State v. Timothy C. Dietzen

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 17, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP1220-CR Cir. Ct. No. 2018CF737

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

TIMOTHY C. DIETZEN,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Outagamie County:
MARK J. McGINNIS, Judge. Affirmed.

Before Hruz, Gill and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. The State appeals from an order granting Timothy
Dietzen’s motion for postconviction relief. On appeal, the State contends that the
No. 2023AP1220-CR

circuit court erred by concluding that Dietzen’s trial counsel was constitutionally
ineffective. For the reasons that follow, we affirm the court’s order.

BACKGROUND

¶2 The State charged Dietzen in 2018 with three counts of incest with a
child based on allegations that he anally penetrated each of his three adopted sons—
William, Scott, and Michael—with his penis.1 According to the criminal complaint,
William reported in October 2017 that Dietzen sexually assaulted him multiple
times between 2011 and 2012 while Dietzen was giving him massages. In
December 2017, Scott reported that Dietzen “[d]id the stuff to me that he did with
[William]” on one occasion sometime between October 2016 and October 2017. In
early 2018, Michael reported that Dietzen sexually assaulted him “more than once”
during massages. Michael alleged that the sexual assaults began in 2013 and
continued for approximately two years.

¶3 Dietzen’s trial counsel filed a motion to admit evidence at trial that all
three complainants “were involved in sexual activity with each other and received
counseling for that fact.” In particular, counsel wanted to highlight that shortly after
Scott moved into Dietzen’s home, Scott disclosed to authorities that Michael
sexually assaulted him. The assaults included sexual touching, oral sex, and
attempted anal penetration.2 In addition, social service and law enforcement records

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use
pseudonyms when referring to the complainants in this case. All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.
2
Following Scott’s disclosure of the sexual assaults, Michael was adjudicated delinquent
in May 2013 on a single count of second-degree sexual assault of a child.

2
No. 2023AP1220-CR

showed that William and Michael were having sexual intercourse with each other
between 2010 and 2012.

¶4 The motion stated that Dietzen’s trial counsel was aware “that this
prior sexual activity would ordinarily be protected under” Wisconsin’s rape shield
law,3 but it asserted that the information was “critical to an understanding that these
boys knew very well that sexual contact from anyone when they were minors was
wrong, criminal, and would be given attention by the adults around them.” The
State objected to the evidence, arguing that none of the exceptions for admitting the
complainants’ prior sexual conduct applied.

¶5 At a hearing on the motion, the circuit court stated that it had “a real
concern with the rape shield law” issue and that it was “not inclined to grant” the
motion before trial. The court reasoned that the admissibility of the evidence would
“depend upon how the case is presented” and “should be addressed as we are
moving along” at trial. Dietzen’s trial counsel responded that “the broader concern”
was “the ability to try the case fairly, which is really a constitutional and not a
statutory issue.” Trial counsel did not cite State v. Pulizzano, 155 Wis. 2d 633, 456
N.W.2d 325 (1990).4

¶6 Prior to the jury trial, Dietzen’s trial counsel obtained various social
service, juvenile, psychological, and counseling records showing that Michael,

3
See WIS. STAT. § 972.11(2).
4
In Pulizzano, our state supreme court held that the rape shield statute was
unconstitutional as applied to the defendant in that case, and the court concluded that “in some
cases a defendant’s confrontation and compulsory process rights might require that evidence of a
complainant’s prior sexual conduct be admitted, notwithstanding the fact that the evidence would
otherwise be excluded by the [statute].” State v. Pulizzano, 155 Wis. 2d 633, 647-48, 456 N.W.2d
325 (1990).

3
No. 2023AP1220-CR

William, and Scott had psychological, cognitive, and/or behavioral issues. Trial
counsel did not consult with an expert on these diagnoses or behavioral issues.

¶7 The case proceeded to a jury trial during which several witnesses
testified, including all three complainants. During their testimony, the complainants
provided graphic accounts of the alleged sexual assaults, which included detailed
accounts of the mechanics and sensations of anal intercourse. While trial counsel
was cross-examining William, she asked him whether he was “getting some regular
counseling about what was appropriate between family members.” The State
requested a sidebar, and the parties and the circuit court held a discussion.

¶8 Outside the presence of the jury, Dietzen’s trial counsel argued that
the jury was receiving a “picture painted of kids who have no idea” about sexual
activity, and that the circuit court should admit evidence of the complainants’ prior
sexual activity with each other. The State again argued that the rape shield statute
prohibited the evidence. Neither Dietzen’s trial counsel nor the State cited
Pulizzano.5 Ultimately, the court permitted Dietzen’s trial counsel to ask the
complainants whether they received counseling, whether they had opportunities to
disclose the assaults perpetrated by Dietzen during that counseling but failed to
disclose them, and whether through the counseling they had “opportunities to learn
that sexual relations with family members is not appropriate.”

¶9 The jury found Dietzen guilty on all three counts. Dietzen filed a
postconviction motion asserting that his trial counsel was constitutionally
ineffective because she, among other things, failed to raise Pulizzano as a means to
overcome the rape shield statute’s exclusion of evidence regarding the

5
Dietzen’s trial counsel did argue that “there are exceptions to rape shield and there is the
constitutional entitlement to the fair trial that kind of trumps the statute.”

4
No. 2023AP1220-CR

complainants’ prior sexual experiences. Specifically, Dietzen stated that
information about the complainants’ sexual activity with each other was an
alternative source for their sexual knowledge and was, therefore, admissible
evidence under Pulizzano.

¶10 Dietzen also alleged that his trial counsel was constitutionally
ineffective because she “failed to consult with and present expert testimony at trial
to explain the diagnoses of the [complainants] so that the jury could properly assess
their credibility, motivations to testify falsely, and … reliability.” Included with the
motion was an affidavit of Dr. David Thompson, a clinical psychologist, who
provided a summary of the complainants’ backgrounds and diagnoses.

¶11 Following a Machner6 hearing, additional briefing, and oral argument
from the parties, the circuit court granted Dietzen’s postconviction motion, vacated
Dietzen’s convictions and sentences, and ordered a new trial. The court determined
that Dietzen’s trial counsel had performed deficiently by failing to argue that
evidence of the complainants’ sexual activity was admissible under Pulizzano and
by failing to provide expert testimony regarding their diagnoses. According to the
court, these deficiencies prejudiced Dietzen’s defense. The State now appeals.7
Additional facts will be provided as necessary below.

DISCUSSION

¶12 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of

6
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
7
The circuit court stayed its order granting Dietzen’s postconviction motion until the
completion of this appeal.

5
No. 2023AP1220-CR

counsel.” State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93
(citation omitted). To prevail on a claim of ineffective assistance of counsel, a
defendant must establish that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984).

¶13 Counsel’s performance is “constitutionally deficient if it falls below
an objective standard of reasonableness. When evaluating counsel’s performance,
courts are to be ‘highly deferential’ and must avoid the ‘distorting effects of
hindsight.’” State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305
(citation omitted). “Trial strategy is afforded the presumption of constitutional
adequacy.” Breitzman, 378 Wis. 2d 431, ¶65. We “will not second-guess a
reasonable trial strategy, [unless] it was based on an irrational trial tactic or based
upon caprice rather than upon judgment.” Id. (alteration in original; citation
omitted).

¶14 “In order to demonstrate that counsel’s deficient performance [was]
constitutionally prejudicial, the defendant must show that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Thiel, 264 Wis. 2d 571, ¶20 (citation
omitted). A defendant “need not prove the outcome would ‘more likely than not’
be different in order to establish prejudice.” State v. Sholar, 2018 WI 53, ¶44, 381
Wis. 2d 560, 912 N.W.2d 89 (citation omitted).

¶15 Ineffective assistance claims present mixed questions of fact and law.
Thiel, 264 Wis. 2d 571, ¶21. Importantly for purposes of this appeal, a circuit
court’s factual findings, including those regarding trial counsel’s conduct and

6
No. 2023AP1220-CR

strategy, will be upheld unless clearly erroneous. Id. Whether counsel’s
performance satisfies the constitutional standard for ineffective assistance is a
question of law we review de novo. Id.

I. Deficient performance—Pulizzano exception

¶16 The State first argues that Dietzen’s trial counsel did not perform
deficiently by failing to present evidence of the complainants’ prior sexual activity
pursuant to Pulizzano. We disagree.

¶17 “Wisconsin’s rape shield law … generally prohibits a
defendant … from introducing evidence concerning [an] alleged victim’s prior
sexual conduct.” State v. Carter, 2010 WI 40, ¶39, 324 Wis. 2d 640, 782 N.W.2d
695 (footnote omitted).

¶18 Under the Pulizzano exception, the rape shield statute may be
overcome by a defendant’s constitutional right to present material evidence of a
complainant’s prior sexual conduct. The Pulizzano exception has been applied
when the complainant is a child and “the possibility of the child having a previous
sexual experience may be relevant to the defendant’s case because it could provide
an alternative source for the child’s detailed sexual knowledge.” Carter, 324
Wis. 2d 640, ¶41.

[T]o establish a constitutional right to present otherwise
excluded evidence of a child complainant’s prior sexual
conduct for the limited purpose of proving an alternative
source for sexual knowledge, prior to trial the defendant
must make an offer of proof showing: (1) that the prior acts
clearly occurred; (2) that the acts closely resembled those of
the present case; (3) that the [acts are] clearly relevant to a
material issue; (4) that the evidence is necessary to the
defendant’s case; and (5) that the probative value of the
evidence outweighs its prejudicial effect.

7
No. 2023AP1220-CR

Pulizzano, 155 Wis. 2d at 656. “If the defendant makes that showing, the circuit
court must then determine whether the State’s interests in excluding the evidence
are so compelling that they nonetheless overcome the defendant’s right to present
it.” Id. at 657.

¶19 The circuit court in this case determined that the Pulizzano exception
applied to Dietzen’s case and that Dietzen’s trial counsel performed deficiently by
failing to argue its applicability.8 In particular, the court found that the prior sexual
acts between the complainants were “the same, or very similar, to the conduct that
was alleged to have been committed by” Dietzen.

¶20 Further, the circuit court found that evidence of the prior sexual acts
was relevant “to the material issue of the complainants’ sexual knowledge.” The
court noted that “the State made the explicit argument [in its closing argument] that
these [complainants] would not have been able to describe the assaults in such detail
unless they were assaulted by” Dietzen.

¶21 As to the remaining Pulizzano factors, the circuit court found that
evidence of the prior sexual acts was necessary to Dietzen’s defense to demonstrate
that the three complainants had specific prior sexual knowledge of anal penetration.
The court found that the evidence was more probative than prejudicial, and the court
reasoned that any prejudice could be mitigated by limiting jury instructions.

¶22 We agree that the complainants’ prior sexual acts with each other
closely resembled the allegations against Dietzen. See Pulizzano, 155 Wis. 2d at
656. Dietzen was accused of anally penetrating all three complainants with his

8
The State does not dispute on appeal that the prior sexual acts between the complainants
“clearly occurred.” See Pulizzano, 155 Wis. 2d at 656.

8
No. 2023AP1220-CR

penis. Similarly, Michael and William anally penetrated each other using their
penises, and Michael attempted to anally penetrate Scott using his penis. See id. at
640-41, 652 (concluding that prior sexual acts—particularly, “fondling and
‘sodomy of the penis,’ which include[d] fellatio, and ‘possibly’ anal penetration”—
closely resembled allegations of “fondling, fellatio, anal penetration with an object,
and digital vaginal penetration”).

¶23 The State asserts that the prior sexual acts do not closely resemble the
allegations against Dietzen because “Dietzen proffered no evidence” that the
complainants’ sexual conduct with each other “progressed, as it did with Dietzen,
as massages”; “involved oil or lube”; or “involved an adult and a child (in this case,
teenagers).” The State reads the “closely resemble” analysis too narrowly by asking
this court to require the prior sexual conduct in this case to include the exact
circumstances present in the allegations against Dietzen.

¶24 The Pulizzano exception was created, on constitutional grounds, as
an avenue for a defendant to show that an alleged sexual assault victim has “an
alternative source for sexual knowledge.” See id. at 638, 652. It follows, then, that
the “closely resemble” analysis pertains primarily to the type of sexual activity; it
does not necessarily include the specific circumstances surrounding the sexual
activity. See generally State v. Dunlap, 2002 WI 19, ¶¶24-27, 250 Wis. 2d 466,
640 N.W.2d 112 (outlining the “closely resemble” analysis). The State has provided
no authority to the contrary.

¶25 In addition, the prior sexual activity at issue in this case was “clearly
relevant to a material issue” at trial and was necessary to Dietzen’s defense.
See Pulizzano, 155 Wis. 2d at 656. Evidence of prior sexual activity that closely
resembles a present allegation “is probative of a material issue, to show an

9
No. 2023AP1220-CR

alternative source for sexual knowledge, and is necessary to rebut the logical and
weighty inference that [an alleged victim] could not have gained the sexual
knowledge he [or she] possessed unless the sexual assaults [a defendant] is alleged
to have committed occurred.” See id. at 652.

¶26 Here, the State argues that a reasonable jury would assume that the
complainants had prior sexual knowledge due to sexual education classes, access to
pornography, and social media.9 However, as the circuit court found, the
complainants were not of average intelligence, and this point was stressed by the
State at trial. The State presented the complainants to the jury as “three young,
scared, vulnerable children” who had “special needs” and were “lower functioning.”
The State also contended that the complainants considered Dietzen’s sexual assaults
as “healing” rather than sex. Under these circumstances, even if a reasonable jury
could assume that the complainants had some general sexual knowledge from
sources such as sexual education classes, a reasonable jury would not assume that
the complainants had specific prior knowledge of anal intercourse, including the
sensations felt both during and after the intercourse.

¶27 Accordingly, the prior sexual activity provided William, Michael, and
Scott with personal knowledge of anal intercourse prior to their allegations against
Dietzen. As to William and Michael, a jury could interpret the prior sexual activity
as explaining their detailed testimony regarding the mechanics and sensations of
anal intercourse. William testified:

After a little bit [Dietzen] rubs his penis on my crack just so
that he can kind of get a little bit hard. And then he puts lube

9
We note that Michael testified to having a child with his girlfriend around the time he
made the allegations against Dietzen. Michael also testified that he was sexually assaulted prior to
being adopted by Dietzen and that he went to counseling for that fact. No details about this prior
sexual assault were provided to the jury.

10
No. 2023AP1220-CR

on his penis and then he puts it by my hole, the lube. And
then he slowly goes in and then I tell him it hurts; and then
he pulls back a little bit so that way I can adjust to it, right?
Then after I get used to it he thrusts and then but, you know,
still working on me too and then—and then he gets a little
bit faster. Then after a little while he comes, right, and then
he pulls out.

(Formatting altered.) Similarly, Michael testified that “when a penis gets hard, it
throbs” and that “when you come inside of somebody’s butt and you go to the
bathroom … [i]t’s kind of like lubrication or something, but it lets everything just
fall out.” Scott, while able to discuss the massages, could not provide the level of
detail provided by William and Michael about the alleged anal intercourse other
than that Dietzen’s penis “slipped in easily.” A jury could attribute Scott’s lack of
detail to Michael’s attempted, but unsuccessful, anal intercourse with Scott.

¶28 Thus, all three complainants’ prior sexual activity with each other was
relevant to whether they had specific prior knowledge of anal intercourse. This
evidence was “necessary to rebut the logical and weighty inference that [the
complainants] could not have gained the sexual knowledge [they] possessed unless
the sexual assaults [Dietzen] is alleged to have committed occurred.”
See Pulizzano, 155 Wis. 2d at 652. The State focused on this inference at trial, and
the State suggested during its closing argument that the “low-functioning kids”
would not have been able to provide detailed testimony about the assaults—
including how anal intercourse felt—if the assaults had not occurred.

¶29 Additionally, we agree with the circuit court that the complainants’
evidence of prior sexual activity was more probative than prejudicial. See id. at 656.
The State argues that “[h]aving the [complainants] testify that they had anal sex with
each other would not have helped the defense explain why the [complainants]
reported and testified about Dietzen’s sexual abuse of them.” However, the purpose

11
No. 2023AP1220-CR

of the evidence would not be to show the complainants’ motive for stating that the
assaults had occurred. Rather, the purpose would be to show that the complainants
had prior knowledge of anal intercourse, which came from the complainants’ prior
personal experience.

¶30 The State asserts that its interests in excluding evidence of the
complainants’ prior sexual activity are more compelling than Dietzen’s right to
present the evidence. See id. at 657. In support of this argument, the State argues
that the evidence “would have deflected attention away from” the ultimate question
of whether Dietzen sexually assaulted the complainants.

¶31 In Pulizzano, our state supreme court noted that the rape shield statute
served several legitimate state interests, including preventing a defendant from
harassing and humiliating a complainant and preventing the trier of fact from being
misled or confused by collateral issues and deciding a case on an improper basis.
Id. at 647. However, the court also stated that “[c]onfrontation and compulsory
process are fundamental rights expressly granted by the state and federal
constitutions.” Id. at 654. These rights are “essential” and “vital.” Id. (citations
omitted). “[A]s important and legitimate as a state’s interests in its evidentiary rules
are, … those interests are not of a constitutional dimension.” Id. As applied in
Pulizzano, the court concluded that the State’s interests did not outweigh the
defendant’s right to present evidence of the complainant’s prior sexual activity to
demonstrate an alternative source of sexual knowledge. Id. at 655.

¶32 Similarly, here, the inference that the complainants could not possess
the sexual knowledge they did unless Dietzen sexually assaulted them greatly
bolstered the complainants’ allegations and credibility. See id. “In order to rebut
that inference, [Dietzen] must establish an alternative source for [the complainants’]

12
No. 2023AP1220-CR

sexual knowledge. Evidence of the prior sexual [activity] is therefore a necessary
and critical element of [Dietzen]’s defense.” See id. Under the facts of this case,
Dietzen’s constitutional right to present Pulizzano evidence related to all three
complainants outweighs the State’s interests in protecting the complainants and not
confusing the trier of fact.10

¶33 The State also had “less restrictive alternatives available … that
would have allowed it to protect its interests without violating [Dietzen]’s
constitutional rights.” See id. at 654. Namely, the State could request a limiting
jury instruction to ensure the jury considered the prior sexual activity only for the
permissible purpose described above. See WIS JI—CRIMINAL 1200G (2023)
(“Cautionary instruction: Evidence of victim’s prior sexual conduct”).

¶34 Evidence of the complainants’ prior sexual activity amongst
themselves was admissible, and Dietzen’s trial counsel testified that she did not have
a strategic reason for not citing, or arguing, Pulizzano in her pretrial motion or at
trial. Therefore, we agree with the circuit court that trial counsel performed
deficiently by failing to properly seek admission of that evidence under the
Pulizzano exception. See Thiel, 264 Wis. 2d 571, ¶51.

10
The State asserts that its interests in enforcing the rape shield statute outweigh Dietzen
presenting Pulizzano evidence because “[a]s the entire trial transcript shows, Dietzen was not
denied his constitutional right to a defense without presenting this evidence.” We deem this
argument to be undeveloped because the State does not support its argument with citation to any
particular evidence from the trial. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992) (we need not address undeveloped arguments). Moreover, as we have explained,
the evidence was necessary to establish an alternative source for the complainants’ sexual
knowledge, which was a critical part of Dietzen’s defense.

13
No. 2023AP1220-CR

II. Deficient performance—Expert witness

¶35 The State next argues that Dietzen’s trial counsel did not perform
deficiently by failing to present expert testimony regarding the complainants’
mental health issues and diagnoses. Again, we disagree.

¶36 The records obtained by Dietzen’s trial counsel provided some insight
into the complainants’ diagnoses and behavioral and mental health histories, and
how these subjects could be relevant to Dietzen’s defense. For example, the records
show that William was diagnosed with schizophrenia in his adolescence—
symptoms of which included visual and auditory hallucinations—as well as
oppositional defiant disorder (ODD),11 bipolar disorder, attention
deficit/hyperactivity disorder (ADHD), and cognitive disabilities, including a
“full-scale IQ [of] 69.” Records also state that William was “very fixated on sex,”
that he believed rules did not apply to him, and that he was experiencing
“hallucinations and/or delusional thinking during the period before and after” he
made the accusations against Dietzen. In addition, records specify that shortly after
William accused Dietzen, William was emergently detained at a residential facility,
given a competency examination, and was prescribed medication used to control
manic episodes. William was found to be incompetent to manage his own decisions,
and a guardianship, which was previously ordered, was continued. Notes from the
detention state that William was suffering from an exacerbation of his mental health
disorders.

¶37 The records also demonstrate that Scott was diagnosed with ADHD,
an unspecified mood disorder, receptive and expressive language disorders,

11
According to the record, ODD is characterized by “[a] pattern of angry/irritable mood,
argumentative/defiant behavior, or vindictiveness.”

14
No. 2023AP1220-CR

pervasive developmental disorder, intellectual disabilities, and possibly disruptive
behavior disorder. According to the records, he had a “full-scale IQ of 60” and a
history of “acting out” in order to reunite with his biological mother, who had
rejected him.

¶38 Finally, the records reveal that Michael was diagnosed with reactive
attachment disorder (RAD),12 ODD, and ADHD. According to the records, Michael
has a “history of … lying to ‘one[-]up’ [William],” would manipulate and deceive
others to “get his needs met,” and lacked “moral boundaries.”

¶39 At the Machner hearing, Dietzen’s trial counsel testified that prior to
trial, she had obtained and reviewed thousands of pages of documents related to the
complainants, including their social service, juvenile, psychological, and counseling
records. Trial counsel stated that she did not consult with an expert, consider hiring
an expert, or discuss with Dietzen the prospect of hiring an expert. On
cross-examination, the State asked trial counsel whether “part of [her] strategy
going into trial was to have [Dietzen] testify to th[e] diagnoses and how they present
themselves.” Trial counsel responded, “It was one of the things that [Dietzen] knew
and that we could have him testify about ….”

¶40 Doctor Thompson also testified at the Machner hearing, stating that
he had reviewed the complainants’ records and their trial testimony, and he
described in detail the complainants’ various backgrounds and diagnoses discussed
above. On direct examination, Thompson agreed that there was not sufficient
evidence at trial “to explain the depth and the breadth of [the complainants’]

12
According to the record, RAD “reflects a pattern of very disturbed and developmentally
inappropriate attachment behaviors.… Such youth [diagnosed with RAD] reportedly are poorly
bonded with their caretakers, lie at very high rates, manipulate others … , and are often impulsive.”

15
No. 2023AP1220-CR

historical difficulties, and the resulting development and mental health disorders.”
In his affidavit, Thompson opined that this information would have been an
important and necessary component of evidence to help a jury understand … how
their disorders impacted their perceptions, thinking, and motivations.”

¶41 At the outset, the State argues that there can be no deficient
performance for failing to hire an expert or present that expert’s testimony at trial.
The State is incorrect. “Counsel must either reasonably investigate the law and facts
or make a reasonable strategic decision that makes any further investigation
unnecessary.” State v. Pico, 2018 WI 66, ¶22, 382 Wis. 2d 273, 914 N.W.2d 95
(citation omitted). “Failure to call a potential witness may constitute deficient
performance.” State v. Jenkins, 2014 WI 59, ¶41, 355 Wis. 2d 180, 848 N.W.2d
786; see also State v. White, 2004 WI App 78, ¶¶20-21, 271 Wis. 2d 742, 680
N.W.2d 362 (concluding that trial counsel performed deficiently by failing to call
witnesses who would have provided evidence that “went to the core of [the]
defense”). This court has concluded that a trial “counsel’s failure to present
independent medical testimony constituted deficient performance” because the
expert could have presented alternative testimony to counter a medical examiner’s
testimony. See State v. Zimmerman, 2003 WI App 196, ¶42, 266 Wis. 2d 1003,
669 N.W.2d 762. Accordingly, trial counsel can perform deficiently by failing to
investigate facts that could aid the defense’s theory and by failing to call a witness
who would provide key evidence.

¶42 Turning to the specific facts of this case, the circuit court found that
trial counsel was credible when she testified that she had no explanation for her
failure to consult with or hire an expert. Further, the court stated:

I think it’s important to … remind ourselves that an expert
on psychological and cognitive issues, like those present

16
No. 2023AP1220-CR

involving the [complainants] in this case, would have
provided neutral testimony to educate the jury.… By failing
to fully investigate and educate herself with the assistance of
an expert, [trial counsel] ignored relevant lines of inquiry,
and failed to present evidence that would have been helpful
to Mr. Dietzen’s defense. Particularly, the ability to
highlight how the [complainants’] diagnoses impacted their
ability to discern reality or be influenced by other desires.

¶43 The State takes issue with the circuit court’s finding that Dietzen’s
trial counsel was credible when she stated that she did not have a reason for not
consulting with an expert and that she never considered hiring an expert. While it
is true that early in the Machner hearing, the court stated that it found trial counsel’s
statement that she did not consider consulting with an expert “hard to believe” and
“not credible,” the court later explained during its oral ruling on Dietzen’s
postconviction motion:

During the Machner hearing, [trial counsel] testified for
quite some time. I will say today that I was shocked,
surprised, and sort of taken aback by some of her testimony.
And almost a year later, I have spent a lot of time reading
her testimony, and reviewing her testimony, and trying to
make sense of it.

….

I forget exactly what my questions are word for word, but I
doubted the credibility initially too. And then as the hearing
went on, and I tried to understand more and think it through,
as difficult or surprising as it is for me to believe, which is
what I indicated earlier, I find that she is credible on that
point. I don’t think she was being dishonest or misleading,
and I think that she just never considered that option, similar
to what she testified to, and never provided that opportunity
to Mr. Dietzen, or had that discussion with her client.

¶44 Contrary to the State’s argument, these findings are not clearly
erroneous simply because they were “made more than a year after the [Machner]

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No. 2023AP1220-CR

hearing.”13 The court reviewed the record after the Machner hearing, reflected on
trial counsel’s testimony, and rendered findings of fact. The State cites to no
evidence in the record suggesting that the court’s credibility finding is clearly
erroneous. Upon our independent review, we conclude the court’s finding is
supported by the record. The State also does not cite any authority dictating that the
court was bound by its initial perceptions at the Machner hearing, which we do not
find surprising—judges are permitted to reassess their findings.

¶45 Based on the circuit court’s findings, we agree that trial counsel’s
failure to consult with an expert in this case—and resultant failure to present that
expert’s findings at trial—constituted deficient performance. The theory of defense
was that the complainants falsely accused Dietzen of sexual assault as a result of
their troubled backgrounds, mental health issues, and other diagnoses. Under these
circumstances, constitutionally effective assistance of counsel would have included
calling an expert witness at trial to testify regarding the complex relationship
between the complainants’ pre-adoption backgrounds, behavioral issues, mental
health issues, diagnoses, and accusations against Dietzen. Stated differently, to
further the defense theory at trial, it was necessary for the defense to not only
accurately outline the complainants’ backgrounds and diagnoses, but also explain
how those issues could have affected the complainants’ reasoning, perceptions, and
potential motivations to accuse Dietzen.

13
We note that Dietzen’s trial counsel stated in a pretrial motion to access the
complainants’ records that “[t]he records will contain information useful to an expert witness in
addressing how a false accusation may be presented.” We question whether this single reference
would be adequate to support a finding that trial counsel sufficiently considered hiring an expert
and made a strategic decision not to hire one. The State does not make this argument, however,
and we need not further address this single reference to an expert.

18
No. 2023AP1220-CR

¶46 While there was some evidence presented at trial regarding the
complainants’ backgrounds, mental health issues, and other diagnoses, a significant
amount of that information was never introduced or was not sufficiently expanded
upon. For example, the jury heard evidence that William had experienced
hallucinations, but no evidence was provided to suggest that William was
experiencing an exacerbation of his mental health disorders around the time that he
accused Dietzen of sexual assault. Moreover, no evidence was presented to explain
how his diagnoses would relate to his accusations against Dietzen.

¶47 This evidentiary gap was significant, given that there was available
evidence that would support an inference that William was impulsive, had difficulty
recognizing the consequences of his actions, and was fixated on sex. Doctor
Thompson opined that William “did experience hallucinations and/or delusional
thinking during the period before and after he made the accusation and this fact was
not disclosed in a way that adequately informed the jury of this important issue.”
Thompson also hypothesized that William’s fixation on sex, along with his
delusional thinking and prior anal intercourse with Michael, “made it reasonably
likely that he incorrectly remembered, believed, or perceived the massages as being
sexual and conflated the memories of anal intercourse with his brother into the
massage memories.”

¶48 Regarding Scott, while there was evidence presented at trial
suggesting that he had attachment issues with his mother, there was a lack of
evidence demonstrating the extent of his previous actions to reunite with her.
Scott’s records showed that he was extremely attached to his biological mother and
that prior to being adopted by Dietzen, Scott would “act[] out to get out of [his]
current foster home in the hopes that that w[ould] get him back to [his] biological
mom.” Doctor Thompson stated that Scott’s “lower cognitive abilities, reduced

19
No. 2023AP1220-CR

self-control, and reduced behavioral inhibitions would have diminished his ability
to fully understand the consequences of a false accusation and to delay gratification
of his desire to return to his biological family.”

¶49 With respect to Michael, Dietzen and another witness simply stated
that RAD includes behavioral and attachment issues. However, none of the
evidence at trial adequately explained RAD, including that it can result in an
individual having no moral boundaries and having a strong desire to gain attention.

¶50 Ultimately, none of the testimony at trial, including that from Dietzen,
adequately articulated each of the complainants’ backgrounds and diagnoses or
explained how those facts could affect the ultimate issue of whether Dietzen
sexually assaulted the brothers. While Dietzen provided some of this information,
an expert witness would have provided neutral testimony on these topics, rather than
testimony from a lay defendant accused of the sexual assaults in question. Thus,
even if trial counsel’s strategy at trial was to admit the relevant evidence through
Dietzen and other witnesses, that strategy was irrational and unreasonable under the
facts of this case, as the circuit court found in its decision on Dietzen’s
postconviction motion. See Breitzman, 378 Wis. 2d 431, ¶65.

¶51 We also agree with Dietzen that Dr. Thompson’s testimony would
have been admissible. Our supreme court has articulated “a two-part inquiry
encompassing both admissibility and constitutional issues associated with a
defendant’s proffered expert witness testimony.” State v. Schmidt, 2016 WI App
45, ¶73, 370 Wis. 2d 139, 884 N.W.2d 510. First, the defendant must show that the
testimony satisfies the following four requirements:

(1) [t]he testimony of the expert witness me[ets] the WIS.
STAT. § 907.02 standards governing the admission of expert
testimony; (2) [t]he expert testimony [is] “clearly relevant to

20
No. 2023AP1220-CR

a material issue” in the case; (3) [t]he expert testimony [is]
necessary to the defendant’s case; and (4) [t]he probative
value of the expert testimony outweigh[s] its prejudicial
effect.

Id., ¶74 (citation omitted). If the defendant satisfies these requirements, we then
consider whether his or her “right to present the proffered evidence is nonetheless
outweighed by the State’s compelling interest to exclude the evidence.”14 See id.
(citation omitted).

¶52 WISCONSIN STAT. § 907.02(1) states that

[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and methods,
and the witness has applied the principles and methods
reliably to the facts of the case.

(Emphasis added.) The State asserts that Dr. Thompson’s proposed testimony
would not be based upon sufficient facts because Thompson did not personally
interview the complainants and because he did not review every document available
to trial counsel. We disagree in both respects.

14
Dietzen does not dispute the State’s contention that the test for admissibility set forth in
State v. Schmidt, 2016 WI App 45, ¶74, 370 Wis. 2d 139, 884 N.W.2d 510, applies to
Dr. Thompson’s proposed testimony. We therefore assume without deciding that it is appropriate
to apply that test in this case.

We also note that the State does not address the fourth requirement under the first part of
the Schmidt test or the compelling State interest test. We therefore assume without deciding that
the probative value of Dr. Thompson’s proposed testimony would outweigh its prejudicial effect
and that Dietzen’s right to present the testimony would not be outweighed by any compelling
interest raised by the State. See id.

21
No. 2023AP1220-CR

¶53 Despite not interviewing the complainants and reviewing every
document, Dr. Thompson’s opinions were not based on speculation. See 7 DANIEL
D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 702.4033 (4th
ed. 2023); see also WIS. STAT. § 907.03 (“The facts or data in the particular case
upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing.”). Thompson stated that he was
not diagnosing the complainants. Rather, he reviewed “their records and offer[ed]
opinions about the kind of behaviors that one might see with children who had
already been diagnosed by professionals.” Moreover, Thompson was relying on the
records to find specific examples of how the diagnoses affected the complainants’
behavior. His review included “hundreds of pages of documents relating to the past
care, diagnosis, and treatment of the three [complainants] as well as transcripts and
reports.”

¶54 Contrary to the State’s argument, Dr. Thompson’s testimony is clearly
relevant to Dietzen’s defense—particularly, that the complainants’ accusations
could be attributed to their backgrounds, mental health issues, and other diagnoses.
Unlike the proposed expert witness in Schmidt, Thompson reviewed records
directly related to the complainants. See Schmidt, 370 Wis. 2d 139, ¶¶55, 75
(concluding that expert testimony was not relevant because the expert could “[a]t
best, … testify generally as to the findings of [his research] regarding the
suggestibility of children” in police interviews, but the expert could offer no
testimony regarding the specific interview in question).

¶55 We also conclude that Dr. Thompson’s proposed testimony is
necessary to Dietzen’s defense. The State argues the testimony is not necessary
because Thompson stated he had no opinion on whether the complainants had

22
No. 2023AP1220-CR

character traits for lying or whether the records showed that the complainants had
previously conspired together to create a false story.

¶56 We are unconvinced by the State’s arguments. Dietzen’s trial focused
exclusively on witness credibility. Doctor Thompson’s proposed testimony, as
outlined above, would pertain to the complainants’ mental health issues and
diagnoses and how those issues and diagnoses could lead the complainants to falsely
accuse Dietzen. Thus, Thompson’s testimony would aid the jury in determining
whether the complainants were sexually assaulted. See State v. Robertson, 2003
WI App 84, ¶28, 263 Wis. 2d 349, 661 N.W.2d 105 (concluding that, in a credibility
case, “information in the records concerning [the alleged victim]’s psychiatric
treatment and the nature of the psychotic features presented … could explain her
behavior in a way that was not possible to do during trial”).

¶57 For similar reasons, we reject the State’s argument that
Dr. Thompson’s proposed testimony would be cumulative. See WIS. STAT.
§ 904.03. As we explained previously, see supra ¶¶45-50, trial counsel was unable
to adequately elicit information at trial about the complainants’ backgrounds, mental
health issues, and other diagnoses. Thus, Thompson’s testimony would not be
cumulative.

¶58 Given the facts in this case, trial counsel’s failure to consult with an
expert regarding the complainants’ records and mental health issues was deficient
performance. Under these circumstances, trial counsel’s review of the records
required expert assistance. Further, because the expert testimony described above
would be admissible, trial counsel’s failure to introduce such testimony, under the
facts of the case, was deficient performance.

23
No. 2023AP1220-CR

III. Prejudice

¶59 Finally, the State argues that even if Dietzen’s trial counsel performed
deficiently in the above respects, Dietzen’s defense was not prejudiced by the
cumulative effect of the deficiencies. See Thiel, 264 Wis. 2d 571, ¶60 (stating that
“the cumulative effect of several deficient acts or omissions may, in certain
instances, also undermine a reviewing court’s confidence in the outcome of a
proceeding”).

¶60 The circuit court concluded that trial counsel’s deficiencies prejudiced
Dietzen’s defense for several reasons. The court noted that the jury’s verdicts rested
largely on whether the jury found Dietzen or the complainants more credible. As
trial counsel’s errors related to the credibility contest, the court found that the errors

impacted the impeachment of the [complainants and] limited
[the] defense’s ability to cross[-]examine, effectively, the
[complainants and] to explain potential reasons or causes
that the [complainants] would be testifying the way they
were. And I think that would potentially impact then the
credibility of the [complainants], and the analysis of … who
does the jury believe.

….

And today, and maybe for the last six months, or nine
months, it’s been clear to me that [Dietzen] didn’t receive a
fair trial.… And when I look at this case and say, okay, there
were those two deficiencies. Those were big facts and big
issues. And if those issues … would have been addressed,
is there a reasonable probability that the result of the
proceeding would have been different? And I think the
answer is yes.

¶61 The State asserts that “the totality of the evidence against Dietzen was
substantial, and so any cumulative effect of [trial] counsel’s deficiencies would not
have swayed the jury’s decision.” Indeed, prior to the charges being filed against
him, Dietzen admitted to a social worker that he gave William and Scott massages,

24
No. 2023AP1220-CR

including massages where the complainants would be naked and face down on his
bed and where Dietzen would be in his underwear to avoid getting oil on his pants.
Dietzen testified at trial, making similar statements to those he gave to the social
worker.

¶62 Despite Dietzen’s admissions, several aspects of the trial undermine
our confidence in the outcome. First, as the circuit court emphasized, there was no
corroborating physical evidence or eye-witness testimony, other than the testimony
from Dietzen and the complainants. The question of Dietzen’s guilt thus depended
to a substantial degree on whether the jury believed Dietzen or the complainants.
See State v. Mader, 2023 WI App 35, ¶¶81, 86, 408 Wis. 2d 632, 993 N.W.2d 761,
review denied (WI Sept. 26, 2023) (No. 2022AP382-CR).

¶63 Second, although the complainants’ accusations against Dietzen were
indeed similar, as the State argues, Scott and Michael learned of William’s
accusation—including the details of the accusation—prior to accusing Dietzen of
sexual assault. It was during Scott’s third interview with law enforcement—and
after he learned of William’s accusations—that Scott accused Dietzen. Similarly,
Michael testified that he became frustrated with law enforcement prior to his
accusation against Dietzen because Michael was not receiving attention from the
authorities. The evidentiary value of this timeline would have materially changed
had the admissible, but otherwise excluded, Pulizzano evidence and the expert
testimony been presented to the jury. As such, the Pulizzano evidence and the
expert testimony could have materially affected the jury’s credibility
determinations.

¶64 Furthermore, and as described previously, see supra ¶¶22-34, the
complainants’ sexual activity with each other closely matched their accusations

25
No. 2023AP1220-CR

against Dietzen, and could arguably account for their trial testimony describing
Dietzen’s alleged assaults.15 In addition, the expert testimony would have better
described the complainants’ backgrounds, mental health issues, and other diagnoses
and how those issues impacted their perceptions, their thinking, and their
motivations for accusing Dietzen. See supra ¶¶45-50.

¶65 Finally, it should also be noted that much of the complainants’
testimony was not as clear or consistent as the State’s appellate briefing suggests.
For example, during Scott’s testimony, he claimed at various times that he was
anally sexually assaulted in different cities, only to seemingly retract the accusations
moments later. Similarly, William initially reported that Dietzen sexually assaulted
him between 2011 and 2013. At trial, however, William stated, apparently for the
first time, that Dietzen’s sexual assaults continued for four years longer than
previously disclosed.

¶66 Based on the foregoing discussion, we conclude that trial counsel’s
failure to cite Pulizzano as basis to admit evidence of the complainants’ sexual

15
The State contends that the proposed Pulizzano evidence would have “hindered”
Dietzen’s defense if “the jury (or any licensed therapist) heard that Dietzen knew that his sons had
anal sex with each other, but he still had his sons strip-down naked to give them oil massages in
his bedroom while he straddled their naked buttocks while he sometimes wore underwear.” The
State also asserts that had Dr. Thompson testified, the State would have noted to the jury that
Thompson did not review all of the complainants’ records, had no opinions regarding whether the
complainants had character traits for lying, and there was no evidence in the record showing that
the complainants had ever previously conspired with one another.

While the State may be free to make these arguments before a jury, for our purposes, it is
sufficient to note that the Pulizzano evidence provided the complainants with an alternative source
of specific sexual knowledge that closely resembled the sexual activity underlying Dietzen’s
charges. The lack of evidence before the jury regarding this sexual knowledge was prejudicial to
the defense. With respect to the expert testimony, we have already noted that Dr. Thompson’s
testimony was admissible and necessary to the defense’s theory. The fact that the State may have
an avenue of impeachment does not render Thompson’s testimony immaterial to our prejudice
analysis.

26
No. 2023AP1220-CR

activity with each other, and her failure to consult with an expert and provide the
expert’s testimony at trial, prejudiced Dietzen’s defense. We therefore affirm the
circuit court’s order granting Dietzen’s postconviction motion, vacating Dietzen’s
convictions and sentences, and granting him a new trial.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

27