State v. Cassandra M. Staab

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.
August 26, 2025
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. 2023AP850-CR Cir. Ct. No. 2017CF639

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CASSANDRA M. STAAB,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marathon County: JILL N. FALSTAD and MICHAEL K. MORAN, Judges.
Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).
No. 2023AP850-CR

¶1 PER CURIAM. Cassandra M. Staab appeals a judgment of
conviction for first-degree reckless homicide by delivery of a controlled substance,
first-degree recklessly endangering safety, felony bail jumping, and misdemeanor
bail jumping. She also appeals an order denying her motion for postconviction
relief.1

¶2 Staab raises six arguments on appeal. First, she asserts that her
conviction for first-degree reckless homicide must be vacated because the
applicable statute, WIS. STAT. § 940.02(2)(a) (2023-24),2 “does not apply” to the
facts of this case. Second, Staab asserts that the evidence at trial was insufficient
to support her conviction for first-degree recklessly endangering safety because
the State failed to prove that she acted with utter disregard for human life. Third,
Staab contends that Marathon County was not a proper venue for the recklessly
endangering safety charge. Fourth, Staab argues that she is entitled to a new trial
based on newly discovered evidence. Fifth, Staab seeks a new trial based on
ineffective assistance of trial counsel. Sixth, Staab asks us to grant her a new trial
in the interest of justice.

¶3 For the reasons that follow, we reject each of Staab’s arguments.
We therefore affirm the judgment of conviction and the order denying
postconviction relief.

The Honorable Jill N. Falstad presided over Staab’s trial and entered her judgment of
1

conviction. The Honorable Michael K. Moran entered the order denying postconviction relief.
2
The offenses at issue in this case took place in January 2017. However, the relevant
statutes have not changed since that time. Accordingly, for convenience, all references to the
Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP850-CR

BACKGROUND

¶4 The charges in this case arose from allegations that Staab delivered
heroin to Ben; that Ben subsequently overdosed after using some of the heroin;
and that Ben’s roommate at his parents’ house, Allen, later suffered a fatal
overdose after using some of the same heroin that Ben had received from Staab.3
Staab entered pleas of not guilty, and the case was tried to a jury in
September 2019.

¶5 At trial, the State introduced evidence that in January 2017, Ben,
Allen, and Ben’s brother, Dakota, were regularly using heroin. On the evening of
January 30, 2017, Dakota drove Ben to a grocery store parking lot in Marshfield,
Wisconsin, to purchase one gram of heroin from Staab, and in exchange, Ben gave
Dakota a small amount of the heroin. Staab told Ben that the heroin was “very,
very strong.”

¶6 That night, after returning to his parents’ home in Marathon County
where he and Allen lived, Ben used “a very small amount” of the heroin—“barely
anything” compared to what he would normally use—but he felt like he was “on
the verge of overdosing” because of the drug’s potency, which made him question
whether the substance was “actual heroin.” Dakota also used some of the heroin
that Ben had given him that night. He described it as “potent” and “a lot more
effective than any other thing” he had tried.

3
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), and following the
parties’ lead, we refer to the victims in this case using pseudonyms. Ben is the victim of the
first-degree recklessly endangering safety charge, and Allen is the victim of the first-degree
reckless homicide charge.

3
No. 2023AP850-CR

¶7 The next morning, Ben used the heroin again and overdosed, but he
survived. Ben’s father testified that when he went to wake Ben for work that
morning, he found Ben lying motionless on the bathroom floor, with two needles
and “a pack of something in some tinfoil” nearby. He threw the syringes and
tinfoil away in a garbage can in the garage, and he told Ben that he had thrown
away the remaining heroin.

¶8 Dakota subsequently arrived at his parents’ home to drive with Ben
and their father to their jobs at a farm supply company. While at the house,
Dakota spoke with Allen, who told Dakota “that dad found [Ben] [o]n the
bathroom floor and then he found the two needles and the packet of heroin.”
Dakota testified this conversation showed that Allen “was aware of what had
occurred that morning.”

¶9 While at work that day, Ben used a coworker’s phone to text Dakota
and ask him to contact Staab about obtaining more heroin. Dakota denied doing
so, however, testifying that he knew that Ben “didn’t have any money” and he
“wasn’t going to get put in the middle of that situation.” At around 3:30 that
afternoon, while making deliveries for work with a coworker, Ben stopped at his
parents’ home to search for the heroin that his father had discarded. He testified
that he found the two syringes he had used that morning in a dumpster in the
garage, but he did not find the remaining heroin. Ben testified that he then
returned to work.

¶10 Dakota testified that he stopped at his parents’ home for lunch on
January 31, 2017. Following lunch, he took Allen along with him on a delivery
for work, after which he took Allen back to his parents’ house and then went back
to work. He testified that he and Allen did not use or purchase heroin during that

4
No. 2023AP850-CR

time. Dakota claimed that after returning to work, he smoked the last of the heroin
that he had received from Ben the prior evening. A family friend testified that she
saw Dakota leaving his parents’ home sometime between noon and 3:00 p.m. on
January 31, but “[p]robably closer to 3-ish.”

¶11 After Ben and Dakota finished their workday on January 31, they
went back to their parents’ home. Ben went into the basement and found Allen
lying on his bed, unresponsive. Dakota called 911, and first responders arrived
shortly thereafter. Allen was transported to a hospital, where he was pronounced
dead. A medical examiner testified that Allen’s cause of death was heroin and
synthetic fentanyl toxicity.

¶12 On the evening of Allen’s death, Dakota told investigators that Staab
was Dakota’s source of heroin. Dakota then agreed to assist law enforcement by
purchasing heroin from Staab in a controlled buy. The controlled buy took place
at Staab’s residence at around 9:00 that evening. Dakota testified that after Staab
sold him the heroin, he went directly to the police station and turned the heroin
over to law enforcement. Dakota was searched by law enforcement both before
and after the buy, and no heroin was found during either of those searches. Staab
was taken into custody after the buy, and the buy money was found on her person.

¶13 A toxicologist testified that samples of Allen’s blood taken after his
death contained furanyl fentanyl (an illegally manufactured type of fentanyl), acryl
fentanyl (another illegally manufactured type of fentanyl), caffeine, THC, and
morphine. She further testified that 6-MAM was found in Allen’s postmortem
urine sample. The toxicologist explained that heroin has a “very short” detection
window in the blood, after which it metabolizes into morphine and 6-MAM.

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No. 2023AP850-CR

¶14 An analyst from the Wisconsin State Crime Laboratory in Wausau
testified that the substance Dakota purchased from Staab during the controlled buy
on the evening of Allen’s death tested positive for heroin, furanyl fentanyl, acryl
fentanyl, and caffeine. The analyst explained that caffeine is “not a common
cutting agent with heroin samples.” The analyst also testified that the Wausau
laboratory had examined over 19,000 suspected controlled substances from 2010
to May 28, 2019, and “at least five” of those substances included a combination of
furanyl fentanyl, heroin, acryl fentanyl, and caffeine. The analyst testified that all
of the substances containing that mixture “were examined and received in 2017”
and that the Wausau laboratory “received 2,742 cases for analysis” during 2017.

¶15 The jury found Staab guilty of first-degree reckless homicide and
first-degree recklessly endangering safety. Based on a pretrial stipulation, the
circuit court then found Staab guilty of the bail jumping charges. The court
ultimately sentenced Staab to 12 years’ initial confinement followed by 13 years’
extended supervision on the first-degree reckless homicide count, with shorter
concurrent sentences on the remaining charges.

¶16 Staab moved for postconviction relief, arguing that: (1) her
conviction for first-degree reckless homicide must be vacated because WIS. STAT.
§ 940.02(2)(a) does not apply to the facts of this case; (2) the evidence at trial was
insufficient to support her conviction for first-degree recklessly endangering
safety; (3) the evidence was insufficient to establish venue in Marathon County for
the first-degree recklessly endangering safety charge; and (4) the circuit court
should grant her a new trial based on newly discovered evidence—namely,
evidence suggesting that Krishna Ehrike may have been the source of the heroin
that caused Allen’s death. Staab later filed a supplemental postconviction motion
asserting that: (1) her trial attorney was constitutionally ineffective by failing to

6
No. 2023AP850-CR

investigate Ehrike as an alternative source of the heroin and by failing to confront
Dakota with certain text messages at trial; and (2) the court should grant her a new
trial in the interest of justice.

¶17 The circuit court held an evidentiary hearing on Staab’s
postconviction motions, at which Staab’s trial attorney was the only witness. The
court subsequently denied all of Staab’s postconviction claims in an oral ruling,
which was later memorialized in a written order.

¶18 Staab now appeals her judgment of conviction and the order denying
postconviction relief. Additional facts are included below as relevant to our
discussion of the issues raised on appeal.4

DISCUSSION

I. Applicability of WIS. STAT. § 940.02(2)(a)

¶19 On appeal, Staab renews her argument that her conviction for
first-degree reckless homicide must be vacated because WIS. STAT. § 940.02(2)(a)
does not apply to the facts of this case. The interpretation and application of a
statute present questions of law that we review independently. State v. Langlois,
2018 WI 73, ¶55, 382 Wis. 2d 414, 913 N.W.2d 812.

4
We pause to note that Staab’s appellate briefs do not comply with WIS. STAT.
RULE 809.19(8)(bm), which requires a brief to “have page numbers centered in the bottom
margin using Arabic numerals with sequential numbering starting at ‘1’ on the cover.” Our
supreme court has explained that this pagination requirement “will match the page number to the
page header applied by the eFiling system, avoiding the confusion of having two different page
numbers.” S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii (eff. July 1, 2021). We admonish
Staab’s attorney that future violations of the Rules of Appellate Procedure may result in
sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2023AP850-CR

¶20 When interpreting a statute, our objective “is to determine what the
statute means so that it may be given its full, proper, and intended effect.” State
ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110. Our analysis begins with the plain language of the statute. Id.,
¶45. “Statutory language is given its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are given their
technical or special definitional meaning.” Id. In addition, statutory language
must be interpreted “in the context in which it is used; not in isolation but as part
of a whole; in relation to the language of surrounding or closely-related statutes;
and reasonably, to avoid absurd or unreasonable results.” Id., ¶46. “If this
process of analysis yields a plain, clear statutory meaning, then there is no
ambiguity, and the statute is applied according to this ascertainment of its
meaning.” Id. (citation omitted).

¶21 Here, Staab argues that WIS. STAT. § 940.02(2)(a) “applies only to
the death of someone who was on the receiving end of a delivery.” She therefore
asserts that § 940.02(2)(a) requires the State to prove that someone delivered the
controlled substance directly to the deceased victim. Accordingly, Staab asserts
that her conviction for first-degree reckless homicide must be vacated because the
State did not prove that she—or anyone—delivered a controlled substance directly
to Allen.5

5
More specifically, Staab asserts that “[i]f the circumstances of Allen’s death could not
form the basis for a prosecution under WIS. STAT. § 940.02(2)(a) within the meaning of the law,
then the [circuit] court lacked subject matter jurisdiction over the charge, and the judgment of
conviction must be voided.” As the State correctly notes, however, a circuit court “is never
without subject matter jurisdiction.” See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶1, 273
Wis. 2d 76, 681 N.W.2d 190.

8
No. 2023AP850-CR

¶22 The plain language of WIS. STAT. § 940.02(2)(a) does not support
Staab’s argument. Section 940.02(2)(a) does not require the State to prove that
anyone delivered the fatal dose of drugs directly to the deceased victim. Instead,
the statute states that anyone who “causes the death of another human being”
“[b]y … delivery, in violation of [WIS. STAT. §] 961.41, of a controlled substance”
is guilty of a Class B felony. Sec. 940.02(2)(a). Thus, to obtain a conviction, the
State is required to prove the following five elements: (1) the defendant delivered
a substance; (2) the substance was (or contained) a controlled substance; (3) the
defendant knew or believed that the substance was (or contained) a controlled
substance; (4) the victim used the substance; and (5) the victim died as a result of
the use of the substance. WIS JI—CRIMINAL 1021 (2024).

¶23 None of these elements require that the fatal dose of drugs was
delivered by the defendant, or anyone else, directly to the deceased victim.
Instead, the statute merely requires that the defendant delivered a controlled
substance and that the victim later used that substance and died as a result. We
agree with the State that Staab’s interpretation of the statute “is attempting to add
an extra element to the statute that simply does not exist.” It is the role of the
legislature, not this court, to define the elements of a crime. See State v.
Warbelton, 2009 WI 6, ¶22, 315 Wis. 2d 253, 759 N.W.2d 557; see also Fond Du
Lac County v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818
(Ct. App. 1989) (“One of the maxims of statutory construction is that courts
should not add words to a statute to give it a certain meaning.”).

¶24 Furthermore, as the State notes, the legislature has expressly
provided that WIS. STAT. § 940.02(2)(a) applies “[t]o any distribution or delivery
described in this paragraph, regardless of whether the distribution or delivery is
made directly to the human being who dies” and that “each person who distributes

9
No. 2023AP850-CR

or delivers the controlled substance or controlled substance analog in violation of
[WIS. STAT. §] 961.41 is guilty under this paragraph.” See § 940.02(2)(a)3.
(emphasis added). We agree with the State that this language further shows that
the legislature intended to criminalize the delivery of a controlled substance that
results in a person’s death, regardless of whether the defendant, or anyone else,
delivered the controlled substance directly to the deceased victim.

¶25 In arguing to the contrary, Staab notes that WIS. STAT.
§ 940.02(2)(a) applies when a victim dies as a result of using a controlled
substance that the defendant delivered “in violation of [WIS. STAT. §] 961.41.”
Staab then notes that, for purposes of § 961.41, “delivery” means “the actual,
constructive or attempted transfer from one person to another of a controlled
substance.” See WIS. STAT. § 961.01(6). Based on this definition and “the
interplay between § 940.02(2)(a) and § 961.41,” Staab argues “it is clear that
first-degree reckless homicide applies only to the death of someone who was on
the receiving end of a delivery.”

¶26 We disagree. While WIS. STAT. § 940.02(2)(a) requires that the
defendant delivered a controlled substance in violation of WIS. STAT. § 961.41,
and while delivery requires the actual, constructive, or attempted transfer of a
controlled substance from one person to another, nothing in either of these statutes
requires the State to prove that a controlled substance was delivered directly to the
deceased victim in order to obtain a conviction under § 940.02(2)(a).

¶27 Furthermore, we note that the evidence in this case was clearly
sufficient to satisfy the delivery element of WIS. STAT. § 940.02(2)(a).
Specifically, the State presented evidence at trial that Staab delivered heroin to
Ben on January 30, 2017, in violation of WIS. STAT. § 961.41. Although the State

10
No. 2023AP850-CR

did not prove that Staab, Ben, or anyone else subsequently delivered any of that
heroin to Allen, as discussed above, § 940.02(2)(a) did not require the State to do
so. Instead, the State merely needed to prove that Staab delivered heroin in
violation of § 961.41, that Allen later used the heroin, and that Allen’s use of the
heroin caused his death. The evidence at trial was sufficient for the jury to find
each of those elements beyond a reasonable doubt.

¶28 Staab also asserts that WIS. STAT. § 940.02(2)(a) does not apply here
because the legislature chose to limit homicide liability under § 940.02(2)(a) “to
those who delivered the substance,” as opposed to anyone who merely possessed
the substance prior to the deceased victim. Staab did not, however, merely possess
the heroin at issue in this case prior to Allen’s death. Rather, as discussed above,
Staab delivered the heroin to Ben.

¶29 Finally, Staab argues that “the rule of lenity supports interpreting
WIS. STAT. § 940.02(2)(a) to apply only to overdose deaths of those on the
receiving end of a delivery.” The rule of lenity, however, “applies if a ‘grievous
ambiguity’ remains after a court has determined the statute’s meaning by
considering statutory language, context, structure and purpose, such that the court
must ‘simply guess’ at the meaning of the statute.” State v. Guarnero, 2015 WI
72, ¶27, 363 Wis. 2d 857, 867 N.W.2d 400 (citations omitted). No such “grievous
ambiguity” exists in this case. As explained above, § 940.02(2)(a) contains five
elements, and the direct delivery of a controlled substance to the deceased victim
is not one of those elements.

¶30 For these reasons, we reject Staab’s argument that her conviction for
first-degree reckless homicide must be vacated because WIS. STAT. § 940.02(2)(a)
does not apply to the facts of this case.

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No. 2023AP850-CR

II. Sufficiency of the evidence

¶31 Next, Staab argues that the evidence at trial was insufficient to
support her conviction for first-degree recklessly endangering safety. Whether the
evidence was sufficient to sustain a guilty verdict in a criminal prosecution is a
question of law that we review independently. State v. Smith, 2012 WI 91, ¶24,
342 Wis. 2d 710, 817 N.W.2d 410.

¶32 A defendant “bears a heavy burden in attempting to convince a
reviewing court to set aside a jury’s verdict on insufficiency of the evidence
grounds.” State v. Booker, 2006 WI 79, ¶22, 292 Wis. 2d 43, 717 N.W.2d 676.
When reviewing the sufficiency of the evidence to support a conviction, an
appellate court “may not substitute its judgment for that of the trier of fact unless
the evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493,
507, 451 N.W.2d 752 (1990).

¶33 It is the function of the jury, not this court, to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Id. at 506. “Thus, when faced with a record of historical
facts which supports more than one inference, an appellate court must accept and
follow the inference drawn by the trier of fact unless the evidence on which that
inference is based is incredible as a matter of law.” Id. at 506-07. Ultimately, if
any possibility exists that the jury could have drawn the appropriate inferences
from the evidence adduced at trial to find the defendant guilty, then we may not
overturn the jury’s verdict, even if we believe the jury should not have found guilt
based on the evidence before it. Id. at 507.

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No. 2023AP850-CR

¶34 To convict Staab of the recklessly endangering safety charge, the
State needed to prove: (1) that Staab endangered Ben’s safety; (2) that Staab
endangered Ben’s safety by criminally reckless conduct; and (3) that the
circumstances of Staab’s conduct showed utter disregard for human life. See WIS
JI—CRIMINAL 1345 (2020); see also WIS. STAT. § 941.30(1). Staab does not
dispute that the evidence at trial was sufficient to establish the first two elements
of this offense. She argues, however, that the evidence was insufficient to prove
that she acted with utter disregard for human life.

¶35 Utter disregard for human life “requires more than a high degree of
negligence or recklessness. To evince utter disregard, the mind must not only
disregard the safety of another but be devoid of regard for the life of another.”
State v. Geske, 2012 WI App 15, ¶11, 339 Wis. 2d 170, 810 N.W.2d 226 (citation
omitted). Factors relevant to the analysis include “what the defendant was doing;
why the defendant was engaged in that conduct; how dangerous the conduct was;
how obvious the danger was; and whether the conduct showed any regard for life.”
Id. The ultimate question is whether, considering the totality of the circumstances,
“the defendant showed some regard for life.” Id. (citation omitted).

¶36 Staab argues that she showed some regard for Ben’s life “[b]ecause
[she] warned [him] about the potency of the heroin.” We agree with the State,
however, that Staab’s argument in this regard is merely an attempt to relitigate the
jury’s factual findings. Under the totality of the circumstances, there was more
than enough evidence for the jury to find that Staab acted with utter disregard for
human life, despite Staab’s comment about the strength of the heroin.

¶37 As the circuit court correctly noted when denying Staab’s
postconviction motion, heroin is a “lethal substance.” Moreover, as the State

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No. 2023AP850-CR

notes, Staab sold not only heroin, but heroin laced with two different types of
fentanyl and caffeine. Thus, as the State argues, Staab “knew the substance was
extremely dangerous, she knew she was selling it to someone who was addicted to
it, and she knew she could not control how or where he would ingest it.” In
addition, the State correctly observes that Staab’s statement to Ben that the heroin
was very strong could be interpreted to show that Staab “knew this particular
batch of heroin was even more dangerous than usual, yet chose to sell it anyway,”
which “actually cuts against [Staab’s] argument” that her conduct showed some
regard for Ben’s life.

¶38 Furthermore, while Staab asserts that her comment about the heroin
being very strong shows that she was concerned for Ben’s safety, we agree with
the State that another reasonable interpretation of that comment is that Staab was
bragging about the quality of her product. The jury was free to draw that inference
and was not required to accept the contrary inference, advanced by Staab, that her
comment was intended as a warning. See Poellinger, 153 Wis. 2d at 506-07.
Consequently, we reject Staab’s argument that the evidence at trial was
insufficient to support her conviction for first-degree recklessly endangering
safety.

III. Venue

¶39 Staab next argues that her conviction for first-degree recklessly
endangering safety must be vacated because Marathon County was not a proper
venue for that charge. “Although venue is not an element of a crime, it
nonetheless must be proved beyond a reasonable doubt.” State v. Schultz, 2010
WI App 124, ¶12, 329 Wis. 2d 424, 791 N.W.2d 190. “We will not reverse a
conviction based upon the State’s failure to establish venue unless the evidence,

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No. 2023AP850-CR

viewed most favorably to the state and the conviction, is so insufficient that there
is no basis upon which a trier of fact could determine venue beyond a reasonable
doubt.” State v. Corey J.G., 215 Wis. 2d 395, 407-08, 572 N.W.2d 845 (1998).

¶40 “Criminal actions shall be tried in the county where the crime was
committed, except as otherwise provided.” WIS. STAT. § 971.19(1). “Where 2 or
more acts are requisite to the commission of any offense, the trial may be in any
county in which any of such acts occurred.” See § 971.19(2). Stated differently,
where a crime has two or more elements, venue is proper in any county where any
element of the crime occurred. See State v. Swinson, 2003 WI App 45, ¶21, 261
Wis. 2d 633, 660 N.W.2d 12 (concluding that Sheboygan County was a proper
venue for a theft by fraud charge because “at least one of the elements occurred in
Sheboygan [C]ounty”).

¶41 Staab argues that recklessly endangering safety is an “instantaneous
crime” and was complete “[o]nce the heroin changed hands.” Because the heroin
delivery occurred in the portion of Marshfield located in Wood County, Staab
asserts that “venue for the charge of recklessly endangering safety was proper only
in Wood County.”6

¶42 We reject Staab’s assertion that first-degree recklessly endangering
safety is an instantaneous offense and was therefore complete as soon as she
delivered the heroin to Ben. As noted above, one of the elements of the
first-degree recklessly endangering safety charge required the State to prove that

6
Staab does not dispute that venue for the first-degree reckless homicide charge was
proper in Marathon County. See WIS. STAT. § 971.19(5) (“If the act causing death is in one
county and the death ensues in another, the defendant may be tried in either county.”).

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No. 2023AP850-CR

Staab endangered Ben’s safety by criminally reckless conduct. See WIS JI—
CRIMINAL 1345 (2020). Conduct is criminally reckless when “the actor creates an
unreasonable and substantial risk of death or great bodily harm to another human
being and the actor is aware of that risk.” WIS. STAT. § 939.24(1).

¶43 As the State correctly notes, “Ben’s safety did not cease to be
endangered the moment he obtained the heroin from Staab. That is just when the
danger began. Ben was continually endangered by his subsequent possession and
use of the lethal substance in Marathon County.” Indeed, the very fact that Ben
later overdosed in Marathon County after using the heroin that he purchased from
Staab demonstrates that the offense was not instantaneous because it shows that
Staab’s conduct continued to endanger Ben’s safety beyond the specific moment
when the delivery occurred.

¶44 In support of her argument that venue in Marathon County was not
proper, Staab cites a single case, John v. State, 96 Wis. 2d 183, 188, 291 N.W.2d
502 (1980), where our supreme court stated that “a continuing offense is one
which consists of a course of conduct enduring over an extended period of time.”
However, it is not self-evident how John, a public assistance fraud case, is
relevant to the venue question at issue here. While this case does not involve a
“course of conduct” by Staab, as explained above, the evidence at trial clearly
showed that Staab’s conduct continued to endanger Ben after he returned to
Marathon County. Thus, at least one element of the crime occurred in Marathon
County, and venue in Marathon County was therefore proper.

¶45 We also find the State’s reliance on State v. Elverman, 2015 WI
App 91, 366 Wis. 2d 169, 873 N.W.2d 528, persuasive. In Elverman, the
defendant was convicted of theft after he unlawfully wrote checks on a client’s

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No. 2023AP850-CR

behalf and cashed them for his own benefit. Id., ¶¶2-4. On appeal, the defendant
argued that venue was improper in Milwaukee County because the two checks at
issue were neither signed nor cashed in Milwaukee County. Id., ¶37. We
concluded that venue was proper in Milwaukee County based on a continuing
course of conduct that involved other actions by the defendant in Milwaukee
County. Id., ¶38. Alternatively, however, we stated that even considering only
the two checks, “venue in Milwaukee County was proper, as there was trial
testimony regarding the involvement of M & I Bank’s Brown Deer processing
center, which is located in Milwaukee County, in the negotiation of checks cashed
at any of M & I Bank’s branch locations.” Id., ¶38 n.12.

¶46 We agree with the State that if the involvement of a check
processing center in Milwaukee County was sufficient to establish venue in
Milwaukee County in Elverman, then Ben’s use in Marathon County of the heroin
that Staab sold him in Wood County was sufficient to establish venue in Marathon
County for the first-degree recklessly endangering safety charge in this case.
Accordingly, and for all of the reasons explained above, we reject Staab’s
argument that Marathon County was not a proper venue for that charge.

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No. 2023AP850-CR

IV. Newly discovered evidence

¶47 Staab next argues that the circuit court should have granted her a
new trial based on newly discovered evidence suggesting that Krishna Ehrike may
have been the source of the heroin that caused Allen’s death.7

¶48 To obtain a new trial based on newly discovered evidence, a
defendant must prove four factors: “(1) the evidence was discovered after
conviction; (2) the defendant was not negligent in seeking the evidence; (3) the
evidence is material to an issue in the case; and (4) the evidence is not merely
cumulative.” State v. Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42
(citation omitted). If the defendant makes this showing, the court must then
determine whether there is a reasonable probability that, had the jury heard the
newly discovered evidence, it would have had a reasonable doubt as to the
defendant’s guilt. Id.

¶49 The decision to grant or deny a motion for a new trial based on
newly discovered evidence is committed to the circuit court’s discretion. Id., ¶31.
Whether there is a reasonable probability of a different result, however, is a
question of law that we review independently. Id., ¶33.

¶50 In her postconviction motion, Staab asserted that on January 31,
2017, after Ben and Dakota’s father disposed of the remaining heroin that Ben had
purchased the night before, Dakota “exchanged several text messages with

7
Staab’s newly discovered evidence argument appears to pertain only to her conviction
for first-degree reckless homicide. While Staab asserts that the new evidence suggests that
Ehrike may have been the source of the heroin that caused Allen’s death, she does not appear to
dispute that she sold heroin to Ben on January 30, 2017, which caused Ben’s overdose the
following morning.

18
No. 2023AP850-CR

‘Dustin’ in which Dakota made statements indicating that the heroin he had was
‘all gone’ and that he or his brother had obtained more heroin from an unnamed
female source.”8 Staab further asserted that, before trial, she had identified Ehrike
“as a female heroin user and seller known to [Ben and Dakota] who could have
been the source of this heroin.” Staab additionally alleged that her trial attorney
hired a private investigator to interview Ehrike, that the investigator located
Ehrike’s address and confirmed that she lived there, but that “Ehrike was not
physically located and did not respond to [the investigator’s] requests for
interviews.”

¶51 According to Staab’s postconviction motion, following Staab’s
conviction, another private investigator, Vicki Harness, interviewed Ehrike twice,
and Ehrike also “sought and had repeated contact with Staab’s mother.” During
the first interview with Harness, Ehrike stated that she and her boyfriend, Dominic
Perrine, were selling heroin during 2016 and 2017 and, specifically, had sold and
used heroin with both Ben and Dakota during that time. Ehrike told Harness that
“it could have been her or [Staab] or [Perrine] who sold heroin to Dakota … in
January 2017.” Ehrike also stated that Ben “would drive her and [Perrine] to their
dealer in Milwaukee to get heroin” and that Perrine and Staab “obtained heroin
from the same dealer in Milwaukee.” During her second interview with Harness,
Ehrike stated that “it was not her or [Perrine] or [Staab] who sold the heroin to
Dakota … and she did not know who did.”

8
Staab conceded in her postconviction motion that these text messages were provided to
the defense prior to trial.

19
No. 2023AP850-CR

¶52 Staab’s postconviction motion further alleged that Harness
interviewed Staab’s mother, who reported that Ehrike told her that Ehrike and
Perrine were selling “dope” to Ben and Dakota; that Ehrike and Perrine were
getting their heroin from the same source in Milwaukee as Staab; that Perrine
broke up with Ehrike and moved to Stevens Point two weeks after Allen’s death
because he “was worried about getting caught up in [Allen’s] death”; and that “it
wasn’t [Ehrike] that sold drugs to Dakota or [Ben]” and “it must have been
Perrine.”

¶53 The postconviction motion further alleged that Harness interviewed
Dakota, who “confirmed that he knew Ehrike, that he bought heroin from her
boyfriend, [Perrine], and that he hasn’t spoken to or seen Ehrike since [Allen’s]
death.” In addition, the motion recounted that another investigator, Lisann
Clayton, had interviewed Ben, who stated that he knew Ehrike through Perrine;
that Perrine was one of Ben’s heroin dealers; that Ben had used with Ehrike “a few
times”; and that Dakota had used with Allen on the afternoon of the day Allen
died.

¶54 Staab argued that Ehrike’s statements qualified as newly discovered
evidence because they were obtained after Staab’s conviction, Staab was not
negligent in seeking the evidence, the statements were material to an issue in the
case, and the statements were not cumulative as to any other evidence. Regarding
materiality, in particular, Staab argued that Ehrike’s statements identified her as a
potential source of heroin for Ben, Dakota, and Allen.

¶55 Staab also argued that there was a reasonable probability that a jury,
considering both the old evidence and Ehrike’s statements, would have a

20
No. 2023AP850-CR

reasonable doubt as to Staab’s guilt because the new evidence supported a
“reasonable hypothesis … consistent with Staab’s innocence”—namely, that

[b]y late morning on [January 31, 2017], [Ben] was
desperate for heroin and asked Dakota to contact Staab, but
he had no money. Because of [Ben’s] money issue, Dakota
did not contact Staab. Dakota was out of heroin, likely
because he had used the rest of the small amount [Ben] had
given him the night before. Not wanting to contact Staab,
he contacted another heroin source of theirs, Krishna
Ehrike. Ehrike had the same source of supply as Staab, and
[Ben] had traveled with Ehrike to Milwaukee before to
obtain heroin from that supplier. She lived close by in
Stratford, close enough for either of the … brothers to meet
during the workday, as they drove around the area as part
of their job. Dakota would pool money with [Allen] to
obtain heroin, and he would have had an opportunity to do
so when he was with [Allen] over the lunch hour. Dakota
and/or [Ben] obtained additional heroin through Ehrike and
Dakota had it when he was at his parents’ home to pick up
his mother’s car and was observed by [their family friend].
He gave some of this heroin to [Allen] and went back to
work where he used some of it himself. [Allen] used the
heroin Dakota gave him and was found shortly thereafter
by [Ben] when he got home from work. Given [Ben’s]
postconviction statement, it is also reasonable to conclude
that Dakota and [Allen] used together before Dakota went
back to work.

¶56 The circuit court rejected Staab’s newly discovered evidence claim.
Applying the first and second factors under the first part of the newly discovered
evidence analysis, the court acknowledged that Ehrike’s statements were
discovered after Staab’s conviction and stated, “It’s hard for this court to find
negligence in obtaining this information if there was an attempt to do it.”
See Plude, 310 Wis. 2d 28, ¶32. The court concluded, however, that Staab had
failed to satisfy the third factor because the new evidence was not material to an
issue in the case. See id.

21
No. 2023AP850-CR

¶57 Specifically, the circuit court determined that the new evidence was
not material because it would not have been admissible under the Denny test for
third-party perpetrator evidence, as Staab had not shown a “legitimate tendency”
that Ehrike could have committed the crime. See State v. Denny, 120 Wis. 2d
614, 623, 357 N.W.2d 12 (Ct. App. 1984). The court also concluded there was no
reasonable probability that the new evidence would have created a reasonable
doubt as to Staab’s guilt.

¶58 We agree with the circuit court that Staab failed to establish that the
new evidence was material to an issue in the case because the evidence would not
have been admissible under Denny. Denny provides that in order to admit
third-party perpetrator evidence, a defendant must show “a ‘legitimate tendency’
that the third person could have committed the crime.” Id. (citation omitted). The
Denny test “requires more than mere possibility.” State v. Wilson, 2015 WI 48,
¶83, 362 Wis. 2d 193, 864 N.W.2d 52. “[E]vidence that simply affords a possible
ground of suspicion against another person should not be admissible.” Denny,
120 Wis. 2d at 623.

¶59 To satisfy the Denny test, a defendant must first show that the
alleged third-party perpetrator had “a plausible reason to commit the crime.”
Wilson, 362 Wis. 2d 193, ¶57. “This is the motive prong” of the Denny test.
Wilson, 362 Wis. 2d 193, ¶57.

¶60 Second, under the “opportunity prong” of the Denny test, a
defendant must show that the third party “could … have committed the crime,
directly or indirectly.” Wilson, 362 Wis. 2d 193, ¶58. Stated differently, the
defendant must show “a practical possibility that the third party committed the
crime.” Id. This often amounts to a showing that the third party was at the crime

22
No. 2023AP850-CR

scene or in the vicinity when the crime was committed. Id., ¶65. In most cases, “a
defendant will need to show more than an unaccounted-for period of time to
implicate a third party.” Id., ¶68.

¶61 Finally, the third prong of the Denny test—the direct connection
prong—requires the defendant to present evidence “that the alleged third-party
perpetrator actually committed the crime, directly or indirectly.” Wilson, 362
Wis. 2d 193, ¶59. This evidence “should firm up the defendant’s theory of the
crime and take it beyond mere speculation.” Id. A circuit court “must assess the
proffered evidence in conjunction with all other evidence to determine whether,
under the totality of the circumstances, the evidence suggests that a third-party
perpetrator actually committed the crime.” Id., ¶71. A third party’s
self-incriminating statement or exclusive control of the weapon used in a crime
may establish a direct connection; however, the third party’s mere presence at the
crime scene or acquaintance with the victim is not normally sufficient to do so.
Id., ¶72.

¶62 Here, the State concedes—and we agree—that Staab has satisfied
the motive prong of the Denny test because Ehrike had a plausible motive for
selling heroin to Ben, Dakota, or Allen on January 31, 2017—namely, financial
gain. We also agree with the State, however, that Staab has failed to satisfy the
opportunity and direct connection prongs of the Denny test.

¶63 With respect to the opportunity prong, Staab argues the evidence
would establish that Ehrike “was within sufficient proximity to be able to conduct
the transaction” on January 31, 2017, because she was living in Stratford at that
time, which is approximately 13 miles from Ben and Dakota’s parents’ home.
Staab further argues that the evidence at trial showed that both Dakota and Ben

23
No. 2023AP850-CR

“drove around the area for work” on January 31, that Dakota took Allen with him
on a work delivery that afternoon, and that Dakota was seen at his parents’ house
at about 3:00 p.m. Staab also notes that a criminal complaint filed against Ehrike
in September 2018 alleged that Ehrike had sold heroin from her residence in
July 2017. According to Staab, this evidence shows that Ehrike “had the requisite
skill, capacity or ability to carry out a delivery, i.e.[,] she had ‘opportunity.’”

¶64 We disagree. Staab has merely shown that Ehrike lived about 13
miles from Ben and Dakota’s parents’ residence and was dealing heroin from her
home during the same general time period when the crime at issue in this case was
committed. However, Staab has not provided any information about Ehrike’s
whereabouts or schedule on January 31, 2017, to show that Ehrike actually had the
opportunity to sell heroin to Ben, Dakota, or Allen that day. We agree with the
State that “[t]he mere fact that Ehrike resided in a town near the one in which the
crime was committed does not come close to showing opportunity under Denny.”

¶65 As for the direct connection prong, Staab’s new evidence merely
shows that Ehrike was one of multiple individuals who sold heroin to Ben and
Dakota during the general timeframe at issue in this case. Notably, during her first
interview with Harness, Ehrike merely stated that it “could have been” Ehrike,
Perrine, or Staab who sold heroin to Dakota “in January 2017.” This speculative
statement that Ehrike was one of three people who “could have” sold heroin to
Dakota sometime during January 2017 does not show a direct connection between
Ehrike and the sale of the heroin that caused Allen’s death on January 31, 2017.9

9
Ehrike’s alleged statements to Staab’s mother that “it wasn’t [Ehrike] that sold drugs to
Dakota or [Ben]” and “it must have been Perrine” are similarly speculative and do not show a
direct connection between Ehrike and the crime.

24
No. 2023AP850-CR

Moreover, during her second interview with Harness, Ehrike disavowed her prior
statement, asserting instead that “it was not her or [Perrine] or [Staab] who sold
the heroin to Dakota … and she did not know who did.”

¶66 Staab urges us to consider Ehrike’s statements in context with
Dakota’s text messages from January 31, 2017, which Staab contends show that
Dakota “was involved in a heroin transaction with a female source during the
afternoon of” that day. We agree with the State and the circuit court, however,
that the text messages do not show that Dakota actually purchased heroin from a
female source on January 31, only that he wanted to. As the circuit court noted:

Much of the text messages were done in misspelled words
or shorthand. It wasn’t clear what anybody was doing, and
it wasn’t certainly clear who they were talking about or
whether in fact a transaction had occurred or not. It was
just an exchange between individuals speaking in almost a
coded language that was hard to understand about trying to
purchase some heroin or getting money together to get
more heroin because the heroin had already been thrown
out.

We agree with the circuit court’s assessment of the text messages’ contents.

¶67 Because Staab has not shown that her new evidence involving
Ehrike’s alleged involvement in the crime would have been admissible under
Denny, we agree with the circuit court that the evidence was not material for
purposes of the newly discovered evidence test. In addition, we conclude that
even if Staab had satisfied all four prongs of the initial part of the newly
discovered evidence test, she still would not be entitled to a new trial because
there is no reasonable probability that the new evidence would have created a
reasonable doubt as to her guilt. See Plude, 310 Wis. 2d 28, ¶32.

25
No. 2023AP850-CR

¶68 At trial, the State presented strong evidence of Staab’s guilt. The
jury heard that Staab sold unusually strong heroin to Ben on the night of
January 30, 2017, some of which Ben gave to Dakota. The jury also heard that
Ben overdosed on this heroin and that his father threw the remaining heroin into a
garbage can. When law enforcement searched that garbage can shortly after
Allen’s overdose, the heroin was gone, creating a strong inference that Allen had
used it. Additionally, the testimony from both Ben and Dakota regarding the
unusual strength of the heroin from Staab, and the testimony about Ben’s overdose
on the morning of January 31, further supported an inference that Allen had
overdosed on the same heroin, as the jury could reasonably infer that the heroin’s
potency would make an overdose more likely.

¶69 Moreover, the jury also heard that Staab sold Dakota heroin on the
night of January 31, 2017, in a controlled buy. That heroin was tested and was
found to contain an unusual combination of heroin, furanyl fentanyl, acryl
fentanyl, and caffeine, and the same substances were detected in Allen’s blood and
urine following his death. This evidence further supported the State’s theory that
the heroin that killed Allen was the same heroin that Ben had purchased from
Staab on the evening of January 30.

¶70 Staab’s proffered new evidence, in contrast, consists of Ehrike’s
initial, speculative statement that she, Staab, or Perrine “could have” sold heroin to
Dakota in January 2017, and her subsequent, contradictory statement that neither
she nor Perrine sold “the heroin” to Dakota, and she did not know who did. In
light of the State’s strong evidence of Staab’s guilt, we conclude that these
contradictory statements, which provide no definitive answer as to who sold the
heroin that killed Allen, do not create a reasonable probability that a jury,
considering both the old and new evidence, would have a reasonable doubt as to

26
No. 2023AP850-CR

Staab’s guilt. We therefore reject Staab’s argument that the circuit court erred by
denying her motion for a new trial based on newly discovered evidence.

V. Ineffective assistance of trial counsel

¶71 Staab also seeks a new trial based on ineffective assistance of trial
counsel. She contends that her trial attorney was constitutionally ineffective
by: (1) failing to adequately investigate Ehrike as an alternative source of the
heroin that caused Allen’s death; and (2) failing to confront Dakota with his text
messages “describing an additional heroin deal with a female source on the day of
Allen’s death.”

¶72 “Whether a defendant was denied effective assistance of counsel is a
mixed question of law and fact.” State v. Breitzman, 2017 WI 100, ¶37, 378
Wis. 2d 431, 904 N.W.2d 93. “The factual circumstances of the case and trial
counsel’s conduct and strategy are findings of fact, which will not be overturned
unless clearly erroneous; whether counsel’s conduct constitutes ineffective
assistance is a question of law, which we review de novo.” Id.

¶73 To prevail on an ineffective assistance claim, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
prove deficient performance, the defendant must point to specific acts or
omissions by counsel that are “outside the wide range of professionally competent
assistance.” Id. at 690. To demonstrate prejudice, the defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. If a

27
No. 2023AP850-CR

defendant fails to make a sufficient showing on one prong of the Strickland test,
we need not address the other. Id. at 697.

¶74 Here, assuming without deciding that Staab’s trial attorney
performed deficiently in both of the ways asserted by Staab, we conclude that
Staab has failed to show that counsel’s alleged errors prejudiced her defense.
With respect to trial counsel’s investigation of Ehrike as a potential source of the
heroin that caused Allen’s death, we have already concluded, in our analysis of
Staab’s newly discovered evidence claim, that the evidence discovered when
Ehrike was interviewed after trial would not have been admissible under Denny.
In addition, even if the evidence would have been admissible, we have already
concluded that there is no reasonable probability the evidence would have caused
a jury to have a reasonable doubt as to Staab’s guilt. For the same reasons, for
purposes of Staab’s ineffective assistance claim, there is also no reasonable
probability that the result of the proceeding would have been different but for
counsel’s alleged error in failing to adequately investigate Ehrike prior to trial.

¶75 As for trial counsel’s failure to confront Dakota with his text
messages from January 31, 2017, we agree with the State that Staab overstates the
evidentiary value of those messages by asserting that they definitively show that
Dakota purchased heroin from a female source on January 31. Instead, as
discussed above, we agree with the circuit court’s assessment that it is not “clear”
from the messages “whether in fact a transaction had occurred or not.”
Furthermore, as the circuit court aptly noted, the messages may actually have
harmed Staab’s defense, as they indicated that Dakota was trying to purchase
heroin from an unnamed female source on the day of Allen’s death, and Staab was
a female source from whom Ben and Dakota had recently purchased heroin. The
fact that Ben had texted Dakota that morning specifically asking him to contact

28
No. 2023AP850-CR

Staab about purchasing more heroin would have further supported an inference
that Staab was the unnamed female source referenced in Dakota’s text messages.

¶76 As the State concedes, Dakota’s text messages did suggest, contrary
to Dakota’s trial testimony, that he attempted to sell some of his remaining heroin
for $20 on January 31. Nevertheless, we agree with the State that there is no
reasonable probability that this “tangential piece of impeachment evidence against
Dakota’s credibility” would have changed the outcome of Staab’s trial,
particularly given the multiple other ways in which Dakota’s credibility was
challenged at trial. “Where the credibility of a prosecution witness was tested at
trial, evidence that again attacks the credibility of that witness is cumulative.”
State v. McAlister, 2018 WI 34, ¶39, 380 Wis. 2d 684, 911 N.W.2d 77.

¶77 Because Staab has failed to show that she was prejudiced by her trial
attorney’s alleged errors, she cannot prevail on her ineffective assistance of trial
counsel claim. As such, the circuit court properly declined to grant her a new trial
on that basis.

VI. New trial in the interest of justice

¶78 Finally, Staab asks this court to award her a new trial in the interest
of justice. We have discretion to grant a new trial in the interest of justice “if it
appears from the record that the real controversy has not been fully tried, or that it
is probable that justice has for any reason miscarried.” WIS. STAT. § 752.35.
However, our discretionary reversal power is reserved for exceptional cases, State
v. McKellips, 2016 WI 51, ¶52, 369 Wis. 2d 437, 881 N.W.2d 258, and “should be
exercised sparingly and with great caution,” State v. Williams, 2006 WI App 212,
¶36, 296 Wis. 2d 834, 723 N.W.2d 719.

29
No. 2023AP850-CR

¶79 Staab seeks a new trial in the interest of justice on the ground that
the real controversy was not fully tried. Situations where the real controversy was
not fully tried include those where the jury “was erroneously not given the
opportunity to hear important testimony that bore on an important issue of the
case” or “had before it evidence not properly admitted which so clouded a crucial
issue that it may be fairly said that the real controversy was not fully tried.” State
v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996).

¶80 Staab argues that the real controversy was not fully tried in this case
for two reasons. First, she asserts that the jury was not given the opportunity to
hear “the Ehrike and text message evidence.” (Formatting altered.) This
argument, however, merely rehashes Staab’s prior claims for a new trial based on
newly discovered evidence and ineffective assistance of trial counsel. We have
already rejected those claims, and based on our analysis above, they provide no
reason to grant Staab a new trial in the interest of justice. See State v. Ferguson,
2014 WI App 48, ¶33, 354 Wis. 2d 253, 847 N.W.2d 900 (rejecting a claim for a
new trial in the interest of justice that “merely rehashe[d] contentions that we
ha[d] already rejected”).

¶81 Second, Staab asserts that the jury “heard improperly admitted
evidence about the chemical makeup of the drugs Staab sold, which clouded the
crucial issue of the source of the fatal dose.” (Formatting altered.) As noted
above, an analyst testified at trial that the Wausau crime laboratory examined over
19,000 suspected controlled substances from 2010 to May 28, 2019, and “at least
five” of those substances included a combination of furanyl fentanyl, heroin, acryl
fentanyl, and caffeine. Staab argues that this testimony was “woefully
misleading” because “one would clearly not expect to find a combination of
fentanyl in other controlled substances such as, for example, marijuana.” She

30
No. 2023AP850-CR

therefore argues that “the number of times this combination of substances
appeared when compared against analyses of all controlled substances was not
probative of the relative obscurity of this combination,” and “for such a data
analysis to be remotely probative or meaningful of how rare this combination of
substances was, the relevant data set would be how many times this combination
of substances appeared in analyses of heroin and/or fentanyl.”

¶82 Staab also complains that the analyst testified that the relevant
combination of substances appeared in “at least five” samples, “which is a
non-specific number.” In addition, she notes that the analyst “was unable to
testify when in 2017 the tested samples were seized or where they were seized
from.” For all of these reasons, Staab asserts that the analyst’s testimony on this
point was not relevant and, therefore, was not properly admitted.

¶83 “Evidence which is not relevant is not admissible.” WIS. STAT.
§ 904.02. Evidence is relevant when it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” WIS. STAT. § 904.01.

¶84 The analyst’s testimony satisfied the relevancy test. The evidence at
trial showed that Staab sold a substance to Dakota during a controlled buy on
January 31, 2017, following Allen’s death, and that substance contained a mixture
of furanyl fentanyl, heroin, acryl fentanyl, and caffeine. The evidence further
showed that Allen’s blood and urine contained a mixture of those same four
substances. Under these circumstances, the analyst’s testimony that the same
combination was found in only about five of 19,000 suspected controlled
substances tested over an approximately ten-year period tended to make it more
probable that the heroin on which Allen overdosed came from Staab. While the

31
No. 2023AP850-CR

analyst could have been more precise by comparing the number of samples
containing this particular combination of substances to the total number of heroin
or fentanyl samples tested, as opposed to the total number of all suspected
controlled substances tested, that consideration merely goes to the weight of the
evidence, not its admissibility.

¶85 Additionally, the State notes that the analyst misspoke when she
testified that the number of samples containing the particular combination at issue
in this case was “at least five.” Citing its notice of expert testimony submitted to
the circuit court prior to trial, the State asserts that “[t]he correct number was
five.” We agree with the State that the analyst’s “brief misspeak benefitted Staab
by leaving room for an inference that the number may have been greater than
five.” Regardless, the fact that the analyst testified that “at least five” samples
contained the combination of substances at issue in this case, instead of providing
a specific number, again goes to the weight of the analyst’s testimony, rather than
its admissibility.

¶86 Consequently, we reject Staab’s argument that the analyst’s
testimony was irrelevant and, therefore, improperly admitted. Accordingly, Staab
has failed to show either that the jury “was erroneously not given the opportunity
to hear important testimony that bore on an important issue of the case” or that it
“had before it evidence not properly admitted which so clouded a crucial issue that
it may be fairly said that the real controversy was not fully tried.” See Hicks, 202
Wis. 2d at 160. As such, this is not the type of exceptional case warranting
discretionary reversal under WIS. STAT. § 752.35. See McKellips, 369 Wis. 2d
437, ¶52.

32
No. 2023AP850-CR

By the Court.—Judgment and order affirmed.

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

33