State v. Jason Paul Holl

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.
October 22, 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. 2022AP2181-CR Cir. Ct. No. 2016CF1133

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JASON PAUL HOLL,

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. Jason Holl appeals from a judgment convicting him
of second-degree sexual assault of a child and from a postconviction order denying
No. 2022AP2181-CR

his motion for a new trial.1 Holl contends that: (1) the prosecutor’s
“condescending” question on Holl’s cross-examination and so-called “golden rule”
remarks and other comments made during closing argument were done to elicit
sympathy from the jury, which violated Holl’s due process rights; and (2) Holl’s
trial counsel’s failure to object to the remarks constituted ineffective assistance of
counsel. We reject both arguments and affirm.

BACKGROUND

¶2 The victim in this matter was Holl’s then-thirteen-year-old
stepdaughter, Anne.2 Anne testified that she awoke one morning to find Holl sitting
on her bed, rubbing his hand up and down her back outside of her shirt. While using
his other hand to hold Anne’s hand against her pillow, Holl proceeded to move his
hand under Anne’s shirt and to rub her back and stomach. Eventually, Holl worked
his way to touching and squeezing Anne’s left breast and her buttocks. While he
was touching Anne, Holl leaned over and whispered in her ear that he loved her.
Anne said that the entire incident lasted about ten minutes and that she lay with her
eyes closed most of the time, because she was afraid. That same day, Anne told a
friend and her grandmother what had happened, but she did not tell her mother right
away because she did not want to ruin her mother’s relationship with Holl. Anne
reported the incident to police eleven days after it happened.

1
Holl also filed a second motion seeking a new trial on the basis of newly discovered
evidence. Notwithstanding that motion being mentioned in Holl’s notice of appeal, Holl presents
no argument on the matter, and it is not at issue on appeal.
2
This matter involves the victim of a crime. Pursuant to WIS. STAT. RULE 809.86(4)
(2021-22), we use a pseudonym instead of the victim’s name. All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.

2
No. 2022AP2181-CR

¶3 Holl took the stand in his own defense. Holl acknowledged giving
Anne a back rub over her shirt, touching her skin under her shirt at one point (which
he claimed was accidental), patting her buttocks to “motivate” her to get up, and
whispering that he loved her as he gave her a hug and kissed her on the temple. Holl
denied ever having touched Anne’s breast or having any sexual intent, asserting that
he just gave her a back rub because he was trying to improve his relationship with
Anne, as he occasionally had discipline problems with her.

¶4 Holl testified during his direct examination that verbal fights with
Anne “over basically nothing” sometimes would leave him frustrated “almost to the
point of crying.” On cross-examination, the prosecutor asked Holl, “Is there
something wrong with you emotionally or something?” Trial counsel did not object
to the question, and Holl answered that he was an emotional person.

¶5 During closing argument, the prosecutor made the following remarks:

[1] Can you imagine if you were 13 and this was happening
to you by a biological parent or step-parent, doesn’t matter
alright.… You’re … you’re a little kid.

[2] Do you remember what it’s like when you were a
teenager and how it’s an awkward time. Now you’ve got
your step-dad giving you a massage.

[3] [C]an you imagine if your dad or mom or somebody you
love or grandma touching you like this when you’re a kid?

[4] Isn’t that sad? [Anne] [d]oesn’t even want to tell her
mom because … she knew how much her mom loved this
guy.

[5] It’s sad, as I said a moment ago, that [Anne’s] main
concern when she was sexually assaulted was if I have to tell
my mom this is going to be bad. She had to bear that burden,
okay.

[6] Ten minutes, when you think about that, if you look at a
clock and you think about for 10 minutes or even 5, can you

3
No. 2022AP2181-CR

imagine 10 minutes of having this happen, touching all over
her.

Trial counsel did not object to any of these remarks.

¶6 Following his conviction, Holl moved for a new trial on the grounds
that the prosecutor’s “something wrong with you” question and comments during
closing argument violated Holl’s due process rights and that Holl’s trial counsel
provided ineffective assistance by failing to object. At the postconviction hearing,
trial counsel testified that he did not object during the prosecutor’s closing argument
because “there’s a lot of latitude for both sides to give a closing argument,” and
counsel “didn’t think there was necessarily an issue with what [the prosecutor] was
saying” because he did not view the statements as “blatant” violations. In addition,
trial counsel thought it might have been a “red herring” to object to the statements
because the defense’s position was that the incident did not happen the way Anne
testified anyway. Trial counsel stated that he did not object to the question on
cross-examination because he thought it made the prosecutor appear combative and
aggressive and because Holl answered appropriately.

¶7 The circuit court denied Holl’s motion for a new trial. The court
observed that it was a reasonable strategy for Holl’s trial counsel to refrain from
raising what he viewed as “red herring” objections that could take the jury’s focus
off of the defense strategy of challenging Anne’s interpretation of the incident,
including that Holl did anything of a sexual nature. The court further concluded
that even if some of the prosecutor’s comments could be categorized as “golden
rule” statements, the prosecutor’s question and comments were not “overly”
emotional and did not rise to the level of due process violations, given the context
of the whole trial.

4
No. 2022AP2181-CR

¶8 Holl now appeals, again asserting that the prosecutor’s question and
comments violated Holl’s due process rights and that his counsel’s failure to object
to the question and comments constituted ineffective assistance of counsel. As Holl
conceded before the circuit court, however, he forfeited the right to direct review of
his due process claims by failing to raise contemporaneous objections to the
prosecutor’s question and comments. Moreover, Hall does not raise the due process
claims within the plain error framework. We will therefore review Holl’s due
process arguments on appeal only within the framework of alleged ineffective
assistance of counsel.

DISCUSSION

¶9 To establish a claim of ineffective assistance of counsel, a defendant
must prove two elements: (1) deficient performance by counsel; and (2) prejudice
resulting from that deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. We will not set aside the circuit court’s factual
findings about what actions counsel took or the reasons for them unless they are
clearly erroneous. See State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358, 805
N.W.2d 334. However, whether counsel’s conduct violated the constitutional
standard for effective assistance is ultimately a legal determination that this court
decides de novo. Id. We need not address both elements of the test if the defendant
fails to make a sufficient showing on one of them. State v. Swinson, 2003 WI App
45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12. In order to demonstrate deficient
performance, a defendant must overcome a presumption that his or her counsel’s
actions fell within a wide range of reasonable professional assistance. Strickland v.
Washington, 466 U.S. 668, 689 (1984). Moreover, reasonable strategic choices
made by counsel are virtually unchallengeable on appeal. Strickland, 466 U.S. at
690.

5
No. 2022AP2181-CR

¶10 The ultimate question is “whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Harrington v. Richter, 562
U.S. 86, 105 (2011) (citation omitted). In making that assessment, “every effort
[must] be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

¶11 Holl contends that prevailing professional norms required his trial
counsel to raise due process objections to the prosecutor’s question regarding
whether there was something wrong with Holl emotionally, as well as to the six
comments identified above that the prosecutor made during closing argument. We
disagree because we conclude counsel’s assessments—i.e., that the challenged
statements were not “blatant” due process violations and that raising objections to
them could distract the jury from the primary defense position—were both
reasonable.

¶12 It is true that arguments by a prosecutor that appeal to jurors’
sympathies or prejudices, rather than relying upon the evidence, are improper. State
v. DeLain, 2004 WI App 79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562. One such
type of argument, commonly known as a “golden rule” argument, asks jurors to
place themselves in the victim’s shoes. Id. (citing Rodriguez v. Slattery, 54 Wis. 2d
165, 170, 194 N.W.2d 817 (1972)). Improper statements by a prosecutor “can rise
to such a level that the defendant is denied his or her due process right to a fair trial.”
State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498 (Ct. App. 1992). Reversing
a criminal conviction based upon a prosecutor’s improper statements is not
warranted, however, unless the remarks, taken in the context of the whole trial, “so

6
No. 2022AP2181-CR

infected the trial with unfairness” as to make the resulting conviction unreliable. Id.
(citation omitted).

¶13 Holl argues that his trial counsel’s failure to object to the prosecutor’s
question and comments was not a reasonable strategy because counsel did not even
recognize that the questions and comments impermissibly appealed to the jurors’
sympathies or prejudices. That characterization of counsel’s testimony, however,
is not accurate. Counsel testified that although he may have been “concerned” with
some of the prosecutor’s comments, he did not believe that the prosecutor’s question
or comments rose to the level of “blatant” due process violations and he did not
want to distract the jury with objections that did not further the defense position.
This cost-benefit analysis of raising an objection is precisely the type of strategic
decision that warrants deference under our standard of reviewing counsel’s strategy.

¶14 Furthermore, we agree with trial counsel’s assessment that the
question and statements at issue did not constitute blatant due process violations.
Even if some of the prosecutor’s remarks may have been improperly phrased in a
golden-rule format, it appears from the context in which they were made that
counsel did not consider the question and remarks as so infecting the entire trial with
unfairness as to render the verdict unreliable.

¶15 Significantly, although the challenged question and statements may
have appealed to jurors’ sympathies to some degree, they did not only appeal to
jurors’ sympathies. The question and comments also advanced legitimate
arguments based upon the evidence in this case.

¶16 First, the prosecutor’s question as to whether there was something
wrong with Holl emotionally was a direct response to Holl’s testimony that he
would become so frustrated after having disputes with Anne over trivial matters,

7
No. 2022AP2181-CR

almost to the point of crying. This question thus went to the credibility or
plausibility of Holl’s contention that he merely offered Anne a backrub in order to
improve his relationship with her.

¶17 Second, the prosecutor’s three comments inviting jurors to “imagine
if” the conduct Anne described had happened to them when they were thirteen or a
teenager, in conjunction with the two comments about how sad it was that Anne had
to consider the impact her disclosure of the incident would have upon her mother,
all related to the credibility of Anne’s description of her response during the incident
and her delayed reporting to her mother. In other words, the prosecutor was asking
the jurors to consider whether Anne’s testimony was credible based upon their
common sense and life experiences regarding how a teenager would respond in the
situation Anne had described.

¶18 Third, the prosecutor’s comment asking jurors to look at a clock and
imagine ten minutes of being touched all over their bodies went directly to the
question of intent. That is, the length of time that the incident continued decreased
the likelihood of an innocent intent and elevated the likelihood of a sexual intent.

¶19 In sum, we conclude that Holl’s ineffective assistance of counsel
claims fail because Holl has not met his burden to establish that counsel’s
performance was deficient. We therefore affirm the circuit court’s denial of a new
trial without addressing prejudice.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

8