State v. Jobert L. Molde

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 21, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1346-CR Cir. Ct. No. 2017CF34

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOBERT L. MOLDE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dunn
County: ROD W. SMELTZER, Judge. Reversed and cause remanded for further
proceedings.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 GILL, J. Jobert L. Molde appeals a judgment, entered following a
jury verdict, convicting him of one count of first-degree sexual assault of a child
who had not attained the age of twelve years and one count of incest with a child.
No. 2021AP1346-CR

He also appeals an order denying his motion for postconviction relief following a
Machner1 hearing.

¶2 On appeal, Molde argues that his trial counsel was constitutionally
ineffective by failing to object to an expert’s testimony at the jury trial regarding
the truthfulness of alleged child sexual assault victims.2 In particular, the circuit
court read a juror-submitted question to the expert, which asked, “How frequent is
it for children to make up a story of sexual abuse[?]” The expert responded,
without an objection from Molde’s trial counsel, “False disclosures are
extraordinarily rare, like in the one percent of all disclosures are false
disclosures.” (Emphasis added.)

¶3 We agree with Molde that his counsel performed deficiently by
failing to object to this testimony. At the time of Molde’s jury trial, the law on
impermissible vouching testimony was well settled, and Molde’s trial counsel
should have known to object to the expert’s testimony for two reasons. See State
v. Morales-Pedrosa, 2016 WI App 38, ¶16, 369 Wis. 2d 75, 879 N.W.2d 772;
State v. Mader, 2023 WI App 35, ¶¶36-38, 408 Wis. 2d 632, 993 N.W.2d 761,
review denied (WI Sept. 26, 2023) (No. 2022AP382-CR). First, the expert was
directly involved in the victim’s examination following her sexual assault

1
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
Molde also contends that his trial counsel was constitutionally ineffective by failing to
seek the admission of evidence regarding the victim’s dishonesty and by withdrawing an
objection to the State’s proffered evidence of Molde’s prior operating a motor vehicle while
intoxicated (OWI) conviction and jail sentence. Because we remand for a new trial, we address
these two claimed errors in the interest of judicial economy, but we ultimately reject Molde’s
arguments. See State v. Rushing, 197 Wis. 2d 631, 649-50, 541 N.W.2d 155 (Ct. App. 1995)
(stating that when remanding for a new trial, we may address nondispositive issues “in the
interest of judicial economy if the issues are likely to arise at [the] second trial”).

2
No. 2021AP1346-CR

accusation against Molde, and the expert’s answer to the juror’s question
regarding a child’s propensity to tell the truth when reporting sexual assault
“would inevitably be seen by the jury as ‘a personal or particularized’
endorsement of [the victim’s] credibility.” See Mader, 408 Wis. 2d 632, ¶38
(citation omitted). Second, the expert’s testimony—which effectively stated to the
jury that 99 percent of all child sexual assault reports are true—“‘provided a
mathematical statement approaching certainty’ that false reporting simply does not
occur.” See id., ¶39 (citation omitted).

¶4 As a result of trial counsel’s deficient performance, there is a
reasonable probability that, absent counsel’s error, the result of the proceeding
would have been different. The impermissible vouching testimony was a direct
response to a juror’s question; that juror was a member of the twelve-person jury
that convicted Molde; the State twice relied upon the impermissible vouching
testimony in its closing argument; and the evidence at trial “for and against guilt
was nearly in equipoise.” See id., ¶86. We therefore reverse Molde’s judgment of
conviction and the circuit court’s denial of Molde’s postconviction motion on this
issue, and we remand for a new trial.

BACKGROUND

¶5 On January 13, 2017, Molde’s daughter, Lauren,3 took a “near
lethal” amount of over-the-counter pain medication in her school’s bathroom,
purportedly in an attempt to take her own life. After school officials were notified,

3
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use
pseudonyms for the victim and her siblings. All references to the Wisconsin Statutes are to the
2021-22 version unless otherwise noted.

3
No. 2021AP1346-CR

they found several notes in her backpack, including one addressed to Molde in
which she referenced a “night mom was gone and you made [Whitney4] come get
me. You told me to be a ‘big girl for daddy.’” Lauren later detailed to a school
counselor and school nurse that Molde had sexually assaulted her.

¶6 Lauren, who was thirteen years old at the time of the allegations,
also provided a full narrative of the sexual assault in an audiovisual forensic
interview at a children’s advocacy center three days after her suicide attempt. The
interview was conducted by a nurse practitioner employed by the children’s
advocacy center. Thereafter, the State charged Molde with one count of
first-degree sexual assault of a child who had not attained the age of twelve years
and one count of incest with a child. According to the State, the alleged assault
occurred between January 2011 and January 2012.

¶7 The circuit court later granted the State’s motion to allow the nurse
practitioner to testify at Molde’s jury trial as an expert witness. The court stated
that the nurse practitioner would assist the jury in understanding the forensic
interview as well as why child sexual abuse victims delay reporting abuse. After
the State discovered that the nurse practitioner was unavailable for the scheduled
jury trial, the circuit court granted the State’s motion to use the nurse practitioner’s
supervisor, Dr. Alice Swenson, instead.

¶8 At the jury trial, Dr. Swenson testified that she is a child abuse
pediatrician at the children’s advocacy center and that she supervised Lauren’s
forensic interview in real time. Regarding child sexual abuse victims generally,

4
Whitney is Molde’s daughter and Lauren’s younger sister.

4
No. 2021AP1346-CR

Swenson testified that roughly “90 percent” of child sexual abuse victims delay
reporting the abuse and that the “vast majority of sexual abuse cases are
perpetrated by a person the victim knows.” She also testified that some child
sexual abuse victims “end up doing things like self-harming and suicide attempts
and end up with very significant emotional behavioral problems.” According to
Swenson, she assesses a child sexual abuse victim’s credibility by determining
whether the child provides consistent supporting details, including the physical
environment where the abuse took place and “information that a child wouldn’t
necessarily know about” such as sexual intercourse.

¶9 While Dr. Swenson was on the witness stand, the State played for
the jury Lauren’s audiovisual forensic interview. In the interview, Lauren stated
that on the night of the alleged assault, Stephanie—Lauren’s adoptive mother and
Molde’s wife—had “gone away” for the evening after getting into an argument
with Molde. According to Lauren, Whitney was sleeping with Molde upstairs in
his bedroom. Lauren stated that Molde “made [Whitney] come down and get
[her].” When Lauren arrived in Molde’s bedroom, Molde “made [her] take off
[her] clothes and told [her] to be a big girl.” Lauren stated that Molde then “laid
me down on the bed, and he also got undressed” and “[h]e just told me it will be
good.” Lauren stated that Molde “used his private part and he put it in [her private
part]” and that “it hurt.” According to Lauren, Molde “had his legs around mine.
His arms were above my shoulders.” Lauren could not remember if “anything
c[a]me out of [Molde’s] private part” during the assault, but she did state that
Molde did not “put anything on this private part.”

¶10 Lauren stated that Whitney was at Molde’s bedroom door while
Lauren was in the bedroom during the sexual assault, and that the “door was
open … most of the way, but it was really dark.” She stated, “He stayed on top of

5
No. 2021AP1346-CR

me or whatever for awhile, and then like he said he was done. He made me get
my clothes and go back to bed.” Lauren stated that after she left Molde’s room,
Whitney told her “she wanted to be a big girl, too.” Lauren told her “she didn’t,”
and then she took Whitney back downstairs with her. Lauren stated that in the
morning, Whitney asked her “if she could be a big girl, and [Lauren] told her no”
and that “it was just a dream, [and] to forget about it.” According to Lauren, her
two older brothers, Trevor and Heath, were downstairs sleeping during the
incident.

¶11 After the forensic interview was played for the jury, Dr. Swenson
testified regarding the physical examination conducted of Lauren after Lauren
gave her recorded statements. She stated that the physical examination of Lauren
yielded no physical signs of sexual abuse. However, she further testified that “[i]n
about 97 percent of sexual abuse cases where there’s been a report of penetration,
there are no findings” during a physical examination.

¶12 Following Dr. Swenson’s testimony, and consistent with the circuit
court’s previous order permitting juror questions, Juror No. 47, who ultimately sat
on the twelve-person jury, submitted two written questions for Swenson. Prior to
asking the questions of the witness, the court held a sidebar with Molde’s trial
counsel and the State. Molde’s trial counsel did not object to the proposed
questions.

¶13 The circuit court then read the questions to the witness with the jury
present: “How frequent is it for children to make up a story of sexual abuse[?]
Why would they do that[?]” Doctor Swenson responded to the first question,
stating, “False disclosures are extraordinarily rare, like in the one percent of all
disclosures are false disclosures.” In response to the second question, Swenson

6
No. 2021AP1346-CR

stated, “I don’t think I really have an answer to that.” Molde’s trial counsel did
not object to either of Swenson’s answers, but the court permitted trial counsel to
ask Swenson a follow-up question. Molde’s trial counsel asked Swenson whether
she based her answers to the juror’s questions on particular studies, to which
Swenson stated, “There are that I’ve read, yes. I don’t know the names off the top
of my head.”

¶14 Ultimately, the jury found Molde guilty of first-degree sexual assault
of a child who had not attained the age of twelve years and guilty of incest with a
child. The circuit court later sentenced Molde to an aggregate sentence of
twenty-five years’ initial confinement followed by seven and one-half years’
extended supervision.

¶15 Molde filed a motion for postconviction relief, and later a
supplemental motion, arguing that his trial counsel was constitutionally ineffective
by: (1) failing to object to Dr. Swenson’s answers to the juror’s questions5 or,
alternatively, failing to request a mistrial following Swenson’s answers to the
juror’s questions; (2) failing to seek the admission of evidence regarding the
victim’s dishonesty pursuant to WIS. STAT. § 906.08(1); and (3) withdrawing her

5
In Molde’s postconviction motion and his briefing on appeal, he at times alleges that
his trial counsel was constitutionally ineffective by failing to object to the juror’s questions, as
opposed to Dr. Swenson’s answers to those questions. Because we ultimately conclude that
Molde’s trial counsel was ineffective by failing to object to Swenson’s answer to the first
question, we need not reach the issue of whether trial counsel was ineffective by failing to
anticipate that Swenson’s answers to the questions would have provided impermissible vouching
testimony. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286
Wis. 2d 774, 703 N.W.2d 707 (stating that we decide cases on the narrowest possible grounds).

7
No. 2021AP1346-CR

objection to evidence of Molde’s prior acts.6 Regarding his first claim, Molde
argued that Swenson’s answers provided an opinion of Lauren’s credibility and
constituted impermissible vouching testimony in violation of State v. Haseltine,
120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984).

¶16 Following a Machner hearing, the circuit court determined that
Molde’s trial counsel did not perform deficiently by failing to object to
Dr. Swenson’s answers to the juror’s questions because the questions posed
“would have been within the purview of” expert opinion and did not constitute
impermissible vouching testimony. Further, the court determined that Molde’s
trial counsel did not perform deficiently by failing to object to Swenson’s answers
because she cross-examined Swenson regarding the basis for her answers. The
court also denied the two remaining claims raised by Molde, finding that his trial
counsel did not perform deficiently because each decision made by trial counsel
was part of her reasonable trial strategy.

¶17 Molde now appeals his judgment of conviction and the circuit
court’s order denying his postconviction motion for a new trial. Additional facts
will be provided below as necessary.

6
Molde also argued that his trial counsel was constitutionally ineffective by failing to
object to the circuit court’s use of an “improper legal standard” to deny Molde’s motion to admit
evidence of the victim’s hospital records. The circuit court denied this claim, and Molde does not
raise that issue on appeal. We will therefore not consider this issue further. See A.O. Smith
Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue
raised in the [circuit] court, but not raised on appeal, is deemed abandoned.”).

8
No. 2021AP1346-CR

DISCUSSION

¶18 To succeed on an ineffective assistance of counsel claim, a
defendant must show that his or her counsel’s performance was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). “To prove deficient performance, a defendant must show that
counsel’s acts or omissions were ‘outside the wide range of professionally
competent assistance,’ and were ‘errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment.’”
Morales-Pedrosa, 369 Wis. 2d 75, ¶16 (citations omitted). “[I]neffective
assistance of counsel cases [are] limited to situations where the law or duty is clear
such that reasonable counsel should know enough to raise the issue.” State v.
Arrington, 2022 WI 53, ¶73, 402 Wis. 2d 675, 976 N.W.2d 453 (second alteration
in original; citation omitted).

¶19 “To prove prejudice, a defendant must show the alleged errors of
counsel were ‘of such magnitude that there is a reasonable probability that, absent
the errors, the result of the proceeding would have been different.’”
Morales-Pedrosa, 369 Wis. 2d 75, ¶17 (citations omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
State v. Sholar, 2018 WI 53, ¶33, 381 Wis. 2d 560, 912 N.W.2d 89 (citation
omitted). “[A] defendant need not prove the outcome would ‘more likely than
not’ be different in order to establish prejudice.” Id., ¶44 (citation omitted).

Some errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an
isolated, trivial effect. Moreover, a verdict or conclusion
only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record
support. Taking the unaffected findings as a given, and
taking due account of the effect of the errors on the

9
No. 2021AP1346-CR

remaining findings, a court making the prejudice inquiry
must ask if the defendant has met the burden of showing
that the decision reached would reasonably likely have
been different absent the errors.

Strickland, 466 U.S. at 695-96.

¶20 An ineffective assistance of counsel claim “involves the application
of constitutional principles to historical facts.” Arrington, 402 Wis. 2d 675, ¶33
(citation omitted). “We uphold the circuit court’s findings of historical or
evidentiary fact unless they are clearly erroneous. We then independently review
the application of constitutional principles to the facts found.” Id. (citation
omitted).

I. Failure to object to impermissible vouching testimony

¶21 According to Molde, his trial counsel provided ineffective assistance
by failing to object to Dr. Swenson’s answers to Juror No. 47’s questions. We
agree, specifically with respect to counsel’s failure to object to Swenson’s answer
that child sexual assault “[f]alse disclosures are extraordinarily rare, like in the one
percent of all disclosures are false disclosures.”7

A. The law was clear that Dr. Swenson’s answer to the juror’s first question
constituted impermissible vouching testimony.

¶22 “[T]he jury is the lie detector in the courtroom.” Haseltine, 120
Wis. 2d at 96 (alteration in original; citation omitted). “No witness, expert or

7
Because we conclude that Molde’s trial counsel provided ineffective assistance by
failing to object to Dr. Swenson’s answer to the juror’s first question, we need not determine
whether his trial counsel provided ineffective assistance by failing to request a mistrial once
Swenson provided her answers to the juror’s questions.

10
No. 2021AP1346-CR

otherwise, should be permitted to give an opinion that another mentally and
physically competent witness is telling the truth.” Id.

Often called the “Haseltine rule,” this principle is rooted in
the rules of evidence that say “expert testimony must ‘assist
the trier of fact to understand the evidence or to determine a
fact in issue.’” “Expert testimony does not assist the
fact-finder if it conveys to the jury the expert’s own beliefs
as to the veracity of another witness.”

State v. Maday, 2017 WI 28, ¶34, 374 Wis. 2d 164, 892 N.W.2d 611 (citations
omitted). “The question of whether a witness has improperly testified as to the
credibility of another witness is a question of law which we review
independently.” State v. Tutlewski, 231 Wis. 2d 379, 386, 605 N.W.2d 561 (Ct.
App. 1999) (citation omitted).

¶23 In Haseltine, a defendant was charged with sexual contact based on
allegations that he had “fondl[ed] his daughter’s breasts.” Haseltine, 120 Wis. 2d
at 94-95. During a jury trial, the State called a psychiatrist who testified as an
expert to the “pattern of behavior exhibited by incest victims” before stating that
there “was no doubt whatsoever” that the defendant’s daughter was an incest
victim. Id. at 95-96. On appeal, this court concluded that the circuit court’s
decision to admit the psychiatrist’s testimony regarding the truthfulness of the
victim’s accusations was erroneous. Id. at 96. We held that the psychiatrist’s
testimony that the defendant’s daughter “was an incest victim is an opinion that
she was telling the truth.” Id.

¶24 In Morales-Pedrosa, a decision released in 2016, the defendant was
accused of sexually assaulting a child when the child was between the ages of
thirteen and fifteen. See Morales-Pedrosa, 369 Wis. 2d 75, ¶2. During the trial,
the State called a forensic interviewer as an expert witness. Id., ¶12. The expert

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No. 2021AP1346-CR

was not the individual who performed the forensic interview of the victim, and the
expert had never met the victim. Id., ¶23. On redirect examination, the State
asked the expert, “[I]n your training and experience when you’re eliminating the
alternative hypotheses, is it commonly understood that approximately 90 percent
of reported cases are true?” Id., ¶19 (alteration in original). The expert stated,
“Correct.” Id. Following a guilty verdict, the defendant argued that his trial
counsel was ineffective by failing to object to the State’s question regarding the
truthfulness of accusers. Id., ¶14.

¶25 On appeal, we analyzed Haseltine and other case law to determine
that “Wisconsin law was not clear at the time of [the defendant’s] trial (and
remains unclear) on the question of whether general statistical testimony alone
might constitute impermissible vouching.” Morales-Pedrosa, 369 Wis. 2d 75,
¶26. We differentiated Haseltine in several ways. First, the forensic interviewer
never met with the victim and, thus, “there was no risk the jury believed [the
forensic interviewer] was providing a personal or particularized opinion” as to the
victim’s credibility. Morales-Pedrosa, 369 Wis. 2d 75, ¶23. Further, the forensic
interviewer “never suggested [the victim] was like the generalized ninety percent
nor connected the statistic to her report of abuse or the likelihood she was telling
the truth.” Id., ¶25.

¶26 Finally, the forensic interviewer’s “generalized confirmation” that
90 percent of reported cases are true “did not constitute a statistical ‘opinion’ that
was functionally equivalent to her testifying [that the victim] was being truthful
with her accusations in this case.” Id., ¶23. “[G]eneral testimony that ‘90 percent’
of children claiming to have been abused are telling the truth would have less
impact on a fact finder and be less obviously objectionable than testimony that
‘99.5%,’ ‘98%,’ or even ‘92-98%’ are telling the truth.” Id., ¶25. However, we

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No. 2021AP1346-CR

explicitly left open the question “for another day … what type of statistical
testimony might effectively constitute improper vouching.” Id., ¶25.

¶27 That question was answered in Mader. In that case, the defendant
was charged with one count of repeated sexual assault of the same child.8 Mader,
408 Wis. 2d 632, ¶1. At trial, the State’s first witness was a retired therapist who
had spent “more than thirty years treating victims of sexual abuse,” although she
did not provide therapy to the victim in that case. Id., ¶5. We summarized the
remainder of her testimony as follows:

[The therapist] agreed with the State’s characterization of
her as “a pretty good gauge” of the trustworthiness of
persons who report sexual assault, having provided therapy
to “well over” five hundred victims in her career. She
testified that she had experienced only four instances of
false reporting in over three decades of working with
victims and told the jury about “research on false
reporting” indicating that only three to eight percent of
reports are false.

Id., ¶33. The therapist also described false reporting as “very uncommon.” Id.,
¶6. Similarly, a law enforcement investigator who interviewed the victim testified
that “‘[o]ut of about 150’ reports he had investigated, only one ‘was a false
report.’” Id., ¶7 (alteration in original). Defense counsel did not object to any of
this testimony, and the jury later found the defendant guilty of repeated sexual
assault of the same child. Id., ¶¶23, 32.

8
Molde submitted State v. Mader, 2023 WI App 35, 408 Wis. 2d 632, 993 N.W.2d 761,
review denied (WI Sept. 26, 2023) (No. 2022AP382-CR), to this court as supplemental authority.
See WIS. STAT. RULE 809.19(10). The State did not respond to his submission.
See RULE 809.19(11).

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No. 2021AP1346-CR

¶28 We concluded that the law on vouching testimony was clear enough
at the time of the trial such that the defendant’s counsel performed deficiently by
failing to object to the therapist’s and the investigator’s testimony. Id., ¶¶35-38.
We explained, “The testimony of [the therapist] and [the investigator] bears both
of the hallmarks we flagged in Morales-Pedrosa as likely to turn statistical
testimony about the prevalence of false reports of sexual assault into improper
vouching.” Mader, 408 Wis. 2d 632, ¶38. Although the therapist had not met
with or counseled the victim, the investigator testified that he had interviewed the
victim multiple times throughout the course of his investigation. Id. The
investigator then provided a “detailed account of his interactions” with the victim.
Id. Thus, when he provided his answer that he had only ever investigated one
false report in roughly 150 investigations, “it would be clear to a jury that he did
not count [the victim’s report] as a false report. His testimony would inevitably be
seen by the jury as ‘a personal or particularized’ endorsement of [the victim’s]
credibility.” Id. (citing Morales-Pedrosa, 369 Wis. 2d 75, ¶23).

¶29 Moreover, the “extreme rarity of false reports to which
[the therapist] and [the investigator] attested also weigh[ed] in favor of finding a
Haseltine violation.” Mader, 408 Wis. 2d 632, ¶39. Particularly, the therapist
“essentially told the jury that 99.2% of the victims she had worked with had
truthfully reported,” and the investigator essentially told the jury that 99.3% of
reports are truthful. Id. “[T]hese percentages ‘provided a mathematical statement
approaching certainty’ that false reporting simply does not occur.” Id. (citing
Morales-Pedrosa, 369 Wis. 2d 75, ¶25). Based on the analysis provided in
Morales-Pedrosa, we concluded that a “reasonably competent lawyer in [defense

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No. 2021AP1346-CR

counsel’s] shoes should have known enough to object to this testimony. His
failure to do so was deficient performance.”9 Mader, 408 Wis. 2d 632, ¶40.

¶30 Doctor Swenson’s answer that child sexual assault “[f]alse
disclosures are extraordinarily rare, like in the one percent of all disclosures are
false disclosures,” falls squarely within the meaning of impermissible vouching
testimony articulated in Morales-Pedrosa and Mader. While Swenson did not
personally interview Lauren, she supervised, in real time, Lauren’s interview as
the nurse practitioner’s supervising physician at the children’s advocacy center, as
well as Lauren’s physical examination, and she testified to these facts at trial.10

¶31 Given Dr. Swenson’s testimony that she supervised Lauren’s sexual
assault evaluation, her answer to the juror’s question regarding a child’s
propensity to tell the truth when reporting a sexual assault “would inevitably be
seen by the jury as ‘a personal or particularized’ endorsement of [Lauren’s]
credibility.” See Mader, 408 Wis. 2d 632, ¶38 (citing Morales-Pedrosa, 369
Wis. 2d 75, ¶23). Swenson effectively testified that 99 percent of all child sexual
assault reports are true. This statistical opinion is far higher than that present in
Morales-Pedrosa (90 percent) and falls into the realm of testimony warned about
in that case. See Morales-Pedrosa, 369 Wis. 2d 75, ¶25 (stating it would be more

9
In Mader, we relied on State v. Morales-Pedrosa, 2016 WI App 38, 369 Wis. 2d 75,
879 N.W.2d 772, to conclude that the vouching testimony standard was clearly established at the
time of the defendant’s jury trial. Mader, 408 Wis. 2d 632, ¶38. Accordingly, Mader’s holding
regarding ineffective assistance of counsel applies to cases taking place after Morales-Pedrosa
was decided. Molde’s trial occurred in 2019, roughly three years after the Morales-Pedrosa
decision. Accordingly, the holdings in Morales-Pedrosa and Mader apply to the facts of this
case.
10
Doctor Swenson also testified that she reviewed the audiovisual recording of the
forensic interview prior to her testimony at trial.

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No. 2021AP1346-CR

clearly objectionable if there was “testimony that ‘99.5%,’ ‘98%,’ or even
‘92-98%’ are telling the truth”); Mader, 408 Wis. 2d 632, ¶37. A 99 percent
statistic “‘provided a mathematical statement approaching certainty’ that false
reporting simply does not occur.” See Mader, 408 Wis. 2d 632, ¶39 (citing
Morales-Pedrosa, 369 Wis. 2d 75, ¶25).

¶32 Moreover, Molde’s trial counsel testified at the Machner hearing
that she did not have a strategic reason for failing to object to Dr. Swenson’s
answers. Contrary to the circuit court’s reasoning, the fact that Molde’s trial
counsel cross-examined Swenson about the basis for her testimony does not alter
our conclusion because, without a reasonable trial strategy to the contrary, “[a]
reasonably competent lawyer in [Molde’s trial counsel]’s shoes should have
known enough to object to this testimony. [Her] failure to do so was deficient
performance.” See Mader, 408 Wis. 2d 632, ¶40.

B. Trial counsel’s failure to object to Dr. Swenson’s answer was prejudicial.

¶33 We must now consider whether Molde was prejudiced by his trial
counsel’s failure to object to Dr. Swenson’s testimony that only one percent of all
child sexual assault disclosures are false disclosures.11 In doing so, we “must
consider the totality of the evidence before the … jury.” See Maday, 374 Wis. 2d
164, ¶58 (citation omitted).

¶34 The State argues that Molde cannot demonstrate prejudice because
the evidence presented at trial weighed heavily in favor of Molde’s guilt. For

11
In light of our holding in Mader, we ordered, and the parties provided, supplemental
briefing to address whether Molde’s trial counsel’s failure to object to Dr. Swenson’s answer to
the juror’s first question resulted in prejudice.

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No. 2021AP1346-CR

example, the State contends that Lauren’s story was consistent and detailed, that
her credibility was buttressed by the fact that she engaged in self-harming
behavior, and that she sent her sister, Amanda, a message on her cell phone
detailing the sexual assault roughly one week prior to her suicide attempt.
Conversely, Molde asserts that the trial was one “in which the evidence for and
against guilt was nearly in equipoise” and “in which external endorsements of
credibility … carr[ied] significant weight.” See Mader, 408 Wis. 2d 632, ¶86.

¶35 Our analysis in Mader is instructive on whether Molde’s defense
was prejudiced by his trial counsel’s deficient performance as discussed above. In
Mader, we concluded that trial counsel’s failure to object to the therapist’s and the
investigator’s testimony about the truthfulness of accusers, although deficient, was
not prejudicial because “the evidence presented at trial weighed significantly in
the State’s favor.” Id., ¶¶82, 86.

¶36 The sexual assault victim in Mader “provided detailed accounts of
numerous sexual assaults that occurred over a multi-year period.” Id., ¶82. For
example, the victim “described a reddish birthmark on [the defendant]’s penis that
could only be seen when his penis was erect” (which was corroborated by law
enforcement photographs); “described an evolving course of increasingly sexual
conduct”; “acknowledged enjoying [the sexual] encounters initially and having
fun ‘work[ing] to not get caught’”; and “included dates, locations, [and]
significant contemporaneous events (such as the births of her half sisters).” Id.,
¶82 (third alteration in original).

¶37 Significant details of the victim’s accusations were also corroborated
by other witnesses and evidence at the trial. Id., ¶83. For example, one witness
“testified that [the victim] disclosed [to him] a sexual relationship with

17
No. 2021AP1346-CR

[the defendant] years before she reported the assaults to the police.” Id. Likewise,
the victim’s mother testified that she once discovered the defendant “with his
hands underneath the covers of [the victim]’s bed,” which matched one of the
victim’s stories that the defendant was touching her sexually under her covers on
one occasion when her mother walked into her bedroom. Id., ¶¶10, 15, 83. The
victim’s mother also testified that she found a homemade sex toy attached to the
defendant’s underwear, which matched one of the victim’s other stories that the
defendant used the sex toy during one sexual assault. Id., ¶¶10, 15. We also noted
that the defendant did not present “a compelling alibi or other defense,” aside from
his accusation that the victim’s mother “‘put [the victim] up to’ concocting the
assault allegations.” Id., ¶¶84, 86.

¶38 While this is a close case regarding prejudice, we conclude that
Molde’s trial counsel’s failure to object to the impermissible vouching testimony
undermines our confidence in the outcome of the trial. See Sholar, 381 Wis. 2d
560, ¶33. To begin, Dr. Swenson’s vouching testimony was a direct response to a
juror’s question. Juror No. 47 specifically asked for, and received, an answer
regarding the credibility of sexual abuse victims from an expert witness directly
involved in treating Lauren. This same juror later submitted another question,
which the circuit court declined to present, asking whether a different witness
believed that Lauren was “telling the truth about these stories of [Molde]
assaulting” her. Importantly, Juror No. 47 served on the final twelve-person jury
that convicted Molde of the crimes charged.

¶39 Furthermore, the State twice highlighted the impermissible vouching
testimony during its closing arguments. During its initial closing argument, the
State said, “And you also need to take into consideration Dr. Swenson’s testimony
that false disclosures are extraordinarily rare. They’re in the one percent of cases

18
No. 2021AP1346-CR

that she’s seen.” In its rebuttal closing argument, the State again argued, “And
would [Lauren] have kept this consistent disclosure for two years if this was a
false report? And, keep in mind, false reports only occur one percent of the time,
according to Swenson.” Therefore, the State essentially argued to the jury that
Lauren could not be lying about what occurred because Swenson testified that 99
percent of all child sexual assault reports are true.

¶40 Lastly, contrary to the State’s assertion on appeal, the evidence
presented at trial by the State was not as strong as that in Mader, and given the
trial record, there is a reasonable probability that the jury would not have
convicted Molde absent the impermissible vouching testimony. “[Molde]’s
conviction depended on the jury believing [Lauren]’s testimony.” See Haseltine,
120 Wis. 2d at 96. The sexual assault allegation was not independently
corroborated by other evidence; there was no physical evidence; there was only
one sexual assault that occurred during a one-year period roughly four to five
years prior to Lauren’s accusation; and some aspects of Lauren’s story changed
over time.12 See State v. Krueger, 2008 WI App 162, ¶18, 314 Wis. 2d 605, 762
N.W.2d 114 (“Significant to our determination of performance and prejudice is the
fact that [the victim’s] account of the sexual assault was not corroborated by
independent evidence and, as such, the issue at trial was one of credibility.”).

¶41 As to this last point, Lauren’s version of events changed in some
respects from her forensic interview to her trial testimony. For example, Lauren
testified that Molde told her after the sexual assault that what had occurred “was

12
Our analysis and conclusion should not be interpreted as indicating any subjective
belief as to the truthfulness of Lauren’s accusation.

19
No. 2021AP1346-CR

our little secret.” This fact was not provided in the forensic interview. Further,
Lauren stated in her forensic interview that she had a conversation with Whitney
directly after the sexual assault; however, at trial Lauren testified that she did not
speak to Whitney until the next day. Also, Lauren stated in her forensic interview
that Molde took off his clothing after she entered the bedroom, whereas at trial
Lauren stated that she thought he was already unclothed when she entered. While
these discrepancies could simply be a product of the harrowing nature of the
alleged event—and the time that had passed between the assault and the trial—
they still weigh in the defense’s favor in a prejudice analysis.

¶42 Significantly, several defense witnesses—including witnesses who
were allegedly at the house during the assault—testified that no such assault
occurred and provided evidence negatively affecting Lauren’s credibility. For
example, Whitney testified that Molde never instructed her to get Lauren; that she
never stood in the bedroom doorway while Lauren was inside Molde’s bedroom;
and that she never told Lauren that she wanted to “be a big girl for daddy.”
Similarly, Whitney was interviewed by Dunn County Human Services following
Lauren’s suicide attempt and stated that she did not recall an incident like the one
alleged by Lauren ever occurring.13

13
The State does not argue that Whitney’s testimony regarding a dream she had
corroborated Lauren’s accusation. Specifically, Whitney testified that she had a dream in which
Molde “came downstairs and woke [Lauren] up and brought her back upstairs” and sexually
assaulted her. According to Whitney, she asked Lauren about the dream, and Lauren responded
“that it was just a nightmare.” Because Whitney did not mention the dream during her interview
with Dunn County Human Services, because the dream differed in some respects from Lauren’s
account (e.g., in the dream, Molde came downstairs to get Lauren), and because Whitney denied
the incident ever actually occurred, we agree that Whitney’s testimony could have either
bolstered or harmed Lauren’s credibility and it should not be weighed strongly in favor of the
State’s case.

(continued)

20
No. 2021AP1346-CR

¶43 Additionally, Stephanie testified that she did not notice any
behavioral changes in Lauren or Whitney after Stephanie arrived back at the
family’s home in Colfax, Wisconsin. Stephanie also noted that Lauren did not
appear to be in any form of physical pain. According to Stephanie, given Lauren’s
age, she would have expected Lauren to tell her if she was in pain. Stephanie
testified that she only left the house in Colfax overnight on one occasion.14 In
particular, she testified that she left for two consecutive nights in July 2011
because she was recreationally consuming alcohol at that time, and Molde had
recently left an alcohol treatment facility and was maintaining his sobriety. This
story was corroborated by Heath, one of Lauren’s older brothers, who testified that
his mother left for two days in the “summertime” around the period in question
and that Molde was sober during that period. This evidence contradicted Lauren’s
testimony that she smelled alcohol on Molde’s breath at the time of the alleged
assault.

¶44 In addition, Heath testified that during the summer months, all of the
children would sleep in the living room area of the basement at the Colfax house,
not in separate rooms as Lauren alleged. He testified that he did not remember a
time when Molde came downstairs and took Lauren back to his bedroom, or a

Further, the State does not contend that a note located by Trevor, one of Lauren’s older
brothers, corroborated the sexual assault. Trevor testified that he found the note, written by
Lauren, which said “something like,” “these scars are for you.” We again agree with the State’s
omission. In particular, it was never established to whom the note was directed, where the note
was found, when it was written, or even when it was found.
14
Stephanie’s testimony that she only left the house overnight on one occasion was
disputed. In particular, law enforcement asked Molde during an interview whether there were
“times when you were living in Colfax that you and your wife would get in a fight and she would
leave for a night or two.” Molde stated, “Yeah,” and said that he would “kick her out of the
house.” Also, a social worker with Dunn County Human Services testified that Stephanie told
her that she had left the Colfax home more than once in 2011.

21
No. 2021AP1346-CR

time when Lauren and Whitney left the living room area together at night. He also
stated that he was up most of the nights Stephanie was gone because he was
“worrie[d] about [his] mother.”

¶45 One of Lauren’s cousins also testified at the trial. She stated that
Lauren told her about the sexual assault “three or four” times and that each time
Lauren changed her story significantly. For example, Lauren once told her that
the assault occurred at a residence in Bloomer, Wisconsin, and told her on another
occasion that the assault occurred at a residence near Wheeler, Wisconsin.

¶46 The State argues that Molde cannot show prejudice because he did
not present a theory as to why Lauren would fabricate a sexual assault allegation
against him. We disagree. In Mader, we stated that the trial in that case was not
one “in which external endorsements of credibility might carry significant weight,
as, for example, where a victim offers a vague or conclusory account of sexual
assault or the defendant presents a compelling alibi or other defense.” Mader, 408
Wis. 2d 632, ¶86. The defense in Mader was essentially that the mother
fabricated the sexual assault. However, that theory failed to account for both the
victim’s testimony and the other evidence corroborating that testimony.

¶47 Here, Molde’s defense was that he did not sexually assault Lauren,
and his theory was bolstered by evidence at the trial. Molde’s trial counsel
introduced a portion of a law enforcement interview of Molde that occurred
shortly after Lauren’s suicide attempt. During the interview, he repeatedly and
vehemently denied Lauren’s accusations. Moreover, Molde maintained his

22
No. 2021AP1346-CR

innocence throughout the circuit court proceedings, including at trial.15 During
closing arguments, Molde’s trial counsel cited the inconsistencies in Lauren’s
accusations as well as the testimony that contradicted her story.

¶48 In all, the weight of the State’s evidence at trial was significantly
weaker than that in Mader. Under these circumstances, Molde’s theory of defense
adequately challenged the State’s case for purposes of the prejudice analysis.
See State v. Stroik, 2022 WI App 11, ¶65, 401 Wis. 2d 150, 972 N.W.2d 640
(concluding that a defendant’s trial counsel performed deficiently at a jury trial
and that the deficiency prejudiced the defense because, among other things,
“[t]here was no physical evidence or witnesses to the alleged assault, and [the
defendant] consistently denied the allegations”).

¶49 Furthermore, contrary to the State’s assertion, Molde did offer a
theory as to why Lauren would falsely accuse him. In particular, Molde suggested
that Lauren falsely accused him to gain sympathy and status from her peers. This
theory was supported by Stephanie’s testimony that Lauren engaged in
self-harming activities to gain attention, which was apparently evidenced by
Lauren’s diary entries stating that she was “now cutting herself because
[a classmate] was getting a lot of attention for it.”

¶50 Molde also suggested that Lauren falsely accused him because she
was unhappy with her parents and her living situation. This theory was supported
by Stephanie’s testimony that she and Molde scolded Lauren after discovering

15
The State argues on appeal that Molde’s statement to law enforcement that his children
were “brutally honest,” which was admitted at trial, undermined Molde’s theory of defense.
While Molde’s statement was certainly a fact for the jury to consider, it is not a piece of evidence
that completely undermined Molde’s theory of defense.

23
No. 2021AP1346-CR

Lauren’s self-harming behavior, which caused Lauren to become upset. In fact,
Lauren cited this incident in her suicide note to Molde, stating, “Ya know, pushing
me up against a tree and screaming [in] my face when you found out I had first
started cutting, wasn’t the best way to go about it.” Additionally, another one of
Lauren’s cousins testified that Lauren wanted to run away because she was mad at
her parents. Molde’s theory also matched evidence at trial that Lauren was upset
with her parents about having to live with her grandparents after the family moved
to their grandparents’ home when their previous home was destroyed in a fire.

¶51 The State also asserts that “the effect of any error in admission of the
[improper vouching testimony] was blunted by the jury being properly instructed
that it was not bound by such testimony.” “Jurors are presumed to have followed
jury instructions.” State v. LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750
N.W.2d 780. Like in Mader, the circuit court instructed the jury that it was “the
sole judge[] of credibility, that is the believability of the witnesses and the weight
to be given to their testimony.” See WIS JI—CRIMINAL 300 (2000). The court
also instructed the jury that it was “not bound by any expert’s opinion.” See WIS
JI—CRIMINAL 200 (2012). Even assuming that these instructions addressed
Dr. Swenson’s impermissible vouching testimony,16 we conclude that the

16
Of note, the circuit court did not instruct the jury that it could not rely on expert
testimony. The court stated only that the jury was not bound by such testimony. See WIS JI—
CRIMINAL 200 (2012). Similarly, while the court informed the jury that it was the sole judge of
witness credibility, it also stated that “[i]n determining the credibility of each witness and the
weight you give the testimony of each witness,” the jury could consider “all other facts and
circumstances during the trial which tend to support or discredit the testimony.” Nothing in either
of these instructions informed the jury that it could not consider Dr. Swenson’s impermissible
vouching testimony when determining whether it believed Lauren’s statements that Molde
sexually assaulted her.

24
No. 2021AP1346-CR

presumption that the jury followed these instructions has been rebutted, given the
foregoing discussion.

¶52 In all, this was “a case in which external endorsements of
credibility … carr[ied] significant weight.” See Mader, 408 Wis. 2d 632, ¶86.
Had Molde’s trial counsel objected to Dr. Swenson’s testimony that 99 percent of
all child sexual assault reports are true, there is a reasonable probability that the
result of the trial would have been different. Accordingly, we reverse the
judgment of conviction and the circuit court’s order denying Molde’s
postconviction motion on this issue, and we remand for a new trial.

II. Failure to elicit witness testimony pursuant to WIS. STAT. § 906.08(1)

¶53 Molde also contends that his trial counsel was constitutionally
ineffective by failing to seek the admission of evidence regarding Lauren’s
dishonesty pursuant to WIS. STAT. § 906.08(1). According to Molde, several
witnesses “had personal knowledge of [Lauren]’s untruthful character and were
available and willing to testify to that fact.” We conclude that Molde failed to
demonstrate that his trial counsel performed deficiently because the manner in
which Molde’s trial counsel attacked Lauren’s credibility using other witnesses
was constitutionally sufficient.

¶54 As is pertinent here, WIS. STAT. § 906.08(1) provides that “the
credibility of a witness may be attacked or supported by evidence in the form of
reputation or opinion,” but “[t]he evidence may refer only to character for
truthfulness or untruthfulness.” Molde’s trial counsel did not ask any witnesses—
including Stephanie, Heath, Whitney, Trevor, and two of Lauren’s cousins—
whether Lauren had a character for untruthfulness. At the Machner hearing,
Molde’s trial counsel testified that it was not a strategic decision for her not to

25
No. 2021AP1346-CR

elicit evidence of Lauren’s character for untruthfulness pursuant to § 906.08(1)
and that doing so would have been helpful to the defense’s theory.

¶55 As was described in detail in the previous section, however, each of
these witnesses provided evidence corroborating Molde’s defense. See supra
¶¶42-45. We agree with the State that after the testimony of those witnesses, “it
would have been patently clear to the jury that [Lauren]’s family members … did
not believe [her] allegations against Molde.”

¶56 While Molde’s trial counsel could have attacked Lauren’s credibility
pursuant to WIS. STAT. § 906.08(1), counsel adequately challenged Lauren in
other ways and introduced evidence that diminished Lauren’s credibility through
indirect means. See State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665
N.W.2d 305 (“Counsel need not be perfect, indeed not even very good, to be
constitutionally adequate.” (citation omitted)). In some trials, it may be more
advantageous to indirectly attack a victim’s character for truthfulness rather than
directly, and here, Molde’s trial counsel chose to indirectly attack Lauren’s
credibility. Trial counsel’s admission that, in hindsight, a direct approach would
have been beneficial to the defense does not alter our analysis or our conclusion
that her performance was not constitutionally deficient. See id. (stating that courts
must avoid the “distorting effects of hindsight” when assessing an attorney’s
performance).

III. Withdrawing an objection to a prior conviction

¶57 Lastly, Molde argues that his trial counsel was constitutionally
ineffective by withdrawing an objection to evidence of Molde’s prior acts.
Specifically, prior to trial, the circuit court ruled that any reference to Molde’s
2012 incarceration for an OWI conviction would be prohibited. On the first day of

26
No. 2021AP1346-CR

the trial, Molde’s trial counsel stated that the “defense is withdrawing our
objection that [Lauren] could not say that her father went to jail” in an attempt to
demonstrate that the sexual assault did not occur as the State suggested.
According to Molde, his trial counsel should have investigated or considered other
possible methods for attacking Lauren’s credibility. Molde suggests that one
strategy would have simply been to agree that Molde was “out of the home” after
January 20, 2012.

¶58 At trial, Lauren testified that she remembered Molde “going to jail
for a period of time in 2012” and that the sexual assault occurred sometime before
he left to begin serving that sentence. A law enforcement officer testified at trial
that Molde was in jail for the OWI offense from January 20, 2012, to July 2012.

¶59 Molde’s trial counsel testified at the Machner hearing that the
purpose of bringing in the OWI conviction and subsequent jail sentence into
evidence was to demonstrate that the alleged sexual assault did not occur because
Lauren stated the assault

occurred at a time when her mom packed her bags and left
the house and before her dad went to jail—when he was
still drinking. And the only time that [Stephanie] packed
her bags and left the house was after [Molde] had served a
jail sentence[17] and when he was sober.

Trial counsel admitted, however, that using the conviction and jail sentence was a
“mistake” and that “[t]here could have been a better solution.” Despite counsel’s

17
We note that Stephanie testified that Molde went into treatment in July 2011 and that
is when she left for two nights. Because Molde did not begin his jail sentence until January 2012,
we interpret as incorrect trial counsel’s reference to Stephanie leaving for two nights after Molde
served his jail sentence.

27
No. 2021AP1346-CR

admission, the circuit court concluded that her trial strategy to discredit Lauren
was reasonable and that Molde therefore failed to establish deficient performance.

¶60 We likewise conclude that trial counsel’s strategy was reasonable.
Trial “[c]ounsel’s decisions in choosing a trial strategy are to be given great
deference.” State v. Breitzman, 2017 WI 100, ¶38, 378 Wis. 2d 431, 904 N.W.2d
93 (alteration in original; citation omitted). We “will not second-guess a
reasonable trial strategy, [unless] it was based on an irrational trial tactic or based
upon caprice rather than upon judgment.” Id., ¶65 (alteration in original; citation
omitted). “[W]here a lower court determines that counsel had a reasonable trial
strategy, the strategy ‘is virtually unassailable in an ineffective assistance of
counsel analysis.’” Id. (citation omitted).

¶61 The jail sentence benefited the defense in two respects. First, it
established a definitive end date for the sexual assault timeline—January 20, 2012.
After that date, there can be no question that Molde was in jail and never lived in
the Colfax house again. Unlike informing the jury that Molde had simply left the
home or was “out of the home,” the definitive jail sentence left the jury without a
doubt as to Molde’s location and reason for leaving the Colfax home.

¶62 Second, and relatedly, the jail sentence established that Molde had a
problem with alcohol—a fact already known to the jury through other evidence—
but that he was trying to maintain his sobriety during the period in question. The
fact that his excessive alcohol use resulted in legal trouble lends credence to
Stephanie’s testimony that she left for two nights following Molde’s return from
alcohol treatment. It also contradicted Lauren’s testimony that she smelled
alcohol on Molde’s breath during the sexual assault. In other words, Molde’s trial
counsel’s decision to withdraw the objection was a strategic one—by bringing in

28
No. 2021AP1346-CR

the OWI conviction, counsel was able to attack Lauren’s credibility and shrink the
State’s timeline of events.

¶63 In addition, Molde’s misdemeanor OWI conviction paled in
comparison to, and shared no common elements with, the charges of first-degree
sexual assault of a child who had not attained the age of twelve years and incest
with a child that Molde faced. Therefore, there was little risk that the jury would
convict Molde of the crimes charged simply because he was convicted of an OWI
charge. Cf. State v. Alexander, 214 Wis. 2d 628, 642-43, 571 N.W.2d 662 (1997)
(“[W]here the prior offense is similar or of the same nature or character as the
charged crime, the risk of unfair prejudice is particularly great.”). In short,
although there were other ways to attack Lauren’s credibility as evidenced at the
Machner hearing, the strategy invoked by Molde’s trial counsel was reasonable.

By the Court.—Judgment and order reversed and cause remanded
for further proceedings.

Not recommended for publication in the official reports.

29