that A.L. had been lying

and    that    she       had     "change[d]      her    story."    Defense    counsel's

argument       became       even    more     pointed,     asserting    that      "it   [the

sexual assaults] never happened.                    The reason why it doesn't make
sense    is    it        just    didn't    happen."        Revisiting      each   of    the

victim's allegations, he told the jury "[t]his never happened"

or "[i]t didn't happen."

       ¶37     Defense counsel also told the jury that A.L. and T.P.

had ample motive to lie.                   He explained that in light of their

"difficult life," "lying becomes easy" and eventually turns into

"a way of survival."                In regard to T.P., defense counsel argued

that she had


                                               21
                                     No. 2015AP2667-CR & 2015AP2668-CR


    learn[ed] that she can manipulate what happens to her,
    she can manipulate not going to school, she can
    manipulate trying to get closer to mom and so lying
    becomes an easy thing. Lying can be a daily event for
    an individual like that, like protecting others,
    protecting themselves, can be a cry for attention, so
    I don't have to do something such as go to school, so
    they'll allow me to do something.

         Lying can be out of jealousy, lying can be out of
    hurt, lying can be for revenge and a lie is out of
    control.   And that's what's happened here.   The lies
    have become so deep and so out of control that you
    can't bring it back. You can't expose what the truth
    is and that the truth that this never happened; you
    can't because you would be the scorn of all.    And in
    fact, maybe her actions tell you so much by saying I
    don't want to pursue this thing.
Defense counsel further argued:

    That's what this is all about; a life where lies don't
    mean anything, they don't mean anything to these girls
    because they've had to live that life the entire time.
    It's a way to protect themselves, it's their shield.
    And so it's easy for them that they can look you in
    the eye and I'm not lying, no, it was one wine
    cooler. . . .

     . . . .

         They put on a mask.   He——[the prosecutor] talks
    about Meryl Streep and great actresses.   They've had
    to act their whole life; . . . . They're crying for
    help; it's easy to act.
    ¶38    On    rebuttal,    the    prosecutor      dismissed     defense

counsel's theories about why A.L. and T.P. might lie as "[p]ure

speculation, pure speculation, pure speculation" and argued that

there simply was "no testimony that they were lying.           There's no

evidence that they were lying."          The prosecutor also told the

jurors    that   the   jury   instructions       precluded     them      from
speculating and engaging in "sheer guesswork."


                                    22
                                                No. 2015AP2667-CR & 2015AP2668-CR



              2.     Propriety of the State's Trial Commentary

       ¶39    Although there are boundaries on what prosecutors may

say during trial, we leave them plenty of room to address the

facts   and    law.       "Counsel       is    allowed       considerable        latitude    in

closing arguments, with discretion given to the trial court in

determining the propriety of the argument."                                State v. Burns,

2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166.                            A "prosecutor

may comment on the evidence, detail the evidence, argue from it

to a conclusion and state that the evidence convinces him and

should convince the jurors."                   State v. Draize, 88 Wis. 2d 445,

454,    276        N.W.2d 784         (1979)    (citation           and    internal     marks

omitted).          "The prosecutor should aim to 'analyze the evidence

and present facts with a reasonable interpretation to aid the

jury    in    calmly      and        reasonably      drawing        just    inferences      and

arriving      at    a    just    conclusion         upon     the    main    or   controlling

questions.'"            Burns, 332 Wis. 2d 730, ¶48 (quoting Draize, 88

Wis. 2d at 454).            But a prosecutor cannot suggest that the jury

consider facts not in evidence.                   Burns, 332 Wis. 2d 730, ¶48.
       ¶40    Because people are endlessly inventive, and each trial

is unique, it is impossible to describe in detail the outer

parameters of proper trial commentary.                         However, based on what

we   said     in     Draize      and     Burns,       we    may     conclude     that    those

boundaries         extend       at    least     far        enough    to    encompass     fair

characterizations of the law and the state of the evidence.                                  If

the prosecutor steps across the permissible boundary, we must

then determine whether the incursion is so significant (either
alone or in combination with other infractions) that it renders
                                               23
                                                 No. 2015AP2667-CR & 2015AP2668-CR



the   entire      trial      unfair.       "When     a    defendant     alleges         that    a

prosecutor's        statements          constituted       misconduct,        the    test       we

apply   is    whether        the    statements       so   infected     the        trial    with

unfairness as to make the resulting conviction a denial of due

process."         Davidson, 236 Wis. 2d 537, ¶88 (internal marks and

citations omitted); see also State v. Hurley, 2015 WI 35, ¶96,

361 Wis. 2d 529, 861 N.W.2d 174 (quoting Mayo, 301 Wis. 2d 642,

¶43) ("'[T]he [challenged] statements must be looked at in the

context of the entire trial.'").

      ¶41    With that context, we are now prepared to assess Mr.

Bell's claim that the State's comments deprived him of the due

process of law.           Mr. Bell says the improper commentary fell into

two categories.           The first comprised the prosecutor's statements

that the jurors had to believe T.P. and A.L. were lying before

they could find him not guilty (the "must believe" statements).

The   second      category       contained       those    statements         in    which    the

prosecutor     claimed        that      people    generally       do   not    lie       without

reason, and that if the victims had no motive to lie, they
should be believed (the "motive" statements).                          Mr. Bell has not

identified        any     Wisconsin       case     addressing      the       propriety         of

statements of this nature, nor have we found any.                                 So we will

resolve      this       matter     by    drawing     on     the    general        principles

enunciated above and the wisdom we find in other jurisdictions.

                        a.    The "Must Believe" Statements

      ¶42    As     is       apparent       from      our    recitation            of     trial

highlights, the prosecution and defense theories of the case
were mirror-images:                The prosecution said T.P. and A.L. were
                                             24
                                                No. 2015AP2667-CR & 2015AP2668-CR



telling the truth, the defense said they were not.                                  But they

agreed that the resolution of                    that contest would decide the

case.      The prosecutor said it would be improper for the jury to

find Mr. Bell not guilty unless the victims lied, while the

defense said such a finding was necessary because they did.

       ¶43    Mr. Bell pursued a reasonable, but narrowly focused

strategy.       He did not argue that T.P. and A.L.'s description of

events failed to satisfy the statutory elements of the crimes

with which he was charged.                He did not argue mistaken identity

or     assert    that       someone      else     bore    responsibility            for     the

assaults.       He did not argue the actions had been misconstrued.

He said they never happened.                    The only evidence he adduced at

trial      related     to    the    victims'      credibility,        and     all    of     his

efforts      went    into    showing      that    T.P.    and    A.L.       could    not     be

believed.       Through comments in voir dire, the outline of the

case     provided       in    opening      statements,          the    examination          of

witnesses, and closing arguments, the defense offered the jury

one reason, and one reason only, for acquitting him——to wit, the
untruthfulness         of     the     victims.           This    is     not       just      our

characterization of the record, it is Mr. Bell's own description

of   his     defense    strategy:         "The     entire    defense        was     aimed    at

establishing reasonable doubt in the jurors' minds about the

sisters' accusations, by vigorous cross-examination of A.L. and

T.P. to establish inconsistencies and to show that they had been

encouraged by their mother to lie about T.P.'s drinking."

       ¶44    Consequently, we must determine whether there is any
meaningful      distinction         in    this     case     between     the       defense's
                                            25
                                                No. 2015AP2667-CR & 2015AP2668-CR



assertion that the jury must find Mr. Bell not guilty because

the victims lied and the prosecution's argument that the jury

may not make such a finding unless they did.                         This is not just a

quibble      over    semantics.          The    two    propositions          implicate      the

logical       distinction          between          those     conditions        that        are

"sufficient" to reach a conclusion versus those that are merely

"necessary" (but not sufficient).

    ¶45       An example of the latter condition would be a case in

which the victim is the sole source of evidence for some (but

not all) of the elements of the crime.                        In that situation, her

testimony      is    necessary          to   convict        the    defendant,     but       not

sufficient——the State must still present evidence in support of

the remaining elements from other sources.                            Viewing the same

scenario      from        the   defendant's          perspective       illustrates          the

asymmetrical         nature        of    "sufficient"         conditions.             It     is

sufficient for an acquittal that he convince the jury not to

believe the victim, because that negatives the elements of the

crime for which she was the sole source of evidence.                             But it is
not necessary for the jury to disbelieve the victim, because (in

this example) there were other elements of the crime the State

had to establish, and the jury could legitimately conclude the

State   failed       to    do   so.      The    logical       prerequisites       for      each

party's success are asymmetrical because it is necessary for the

State   to    succeed       with    respect      to    each       element,    while    it    is

sufficient for the defense to succeed with respect to just one.

In this category of cases, the State may not suggest the jury
should not return a verdict of "not guilty" unless it concludes
                                               26
                                                    No. 2015AP2667-CR & 2015AP2668-CR



the    victim          lied.        Such     a    suggestion        would    be    an     improper

shifting of the burden of proof because although the victim's

untruthfulness was a sufficient condition for acquittal, it was

not necessary.

       ¶46       There is a different category of cases, however, in

which the logical prerequisites for each party's success are

symmetrical.                This category comprises situations in which, for

example, the State need only prove the truth of one condition to

obtain       a    conviction.              From     the     State's      perspective,           that

condition is both necessary and sufficient.                                 Unlike the prior

category of cases, the defendant's perspective is the mirror

image——an acquittal is not possible unless that one condition is

not true.              That is to say, it is not just sufficient that the

one condition be untrue, it is also necessary.

       ¶47       Mr. Bell presents us with just such a case.                                 Here,

that one condition was whether the victims were telling the

truth.           If    they       were,    their   testimony        satisfied       all    of    the

elements         of     the       crimes    with        which   Mr.    Bell       was     charged.
Therefore, the only way Mr. Bell could have won an acquittal

would have been to falsify that condition——that is, convince the

jury   that           the    victims      lied.       Mr.   Bell      offered      the    jury    no

weakness          in        the     State's       case      other     than        the     victims'

credibility.                Even now, he does not tell us how (absent jury

nullification)               the    jury      could      have    acquitted         him     if     it

nonetheless believed the victims.                         And jury nullification is not

an option——there is no right to have the jury disregard the law
or evidence.                 State v. Bjerkaas, 163 Wis. 2d 949, 960, 472
                                                   27
                                              No. 2015AP2667-CR & 2015AP2668-CR



N.W.2d 615 (Ct. App. 1991) (the defendant has no "right to have

a jury decide a case contrary to law or fact, much less a right

to    an   instruction      telling     jurors          they    may    do    so    or    to     an

argument urging them to nullify applicable laws."); see also

United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) ("It

[the jury] has the power to acquit on bad grounds, because the

government is not allowed to appeal from an acquittal by a jury.

But    jury     nullification          is     just        a     power,       not        also     a

right . . . .") (emphasis omitted); Strickland, 466 U.S. at 695

("An assessment of the likelihood of a result more favorable to

the   defendant      must   exclude       the      possibility        of     arbitrariness,

whimsy, caprice, 'nullification,' and the like.                             A defendant has

no entitlement to the luck of a lawless decisionmaker, even if a

lawless decision cannot be reviewed. The assessment of prejudice

should     proceed     on   the   assumption            that    the    decisionmaker            is

reasonably,         conscientiously,         and        impartially          applying          the

standards that govern the decision.") (analyzing prejudice under

ineffective      assistance       of    counsel).              Therefore,         the    jury's
resolution of the case had to follow its conclusion regarding

the victims' veracity.

       ¶48    The    authorities       Mr.   Bell       cited    do    not     persuade         us

because they are not in the same logical category as this case.

In United States v. Vargas, 583 F.2d 380 (7th Cir. 1978), for

example,      the    prosecution's          case    depended          not    just       on     the

witnesses'      honesty,       but     also        on     the     accuracy         of        their

observations and the inferences they concluded from them.                                       As
the    Seventh       Circuit      later      characterized             that       case,        the
                                             28
                                            No. 2015AP2667-CR & 2015AP2668-CR



prosecutor's error was in telling the jury there was only one

way to reach acquittal, when in fact the evidence gave them

other paths to that end:

      Not content to let the jury decide the case according
      to the judge's instructions, he set up a "false
      dilemma" by informing the jury that they had to choose
      between two and only two options——either the defendant
      was lying or all the federal agents were lying——when
      in fact the jury had more options than only those
      two . . . ."
United States v. Amerson, 185 F.3d 676, 687 (7th Cir. 1999)

(citing Vargas, 583 F.2d at 387).

      ¶49     The prosecutor's argument in United States v. Cornett,

232 F.3d 570 (7th Cir. 2000), suffered the same deficiency as

the one in Vargas.          The Cornett jury could have acquitted the

defendant on the charge he unlawfully possessed a firearm if it

concluded that what the law enforcement officer observed did not

amount   to    possession    of    a     firearm.     Because   the   jury   could

acquit without believing the officer had lied, the prosecutor's

statement to the contrary was error.                Likewise, the defendant in

United   States     v.   Reed,     724    F.2d 677   (8th    Cir.   1984),   faced

multiple counts of wire fraud in which the State's case relied

not   just    on   the   honesty    of    its   witnesses,    but   the   rational

inferences one could derive from their testimony.                   Therefore, it

was error for the prosecutor to argue that the jury could acquit

only if the jury "determine[s] that [the defendant] is telling

the truth and that all [the government witnesses] are lying to

you."    Id. at 681.        As in Vargas and Cornett, the jury could
have believed the witnesses but acquitted anyway because they


                                           29
                                        No. 2015AP2667-CR & 2015AP2668-CR



did not agree with the conclusions the witnesses drew from what

they observed.14

      ¶50     We see support for the propriety of the prosecutor's

trial      commentary   in   the   principles   described     in   Amerson   and

United States v. Sandoval, 347 F.3d 627, 631-32 (7th Cir. 2003).

In   Sandoval,    the   prosecutor     said   "'Well,   you   would   have   to

conclude that the police officers were not telling the truth if

you're going to accept the defendant's testimony.'"                Id. at 632.

The court said this was in the nature of "ask[ing] the jury to

      14
       Most of the other cases on which Mr. Bell relies are not
in the same logical category as his because they describe
circumstances in which the jury could have acquitted the
defendant   based   on   something    other   than   the   witness's
untruthfulness.     See, e.g., United States v. Richter, 826
F.2d 206 (2nd Cir. 1987) (prosecutor's argument that jury could
determine defendant was "not telling . . . the truth" because
that would mean the two FBI agents had "committed perjury" was
"patently misleading" because resolution of the "fundamental
issue" did not "hinge[] upon the veracity of the FBI agents.");
State v. Albino, 97 A.3d 478 (Conn. 2014) (despite concluding
defendant was not deprived of a fair trial, prosecutor's
argument that jury would "have to find that every single person
in this case is wrong" in order to find defendant not guilty
precluded jury from reaching reasonable reconciliations of
conflicting testimony); People v. Dace, 604 N.E.2d 1013 (Ill.
App. Ct. 1992) (court explained that "the jury could have
believed some of the witnesses and still have believed
defendant's   testimony   that   he   did   not   sexually   assault
L.R."); State    v.    Graves,    668   N.W.2d 860    (Iowa    2003)
(prosecutor's statement that if the jury believed the officer's
testimony then "there is no question [defendant] is guilty as
charged" was improper because even if jury believed officer's
testimony    regarding     defendant's    residency,     defendant's
"residency alone would not support a guilty verdict on the
possession-with-intent-to-deliver charge.").         The remaining
cases Mr. Bell cited provide insufficient information for us to
identify the logical category into which they would fit.


                                       30
                                       No. 2015AP2667-CR & 2015AP2668-CR



weigh the credibility of the witnesses."               Id.     Similarly, in

Amerson, the prosecutor said the jury couldn't "'believe the

testimony of these police officers and believe the defendant's

testimony at the same time.'"              185 F.3d at 680.        The Amerson

court said this was "a mere statement of fact, which was no

different than stating to the jury that they had a chance to

determine whether the officers or the defendant was telling the

truth and that it was up to the jury to determine who was more

credible when applying the . . . jury instructions . . . ."                Id.

at 687.

      ¶51   The key to both Amerson and Sandoval is that when the

prosecutor's statements are fairly characterized as impressing

on    the   jury   the   importance        of   assessing    the    witnesses'

credibility, there is no error.            That is the practical effect of

the prosecutor's commentary in this case.              The parties did not

offer competing story lines, nor did the defense advance an

alternative version of the events described by T.P. and A.L.

There was the truth of the events the victims described, or the
lack of truth.     The verdict would necessarily follow the option

chosen by the jury.        Therefore, because Mr. Bell is in the

category of cases in which the verdict will necessarily follow

the   jury's   determination   of      the      victims'    credibility,   the

State's argument that the jurors should not find Mr. Bell not

guilty unless they conclude T.P. and A.L. lied is equivalent to

asking the jurors to carefully weigh the victims' credibility.

      ¶52   We conclude that the State's "must believe" commentary
was not improper; that does not, however, end our inquiry, as we
                                      31
                                                    No. 2015AP2667-CR & 2015AP2668-CR



must also consider whether the prosecutor's "motive" statements

were improper.

                                  b. The "Motive" Statements

       ¶53       Mr.     Bell     characterizes               the         prosecutor's       "motive

statements" as instructing the jury that it could not disbelieve

the victims unless there was evidence of a motive for them to

lie.     We do not believe this fairly characterizes the nature of

these     statements.             Taken       as        a    whole,        the   prosecutor         was

undoubtedly encouraging the jurors not to disbelieve the victims

unless they found evidence of a motive to lie.                                        But such an

argument is in an entirely different category from an assertion

that they cannot disbelieve the victims without such evidence.

The     first       category      comprises             persuasion,          while    the     second

relates to purported statements of the law.

       ¶54       Both    the    prosecutor          and      defense        counsel    spent       time

during       voir       dire    questioning             prospective          jurors       about     the

reasons      a     person       might       lie.            Defense       counsel     used    cross-

examination         to    suggest       some       motives          for    lying,     including      a
desire       for       parental       attention             and     sympathy,       and     avoiding

responsibility for misdeeds.                       The statements that come closest

to     Mr.    Bell's          claim    of     error          took     place      during      closing

arguments.          There, the prosecutor made statements such as "if

somebody is going to lie about something, they're going to have

a reason.          They're going to have some evidence of that reason."

Additionally,            he     argued       that       "[i]f        a     person     lies        about

something, they must have a reason.                           And the reason why there is
no evidence in this case about why anybody would lie is because
                                                   32
                                             No. 2015AP2667-CR & 2015AP2668-CR



they're not lying."               Defense counsel responded by describing

various reasons the victims might have lied, including jealousy,

hurt,    revenge,         and    a   perceived     need       for    survival.          The

prosecutor,        during       rebuttal,   told       the    jurors       that    defense

counsel was inviting them to speculate about the motives to lie

and that the jury instructions say they must not speculate.

       ¶55    We agree with the court of appeals that it is a matter

of    general      life   experience     that     people      normally      do    not   lie

without reason:            "It is common sense that people do not lie

unless there is a reason behind the lie. That is, at least

ordinarily, and arguably by definition, a lie is the result of a

decision      to     convey      a   falsehood."             State    v.    Bell,       Nos.

2015AP2667-CR & 2015AP2668-CR, unpublished slip op., ¶32 (Wis.

Ct.    App.   Dec.    1,    2016).       All     but   one     of    the    prosecutor's

"motive" statements consist of observations about this common-

sense principle and an encouragement not to discard it as they

weighed the victims' credibility.                  That is, the comments fell

into the category of persuasion.
       ¶56    The one comment that fell into the "statements of law"

category      was     the       prosecutor's      admonition         that        the    jury

instructions did not allow the jurors to speculate with respect

to a witness's credibility.             Mr. Bell says they may, and directs

our attention to the jury instruction's description of what may

be considered in weighing a witness's credibility:

            It is the duty of the jury to scrutinize and to
       weigh the testimony of witnesses and to determine the
       sole effect of the evidence as a whole.   You are the
       sole   judges  of  the  credibility,  that   is,  the

                                            33
                                           No. 2015AP2667-CR & 2015AP2668-CR


      believability, of the witnesses and of the weight to
      be given to their testimony.

           In determining the credibility of each witness
      and the weight you give to the testimony of each
      witness, consider these factors:   whether the witness
      has an interest or lack of interest in the result of
      this trial; the witness' conduct, appearance, and
      demeanor on the witness stand; the clearness or lack
      of clearness of the witness' recollections; the
      opportunity the witness had for observing and for
      knowing the matters the witness testified about; the
      reasonableness of the witness testimony; the apparent
      intelligence of the witness; bias or prejudice, if any
      has been shown; possible motives for falsifying
      testimony; and all other facts and circumstances
      during the trial which tend either to support or to
      discredit the testimony.   Then give to the testimony
      of each witness the weight you believe it should
      receive.

           There is no magic way for you to evaluate
      testimony; instead, you should use your common sense
      and experience.   In everyday life you determine for
      yourselves the reliability of things people say to
      you. You should do the same thing here.
      ¶57     This    instruction       does     not    suggest         the    jury     may

speculate     about    witness      credibility.            It   gives    examples       of

considerations that may affect the jurors' judgment about the
witness's credibility, amongst which are the possible motives

for    falsifying        testimony,        and      "all         other        facts     and

circumstances"        that    "either     support      or    discredit         the    trial

testimony."      This is not an invitation to speculate, nor does it

endorse the creation of discrediting evidence ex nihilo.                              As in

all   other    aspects       of   the   case,    the   jury      must    consider       the

witnesses' testimony in light of the admissible evidence and

reasonable inferences, all as directed by their "common sense
and experience."

                                          34
                                             No. 2015AP2667-CR & 2015AP2668-CR



       ¶58   Mr. Bell says our decision in Vill. of Bangor v. Hussa

Canning      &   Pickle     Co.,    208     Wis. 191,         242    N.W. 565         (1932),

recognizes       the     jury's     right        to     speculatively        discount       a

witness's credibility.             There, we observed that "[i]n a jury

trial there are a great many factors, some of them very subtle,

which, consciously or unconsciously, influence the juror's mind

in judging the credibility of witnesses and resolving the merits

of the case."           Id. at 198.       True enough, but just because the

evidence's effect is subtle does not make the jurors' response

to it a matter of speculation.

       ¶59   The prosecutor did not shift the burden to Mr. Bell by

encouraging the jury not to discount the victims' testimony in

the absence of a motive to lie.                        This was persuasion, not a

statement of the law.              Nor was his admonition that the jurors

must not speculate, even with respect to matters of credibility,

erroneous.        Consequently,       having          determined     that    neither      the

"must believe" nor the "motive" statements were improper, Mr.

Bell has identified no error to which we may apply the "plain
error" doctrine, and no cognizable deficiency in his counsel's

performance       at    trial.      That    necessarily         means       we    need   not

consider whether, if they had been improper, it would have been

so     obvious,        substantial,       and     fundamental         that       it    would

necessitate a new trial under our "plain error" doctrine.                                 It

also    means     Mr.     Bell's      counsel         could    not     have       performed

deficiently (on this issue) because Mr. Bell would not have been

entitled to a mistrial even if he had requested it.                              See, e.g.,
Strickland, 466 U.S. at 687 (to prove deficiency, defendant must
                                            35
                                        No. 2015AP2667-CR & 2015AP2668-CR



establish "that counsel made errors so serious that counsel was

not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment.").

                 B. The Jury's Review of Unredacted Exhibits

    ¶60    Mr. Bell's final challenge to his convictions is that

his trial counsel was ineffective for failing to seek redaction

of information from two of his exhibits that suggested T.P. had

not been sexually active prior to the assault.                The statements

at issue are brief.        Mr. Bell's challenge to the first exhibit——

a transcript of T.P.'s taped statement to Sergeant Stickney——

relates to the following exchange:

    [Sergeant Stickney]:          "Had you ever had sex before
    that point?"

    [T.P.]:      "No."
As to the second exhibit, Sergeant Stickney's written report

recounting   the   interview    with    T.P.,   Mr.   Bell    challenges    the

following commentary:

    She is 14 years old but seemed to have very little
    knowledge about sex. She had told me she had never
    had sex before.

    She also could not say if he ejaculated or even if she
    knew what that meant. I tried to explain and she said
    she did not think he did but was not sure.
    ¶61    The     Sixth    Amendment15     guarantees       to   a   criminal

defendant "the effective assistance of counsel."                  Strickland,

466 U.S. at 686.         A successful attack on counsel's performance


    15
         See U.S. Const. amend. VI; Wis. Const. art. I, § 7.


                                       36
                                              No. 2015AP2667-CR & 2015AP2668-CR



requires that the defendant establish both that trial counsel

performed deficiently and that the deficiency was prejudicial.

See Pitsch, 124 Wis. 2d at 633; see also Strickland, 466 U.S. at

697.

       ¶62   The     first    prong    requires         us   to    compare       counsel's

performance     to    the     "wide    range       of    professionally          competent

assistance."        Strickland, 466 U.S. at 690.                  Only if his conduct

falls outside that objectively reasonable range will we conclude

that counsel performed deficiently.                      State v. Thiel, 2003 WI

111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305.                         To show prejudice

(the second prong), a defendant must establish "'a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'"                              Pitsch,

124 Wis. 2d at 642 (quoting Strickland, 466 U.S. at 694).                                  "A

reasonable probability is a probability sufficient to undermine

confidence in the outcome."                  Strickland, 466 U.S. at 694.                   A

lack    of   confidence       arises    when       "'counsel's          errors    were    so

serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.'"             Lockhart v. Fretwell, 506 U.S. 364,

369    (1993)   (quoting       Strickland,        466    U.S. at        687).      If    the

defendant     fails    to     prove    one    element,       it    is    unnecessary      to

address the other.           Strickland, 466 U.S. at 697.

       ¶63   Mr. Bell says the two documents at issue contained

evidence     made    inadmissible       by    Wis.      Stat.     § 972.11(2)(b)         (the

"Rape    Shield"      statute),       which       precludes       admission      of      "any

evidence" of the complainant's "prior sexual conduct."                                Prior
sexual conduct includes a lack of sexual conduct, meaning that
                                             37
                                           No. 2015AP2667-CR & 2015AP2668-CR



evidence that a complainant had never had sexual intercourse is

inadmissible.           State   v.   Gavigan,     111    Wis. 2d 150,      159,    330

N.W.2d 571     (1983).          This     prohibition      extends     to   indirect

references    to    a    complainant's      lack    of    sexual     experience    or

activity.     Id.   Evidence of this nature is prohibited because it

"is generally prejudicial and bears no logical correlation to

the complainant's credibility."                Id. at 156.       The rule applies

to adolescents as well as adults.                  See State v. Mitchell, 144

Wis. 2d 596, 601, 424 N.W.2d 698 (1988).

    ¶64      Both   the     prosecutor      and     defense     counsel    had     the

opportunity to review the requested exhibits and to redact them

as they saw fit before they went to the jury room.                          Defense

counsel and the prosecutor agreed to redact information from

exhibits other than the ones at issue.                  Defense counsel did not,

however, seek redaction of the exhibits about which Mr. Bell is

now concerned.          At the December 2015 Machner hearing, defense

counsel   could     not    specifically        recall    why    he   did   not    seek

redaction of these exhibits and speculated that he believed the
unredacted     statements       would     bolster       the    inconsistencies      in

T.P.'s testimony.

    ¶65      We agree with Mr. Bell that these exhibits should not

have been submitted to the jury without redaction.                     It is well-

established that the type of information Mr. Bell challenged is

generally inadmissible, and defense counsel acknowledged as much

at the Machner hearing, stating that he may have "goofed up" in

not requesting redaction.              Defense counsel's attempt to explain
his possible rationale for failing to do so was hampered by the
                                          38
                                             No. 2015AP2667-CR & 2015AP2668-CR



passage of time——13 years between the trial and the                             Machner

hearing.     The result is that we have insufficient information to

conclude   that       there   was     no   deficiency       in     defense    counsel's

performance.16          For     the    sake      of   the     remaining       analysis,

therefore,       we      will       assume——without          deciding——that          his

performance was deficient.

     ¶66   To    succeed      with     his    challenge      Mr.     Bell    must   also

establish that the deficient performance was prejudicial.                             We

conclude the circumstances do not support such a conclusion.

     ¶67   Mr.        Bell    primarily         argues      that     the     unredacted

information was prejudicial because it "was likely to arouse

sympathy for [T.P.] and undercut defense counsel's contention

that she was uncooperative because the assault never occurred"

and that in light of Dr. Budzak's testimony regarding T.P.'s

lack of hymenal tissue, evidence that T.P. "had not had sexual

intercourse until she was assaulted by [Mr.] Bell undermines

confidence in the outcome."                This lack of confidence, Mr. Bell

says, arises because the combination of Dr. Budzak's testimony
and the inadmissible evidence "created a strong inference that,

because [T.P.] had never before had intercourse, the destruction


     16
       Our review of the record confirms that defense counsel
was aware of the Rape Shield statute at the time of trial, at
least generally speaking: On the second day of trial, prior to
reprising A.L.'s testimony, he sought permission to address
A.L.'s prior sexual conduct on cross-examination despite being
aware that the "Rape Shield exists . . . ."    The court ruled
that it would not allow him to do so based on the Rape Shield
statute.


                                           39
                                         No. 2015AP2667-CR & 2015AP2668-CR



of her hymen occurred during the only time she had intercourse,

and that was the assault by Bell."              We disagree.

      ¶68   The connection between Dr. Budzak's testimony and the

statements at issue——that T.P. had not had sexual intercourse

prior to the sexual assault——was not the subject of argument,

and   neither    the    prosecutor     nor     trial   counsel   drew   any    such

connection      for    the    jury.    Moreover,       careful   review   of    Dr.

Budzak's trial testimony weakens Mr. Bell's argument.                   While Dr.

Budzak did testify that based on T.P.'s exam "[i]t would be

likely" that T.P "had had sexual intercourse" at some point in

her life and that her conclusion was based on T.P.'s "lack of

hymenal tissue and her ability to tolerate the exam easily[,]"

she also explained that because approximately five weeks elapsed

between the assault and the exam, there simply was no way to

confirm that the sexual intercourse was the result of a sexual

assault.     She likewise did not confirm whether it is possible to

pinpoint when the hymenal tissue became disrupted.                      Moreover,

Dr. Budzak explained that a lack of hymenal tissue does not
conclusively     prove       an   individual    has    had   sexual   intercourse

because there are other explanations as to why that tissue is

absent or disrupted.           Therefore, the fact that the physical exam

indicated T.P. may have had sexual intercourse at some point in

her life does not necessarily establish that she did have sexual

intercourse.          And even if this established that she had had

sexual intercourse, it is entirely incapable of identifying with

whom she had it.             Nor can it even establish that the hymenal
tissue was disrupted as a consequence of the sexual assault, as
                                        40
                                       No. 2015AP2667-CR & 2015AP2668-CR



opposed to sexual intercourse prior to that date, or during the

five weeks between that date and the examination.                    Therefore,

this evidence does not make it any more likely that the sexual

intercourse——assuming it occurred——was with Mr. Bell.

     ¶69    At best, Mr. Bell posits that the jury——without any

prompting by trial counsel or the prosecutor——may have drawn a

connection between Dr. Budzak's testimony and the inadmissible

evidence.     This is too speculative to conclude that Mr. Bell

suffered any prejudicial effect at all, particularly because Dr.

Budzak's testimony and the exhibits at issue pertained only to

T.P. and said nothing of A.L.'s assault.             This error was not so

serious that it deprived Mr. Bell of a fair trial, so it does

not shake our confidence in the outcome.             Therefore, although it

was error for the jury to view the statements alluding to T.P.'s

lack of sexual intercourse prior to the sexual assault, there is

no   reasonable     probability    that,     but    for    defense    counsel's

deficient performance, the result of the trial would have been

different.     So    we   conclude    that   Mr.    Bell    did   not   receive
ineffective   assistance     of    counsel   when    his    attorney    allowed

defense exhibits to go to the jury room without redaction of the

inadmissible evidence.

                             IV.     CONCLUSION

     ¶70    The State's trial commentary was not improper, which

means there is no error, plain or otherwise, for us to address.

That also means the State's commentary cannot serve as the basis

for a claim of ineffective assistance of counsel.                 With respect
to the inadmissible evidence submitted to the jury in two of the
                                      41
                                       No. 2015AP2667-CR & 2015AP2668-CR



defense's    exhibits,     we     conclude      there     is    no   reasonable

probability that redacting that evidence would have changed the

result of the trial.      Accordingly, we conclude Mr. Bell received

a fair trial and is not entitled to a new one; we therefore

affirm the court of appeals.

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

affirmed.

    ¶71     PATIENCE     DRAKE     ROGGENSACK,        C.J.,     withdrew   from

participation.

    ¶72     SHIRLEY S. ABRAHAMSON, J., did not participate.




                                      42
                                          Nos.    2015AP2667-CR & 2015AP2668-CR.akz




    ¶73      ANNETTE KINGSLAND ZIEGLER, J.              (concurring).     I write

to clarify why I join the court's opinion. In this writing I

intend to concisely highlight the main holdings of the opinion.

    ¶74      This is a review of an unpublished decision of the

court   of    appeals,      State    v.       Bell,   Nos.   2015AP2267-CR     and

2015AP2668-CR, unpublished slip. op., (Wis. Ct. App. Dec. 1,

2016), affirming the Monroe County circuit court's1 denial of

Gerrod Bell's ("Bell") postconviction motion for a new trial.

    ¶75      In a consolidated criminal action by the State, Bell

was charged with seven crimes relating to the sexual assaults of

two minors, A.L. and T.P.           Majority op., ¶4.        The case proceeded

to trial.     At different points during the trial, the prosecutor

made a number of statements regarding witness credibility to the

effect that (1) to find Bell not guilty the jury must believe

that T.P. had lied (the "must believe" statements), and (2) to

believe that T.P. had lied, there had to be evidence of a reason

to lie (the "motive" statements).                Majority op., ¶41.       Defense
counsel objected to these statements during the State's closing

argument,    but   failed    to     properly      preserve   the   objection    by

moving for a mistrial before the jury rendered its verdict.2

    1
        The Honorable Michael Rosborough presided.
    2
       During the State's closing argument, when it was going
through its litany of "must believe" statements, defense counsel
objected:

         [DEFENSE COUNSEL]: Your Honor, I'm concerned
    about how he's presenting this because I think he's
    reversing the burden of proof.

                                                                     (continued)
                                          1
                                     Nos.   2015AP2667-CR & 2015AP2668-CR.akz


Additionally,    when   reviewing   exhibits    requested   by    the   jury,

defense counsel failed to request the redaction of two exhibits

that tended to establish T.P.'s "prior sexual conduct," which is

inadmissible evidence pursuant to Wis. Stat. § 972.11(2)(b) (the

"Rape Shield" statute).       The jury ultimately found Bell guilty

of all counts.

    ¶76     After the judgments of conviction were entered, Bell

filed   a    postconviction    motion       under   Wis.    Stat.       (Rule)

§ 809.30(2)(h) seeking a new trial.          See majority op., ¶6.        The

circuit court denied Bell's motion for a new trial because it

found that the prosecutor's statements did not violate Bell's

constitutional rights given the totality of the circumstances at




                                                                 (continued)
            [STATE]: No I'm not Your Honor; I'm simply——

         THE COURT: Well, this is argument; I think the
    jury understands that.   It's not evidence and there
    has to be some latitude for advocacy during the course
    of argument. I'm not convinced that what he's saying
    is going beyond that at this point.    And, of course,
    you still have the opportunity to get up there and
    make your presentation.

            So let's proceed with that in mind.

As a procedural matter, this was insufficient to preserve the
issue for direct appeal.     See State v. Davidson, 2000 WI 91,
¶86, 236 Wis. 2d 537, 613 N.W.2d 606 (concluding that the
defendant's   failure    "to    make   a   timely    motion  for
mistrial . . . before the jury returned its judgment constitutes
a waiver of his objections to the prosecutor's statements during
closing arguments"); see also majority op., ¶11 n.13.       Bell
acknowledges that this procedural requirement was not met, which
is why he must raise the issues before the court in the context
of plain error and ineffective assistance of counsel.


                                    2
                                   Nos.    2015AP2667-CR & 2015AP2668-CR.akz


trial, namely that the jury had been properly instructed.              Bell

appealed.

     ¶77    The court of appeals affirmed.        See Bell, unpublished

slip op., ¶3.     The court of appeals held that the prosecutor's

statements were not misstatements of law; rather, the statements

were a characterization of the evidence that was responsive to

the defense's theory.        Id., ¶36.     Because it concluded that

there was no error, the court of appeals did not reach the

issues of whether the error was sufficient to entitle Bell to a

new trial on the basis of plain error or ineffective assistance

of counsel.     Similarly, the court of appeals held that defense

counsel's failure to request redaction of the exhibits was not

ineffective assistance of counsel because the jury's review of

unredacted exhibits did not result in prejudice.           Id., ¶¶38, 48.

Bell petitioned for review.

     ¶78    On review, we consider three issues: (1) Whether the

prosecutor's statements constitute plain error so as to entitle

Bell to a new trial; (2) whether Bell is entitled to a new trial
because defense counsel's failure to properly preserve objection

to   the      prosecutor's    statements     constitutes      ineffective

assistance of counsel; and (3) whether Bell is entitled to a new

trial because defense counsel's failure to request redaction of

the exhibits constitutes ineffective assistance of counsel.

                                   I

     ¶79    We consider first whether the prosecutor's statements

constitute plain error so as to entitle Bell to a new trial.             We
conclude that the prosecutor's "must believe" statements were

                                   3
                                       Nos.   2015AP2667-CR & 2015AP2668-CR.akz


not improper, and, therefore, that there was no error, because

their practical effect was only to "impress[] on the jury the

importance of assessing the witnesses' credibility."                   Majority

op., ¶51.     We further conclude that the prosecutor's "motive"

statements were not improper, and, therefore, that there was no

error, because either they were not statements of law at all or

they were not misstatements of law.            Majority op., ¶¶55-57, 59.

Thus, we conclude that Bell is not entitled to a new trial

because there was no error.      Majority op., ¶70.           Here, I strive

to clarify why the "must believe" statements do not amount to

error.

    ¶80     Where witness testimony is the only evidence presented

at trial, and, if credible, it is sufficient to prove guilt, it

is not an error which requires reversal for the prosecutor to

argue that, to find the defendant not guilty, the jury must

believe the witnesses are lying.         Majority op., ¶46.          Here, this

is true for two reasons.      First, the prosecutor's arguments are

not evidence.    The court instructs the jury in that respect, and
we properly rely on the assumption that the jury follows the

instructions of the court.      See, e.g., State v. Marinez, 2011 WI

12, ¶41, 331 Wis. 2d 568, 797 N.W.2d 399.

    ¶81     Second, the witnesses' testimony——the sole evidence in

this case——is sufficient to prove guilt; that is, it provides

sufficient   evidence   to   support    a     finding   of   guilt    on   every

element the State is required to prove.                 Majority op., ¶46.

While the jury could believe the witnesses and conclude the
defendant is not guilty because the State has not met its burden

                                   4
                                            Nos.    2015AP2667-CR & 2015AP2668-CR.akz


of proof, the jury will still need to assess the witnesses'

credibility     and   determine       what         weight   to     attach    to    that

testimony.      In other words, the jury is instructed to determine

who is believable and it is not beyond the jury's ability to

discern    which   witnesses    the    State        hopes   the    jury     will   find

credible.       We presume "that the decisionmaker is reasonably,

conscientiously,      and   impartially        applying      the    standards      that

govern the decision";3 that is, a defendant cannot argue that a

lawless jury is a possibility that renders otherwise sufficient

evidence, insufficient.        Majority op., ¶47.

    ¶82     I also agree with the majority that Vargas,4 Cornett,5

and Reed6 are all distinguishable, in part because, in those

cases,    the   credibility    of     the     witnesses'      testimony      was   not

determinative of guilt.         Majority op., ¶¶48-49; id., ¶49 n.14.

I further recognize that, where the credibility of a witness'

testimony is not the only thing at stake, the jury could find

the defendant "not guilty" for some other reason, for example,

if additional evidence offered is unpersuasive or persuasive.
Thus, it could be a misstatement of law in those circumstances

to say that to find the defendant not guilty, the jury must

believe the witnesses are lying.             Majority op., ¶45.



    3
         Strickland v. Washington, 466 U.S. 668, 695 (1984).
    4
         United States v. Vargas, 583 F.2d 380 (7th Cir. 1978).
    5
         United States v. Cornett, 232 F.3d 570 (7th Cir. 2000).
    6
         United States v. Reed, 724 F.2d 677 (8th Cir. 1984).


                                        5
                                                    Nos.      2015AP2667-CR & 2015AP2668-CR.akz


       ¶83     But that is not the circumstance here, and Amerson7 and

Sandoval8 provide additional support for the conclusion that the

prosecutor's statements were not improper because these cases

demonstrate that the statements may be properly characterized as

"impressing         on     the       jury     the       importance       of    assessing      the

witnesses' credibility."                    Majority op., ¶51.              In fact, that is

what the prosecutor did here.                       The State impressed on the jury

the apparent fact that the jury must determine the credibility

of the witnesses and the weight to attach to their testimony.

It urged the jury to do what the jury already knew the State

wanted       the    jury    to       do.      It        was    hardly   a     secret   who    the

prosecutor hoped the jury would believe.                            But, unlike improperly

vouching for a witness, the prosecutor here was merely telling

the jury what it already knew: the State wanted the jury to find

its witnesses credible.

       ¶84     In    sum,        I    conclude          that     the    prosecutor's        "must

believe" statements were not misstatements of law, especially in

this       case,    where   the       witnesses'          credible      testimony      is   alone
enough for the State to prove guilt, and is, in fact, the only

proof       offered.        Majority          op.,       ¶¶46-47.        Additionally,        the

practical effect of the statements was only to "impress[] on the

jury the importance of assessing the witnesses' credibility,"

majority op., ¶51, telling the jury what it already knew.                                    The

State's case rested on the jury believing a particular witness,


       7
           United States v. Amerson, 185 F.3d 676 (7th Cir. 1999).
       8
           United States v. Sandoval, 347 F.3d 627 (7th Cir. 2003).


                                                    6
                                             Nos.   2015AP2667-CR & 2015AP2668-CR.akz


but the prosecutor was not stepping into the shoes of the jury

to tell them whom to believe.                The State was instead describing

the duty of the jury to determine what testimony they find more

appealing to their good judgment and common sense.

                                            II

      ¶85    We consider second whether Bell is entitled to a new

trial    because       defense    counsel's       failure    to    properly         preserve

objection to the prosecutor's statements constitutes ineffective

assistance of counsel.             We conclude that Bell's defense counsel

did not perform deficiently in failing to move for a mistrial

prior to the verdict on the basis of the prosecutor's statements

because     the    prosecutor's          statements     were       not        objectionable

error.      Majority op. ¶59.             Thus, we conclude that Bell is not

entitled     to    a    new      trial    because     there       is     no    ineffective

assistance of counsel where there is no deficient performance.

Majority op., ¶70.

                                            III

      ¶86    We consider third whether Bell is entitled to a new
trial because defense counsel's failure to request redaction of

the   exhibits     constitutes           ineffective    assistance             of   counsel.

Although we hold that allowing the jury to review unredacted

versions of the exhibits was error because admission of such

evidence is prohibited under Wis. Stat. § 972.11(2)(b), majority

op., ¶65, we conclude that the error was harmless because Bell's

argument that the jury may have inferred T.P.'s prior sexual

history     from       Dr.    Budzak's      testimony       and    the        inadmissible
contents of the exhibits is too speculative.                       Majority op., ¶69.

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                                Nos.   2015AP2667-CR & 2015AP2668-CR.akz


Thus, we conclude that Bell is not entitled to a new trial

because there is no ineffective assistance of counsel where the

error does not prejudice the defendant.    Majority op., ¶70.

    ¶87   For the foregoing reasons, I respectfully concur.




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                                                  No.       2015AP2667-CR & 2015AP2668-CR.awb


       ¶88   ANN       WALSH        BRADLEY,          J.      (dissenting).               At     the

foundation of our system of justice lies the principle that

defendants    do       not    have     to    prove         their    innocence.           State    v.

Sawyer, 266 Wis. 494, 506, 63 N.W.2d 749 (1954).                                   In fact, a

defendant is entitled to a presumption of innocence and need not

present any evidence at all at trial.                             See Johnson v. State, 85

Wis. 2d 22,       27,       270    N.W.2d 153         (1978);       State    v.   Johnson,        11

Wis. 2d 130, 134, 104 N.W.2d 379 (1960).

       ¶89   As    a    corollary       to     this        foundational       principle,         the

State bears the burden to prove beyond a reasonable doubt every

fact   necessary        to        constitute      guilt.           State     v.   Schulz,        102

Wis. 2d 423,       427,       307    N.W.2d 151            (1981);    In    re    Winship,       397

U.S. 358, 361-64 (1970).                    This burden remains with the State

throughout the entirety of trial, and cannot be shifted to the

defendant.        Schulz, 102 Wis. 2d at 427.

       ¶90   Despite these well-established principles, the State

in this case argued to the jury that the defendant has a burden

to present evidence and convince the jury of the victims' motive
to   lie.     Because         the     statements           made     during    voir     dire      and

closing      argument         misstated           the       law      governing       a     jury's

consideration          of    evidence       and       impermissibly          shifted      to     the

defendant a burden he does not carry, I respectfully dissent.

                                                  I

       ¶91   A jury convicted Bell of the sexual assault of two

underage     victims,         T.P.    and     A.L.           At    trial,     Bell's      defense

focused largely on the credibility of the victims.                                   Both Bell
and the State presented extensive argument on this subject.

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                                        No.     2015AP2667-CR & 2015AP2668-CR.awb


    ¶92    The question is whether certain arguments made by the

State,   referred    to    by   the   majority      as   the    "must    believe"

statements and the "motive" statements, crossed the line so as

to impermissibly shift the burden of proof from the State to the

defendant.     Because it is dispositive, I focus my analysis on

the "motive" statements only.

                                       II

    ¶93    The   "motive"       statements     framed    the    State's       entire

case.    Setting the stage during voir dire, the prosecutor asked

the jury panel, "Would everybody agree here that . . . if you're

going to lie, you're going to have a reason like jealousy of

some sort; there's going to be a reason why you would lie?"

    ¶94    Probing       further,     the     prosecutor       then   posed      the

question to individual jurors, "Would you expect there would be

some evidence that somebody would have a reason to lie?                       There

would be some sort of evidence that this person would have a

reason    to   lie[.]"       Conflating       the   burden      of    proof    jury

instruction with the instruction on credibility of witnesses,
the prosecutor began to instruct the jury panel on the law.                      He

advised that the "jury instructions on reasonable doubt" do not

allow the jury to speculate, and that the jury must instead




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                                     No.    2015AP2667-CR & 2015AP2668-CR.awb


"just look at the facts, the evidence or lack of evidence in

this case" with regard to witness credibility.1

     ¶95   During closing argument, the State built on the theme

introduced in voir dire, repeatedly contending that there was no

evidence demonstrating that the victims had lied.              Majority op.,

¶¶34-35.   It advanced that in the absence of such evidence the

jury should believe the victims.           See id., ¶35.       Specifically,

the State argued to the jury, "if somebody is going to make a

flat out lie about something, they're going to have a reason.

They're going to have some evidence of that reason."              The State

further asserted that Bell "has no idea why [the victim] would

make this up.    He says that repeatedly and he . . . just begins

to speculate."

     ¶96   The   State   suggested   next    that   if    no   evidence   was

presented regarding the victims' motive to lie, then the jury

would be left with only speculation as to their credibility.              It

contended that Bell "just begins to make guesses after he says

he has no idea why she would make this up."              In concluding this
segment of its closing argument, the State reiterated, "If a

person lies about something, they must have a reason.               And the

reason why there is no evidence in this case about why anybody

would lie is because they're not lying."

     1
       The jury instruction on burden of proof indicates that
"[a] reasonable doubt is not a doubt which is based on mere
guesswork or speculation."    Wis JI——Criminal 140 (2000). But
when the prosecutor spoke of speculation and evidence, he was
speaking not of the ultimate burden of proof on the State to
prove guilt beyond a reasonable doubt, but of witness
credibility, thus conflating the two instructions.


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                                           No.        2015AP2667-CR & 2015AP2668-CR.awb


      ¶97   Following Bell's closing argument, the State returned

for   rebuttal.       It    doubled      down     on     its    previous        arguments,

asserting    "[t]here's         never   testimony       they     were      lying   because

[they have a bad life].             There's no testimony they were lying

for   any   other   reason.         There's      no    testimony        that    they   were

lying.      There's   no    evidence       that       they     were   lying. . . . And

we're supposed to look at the evidence or lack of evidence."

The State then admonished the jury that it is forbidden from

speculating as to why the victims would lie.

      ¶98   According to the State, who has to come up with this

important    evidence      of    motive?        The     State?        Certainly        not.

Rather, according to the State's distortion of the burden of

proof instruction, it is the defendant who must introduce this

evidence.    Yet, a theory of defense that the witnesses are lying

should not be transformed into a shift of the burden of proof,

requiring that the defendant offer evidence of motive to lie.

      ¶99   The majority, however, does not see a problem with the

prosecutor's    statements,         contending        that     "it    is    a   matter   of
general life experience that people normally do not lie without

reason:     It is common sense that people do not lie unless there

is a reason behind the lie.              That is, at least ordinarily, and

arguably by definition, a lie is the result of a decision to

convey a falsehood."            Majority op., ¶55 (quoting State v. Bell,

Nos. 2015AP2667-CR & 2015AP2668-CR, unpublished slip op., ¶32

(Wis. Ct. App. Dec. 1, 2016)).                    In the majority's view, the

State's arguments "fell into the category of persuasion" because
they "consist of observations about this common-sense principle

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                                                  No.    2015AP2667-CR & 2015AP2668-CR.awb


and an encouragement not to discard it as [jurors] weighed the

victims' credibility."         Id.

    ¶100 However,           what       becomes          apparent       upon       reading     the

transcript     in    this      case          is       that    the      State        essentially

misinformed the jury that it could not find the victims lacking

in credibility unless Bell presented "evidence" of their motive

to lie.      Such an assertion is legally incorrect.                                Pursuant to

well-established      precepts,         Bell          need    not    do    anything     of    the

sort.    See Sawyer, 266 Wis. at 506.

    ¶101 Even       accepting          the    majority's            dubious       premise    that

there is always a reason behind an untruthful statement, such a

premise does not require that a defendant present evidence of a

witness's    motive    to     lie.           Indeed,          as    observed        above,    the

defendant has no burden to present any evidence whatsoever, let

alone    evidence    proving       a    motive.           See      Johnson     v.    State,    85

Wis. 2d at 27.

    ¶102 Here the State's remarks are akin to those at issue in

U.S. v. Smith, 500 F.2d 293 (6th Cir. 1974).                                  In Smith, the
prosecutor made the statement in closing argument "that the jury

should    'require'     the        defendants            to     present       a     'reasonable

explanation' of the meaning of taped wiretap evidence, other

than the criminal meaning he ascribed to the conversations[.]"

Id. at 294.     In other words, the prosecutor implored the jury to

require the defendant to present evidence, shifting the burden

of proof.    See id.

    ¶103 The        Smith    court       determined            that       "[t]he     challenged
comments of the prosecutor were clearly improper argument."                                   Id.

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                                           No.      2015AP2667-CR & 2015AP2668-CR.awb


at 295.    The remarks "had the effect of shifting the burden of

proof from the government to the defendants and abrogating the

presumption      of    innocence      to       which    [the     defendants]       were

entitled."      Id. at 294.

      ¶104 In reaching this result, the Smith court forewarned

that "[i]t is, of course the duty of the prosecutor to advance

the government's cause with force and persuasiveness.                          However,

this duty includes concerns in addition to mere advocacy."                             Id.

at 295.       Specifically, the prosecutor is entrusted with "the

responsibility        of     observing         in   practice         the     principles

considered under our system to be essential to a fair and just

criminal      procedure[,]"     thereby        protecting      the     constitutional

right to due process.         Id.

      ¶105 Smith is not alone in distinguishing between lawful

advocacy and an unlawful shift of the burden of proof.                           Courts

around the country have determined that a shift of the burden of

proof to the defendant constitutes a denial of the required

"fair   and    just   criminal       procedure."         See,    e.g.,       People    v.
Santana, 255 P.3d 1126, 1130 (Colo. 2011) (explaining that it is

impermissible for a prosecutor to "shift the burden of proof

through argument or comment"); People v. Fyda, 793 N.W.2d 712,

723   (Mich.    Ct.   App.    2010)    ("A      prosecutor      may    not    imply    in

closing    argument    that    the    defendant        must    prove       something   or

present a reasonable explanation for damaging evidence because

such an argument tends to shift the burden of proof."); State v.

Roman Nose, 667 N.W.2d 386, 399 (Minn. 2003) ("[A] prosecutor
may not comment on a defendant's failure to call witnesses or to

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                                            No.       2015AP2667-CR & 2015AP2668-CR.awb


contradict testimony because such comments might lead the jury

to believe that the defendant has a duty to call witnesses or

bears some burden of proof.").

       ¶106 I agree with the majority that, "while [a prosecutor]

may strike hard blows, he is not at liberty to strike foul

ones."     Majority op., ¶16 (citing Berger v. United States, 295

U.S. 78,     88    (1935)).         However,         the     majority               errs    in    its

application of this principle.

       ¶107 Like the blows landed by the prosecutor in Smith, the

jabs the State takes in this case are foul.                             They constitute a

"clearly improper argument" that "shift[s] the burden of proof

from   the   government       to    the     defendants            and       abrogate[s]           the

presumption of innocence" to which Bell is entitled.                                   See Smith,

500 F.2d at 294-95.         In short, Bell has no burden of proof, yet

the State's comments placed one on him.

       ¶108 The    error     here     is    not      a     mere      evidentiary              error.

Rather, it constitutes a violation of the due process right to a

fair trial by distorting the burden of proof jury instruction,
thus shifting the burden of proof to the defendant.

       ¶109 When     a     defendant        alleges             that        a        prosecutor's

statements constituted plain error, as does Bell, the burden is

on   the   State    to    prove    that    the       error      is     harmless            beyond   a

reasonable       doubt.       State    v.       Mayo,      2007        WI       78,        ¶29,   301

Wis. 2d 642, 734 N.W.2d 115.               Because I determine that on this

record     the    State    has     failed       to       make     such          a     showing,      I

respectfully dissent.



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