State v. Jeffrey Kyle Walker

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.
May 23, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2020AP2115-CR Cir. Ct. No. 2015CF1118

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY KYLE WALKER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: TIMOTHY A. HINKFUSS, Judge. 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).

¶1 PER CURIAM. Jeffrey Walker, pro se, appeals a judgment
convicting him of three counts of first-degree sexual assault of a child under
No. 2020AP2115-CR

thirteen years old, five counts of second-degree sexual assault of a child, and one
count of child enticement. He also appeals an order denying his motion for
postconviction relief. Walker argues that he received constitutionally ineffective
assistance of counsel, that the State engaged in prosecutorial misconduct, that the
evidence was insufficient to support his child enticement conviction, that the jury
engaged in misconduct by failing to weigh the evidence, and that the circuit court
erroneously decided several issues related to other-acts evidence. We reject all of
his arguments and affirm.

BACKGROUND

¶2 In August 2015, the State charged Walker with two counts of sexual
assault and one count of child enticement. The criminal complaint described
reports by two young boys, Mason and Spencer,1 who separately told police how
they each slept at Walker’s home on different occasions and awoke to Walker
sexually assaulting them. The complaint also described an incident on August 1,
2015, in which Walker purchased alcohol, drove himself and Mason to a motel,
and checked into a room. While Walker was checking into the room, Mason fled
to a friend’s house out of fear that “something” was going to happen to him.

¶3 During the pretrial proceedings, the circuit court granted the State’s
motion to admit other-acts evidence of Walker sexually assaulting Mason in
Kewaunee County. The court also granted the State’s request to file an amended
Information that charged a total of nine offenses. Counts 1 through 5 of that

1
Consistent with the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we refer
to the victims using pseudonyms. All references to the Wisconsin Statutes are to the 2021-22
version unless otherwise noted.

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Information were based on Walker’s sexual assaults of Spencer in the spring of
2011; Counts 6 through 8 were based on Walker’s sexual assaults of Mason in the
summer of 2013; and Count 9 was based on Walker’s enticement of Mason on or
about August 1, 2015. Walker did not object to this amended Information.

¶4 At trial, Spencer was the State’s first witness. Spencer testified that
his father and Walker had been friends and that Walker would “hang out,” play
video games, and watch movies with Spencer. Spencer further testified that in the
spring of 2011, when Spencer was either eleven or twelve years old, Walker
invited him to go bowling and to spend the night with Walker. Spencer accepted
Walker’s invitation, and the two subsequently went bowling and then later
watched movies together at Walker’s mother’s apartment. During the evening,
Spencer drank two “tall cans” of beer that Walker had offered to him.

¶5 Later in the night, Spencer woke up to Walker touching Spencer’s
genitals. Spencer described being “in disbelief” and not “know[ing] what to do.”
Spencer further described how Walker made him “rub [Walker’s] penis,” how
Walker performed oral sex on Spencer, how Walker made Spencer insert
Spencer’s penis into Walker’s rectum, and how Walker inserted his penis into
Spencer’s rectum.

¶6 Spencer did not immediately report the sexual assaults because he
feared that people would not believe him. In 2014, however, Spencer reported the
assaults to his mother after she asked why he was “acting up” and receiving
citations for drinking alcohol and possessing drugs. Spencer testified that he did
not know or recognize Mason. On cross-examination, Spencer acknowledged that
he initially reported that the sexual assaults had occurred in 2012 instead of 2011

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and that a detective in this case had offered to help him with some of his
outstanding citations.

¶7 Following Spencer’s testimony, the State called Mason as the next
witness. Mason testified that Walker was a family friend of one of Mason’s
friends and that Mason met Walker through that friend. Mason described how
Walker took him and his friends swimming and how Walker bought him shoes,
clothes and food. Mason testified that in the summer of 2013, when he was twelve
years old, he spent the night at Walker’s mother’s home. Mason said that he and
Walker watched television and that Mason drank a Mike’s Hard Lemonade, which
Walker had offered to him. After Mason had fallen asleep, he woke up to Walker
unbuttoning and unzipping Mason’s pants. Mason testified that Walker
subsequently put his penis into Mason’s rectum, performed oral sex on Mason,
and then used Mason’s hand to masturbate Walker’s penis.

¶8 Mason further testified to a separate incident that occurred several
months later. During that incident, Walker had taken both Mason and Mason’s
friend on a fishing trip, and the three of them stayed together in a motel in the City
of Kewaunee. At the motel, Walker gave Mason a beer and told him to “chug it.”
Later in the night, after Mason had fallen asleep, he woke up to Walker picking
him up and carrying him over to Walker’s bed. Once there, Walker pulled
Mason’s pants down and put his penis in Mason’s rectum.

¶9 Finally, Mason testified to the incident that occurred on August 1,
2015. Mason testified that Walker had stopped seeing him for “a while” but then
spontaneously came over to Mason’s home that day. Thereafter, Walker took
Mason out for dinner and later stopped at a gas station to purchase alcohol. Mason
testified that he started to grow concerned at this point “[b]ecause all the other

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times [Walker] bought alcohol he raped [Mason].” Walker then took Mason back
to Walker’s mother’s home where Walker started a bonfire and poured strawberry
liquor into Mason’s drink. Walker and his mother subsequently argued about
Walker’s boat in the yard, which prompted Walker to leave with Mason. Walker
then drove Mason to a motel and attempted to check into a room, but the motel
was full. Walker took Mason to a different motel and again went to check into a
room.

¶10 While Walker was in the motel, Mason fled from Walker’s vehicle
and ran to a friend’s house. Mason explained that he “didn’t want the same thing
to repeat over again.” Once Mason reached his friend’s home, he called his sister
and asked her to come get him. Before Mason’s sister arrived, however, Walker
showed up at Mason’s friend’s home and asked “why did you fucking run from
me,” to which Mason responded: “[Y]ou know.” Walker yelled at Mason to get
in Walker’s vehicle, but Mason refused. Walker subsequently gave Mason $20 for
“working on [his] boat”—which Mason stated that he had not done—and
demanded that he shake Walker’s hand. When Mason finally got home, he told
his mother about the prior sexual assaults. Mason testified that he did not know
Spencer.

¶11 On cross-examination, Mason acknowledged that he initially told
law enforcement that the fishing trip incident had occurred first, but he said that he
made the mistake because “it was early morning” and he had not slept. Mason
also agreed that Walker did not say anything about wanting to have sexual contact
with Mason nor did he “try to have sexual contact with [him]” on August 1, 2015.

¶12 The State subsequently called several other witnesses to testify,
including Spencer’s mother, Mason’s mother and sister, and a detective. The

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defense called Walker’s mother, who testified that she did not recall Mason ever
spending the night at her home, nor did she recall observing any “abnormal
interaction[s]” between Mason and Walker. Walker also testified in his own
defense, denying that he ever had any sexual contact or sexual intercourse with
either Spencer or Mason. Walker acknowledged that Spencer stayed at his
mother’s home once in the summer of 2011, but he denied that Mason had ever
spent the night at his mother’s home. Walker described trying “to be a positive
role model” for the young boys.

¶13 At the end of the trial, the jury found Walker guilty on all nine
counts. The circuit court later sentenced Walker to a total of twenty years’ initial
confinement followed by fifteen years’ extended supervision. Walker
subsequently filed a pro se postconviction motion, raising numerous claims. The
court held a Machner2 hearing on that motion, at which both Walker and his trial
counsel testified.3 The court concluded that Walker was not entitled to relief on
any of his claims and denied the motion.

¶14 Walker now appeals. Additional facts will be provided as necessary
below.

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

For purposes of this opinion, “trial counsel” refers to the attorney who represented
3

Walker at trial. Walker was represented by a number of other attorneys throughout the pretrial
proceedings, but none of those attorneys testified at the Machner hearing.

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No. 2020AP2115-CR

DISCUSSION

I. Ineffective assistance of counsel

¶15 To prevail on an ineffective assistance of counsel claim, the
defendant must prove: (1) that counsel’s performance was deficient; and (2) that
the deficient performance prejudiced the defense. State v. Sholar, 2018 WI 53,
¶32, 381 Wis. 2d 560, 912 N.W.2d 89. We need not address both components of
this inquiry if the defendant does not make a sufficient showing on one.
Strickland v. Washington, 466 U.S. 668, 697 (1984).

¶16 To establish deficient performance, a defendant must demonstrate
that his or her trial counsel’s performance fell below “an objective standard of
reasonableness.” State v. Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1, 951 N.W.2d
838 (citation omitted). “Courts afford great deference to trial counsel’s conduct,
presuming that it ‘falls within the wide range of reasonable professional
assistance.’” Id. (citation omitted). Indeed, “counsel’s performance need not be
perfect, nor even very good, to be constitutionally adequate.” State v. Carter,
2010 WI 40, ¶22, 324 Wis. 2d 640, 782 N.W.2d 695.

¶17 To establish prejudice, “a defendant must show that there is a
reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” Savage, 395 Wis. 2d 1, ¶32 (citation
omitted). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694. However, “a defendant
need not prove the outcome would ‘more likely than not’ be different in order to
establish prejudice in ineffective assistance cases.” Sholar, 381 Wis. 2d 560, ¶44
(citation omitted).

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No. 2020AP2115-CR

¶18 Whether a defendant has been denied the effective assistance of
counsel is a mixed question of law and fact. Savage, 395 Wis. 2d 1, ¶25. We will
not overturn a circuit court’s findings of fact unless they are clearly erroneous. Id.
However, we review de novo whether counsel’s conduct constitutes ineffective
assistance. Id.

A. Failure to pursue a speedy trial

¶19 Walker argues that one of his attorneys during pretrial proceedings
provided ineffective assistance by coercing him into withdrawing his speedy trial
request. At a December 2015 hearing, Walker requested a speedy trial on the
record. In response, Walker’s attorney—who had just been assigned to the case—
said if Walker wants a speedy trial, “I can’t represent him.” Walker’s attorney
then had a brief discussion with Walker off the record about how “[s]ome
attorneys may … accommodate [his] request” but Walker’s attorney needed time
to examine all of the materials. After the discussion, Walker’s attorney informed
the circuit court that Walker agreed with the attorney’s explanation and agreed to
withdraw his speedy trial request. Walker told the court, “That is correct.”

¶20 Walker has failed to establish that his pretrial attorney performed
deficiently in this regard. The circuit court found at the postconviction hearing
that Walker was not coerced into withdrawing his speedy trial request and that
Walker made the decision himself. These findings are not clearly erroneous
because Walker confirmed at the December 2015 hearing that he agreed with his
attorney’s reasoning to not pursue a speedy trial and that he agreed to withdraw his
speedy trial request. Accordingly, Walker’s attorney was not ineffective for
failing to pursue a speedy trial.

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No. 2020AP2115-CR

B. Failure to investigate

¶21 Walker next argues that his trial counsel performed deficiently by
failing to investigate and retrieve several documents. In particular, Walker
contends that counsel should have retrieved Department of Workforce
Development records, residential leases, CCAP records, employment records,
Department of Motor Vehicle (DMV) records, and a hospital record. He asserts
that some of these documents would have established that the sexual assaults of
Spencer could have occurred on only fourteen of the ninety days alleged in the
operative Information and that the sexual assaults of Mason could have occurred
on only eight of the ninety days alleged in the Information. He further asserts that
the remainder of the records could have shown flaws in Spencer’s statement to
police about the type of vehicle Walker drove and about Spencer not having spent
time with Walker after the spring of 2011.4 Walker insists that these documents
would have bolstered his credibility and impeached the victims.

¶22 Walker conceded at the Machner hearing that his trial counsel had
visited him in jail “more than ten times” and that counsel’s private investigator
had visited him approximately five times. Counsel testified that her private
investigator had collected a DMV abstract (which might have shown Walker’s
ownership of certain vehicles) and had interviewed five potential witnesses.
Counsel, however, could not “recall an instance where [Walker] asked [her] to do

4
Walker suggests that an emergency room report would have shown that Spencer had
been in a car accident with him in late August of 2011, which would have contradicted Spencer’s
statement to police that the did not spend time with Walker after the spring of 2011. The
emergency room report, however, never mentioned Spencer, nor does it appear to contain any
information relevant to the issues at trial. We therefore conclude that Walker’s trial counsel was
not deficient for failing to obtain this report.

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No. 2020AP2115-CR

something or get something and [she] didn’t,” nor could she recall Walker
complaining about not having certain evidence for trial. She also testified that
Walker benefited from the “unusual” circumstance of having two private
investigators—counsel’s investigator and a prior attorney’s investigator.

¶23 We conclude that trial counsel’s investigation did not fall “outside
the wide range of professionally competent assistance.” See Strickland, 466 U.S.
at 690. Walker admitted at trial that he lived at the relevant residences and that he
spent time with the victims during at least part of the time periods charged in the
Information and alleged by the victims. Although some of these documents
complained of might have narrowed the time in which the offenses could have
occurred, they certainly did not rebut or discredit the victims’ testimony about the
general time frame in which the offenses occurred. In addition, documentary
evidence confirming minor details—such as Walker’s residence, his time of
employment, and the type of vehicle that he drove—would have had minimal, if
any, impact on his or the victims’ credibility. If anything, this evidence would
have supported the credibility of the victims because it confirmed that Walker had
the opportunity to commit the offenses and that he was spending time with the
victims. Under these circumstances, trial counsel was not deficient for failing to
retrieve these documents.

C. Failure to impeach the victims’ testimony

¶24 Walker next argues that his trial counsel was ineffective for failing
to effectively cross-examine the victims about their prior inconsistent statements
and for failing to “point out” these inconsistencies to the jury. Walker claims that
counsel made only a “perfunctory attempt” at impeaching Mason, failing to
address Mason’s prior statements about: (1) when the sexual assaults occurred;

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No. 2020AP2115-CR

(2) when he first tried alcohol; (3) Walker’s confiscation of Mason’s cell phone
before the Green Bay sexual assaults; (4) where Mason fell asleep before the
Green Bay sexual assaults; (5) how Mason woke up during the Green Bay sexual
assaults; (6) the sexual acts involved in the Green Bay sexual assaults; (7) the gifts
Walker purchased for Mason; (8) where Mason fell asleep during the sexual
assault in Kewaunee; (9) whether Walker asked Mason if he wanted beer on
August 1, 2015; and (10) whether Walker swore when telling Mason to get in his
vehicle on August 1.

¶25 At the Machner hearing, Walker’s trial counsel testified that she
reviewed the victims’ prior written statements and noted the differences in their
statements. She further stated that she thought the victims testified “pretty well” at
trial and that she was “pretty sure” she asked about the inconsistencies during
cross-examination. Indeed, with respect to Mason, counsel cross-examined him
about initially reporting that the Kewaunee sexual assault had occurred before the
Green Bay sexual assaults. Notably, she did so even after the prosecutor had
elicited similar testimony on direct-examination, where Mason acknowledged
mixing up the sequential order of the sexual assaults. Counsel also asked Mason
about where he slept during the Kewaunee incident and how he testified that he
slept on the pull-out couch despite initially reporting that he slept on the floor.
Counsel therefore sought to discredit Mason’s testimony with some of his prior
statements.

¶26 Although Walker identifies a number of other “inconsistencies” in
Mason’s testimony that were not addressed on cross-examination, many of those
were inconsequential. For instance, Walker’s trial counsel would not have
meaningfully discredited Mason’s testimony by addressing statements about
Mason’s first drink of alcohol, the circumstances of Walker confiscating Mason’s

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No. 2020AP2115-CR

phone, the timing and nature of Walker’s gifts to Mason, whether Walker asked
Mason if he wanted beer on August 1, 2015, and whether Walker swore on
August 1. These “inconsistencies,” if any, were so minor that we question
whether the average attorney would have identified them during trial or would
have chosen to incorporate them into a cross-examination.5 Many of them also
involved facts that counsel might have reasonably wanted to avoid, such as
Walker providing alcohol and giving gifts to Mason, and confiscating Mason’s
phone.

¶27 Further, Mason never made an entirely inconsistent statement about
what sexual acts had occurred during the Green Bay sexual assaults. In Mason’s
first written statement to law enforcement, Mason said that Walker had “put his
penis in [Mason’s] rectum” during the Green Bay incident. Mason did not
mention any other sexual acts, but he also never affirmatively stated that anal
intercourse was the “only” sexual act or that no other sexual acts had occurred. In
Mason’s second written statement, upon further questioning, Mason noted that
Walker had also “sucked on [Mason’s] penis” and “grabbed [Mason’s] hand and
put it on [Walker’s] bare penis” after the anal intercourse. Although Mason made
these additional allegations in his second statement, they were not “inconsistent”
with his allegations in the first statement, and they were consistent with his
testimony at trial.

5
Indeed, Walker’s long list of possible inconsistencies is indicative of his ability to
scrutinize every detail in Mason’s prior written statements and trial testimony. Walker’s trial
counsel, however, did not have such a luxury at trial. Instead, counsel could note only the
inconsistencies in the prior written statements and then attempt to catch any inconsistencies that
emerged at trial. In essence, Walker is demanding perfection by suggesting that his trial counsel
should have caught so many minor possible inconsistencies. But “counsel’s performance need
not be perfect, nor even very good, to be constitutionally adequate.” State v. Carter, 2010 WI 40,
¶22, 324 Wis. 2d 640, 782 N.W.2d 695.

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No. 2020AP2115-CR

¶28 Under these circumstances, we conclude that Walker has not met his
burden of showing that his trial counsel performed deficiently in her
cross-examination and impeachment of Mason. Counsel elicited the important
fact that Mason had changed his initial report about where and when the first
sexual assault had occurred. Counsel also later emphasized, in closing argument,
that the jury should not find Mason’s testimony credible because rape “is a very
traumatic event” and it is hard to believe that “someone who has been brutally
raped will forget where or when it happened to them.” Although counsel could
have cross-examined Mason with other alleged inconsistencies, her failure to do so
did not render her performance constitutionally inadequate.

¶29 Walker also argues that his trial counsel was ineffective for not
“pointing out” the “inconsistencies” in Spencer’s testimony. Walker identifies
several possible inconsistencies, such as Spencer’s report of when the sexual
assaults occurred, whether Spencer realized on his own that he reported the wrong
year in which the sexual assaults occurred, and whether Spencer accepted help
from the detective investigating this case. Walker’s argument fails for several
reasons.

¶30 First, all but one of Walker’s alleged inconsistencies were not
inconsistencies in Spencer’s testimony or his prior statement but, rather, conflicts
between Spencer’s trial testimony and other witnesses’ testimony. Thus, because
the jury was presented with all of this testimony at trial, the jury was able “to
resolve any conflicts or inconsistencies in the evidence and to judge the credibility
of the evidence.” See State v. Perkins, 2004 WI App 213, ¶15, 277 Wis. 2d 243,
689 N.W.2d 684. Although Walker seems to suggest that his trial counsel should
have cross-examined Spencer with this conflicting testimony, Spencer was the

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No. 2020AP2115-CR

first witness to testify at trial; therefore, all of the conflicting testimony emerged
after Spencer testified.

¶31 Second, Walker’s trial counsel questioned Spencer about the
remaining inconsistency. Specifically, counsel established on cross-examination
that Spencer had initially reported that the sexual assaults occurred in 2012 but
later stated that they occurred in 2011. The jury was therefore presented with this
inconsistency and could consider it in assessing Spencer’s credibility.

¶32 Finally, to the extent that Walker is arguing that his trial counsel
should have summarized during closing argument any inconsistency in, or conflict
with, Spencer’s testimony, that argument fails as well. Counsel’s closing
argument reasonably focused on the implausibility of Spencer’s allegations, noting
that Walker’s mother neither heard the sexual assaults nor woke up to Spencer
walking through her bedroom to use the bathroom, which Spencer testified he did
on the night of the sexual assaults. Counsel also emphasized Spencer’s possible
motive to lie, stressing that Spencer did not disclose the sexual assaults until his
mother confronted him about his drug use and that Spencer’s disclosure created “a
lot of positive attention” toward him. Counsel could very reasonably choose to
pursue these arguments instead of summarizing each possible conflict in the trial
testimony.

¶33 In short, Walker’s trial counsel did not perform deficiently in her
impeachment of Spencer or her failure to “point[] out” to the jury the
inconsistencies and conflicts in the trial testimony.

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No. 2020AP2115-CR

D. Failure to object to the State’s improper questioning and closing argument

¶34 Walker argues that his trial counsel was ineffective for failing to
object to the State’s “improper questions” while cross-examining him. Walker
points out that the State asked him a number of questions regarding whether he
was a “positive role model” when he sexually assaulted the victims. For example,
the State asked Walker: “Again, were you trying to be a positive role model when
you put your mouth on [Spencer’s] penis and started sucking on his penis?”
Walker contends that these questions were argumentative and misleading.

¶35 The circuit court rejected Walker’s argument that these questions
were improper because Walker himself had advanced the “positive role model”
theory as an explanation for spending time with young boys: “[Y]ou talked about
being a role model for these kids…. [The State] picked up on your theory of the
case, on why you were with these kids and asked questions. And I think [the
State] asked legitimate questions based upon cross-examination.” The court
further noted that Walker “said no, that didn’t happen” and “[n]o, that’s not true”
to all of the State’s questions.

¶36 Like the circuit court, we reject Walker’s contention that his trial
counsel performed deficiently by not objecting to the State’s “role model” line of
questioning. Walker had testified on direct examination about being a role model,
and, therefore, the State’s questions were relevant to rebutting that testimony. In
addition, the jury would not have been misled by the State’s questioning because
the crux of the questions involved the conduct at issue, and Walker responded
accordingly by testifying that he did not engage in the questioned conduct.
Walker has also failed to identify any legal authority on appeal showing that the
State’s questioning was improper. We therefore conclude that any objection to the

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No. 2020AP2115-CR

State’s line of questioning would have been meritless and that counsel was not
deficient for failing to make a meritless objection. See State v. Counihan, 2020
WI 12, ¶51 n.15, 390 Wis. 2d 172, 938 N.W.2d 530 (“The failure to raise a
meritless objection does not constitute deficient performance.”).

¶37 Walker further criticizes his trial counsel for not objecting to the
State’s questioning about him being a role model for two other young boys who
were not victims in this case. He contends that the State’s prior “role model”
questions would have led the jury to infer that Walker was also sexually assaulting
these other boys as well. Again, we conclude that these questions were not
improper. Walker had specifically testified to being a role model for these other
boys during his direct examination. In addition, the State never implied that
Walker had any sexual contact with these other boys; it simply asked: “You were
trying to be a role model for those kids as well?” This line of questioning was also
removed from the State’s initial questioning about Walker being a role model
during the sexual assaults at issue in this case. Thus, counsel was not deficient for
failing to make a meritless objection to this additional questioning. See id.

¶38 Walker also argues—and the State agrees—that his trial counsel
performed deficiently by failing to object to the State’s “golden rule” argument in
its closing argument. In a criminal case, a golden rule argument asks the jurors to
consider themselves in the victim’s shoes, which is prohibited because it appeals
to the jurors’ sympathy for the victim of a crime. State v. DeLain, 2004 WI App
79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562. At trial, the State made an improper
golden rule argument by inviting the jurors at least three separate times to
“imagine” themselves as the victims in this case. Walker’s trial counsel did not
object to the State’s argument, and she therefore performed deficiently.

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¶39 Nevertheless, Walker has failed to show prejudice as a result of his
trial counsel’s failure to object to the State’s golden rule argument. Walker claims
that if counsel had objected, his trial might have resulted in a different outcome
because the State would have “clean[ed] up” its improper comments, thereby
“reducing the confusion and emotional impact on the jury.” As the State correctly
observes, however, two different victims who did not know each other “testified to
almost identical stories about being singled out in middle school and subjected to
specific grooming behavior by [Walker] and then plied with alcohol and brutally
assaulted.” Thus, there is not a reasonable probability that, but for counsel’s
failure to object to the State’s improper golden rule argument, the result of the
proceeding would have been different. See State v. Johnson, 153 Wis. 2d 121,
132, 449 N.W.2d 845 (1990) (concluding there was no prejudice where defense
counsel failed to object to the State’s closing argument references to the defendant
as a “liar,” a “rapist” and “guilty”).

¶40 Walker further criticizes his trial counsel for failing to object to the
State’s other comments in closing argument, including commenting on the
credibility of the victims. Walker asserts that these comments were bolstering and
testimonial in nature. Walker’s argument is a nonstarter. Prosecutors have
“considerable latitude” in closing arguments and can “comment on the evidence,
detail the evidence, argue from it to a conclusion and state that the evidence
convinces [the prosecutor] and should convince the jurors.” State v. Draize, 88
Wis. 2d 445, 454, 276 N.W.2d 784 (1979) (citation omitted). None of the
identified comments—including the State’s discussion of the evidence supporting
the credibility of the victims—suggested to the jury that they should rely on
factors that were not supported by the evidence. See id. Accordingly, counsel was

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No. 2020AP2115-CR

not deficient for failing to make a meritless objection to these other closing
arguments. See Counihan, 390 Wis. 2d 172, ¶51 n.15.

E. Failure to present a defense

¶41 Finally, Walker argues that his trial counsel was ineffective because
she “failed to raise a defense” and “ignored” Walker’s claim of innocence. He
contends that counsel failed to cross-examine the victims about their prior
inconsistent statements, failed to present evidence that rebutted their allegations,
failed to address the jury about the defense’s theory of the case, and failed to point
out the inconsistencies in the trial evidence to the jury.

¶42 Walker’s claim is devoid of any factual basis in the record. As noted
above, Walker’s trial counsel cross-examined the victims about inconsistencies in
their memory of the sexual assaults. Counsel also presented the testimony of both
Walker and his mother to rebut the victims’ accusations. In closing argument,
counsel discussed several reasons to doubt the victims’ testimony, such as the
presence of other people who did not hear or witness the sexual assaults, Spencer’s
possible motive to lie, and Mason’s confusion about where and when the sexual
assaults occurred. Counsel also emphasized Walker’s testimony that he did not
have sexual contact or sexual intercourse with either of the victims. In short,
counsel did not perform deficiently because she presented a rational defense based
on the evidence at trial.

II. Prosecutorial misconduct

¶43 Walker argues that the State engaged in prosecutorial misconduct by
failing to amend the criminal complaint with new allegations regarding the timing
and nature of the sexual assault charges. He contends that the complaint contained

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No. 2020AP2115-CR

“inaccurate information” which affected both his decision to waive a preliminary
hearing and the circuit court’s decision to admit other-acts evidence.

¶44 The State filed the criminal complaint in early August 2015, and
Walker waived a preliminary hearing roughly two weeks later. At the hearing in
which Walker waived a preliminary hearing, the State informed the circuit court
that it had recently learned that the alleged time periods of the offenses were
incorrect and that Walker’s attorney had been informed that the dates would be
changed. Three days later, the State filed an Information with the correct time
periods alleged. Thereafter, the State filed an amended Information and later
requested leave to file a second amended Information to charge additional crimes.
Walker did not object to the filing of the second amended Information.

¶45 Walker has not established any misconduct in the State’s actions, nor
has he identified any relevant legal authority to support his claim. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not
address an argument that is unsupported by relevant legal authority). Nothing in
the record suggests that the State knowingly alleged the wrong time periods or
intentionally withheld additional allegations regarding Walker’s conduct when
filing the original complaint, and in failing to file an amended complaint. To the
contrary, the State notified Walker’s attorney and the circuit court when it learned
of the incorrect dates alleged, and it sought leave to charge additional crimes—a
request Walker did not oppose. Moreover, Walker provides no basis for us to
conclude—nor has our review of the record shown—that either Walker’s decision
to waive the preliminary hearing or the court’s decision to admit other-acts
evidence would have been any different if the State had amended the complaint in
accordance with Walker’s argument.

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No. 2020AP2115-CR

¶46 Relatedly, Walker argues that he was improperly charged with
Counts 6 and 7 in the second amended Information because those charges had no
basis in the criminal complaint’s allegations. He contends that those charges were
“wholly unrelated” to any of the charges in the complaint.

¶47 We are not persuaded by Walker’s arguments. “[A] district attorney
may, where a preliminary examination is waived, file an information for any
offense or offenses growing out of or relating to the transaction charged in the
complaint.” State v. Michels, 141 Wis. 2d 81, 88, 414 N.W.2d 311 (Ct. App.
1987) (citation omitted). Charges are transactionally related where “they are
related in terms of ‘the affinity of parties and witnesses, the charges’ geographical
and temporal proximity, the physical evidence required for conviction, and the
defendant’s motive and intent.’” State v. White, 2008 WI App 96, ¶11, 312
Wis. 2d 799, 754 N.W.2d 214 (citation omitted).

¶48 Here, Walker waived the preliminary hearing after he was charged
with, among other things, one count of sexually assaulting Mason. That charge
was based on an allegation in the criminal complaint that Walker had “put his
penis in [Mason’s] rectum.” The State later charged two additional counts of
sexual assault—the charges Walker now claims were improper—based on new
allegations that immediately after Walker had put his penis in Mason’s rectum, he
also sucked on Mason’s penis and put Mason’s hand on Walker’s penis. Thus, the
two new charges involved the same parties, witnesses, geographical and temporal
proximity, physical evidence, motive, and intent as the original charge because the
new charges were based on Walker’s other sexual assaults of Mason at the same
time and place as the sexual assault initially charged. Accordingly, the State
lawfully amended the Information to add two charges (Counts 6 and 7) for
Walker’s other sexual assaults of Mason. See State v. Burke, 153 Wis. 2d 445,

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No. 2020AP2115-CR

457-58, 451 N.W.2d 739 (1990) (concluding that new sexual assault charges
added in the Information were “a proper exercise of prosecutorial discretion”).

¶49 Walker last argues that the State engaged in prosecutorial
misconduct by improperly using other-acts evidence as propensity evidence to
establish the child enticement charge. In particular, Walker contends that the State
improperly suggested in closing argument that the jury should find Walker guilty
of child enticement due to Walker’s character.

¶50 The record belies Walker’s claim. The State had to establish that
Walker was acting with the intent to have sexual contact with Mason on August 1,
2015. See WIS. STAT. § 948.07(1). The State therefore argued in closing
argument that the jury should consider Walker’s past behavior in Kewaunee to
prove his intent:

That final one is child enticement.… That deals with
[what] happened to [Mason] on August 1 when [Walker]
was taking him to the hotel. And the state has to prove that
[Walker] was doing it because he was going to have sexual
contact with him there. So that’s why you heard all the
evidence to know what he was going to do there. You
heard about Kewaunee as well. So you know what he was
going to do. And that relates to his intent.

(Emphasis added.) Evidence of other crimes is admissible to prove intent, WIS.
STAT. § 904.04(2)(a), and the circuit court expressly admitted the Kewaunee
evidence for that purpose. Further, the court instructed the jury about the proper
use of the other-acts evidence, and we presume the jury followed that instruction.
See State v. Dorsey, 2018 WI 10, ¶55, 379 Wis. 2d 386, 906 N.W.2d 158.

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No. 2020AP2115-CR

III. Sufficiency of the evidence

¶51 Walker next argues that the evidence was insufficient to support his
child enticement conviction because the State failed to show that Walker enticed
Mason and intended to have sexual contact with him. To prove the child
enticement charge, the State had to prove: (1) that Walker caused or attempted to
cause Mason to go into a vehicle, building, room or secluded place; (2) that
Walker did so with the intent to have sexual contact with Mason in violation of
WIS. STAT. § 948.02; and (3) that Mason had not attained the age of eighteen. See
State v. Hendricks, 2018 WI 15, ¶21, 379 Wis. 2d 549, 906 N.W.2d 666. Whether
the evidence was sufficient to support the jury’s verdict is a question of law that
we review de novo. State v. Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817
N.W.2d 410.

¶52 Here, Mason testified that in the fall of 2013, Walker took him to a
motel in Kewaunee, provided him with alcohol, and later sexually assaulted him
during the night. Mason further testified that on the evening of August 1, 2015,
when Mason was fourteen years old, Walker gave him alcohol, drove him to two
different motels, and attempted to check into a motel room. Mason testified that
he ran away from the second motel because he did not want Walker to sexually
assault him again. Given the similarities between Walker’s conduct on August 1
and the prior sexual assault in Kewaunee, the jury could reasonably infer that
Walker was attempting to take Mason into the motel room with the intent of
having sexual contact with Mason. Again, the jury could infer Walker’s intent
from his actions on August 1 and the similarity between those actions and his past
actions in Kewaunee.

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No. 2020AP2115-CR

¶53 Walker’s arguments to the contrary are unpersuasive. We must
consider the evidence in the light most favorable to the State and the jury’s
verdict, see id.; therefore, we cannot accept Walker’s inferences from the evidence
because the evidence also supports reasonable inferences of Walker’s guilt. To
the extent Walker asserts that there was no direct evidence of his intent, the
circumstantial evidence in this case was sufficient to support reasonable inferences
of his intent. See State v. Mertes, 2008 WI App 179, ¶11, 315 Wis. 2d 756, 762
N.W.2d 813 (“A conviction may be supported solely by circumstantial
evidence ….”). We conclude the evidence was sufficient to support Walker’s
child enticement conviction.

IV. Juror misconduct

¶54 Walker argues that the jury engaged in misconduct and was biased
against him because the jury deliberated for only forty-five minutes before finding
him guilty on all nine charges. Walker infers from the duration of the jury’s
deliberations and from the jury finding him guilty of child enticement that the jury
failed to weigh the evidence.

¶55 Walker’s argument has no basis in law or in fact. Jurors are
presumed to be impartial, and a party challenging a juror’s impartiality bears the
burden of rebutting this presumption and proving bias. State v. Funk, 2011 WI
62, ¶31, 335 Wis. 2d 369, 799 N.W.2d 421. Although Walker infers from the
duration of the jury’s deliberations that the jury failed to weigh the evidence, one
could also reasonably infer that the evidence supporting Walker’s convictions was
overwhelming. Walker has also failed to identify any legal authority supporting
the notion that juror bias and impartiality can be proven by the duration of the
jury’s deliberations. His argument therefore fails. See Pettit, 171 Wis. 2d at

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No. 2020AP2115-CR

646-47. Furthermore, for the reasons we have already explained, the evidence was
sufficient to support Walker’s child enticement conviction.

V. Other-acts evidence

¶56 Walker next argues that the circuit court erroneously admitted
other-acts evidence. He contends that the court failed to weigh the prejudicial
impact of that evidence and failed to consider how the jury may use it. Walker
conceded at the postconviction hearing that the other-acts evidence was properly
admitted for each of the sexual assault charges. Accordingly, we will address
Walker’s argument only in the context of the child enticement charge.

¶57 Other-acts evidence is admissible if: (1) it is offered for a
permissible purpose, see WIS. STAT. § 904.04(2)(a); (2) it is relevant, see WIS.
STAT. § 904.01; and (3) its probative value is not substantially outweighed by the
danger of unfair prejudice, see WIS. STAT. § 904.03. State v. Marinez, 2011 WI
12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. In the context of a child sexual
assault case, the greater latitude rule permits “a more liberal admission of other
crimes evidence” and applies to each prong of our other-acts analysis. Id., ¶20
(citation omitted). “We review a circuit court’s admission of other-acts evidence
for an erroneous exercise of discretion.” Id., ¶17.

¶58 Contrary to Walker’s argument, the circuit court considered the
permissible purposes for the other-acts evidence and its prejudicial nature. The
court stated at a February 2016 hearing that the other-acts evidence was offered
for the permissible purposes of proving intent, opportunity, and the absence of
mistake or accident. The court also stated that it did “not find that the probative
value is substantially outweighed by the danger of unfair prejudice.” In reaching
this conclusion, the court noted that it could provide “a curative instruction if

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No. 2020AP2115-CR

requested by the defense” and that the greater latitude rule supported the
admission of the other-acts evidence.

¶59 The circuit court’s discussion of the other-acts evidence
demonstrates a proper exercise of discretion. Other-acts evidence can be used to
prove intent, opportunity, and the absence of mistake or accident. WIS. STAT.
§ 904.04(2)(a). The court could also reasonably determine that a jury instruction
would reduce the danger of unfair prejudice, see State v. Davidson, 2000 WI 91,
¶78, 236 Wis. 2d 537, 613 N.W.2d 606, and that the greater latitude rule supported
the admissibility of the other-acts evidence, see Marinez, 331 Wis. 2d 568, ¶20.
Furthermore, due to the similarities between the two incidents, the other-acts
evidence from the Kewaunee incident was highly probative of Walker’s intent
during the August 1, 2015 incident, which further supports the court’s conclusion
that the probative value of the other-acts evidence was not substantially
outweighed by the danger of unfair prejudice.

¶60 In passing, Walker suggests that the admission of the other-acts
evidence violated his constitutional rights against double jeopardy because he had
to defend against the other-acts evidence in this case and “will have to [do so] in
the future” in Kewaunee County. Walker’s double jeopardy argument, however,
is undeveloped and unsupported by any legal authority. In any event, Walker’s
concern about a “future” prosecution does not create a double jeopardy violation
in this case. See State v. Robinson, 2014 WI 35, ¶22, 354 Wis. 2d 351, 847
N.W.2d 352 (“[The Double Jeopardy clause] protects against a second prosecution
for the same offense after acquittal [or] … conviction[,] [a]nd it protects against
multiple punishments for the same offense.” (emphasis added; citation omitted)).
Further, “a mere overlap in proof between two prosecutions does not establish a
double jeopardy violation.” United States v. Felix, 503 U.S. 378, 386 (1992).

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No. 2020AP2115-CR

¶61 Walker also asserts that the circuit court erroneously relied on
“faulty information” in the criminal complaint when deciding whether to admit
other-acts evidence. This argument is related to Walker’s earlier argument that
Counts 6 and 7 of the second amended Information were not supported by the
complaint’s factual allegations. However, Walker again fails to identify any error.
Nothing in the court’s decision to admit other-acts evidence suggests that the court
relied on the purportedly “inaccurate information”—i.e., that only one sexual
assault of Mason occurred in Brown County or that the Brown County sexual
assault occurred in the fall of 2014 instead of the summer of 2013. Even if we
assumed that the court did rely on that information, there is no basis to argue or
conclude that the court’s decision to admit other-acts evidence would have been
any different absent that reliance.

¶62 Finally, Walker contends that the circuit court improperly corrected
a misstatement in the cautionary jury instruction by failing to identify the
misstatement in the prior instruction and by failing to instruct the jury to disregard
that misread instruction. At trial, the court misread the cautionary instruction
regarding Walker’s alleged conduct in Kewaunee, see WIS JI—CRIMINAL 275
(2018), in a manner that might have suggested that the other conduct had actually
occurred. The possible error was called to the court’s attention, and the court
correctly reread the jury instruction, noting that the jury had to first find that
Walker’s conduct in Kewaunee had occurred before it could consider that conduct
for the limited purposes of intent, opportunity, and the absence of mistake or
accident. The court did not expressly note the mistake made in the prior
instruction.

¶63 Walker’s argument is misplaced. “The necessity for, the extent of,
and the form of re-instruction rests in the sound discretion of the court.” Hareng

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No. 2020AP2115-CR

v. Blanke, 90 Wis. 2d 158, 166, 279 N.W.2d 437 (1979). Although another court
might have specifically called attention to the precise error, the circuit court could
reasonably decide not to call attention to the error and simply reread the jury
instruction in its correct form. The court’s statement that the prior instruction was
incorrect would also communicate to the jury that it should follow the reread
instruction and not the instruction previously read. Further, the record does not
reflect that Walker objected to the court’s procedure or demanded that the error be
specifically identified to the jury. Under these circumstances, the court did not
erroneously exercise its discretion in its correction of the misread jury instruction.

By the Court.—Judgment and order affirmed.

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

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