State v. Joseph M. Zastrow

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.
June 10, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1628-CR Cir. Ct. No. 2018CF1205

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSEPH M. ZASTROW,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Marathon County: GREGORY B. HUBER and RICK T. CVEYKUS, Judges.
Affirmed.

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1628-CR

¶1 PER CURIAM. Joseph M. Zastrow appeals a judgment of
conviction, entered following a jury trial, for repeated sexual assault of the same
child and an order denying his motion for postconviction relief.1 Zastrow argues
that several comments the prosecutor made during the State’s opening statement
and closing argument constituted plain error. He also argues that his trial attorney
was constitutionally ineffective in multiple respects. We reject Zastrow’s
arguments and affirm.

BACKGROUND

¶2 The State charged Zastrow with repeated sexual assault of the same
child based on allegations that he had sexually assaulted Alice, the daughter of his
former girlfriend, in 2016, while Alice was sleeping in her bed at night.2 The
matter was tried to a jury in November 2021.

¶3 At trial, the State began its opening statement by telling the jury:

[W]e’re all well aware of the image of a sleeping child. It’s
a familiar image; it’s a calming image. It’s used in
advertisements everywhere; you see the little child with
their blankets pulled around them, tucked into their bed, by
our home insurance. A child sleeping in the backseat of a
car because the car is so safe. It’s an image we all keep and
we all have, to sleep like a child. To sleep like a baby.
Sitting in your room, surrounded by your own things,
tucked in, warm, maybe a stuffed animal, safe and secure
with your mother, father, or your guardian watching out for

1
The Honorable Gregory B. Huber presided over Zastrow’s jury trial and entered his
judgment of conviction. The Honorable Rick T. Cveykus entered the order denying Zastrow’s
postconviction motion. For the remainder of this opinion, we refer to Judge Huber as the circuit
court and to Judge Cveykus as the postconviction court.
2
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2023-24), we use
pseudonyms when referring to the victim, her mother, and her siblings. All references to the
Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP1628-CR

you. But every child has a monster. Maybe under the bed
or maybe we keep them in the closet.

¶4 The State then continued its opening statement by detailing the
allegations that Zastrow had sexually assaulted Alice while she was sleeping in her
bed. At the end of its opening statement, the State returned to the idea of a
sleeping child with a monster under the bed, stating that Alice

doesn’t have that peaceful image anymore. She isn’t that
sleeping child; she wasn’t that sleeping child. She has over
and over again dealt with having that moment, that
vulnerability, asleep with her eyes closed in the darkness
taken from her. The security is gone now. There is no
image of the sleeping child and the reason is: Not every
monster stays under the bed.

¶5 Thereafter, the State introduced evidence that in February 2018,
Alice reported to her guidance counselor that Zastrow had repeatedly sexually
assaulted her two years earlier. Alice made the report after hearing a school
presentation on sexual assault and sexting. Alice’s counselor contacted a school
resource officer, who then notified the police. About one month later, forensic
interviewer Alicia Resch interviewed Alice at the Child Advocacy Center. The
interview was video recorded and was played for the jury at trial.

¶6 During the forensic interview, Alice told Resch that Zastrow, her
mom’s ex-boyfriend, “used to touch [Alice] inappropriately.” Alice stated that
this touching occurred when Alice was twelve years old and in sixth grade. She
told Resch that Zastrow touched her “down here,” gesturing to the area between
her legs. Alice later stated that Zastrow touched her “all over down there” and
explained that he touched the body part from which she peed. According to Alice,
Zastrow would touch her with his finger or lick “down there” with his tongue.

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¶7 Alice explained that she and her younger brother, Ben, slept in the
living room of her family’s apartment. When asked to describe a specific time
when Zastrow touched her inappropriately, Alice recounted a time when she was
sleeping on her bed in the living room and her mom was sleeping on a couch in
the same room. Alice remembered that she was sleeping with multiple blankets
because it was winter and the living room was cold due to a broken window in the
apartment. Alice stated that Zastrow “threw blankets over [her] face,” took her
shorts off, moved her underwear to the side, and started touching her. When Alice
tried to “fight back a little bit,” Zastrow said, “You tell anybody and I’ll hurt your
mom,” which “really scared” Alice. Zastrow stopped touching Alice when her
mom stirred. Alice stated that both her mom and Ben are heavy sleepers.

¶8 Alice told Resch that the touching happened “for a whole month and
after that it happened for a week.” She also stated that the touching happened
“every night,” always while she was sleeping in the living room, and that Zastrow
would wait to touch her until her mom fell asleep. She initially stated that the
touching happened during summer break before the school year started, but she
then stated that it also happened during the school year.

¶9 Alice further stated that she told her mom about the sexual assaults,
but her mom did not initially believe her. Alice explained that her mom knew that
she did not like Zastrow because he was “always mean to [Alice] but he was nice
to everybody else.” Alice stated that she ultimately told Ben about the assaults,
and Ben told their older brother, Mark. According to Alice, Mark then stayed up
one night, snuck into the living room, and saw Zastrow leaning over her. Mark
then confronted Zastrow while holding a BB gun and told him to back away from
Alice. Zastrow claimed that he was just covering Alice up with a blanket. Alice
stated that Mark then woke their mom and told her what had happened, their mom

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called the police the next morning, and the police came to their apartment to
investigate.

¶10 Alice told Resch that the repeated sexual assaults made her feel sad
and depressed. She stated that she was “the lonely girl who would sit in the back
of the room at classes,” and when she returned home from school, she would go
straight to a “back room” in her apartment and cry while doing her homework.

¶11 At trial, Alice testified that in 2016, she lived in an apartment with
her mom, her two brothers, her sister, and Zastrow. She explained that she and
Ben slept in the living room because her family “lived in a three-bedroom
apartment and [her] siblings had all the bedrooms.” Alice initially testified that
Zastrow began touching her “as soon as [she] turned 11.” She then testified,
however, that Zastrow began touching her in July 20163 and that the touching
occurred almost every day until she turned 13 in 2017. She repeatedly stated that
she “zoned out” during the assaults.

¶12 Alice specifically described the first time that Zastrow assaulted her
in July 2016. She testified that Zastrow came to her bed in the living room at
night, covered her face with blankets, took her pants off, and touched her vagina
with his hand. Zastrow whispered in her ear that he would kill her mom if she told
anyone about the assault. Alice recounted another time that Zastrow touched her
vagina while her mom slept on the living room couch. She testified that her mom
is a “very heavy sleeper.” She also testified, consistent with her forensic

3
The record indicates that Alice would have turned twelve during the summer of 2016.

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No. 2023AP1628-CR

interview, that Zastrow would sometimes touch her vagina with his tongue during
the assaults.

¶13 Alice also testified regarding an additional assault that occurred after
she turned 13, which was the only time when Zastrow penetrated her vagina. She
stated that Zastrow started by “licking” her, and she then felt “[a] really bad pain
down there,” after which she “kind of screamed and took off to the bathroom.”
Alice did not know what Zastrow used to penetrate her vagina.

¶14 Alice testified that she told her mom about the assaults when she
was twelve, but her mom did not believe her. She testified that the assaults
stopped in 2017, when she was 13, after Ben woke up during one of the assaults
and told their mom. Alice testified that their mom then installed cameras in the
apartment, but the cameras “kept getting unplugged.” When asked whether she
had spoken to anyone outside her family about the assaults, Alice responded,
“Yeah. When I was 15, I told my middle school.” She did not testify about any
police investigation regarding the assaults in 2016.

¶15 Alice’s mom, Martha, confirmed that in 2016, she lived in a
three-bedroom apartment with Zastrow and her four children. She confirmed that
she and Zastrow slept in the primary bedroom, that Alice’s two older siblings had
their own bedrooms, and that Alice and Ben slept “on a trundle bed and daybed in
the living room.” Martha also testified that she sometimes slept on a couch in the
living room, which was “[r]ight across from the kids’ bed.”

¶16 Martha testified that she was “made aware” of a “situation” between
Alice and Zastrow in 2016. Thereafter, she placed “nanny” cameras that looked
like air fresheners in the home in an attempt to gather information about the
situation. She explained that the cameras were plugged into the wall and stored

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No. 2023AP1628-CR

video footage on SD cards. She noticed, however, that the cameras “were being
unplugged” while she was not at home. She also testified that she was not able to
retrieve videos from the cameras’ SD cards “because the SD cards disappeared,”
meaning that “[s]omebody took them out of the cameras.” She acknowledged,
however, that she was able to view some video footage, which did not show
Zastrow sexually assaulting Alice.

¶17 Martha further testified that before the summer of 2016, Alice was
“very outgoing. She played the violin. She was in track and field. She loved to
play video games with us and be around us all, all of the time.” Beginning in
2016, however, Alice began “exclud[ing] herself and was constantly fighting us,
wouldn’t go to school, and quit violin.” Martha testified that Alice would “[l]ock
herself in the bedroom or the bathroom” and that she started “failing” her classes
at school. Martha also testified that Alice “tried killing herself,” but Martha did
not provide any additional details about that subject.

¶18 On cross-examination, Martha acknowledged that she did not report
the sexual assaults to police when she first learned about them in 2016. She
testified that the first time she spoke to a police officer about the assaults was in
2018, after Alice reported the assaults at school. She also testified that she
“kicked [Zastrow] out” of her home at the end of October 2016.

¶19 Both of Alice’s brothers testified at trial. Ben testified that he never
saw anything between Alice and Zastrow that was “concerning” to him. He did
testify, however, that at one point he woke up in the middle of the night and saw
Zastrow standing over Alice’s bed.

¶20 Alice’s older brother, Mark, testified that Zastrow normally left for
work between 5:00 and 7:00 a.m. However, Mark would sometimes see Zastrow

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No. 2023AP1628-CR

awake in the living room at around 2:00 or 3:00 a.m., while Mark was awake
playing video games, which Mark found to be “odd.” Mark testified that the only
time he confronted Zastrow with a BB gun was when he was interrupting a fight
between Zastrow and Martha. He denied having any confrontation with Zastrow
about Alice.

¶21 Resch, who conducted Alice’s forensic interview, testified as an
expert on childhood disclosure of sexual abuse. Resch testified that delays in
disclosure are common and that children can vacillate between periods of
disclosure and nondisclosure depending on a variety of circumstances. She also
discussed various “barriers” and “facilitators” to disclosure. For instance, a
victim’s youth and the fact that the abuser lives in the victim’s home are barriers
to disclosure. Conversely, “prevention services at school when kids have
educational talks about appropriate touches and abuse” may facilitate disclosure.

¶22 Zastrow elected not to testify in his own defense at trial. The
defense rested without presenting any evidence.

¶23 At the beginning of its closing argument, the State returned to the
idea of a sleeping child that it had first raised during its opening statement, stating:

Yesterday morning when we started this, I discussed the
image of a sleeping child. I think a lot of our ideas on that
are going to be affected by everything we have heard over
the last two days now. We came into this trial—everybody
came in here with certain presumptions, that bias that we
were talking about when we were doing jury selections.
Assumptions about our world. The world around us and
the way things work.

We don’t want to have to live in a world where we can’t
trust the people that are next to us in [a grocery store]
picking up milk and the people at [a gas station] filling up
the gas right next to us in their car. We want to figure that
we can just nod at them, everything is fine, and we don’t

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No. 2023AP1628-CR

have to worry about the people around us. We have
assumptions about our world.

¶24 The State subsequently discussed its view of the evidence introduced
at trial and argued that the evidence supported a guilty verdict on the repeated
sexual assault of a child charge. In so doing, the State acknowledged certain
inconsistencies between Alice’s testimony, her forensic interview, and the
testimony of the other witnesses, but the State nevertheless argued that the jury
should find Alice’s version of events to be credible because her testimony about
the assaults themselves was “uncontested”:

And now in all of the questioning that you’ve heard, [the]
defense has made points of: Well, what if she got this part
wrong? What if [Mark] is defending mom instead of her?
What if she is wrong about whether it was winter or
summer?

Here is what has never been conte[st]ed: It is uncontested
that [Alice] is in bed in the summer of 2016;
Joseph Zastrow comes to her and wakes her by pulling her
pants down; that’s what wakes her up; she’s asleep and
woken by that and Joseph Zastrow touches her vagina.

Additionally, the State argued that Alice had no motive to lie because it was
difficult for her to talk in front of strangers about being sexually assaulted and
because her mother had already kicked Zastrow out of the home and removed him
from her life when she reported the assaults at school.

¶25 The State ended its closing argument by returning to the image of a
monster under a sleeping child’s bed, stating:

Joseph Zastrow is in the living room. There is not much
room under the bed because he has the pull-away bed.
There is no closet because it’s the living room. Joseph
Zastrow had nowhere else to be because there is no other
place for the monsters to hide in the living room. Joseph
Zastrow is in that living room. He is touching an
11-year-old girl and then a 12-year-old girl as she gets

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No. 2023AP1628-CR

older. There is no other way to describe this and Joseph
Zastrow is guilty. I ask you to find him so.

¶26 In her closing argument, Zastrow’s trial attorney argued that Alice’s
allegations regarding the sexual assaults were not reliable. Trial counsel
highlighted inconsistencies between Alice’s trial testimony and her 2018 forensic
interview regarding the time period when Zastrow had allegedly sexually assaulted
her. Counsel argued that these inconsistencies, and the fact that the assaults were
not reported to the police in 2016, indicated that “[t]here was nothing to report in
2016 because it didn’t happen.”

¶27 Zastrow’s trial attorney also highlighted other claims made during
Alice’s testimony and forensic interview that were not corroborated by other
witnesses. For instance, while Alice claimed that Mark had confronted Zastrow
with a BB gun when he saw Zastrow standing over Alice’s bed, Mark denied that
any such confrontation occurred. Additionally, contrary to Alice’s testimony, Ben
denied witnessing anything concerning between Zastrow and Alice. Furthermore,
while Alice claimed in her forensic interview that the police were called in 2016
after she first reported the sexual assaults to her mom, defense counsel emphasized
that there was no record that the assaults were reported to the police in 2016.
Defense counsel also noted that the nanny cameras, “when they were on, didn’t
show anything.” In addition, counsel emphasized that Alice disliked Zastrow and
suggested that Alice had accused him of sexual assault after his relationship with
Martha “ended badly.”

¶28 In its rebuttal closing argument, the State again acknowledged what
it characterized as minor inconsistencies in Alice’s accounts of the sexual assaults;
however, the State argued:

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No. 2023AP1628-CR

I want you to focus on what [Alice] is very consistent on—
and that’s the part I have said over and over again—
Joseph Zastrow came to her at night, in her bed, touched
her vagina, night after night, several times, more than three
times. That part has never changed.

The State also argued that Alice’s dislike of Zastrow provided “no motive to lie”
because “Zastrow is not even in the house. She’s not seeing him. What is she
trying to do to him? He is not even a part of her life. That part is over.” The State
continued:

She has no motive to lie unless you think that what she
wants is to have come here and sat in that chair there … in
this room, in a room that until this week she had never been
in basically. She had never been in this room until this
week. And she obviously wanted to tell all of you about
her vagina. That’s what you would have to believe, to
believe what the defense is telling you at this point that that
is her motive to lie.

¶29 The jury found Zastrow guilty of repeated sexual assault of the same
child. The circuit court subsequently sentenced Zastrow to nine years’ initial
confinement followed by six years’ extended supervision.

¶30 Zastrow filed a postconviction motion for a new trial. He alleged
that the State made improper comments during its opening statement and closing
argument by: (1) improperly commenting on his constitutional right to silence by
describing Alice’s allegations as “uncontested”; (2) improperly shifting the burden
of proof to Zastrow by arguing that, in order to acquit Zastrow, the jury would
have to find that Alice was lying about the sexual assaults; (3) improperly
describing Zastrow as a “monster”; and (4) making an improper “golden rule”
argument by commenting on how difficult it was for Alice to testify in court about
the alleged assaults. Zastrow asserted that these remarks, both individually and in
combination, warranted a new trial.

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No. 2023AP1628-CR

¶31 Zastrow also argued that his trial attorney was constitutionally
ineffective for several reasons. First, he asserted that his trial attorney was
constitutionally ineffective by failing to object to the State’s improper remarks
during its opening statement and closing argument. Second, he claimed that his
trial attorney was ineffective by failing to investigate a potential witness—
Zastrow’s nephew, Mitchel Freda—who was “physically present in the apartment
and awake during the alleged sexual assaults” and “would have been able to
confirm that the alleged sexual touching did not occur during the summer of
2016.” Third, he claimed that his trial attorney was ineffective by failing to object
to the testimony regarding the video cameras in the apartment. Fourth, Zastrow
argued that his trial attorney was ineffective by failing to object to the State’s
“inadmissible character evidence” regarding Alice’s behavioral changes and
suicide attempt. Fifth, Zastrow argued that his trial attorney “employed a
reasonable strategy of questioning [Alice’s] inconsistencies and recollection” but
did not execute that strategy “in a reasonable manner” because she failed to
“confront [Alice] about her numerous inconsistent and illogical
statements … during cross-examination.”4

¶32 The postconviction court held a Machner5 hearing, at which Freda,
Zastrow’s trial attorney, and Zastrow’s mother testified. Their testimony is
discussed in greater detail below, as necessary.

4
Zastrow raised several additional arguments in his postconviction motion, beyond those
summarized above. He does not, however, renew those additional arguments on appeal.
Accordingly, we deem them abandoned, see A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d
475, 491, 588 N.W.2d 285 (Ct. App. 1998), and do not address them further.
5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP1628-CR

¶33 Following the Machner hearing, the postconviction court denied
Zastrow’s motion for a new trial in all respects. The court concluded that the
challenged remarks from the State’s opening statement and closing argument were
not improper. The court further concluded that Zastrow’s trial attorney did not
perform deficiently by failing to object to the testimony regarding the video
cameras because that testimony was admissible. Next, the court determined that
trial counsel’s failure to object to the testimony about Alice’s behavioral changes
was neither deficient nor prejudicial because the testimony did not qualify as
“character evidence,” and, in any event, “the totality of these fleeting statements
would not prejudice the outcome of the trial.” The court further determined that
trial counsel’s strategy of “attack[ing] the credibility of the victim through other
witnesses,” rather than attacking the victim’s credibility directly on
cross-examination, was reasonable and did not constitute deficient performance.

¶34 Finally, the postconviction court concluded that Zastrow’s trial
attorney performed deficiently by failing to investigate Freda as a potential
witness. The court determined, however, that counsel’s error in that regard was
not prejudicial because Freda’s testimony would not have affected the outcome of
Zastrow’s trial.

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No. 2023AP1628-CR

¶35 Zastrow now appeals his judgment of conviction and the order
denying his postconviction motion.6

DISCUSSION

I. Plain error

¶36 On appeal, Zastrow renews his claims that the State made various
improper remarks during its opening statement and closing argument. Improper
comments 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). Although a prosecutor is generally given latitude
when making arguments to the jury, “[t]he line between permissible and
impermissible argument is drawn where the prosecutor goes beyond reasoning
from the evidence and suggests that the jury should arrive at a verdict by
considering factors other than the evidence.” State v. Neuser, 191 Wis. 2d 131,
136, 528 N.W.2d 49 (Ct. App. 1995). To determine whether a prosecutor’s
comments crossed that line, we must ask whether the comments “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.”
State v. Jorgensen, 2008 WI 60, ¶40, 310 Wis. 2d 138, 754 N.W.2d 77.

6
We pause to note that Zastrow’s appellate briefs do not comply with WIS. STAT.
RULE 809.19(8)(bm), which requires a brief to “have page numbers centered in the bottom
margin using Arabic numerals with sequential numbering starting at ‘1’ on the cover.” Our
supreme court has explained that this pagination requirement “will match the page number to the
page header applied by the eFiling system, avoiding the confusion of having two different page
numbers.” S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii (eff. July 1, 2021). We admonish
Zastrow’s attorney that future violations of the Rules of Appellate Procedure may result in
sanctions. See WIS. STAT. RULE 809.83(2).

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No. 2023AP1628-CR

¶37 Zastrow concedes that his trial attorney did not object to the State’s
allegedly improper remarks during its opening statement and closing argument.
“[F]ailure to object, even to a claimed structural constitutional violation, forfeits
the challenge.” State v. Klapps, 2021 WI App 5, ¶29, 395 Wis. 2d 743, 954
N.W.2d 38 (2020). Zastrow argues, however, that he is nevertheless entitled to
relief because the State’s remarks constituted plain error.

¶38 “The plain error doctrine allows appellate courts to review errors
that were otherwise waived by a party’s failure to object.” Jorgensen, 310
Wis. 2d 138, ¶21; see also WIS. STAT. § 901.03(4). To qualify as plain error, the
error must be fundamental, obvious, and substantial. Jorgensen, 310 Wis. 2d 138,
¶21. For instance, the plain error doctrine should be used “where a basic
constitutional right has not been extended to the accused.” Id. (citation omitted).
However, “[c]ourts should use the plain error doctrine sparingly.” Id.

¶39 The existence of plain error turns on the facts of the particular case
and may depend upon both the seriousness of the error and the quantum of
evidence properly admitted. Id., ¶22. “[N]ot all inappropriate statements by a
prosecutor result in a due process violation that gives rise to plain error.” Id., ¶41.
Even if the prosecutor “steps across the permissible boundary, we must then
determine whether the incursion is so significant (either alone or in combination
with other infractions) that it renders the entire trial unfair.” State v. Bell, 2018
WI 28, ¶40, 380 Wis. 2d 616, 909 N.W.2d 750. Whether a prosecutor’s allegedly
improper remarks constituted plain error is a question of law that we review
independently. See id., ¶8.

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No. 2023AP1628-CR

A. Shifting the burden of proof

¶40 “It is axiomatic that the State must prove all the elements of a crime
beyond a reasonable doubt to convict a defendant.” State v. Kuntz, 160 Wis. 2d
722, 736, 467 N.W.2d 531 (1991). Here, Zastrow argues that the State
impermissibly shifted the burden of proof to him during the rebuttal portion of its
closing argument when it argued that Alice had no motive to lie, unless the jury
believed that Alice wanted to testify in court about her vagina, and “[t]hat’s what
you would have to believe, to believe what the defense is telling you at this point
that that is her motive to lie.” See supra ¶28. Based on our supreme court’s
decision in Bell, we agree with the State that these remarks were not improper and,
as such, did not constitute plain error. See Bell, 380 Wis. 2d 616, ¶14 (observing
that there can be no plain error “unless the State’s trial commentary was
improper”).

¶41 Bell was accused of sexually assaulting two minor victims. Id., ¶2.
At trial, the prosecutor made statements asserting that the jury “had to believe [the
victims] were lying before they could find [Bell] not guilty.” Id., ¶41. On appeal,
our supreme court referred to those statements as “the ‘must believe’ statements.”
Id. The prosecutor also made statements claiming that “people generally do not
lie without reason, and that if the victims had no motive to lie, they should be
believed.” Id. Our supreme court described those statements as “the ‘motive’
statements.” Id. Bell argued that the prosecutor’s statements impermissibly
shifted the burden of proof to him “by framing this case as a binary
proposition: The jury must convict him if it believes the victims, and may find him
not guilty only if it does not.” Id., ¶11.

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No. 2023AP1628-CR

¶42 Our supreme court concluded that neither the prosecutor’s “must
believe” statements nor the “motive” statements were improper and that, as a
result, the statements did not constitute plain error. Addressing the “must believe”
statements, the court explained that “the prosecution and defense theories of the
case were mirror-images: The prosecution said [the victims] were telling the truth,
the defense said they were not. But they agreed that the resolution of that contest
would decide the case.” Id., ¶42. In particular, the court explained that Bell

pursued a reasonable, but narrowly focused strategy. He
did not argue that [the victims’] description of events failed
to satisfy the statutory elements of the crimes with which
he was charged. He did not argue mistaken identity or
assert that someone else bore responsibility for the assaults.
He did not argue the actions had been misconstrued. He
said they never happened. The only evidence he adduced
at trial related to the victims’ credibility, and all of his
efforts went into showing that [the victims’] could not be
believed.

Id., ¶43.

¶43 Under these circumstances, the court concluded that there was no
“meaningful distinction … between the defense’s assertion that the jury must find
Mr. Bell not guilty because the victims lied and the prosecution’s argument that
the jury may not make such a finding unless they did.” Id., ¶¶44, 51. The court
explained that given Bell’s trial strategy, the “only way” that Bell “could have
won an acquittal” was by “convinc[ing] the jury that the victims lied” because he
“offered the jury no weakness in the State’s case other than the victims’
credibility.” Id., ¶47. Thus, “the jury’s resolution of the case had to follow its
conclusion regarding the victims’ veracity.” Id. The court held that, in such
circumstances, “when the prosecutor’s statements are fairly characterized as

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No. 2023AP1628-CR

impressing on the jury the importance of assessing the witnesses’ credibility, there
is no error.” Id., ¶51.

¶44 The court also concluded that the prosecutor’s “motive” statements
were not improper because, while the prosecutor “was undoubtedly encouraging
the jurors not to disbelieve the victims unless they found evidence of a motive to
lie,” such argument “is in an entirely different category from an assertion that they
cannot disbelieve the victims without such evidence.” Id., ¶53. The court stated
that it is “a matter of general life experience that people normally do not lie
without reason” and that the prosecutor’s statements “about this common-sense
principle and … encouragement not to discard it” were not improper. Id., ¶55.

¶45 Turning to the facts of this case, we are not convinced that the
prosecutor’s challenged remarks during his rebuttal closing argument constituted
the type of “must believe” statements at issue in Bell. Again, the prosecutor stated
that Alice had no motive to lie, unless the jury believed that Alice wanted to testify
in court about her vagina, and “[t]hat’s what you would have to believe, to believe
what the defense is telling you at this point that that is her motive to lie.” We view
this comment as a statement about Alice’s lack of a plausible motive to lie, rather
than as a statement that the jurors “had to believe [Alice was] lying before they
could find [Zastrow] not guilty.” See id., ¶41.

¶46 However, even if the prosecutor’s comment is viewed as the type of
“must believe” statement discussed in Bell, we nevertheless conclude that the
comment was not improper under Bell’s analysis. As in Bell, in this case, the
State and Zastrow offered mirror-image theories. The State argued that Alice’s
testimony was reliable and established each element of Zastrow’s charged offense
because Alice had provided a consistent account of the sexual assaults since

18
No. 2023AP1628-CR

reporting them in 2018. Conversely, the defense argued that the jury should not
believe Alice’s testimony due to inconsistencies between her testimony, her
forensic interview, and the testimony of other witnesses. Thus, for both parties,
the outcome of the case depended on whether the jury found Alice’s testimony to
be credible. Under these circumstances, even if the prosecutor’s challenged
comment could fairly be characterized as predicating acquittal on a finding of
Alice’s dishonesty, the argument would still have been proper under Bell. See id.,
¶51 (holding that when “the verdict will necessarily follow the jury’s
determination of the victims’ credibility, the State’s argument that the jurors
should not find [the defendant] not guilty unless they conclude [the victims] lied is
equivalent to asking the jurors to carefully weigh the victims’ credibility”).7

¶47 The prosecutor’s challenged statement was also not improper if
characterized as a “motive” statement under the Bell analysis. Like the prosecutor
in Bell, the prosecutor here invoked the “common-sense principle” that “people
normally do not lie without reason” and argued that Alice lacked a plausible
motive to lie about Zastrow sexually assaulting her. See id., ¶55. Moreover, the
prosecutor’s argument in that regard was a direct response to the defense’s
suggestion that Alice had a motive to lie because she disliked Zastrow and because
his relationship with Martha had ended badly.

7
Zastrow argues that this case is distinguishable from State v. Bell, 2018 WI 28, 380
Wis. 2d 616, 909 N.W.2d 750, because his trial attorney challenged Alice’s credibility by arguing
that her memory was faulty, rather than by arguing that she was lying. We agree with the State,
however, that Bell did not draw such a distinction. Rather, Bell identified the dispositive factor
as whether the outcome of the case, from both parties’ perspectives, turned on the jury’s
assessment of the victim’s credibility. See Bell, 380 Wis. 2d 616, ¶¶44-46. We further agree
with the State that a defense attorney “cannot evade Bell by using a euphemism for dishonesty
instead of bluntly calling the victim a liar.”

19
No. 2023AP1628-CR

¶48 For these reasons, we reject Zastrow’s assertion that the State
improperly shifted the burden of proof to him during its rebuttal closing argument.
Accordingly, the prosecutor’s challenged comment did not constitute plain error.

B. Commenting on Zastrow’s constitutional right to silence

¶49 Zastrow next claims that the State committed plain error during its
closing argument by referring to Alice’s sexual assault allegations as
“uncontested.” He asserts that, by doing so, the State improperly commented on
his invocation of his constitutional right not to testify.

¶50 The United States Supreme Court has held that the Fifth Amendment
to the United States Constitution “forbids either comment by the prosecution on
the accused’s silence or instructions by the court that such silence is evidence of
guilt.” Griffin v. California, 380 U.S. 609, 615 (1965). In State v. Hoyle, 2023
WI 24, ¶29, 406 Wis. 2d 373, 987 N.W.2d 732, our supreme held that three
elements “must be present for a prosecutor to violate Griffin.”

First, the prosecutor’s language must have been “manifestly
intended to be” or was “of such character that the jury
would naturally and necessarily take it to be” a “comment
on the failure of the [defendant] to testify.” Second, the
prosecutor’s language must also have been “manifestly
intended to be” or was “of such character that the jury
would naturally and necessarily take it to be” “adverse,”
meaning comment “that such silence is evidence of guilt.”
Finally, the prosecutor’s comments must not have been “a
fair response to a claim made by defendant or his counsel.”

Hoyle, 406 Wis. 2d 373, ¶29 (citations omitted).

¶51 The Hoyle court concluded that a prosecutor’s comments referring to
the victim’s testimony as “uncontroverted” did not violate Griffin. Hoyle, 406
Wis. 2d 373, ¶2. The court concluded that the first element of its three-element

20
No. 2023AP1628-CR

test was not satisfied because the comments “were neither ‘manifestly intended to
be’ nor ‘of such character that the jury would naturally and necessarily take [them]
to be’ comments on the defendant’s silence.” Id., ¶33 (citation omitted). The
court emphasized that the main issue at the defendant’s trial “was the credibility of
the State’s witnesses.” Id., ¶34. The court also acknowledged that in his closing
argument, “the prosecutor anticipated defense counsel would argue reasonable
doubt based on a lack of corroborating evidence” for the victim’s allegations. Id.,
¶35. In that context, the court understood that the prosecutor’s description of the
victim’s testimony as “uncontroverted” was intended “to focus the jury’s attention
on what evidence it was permitted to consider” and to emphasize that the jurors
could not “‘speculate’ that there was some other evidence not presented that might
exonerate [the defendant]. They were to focus solely on whether the State’s
witnesses were credible.” Id., ¶36. The court further stated that even if it were
“possible” that the jury could have understood the prosecutor as commenting on
the defendant’s decision not to testify, “the jury would not have ‘necessarily’ done
so, and we ‘should not lightly infer’ that the jury would have drawn the ‘most
damaging meaning’ from the prosecutor’s statements.” Id., ¶38 (citation omitted).

¶52 Like the trial in Hoyle, the outcome of Zastrow’s trial turned on the
jury’s assessment of Alice’s credibility. Under those circumstances, the
prosecutor’s reference to Alice’s sexual assault allegations being “uncontested”
was not manifestly intended to be, or of such character that the jury would
naturally and necessarily take it to be, a comment on Zastrow’s failure to testify.
See id., ¶29. Instead, the prosecutor’s challenged comment was part of an
argument in which he urged the jury to focus on the consistent aspects of Alice’s
accounts of the sexual assaults rather than on her inconsistent statements regarding

21
No. 2023AP1628-CR

ancillary details. Under these circumstances, the prosecutor’s comment does not
satisfy the first element of the Hoyle test.8

¶53 The prosecutor’s comment also fails to satisfy the second element of
the Hoyle test because it was not manifestly intended to be, or of such character
that the jury would naturally and necessarily take it to be, a comment that
Zastrow’s silence was evidence of his guilt. See id. The manifest intent of the
prosecutor’s comment was to distinguish Alice’s consistent and unchallenged
statements about the sexual assaults themselves from her other statements that
were undermined by evidence introduced at trial. Under these circumstances, the
prosecutor’s comment did not imply that Alice’s sexual assault allegations were
uncontested due to Zastrow’s decision not to testify.9 Moreover, the circuit court
instructed the jury that Zastrow had an “absolute constitutional right not to testify”
and that the jury could not consider his decision not to testify when reaching its

8
Zastrow argues that the State forfeited any argument regarding the first and second
elements of the test set forth in State v. Hoyle, 2023 WI 24, ¶29, 406 Wis. 2d 373, 987 N.W.2d
732, because it “solely argued the third prong of Hoyle during postconviction litigation.”
Zastrow, however, does not provide any record citation in support of that assertion. Regardless,
the forfeiture rule “generally applies only to appellants, and we will usually permit a respondent
to employ any theory or argument on appeal that will allow us to affirm the [circuit] court’s order,
even if not raised previously.” Finch v. Southside Lincoln-Mercury, Inc., 2004 WI App 110,
¶42, 274 Wis. 2d 719, 685 N.W.2d 154.
9
Zastrow argues that the prosecutor’s comment that Alice’s sexual assault allegations
were “uncontested” must have been intended as an adverse comment on his failure to testify
because Zastrow “was the only individual who could have testified that the sexual assaults did not
occur.” Hoyle rejected this same argument, however, on the grounds that other evidence—
besides the defendant’s testimony—could have been used to contradict the victim’s assertions.
See Hoyle, 406 Wis. 2d 373, ¶37. Here, as in Hoyle, Zastrow’s trial attorney identified evidence
from sources other than Zastrow that could have contradicted Alice’s account, if believed by the
jury. For instance, defense counsel noted that the nanny cameras never captured any sexual
assaults and that Ben denied seeing anything concerning between Zastrow and Alice. We agree
with the State that, under these circumstances, “the jury could not have concluded that only
Zastrow could contradict Alice’s testimony.”

22
No. 2023AP1628-CR

verdict. “We presume that the jury follows the instructions given to it.” State v.
Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989).

¶54 Finally, as to the third element of the Hoyle test, the prosecutor’s
challenged comment was a “fair response” to an argument raised by Zastrow’s
trial attorney. See Hoyle, 406 Wis. 2d 373, ¶29. Specifically, during her closing
argument, Zastrow’s trial attorney highlighted various inconsistencies between
Alice’s trial testimony, her forensic interview, and the testimony of other
witnesses. Zastrow’s attorney used those inconsistencies to argue that the jury
should not believe Alice’s testimony that Zastrow had sexually assaulted her. The
prosecutor’s challenged comment, in turn, acknowledged those inconsistencies but
argued that Alice’s account of the assaults themselves was uncontested and,
therefore, reliable. We agree with the State that “it was reasonable for the
prosecutor to proactively rebut [Zastrow’s] anticipated attacks on [Alice’s]
credibility” in this fashion.

¶55 Thus, the prosecutor’s challenged comment fails to satisfy any of the
three elements of the Hoyle test. Accordingly, we reject Zastrow’s argument that
the comment was improper and further conclude that it did not constitute plain
error.

C. “Golden rule” arguments

¶56 Zastrow’s final plain error argument pertains to the prosecutor’s
comments during his opening statement and closing argument about a monster
hiding under a sleeping child’s bed, as well as the prosecutor’s remarks about how
difficult it was for Alice to testify in court about the sexual assaults. Zastrow
contends that these comments were impermissible “golden rule” arguments.

23
No. 2023AP1628-CR

¶57 “In a criminal case, a golden rule argument asks the jurors to place
themselves in the victim’s shoes.” State v. DeLain, 2004 WI App 79, ¶23, 272
Wis. 2d 356, 679 N.W.2d 562, aff’d, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d
484. Such arguments “are not allowed because they appeal to the jurors’
sympathy for persons who have been injured or victimized by a crime.” Id.

¶58 We conclude that the prosecutor’s challenged comments did not
constitute impermissible golden rule arguments. The comments did not invite the
jurors to place themselves in Alice’s shoes. Rather, the prosecutor’s comments
about how difficult it was for Alice to testify in court about the sexual assaults
served to bolster Alice’s credibility by suggesting that she would not have chosen
to do such a difficult thing unless the sexual assault allegations were true. The
prosecutor’s comments about a monster underneath a sleeping child’s bed, in turn,
highlighted the factual circumstances of the sexual assaults, as every assault
occurred while Alice was lying in her bed at night. Further, the prosecutor
properly used the metaphor of the monster under the bed to suggest that, based on
Alice’s testimony, the jury should find Zastrow guilty of monstrous conduct—i.e.,
repeated sexual assault of a child.

¶59 For these reasons, we reject Zastrow’s assertion that the prosecutor’s
comments were improper golden rule arguments, and we therefore conclude that
the comments did not constitute plain error.

II. Ineffective assistance of trial counsel

¶60 On appeal, Zastrow also renews his claims that his trial attorney was
constitutionally ineffective in various respects. To prevail on an ineffective
assistance of counsel claim, a defendant must show both that counsel’s
performance was deficient and that the deficient performance prejudiced the

24
No. 2023AP1628-CR

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient
performance, the defendant must point to specific acts or omissions by counsel
that are “outside the wide range of professionally competent assistance.” Id. at
690. To demonstrate prejudice, the defendant must show that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. If a
defendant fails to make a sufficient showing on one prong of the Strickland test,
we need not address the other. Id. at 697.

¶61 Whether an attorney rendered ineffective assistance is a mixed
question of fact and law. State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d
466, 634 N.W.2d 325. We will uphold the circuit court’s findings of fact unless
they are clearly erroneous. Id. However, whether the defendant’s proof is
sufficient to establish ineffective assistance is a question of law that we review
independently. Id.

A. Failure to investigate Freda as a witness

¶62 Zastrow argues that his trial attorney was constitutionally ineffective
by failing to investigate Freda, Zastrow’s nephew, as a potential witness. At the
Machner hearing, Freda testified that during the summer of 2016, he was living
with his father but spent “98 percent of the time” at the apartment where Zastrow
lived with Alice and her family. During that time, Freda typically slept in Mark’s
room, but sometimes he and Mark would argue and then he would sleep in the
hallway outside of Mark’s room. Freda testified that he is a light sleeper and that
various noises in the apartment would routinely wake him—for instance, “[d]oors
slamming; people talking; running down hallways.”

25
No. 2023AP1628-CR

¶63 Freda testified that he and Mark “would stay up as late as possible
playing video games all night,” typically until “four, five, six in the morning,” and
they then “slept through most of the day.” Zastrow would leave for work at
around 4:30 a.m., and Freda could “hear him walking through the house because
the walls were thin,” even though “the doors were closed.” According to Freda,
“[m]ost nights” Zastrow would check on Mark and Freda before leaving for work.

¶64 Freda testified that he never observed Zastrow touching Alice
inappropriately or Alice running into the bathroom screaming. In addition, he
never saw Mark confront Zastrow with a BB gun, and he did not recall Alice
accusing Zastrow of inappropriate touching during the summer of 2016.

¶65 Freda testified that he and Mark kept the television volume low
while playing video games at night, and they were generally able to hear people
coming and going from the apartment’s primary bedroom. He also testified,
however, that he and Mark were loud while playing video games, and they “tried
to keep it down” but “always failed.” They were routinely admonished “that
everyone was trying to sleep and [they] should keep it down.” They kept the door
of Mark’s bedroom closed in an attempt to minimize their noise. While they were
being loud, the “only thing” Freda would be able to hear from outside Mark’s
room was “doors opening.”

¶66 Freda testified that he and Mark would “frequently” leave Mark’s
room during the night to grab snacks and drinks or use the bathroom. During
those trips outside of Mark’s room, Freda never saw Zastrow standing over
Alice’s bed, which he testified would have been “unusual.”

¶67 Freda further testified that, prior to Zastrow’s trial, he was not
interviewed by any law enforcement officer regarding Alice’s sexual assault

26
No. 2023AP1628-CR

allegations. In addition, no one from Zastrow’s trial attorney’s office contacted
him before Zastrow’s trial. Freda testified that had he been contacted, he would
have been willing to speak with a private investigator working for Zastrow’s trial
attorney.

¶68 Zastrow’s mother testified at the Machner hearing that she attended
multiple meetings between Zastrow and his trial attorney. During those meetings,
either she or Zastrow brought up Freda’s name as a potential witness and told
Zastrow’s trial attorney that Freda would be willing to give a statement that he did
not observe any sexual assaults. Zastrow’s mother provided trial counsel with
Freda’s phone number and address, and she offered to help trial counsel get in
touch with Freda. According to Zastrow’s mother, trial counsel said that she
would interview Freda, but she never did.

¶69 Zastrow’s trial attorney testified that she did not specifically recall
being told that Freda was a potential witness. She testified, however, that she
would have “no reason not to believe that” Zastrow told her about Freda; she
simply had “no recollection” of him doing so. She further testified that she had no
strategic reason for not interviewing Freda as part of her investigation. She opined
that Freda’s testimony would have been “extremely helpful” to Zastrow’s defense
as “additional testimony of the implausibility of [Alice’s] allegations.” She further
testified that if she had been aware of Freda’s potential testimony before trial, she
would have subpoenaed him to testify.

¶70 We conclude that, regardless of whether Zastrow’s trial attorney
performed deficiently by failing to investigate Freda as a potential witness,
counsel’s failure to do so did not prejudice Zastrow’s defense. As the
postconviction court aptly noted, while Freda could have testified that he did not

27
No. 2023AP1628-CR

observe Zastrow sexually assaulting Alice, he could not confirm that he was not
“otherwise occupied playing video games” when the assaults happened.

¶71 Furthermore, Freda’s testimony that he did not observe Zastrow
sexually assaulting Alice would have been cumulative of other evidence presented
at trial. Ben, who slept in the same room as Alice, specifically denied seeing
Zastrow sexually assault her. Mark, who testified that he was typically awake at
night playing video games, did not testify to witnessing any sexual assaults.
Martha, who sometimes slept on a couch in the living room, also did not testify
that she had observed any sexual assaults. We agree with the State that if the jury
found Zastrow guilty after hearing this testimony, Freda’s similar testimony that
he did not observe any sexual assaults “would not have made a difference.”

¶72 Zastrow highlights Freda’s Machner hearing testimony that he never
heard Alice run screaming into the bathroom. He therefore contends that Freda’s
testimony would have contradicted Alice’s trial testimony that, following one
assault during which Zastrow penetrated her vagina, she “kind of screamed and
took off to the bathroom.” Notably, however, Alice testified that this incident did
not occur until after she turned 13, which would have been during the summer of
2017. Freda testified about living in the apartment during the summer of 2016.
Consequently, he would not have been able to confirm or deny anything that
happened during the summer of 2017.

¶73 Zastrow also argues that Freda “would have been the sole witness to
contradict a core argument made by the State during closing: that there was no
evidence Mr. Zastrow checked on the children early in the morning before leaving
for work.” During its closing argument, the State highlighted Ben’s testimony that
he once woke up in the middle of the night and saw Zastrow standing over Alice’s

28
No. 2023AP1628-CR

bed. The State also emphasized Mark’s testimony that he would sometimes see
Zastrow awake in the living room at around 2:00 or 3:00 a.m., which Mark found
to be “odd.” The State argued:

I know that when I wake up at 2:00 knowing that I leave
my house at 6:15, I am angry that I am awake at 2:00 and I
go right back to sleep. Everybody has that moment where
you wake up and it’s “it is—wait—oh, no. No, it’s not.”

Nobody gets up and goes over to check on one of the
children, because he’s not around the other children. They
aren’t seeing him standing over the other children’s beds.
He doesn’t come check on [Mark]; he doesn’t come go
where [Ben] is. [Ben] and [Mark] see him over [Alice’s]
bed. He’s there, though they don’t know what is
happening.

¶74 According to Zastrow, Freda’s testimony would have contradicted
the State’s argument that Zastrow did not routinely check on the children and,
therefore, that Zastrow was not simply checking on Alice when Ben and Mark saw
him in the living room in the middle of the night. We are not persuaded. At the
Machner hearing, Freda specifically testified that Zastrow would sometimes
check on Freda and Mark before Zastrow left for work in the morning. Freda did
not testify that Zastrow ever checked on the other children—including Alice—
before leaving for work. Moreover, Freda did not testify that Zastrow ever
checked on any of the children in the middle of the night—for instance, at 2:00 or
3:00 a.m. Thus, Freda’s testimony would not have countered the State’s argument
that Zastrow was not simply checking on Alice when Ben and Mark saw him in
the living room in the middle of the night.

¶75 For these reasons, we agree with the State and the postconviction
court that Zastrow’s trial attorney’s failure to investigate Freda as a potential

29
No. 2023AP1628-CR

witness did not prejudice Zastrow’s defense.10 Accordingly, Zastrow has failed to
establish that his trial attorney was constitutionally ineffective in that regard.

B. Failure to execute the trial strategy in a reasonable manner

¶76 Zastrow next argues that although his trial attorney “pursued a
reasonable theory of defense,” she failed to execute her trial strategy in a
reasonable manner, for four reasons. We conclude that with respect to each of
these claimed errors, Zastrow has failed to demonstrate that his trial attorney
performed deficiently.

1. Failure to object to the State’s improper remarks

¶77 Zastrow claims that his trial attorney was constitutionally ineffective
by failing to object to the prosecutor’s allegedly improper remarks during his
opening statement and closing argument. We have already concluded, however,
that those remarks were not improper. See supra ¶¶40-59. As such, any objection
to those remarks would have been properly denied. An attorney does not perform
deficiently by failing to raise a meritless objection. See State v. Berggren, 2009
WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110.

10
Notably, while Zastrow’s trial attorney testified that Freda’s testimony would have
been “extremely helpful” to Zastrow’s defense and that she would have subpoenaed Freda to
testify had she been aware of his potential testimony, we are not bound by an attorney’s
assessment of whether particular conduct was prejudicial. As noted above, whether the facts
satisfy the legal standards for an ineffective assistance of counsel claim is a question of law that
we review independently. See State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d 466, 634
N.W.2d 325.

30
No. 2023AP1628-CR

2. Failure to object to testimony regarding the video cameras

¶78 Zastrow also argues that his trial attorney was ineffective by failing
to object to Martha’s testimony regarding the video cameras that she installed in
the apartment. Specifically, Zastrow argues that his trial attorney should have
objected to Martha’s testimony that the SD cards from the cameras “disappeared,”
based on the best evidence rule, WIS. STAT. § 910.02.

¶79 We agree with the State that the best evidence rule is inapplicable
here. WISCONSIN STAT. § 910.02 provides, “To prove the content of a writing,
recording or photograph, the original writing, recording or photograph is required,
except as otherwise provided in [WIS. STAT.] chs. 901 to 911, [WIS. STAT.
§] 137.21, or by other statute.” Martha’s testimony that the SD cards
“disappeared” was not an attempt to prove the content of any recordings taken by
the video cameras that she placed in the apartment. Rather, her testimony was that
she was not able to view the recordings because someone removed the SD cards
on which the recordings were contained. Thus, any objection to Martha’s
testimony based on the best evidence rule would have been properly denied, and
Zastrow’s trial attorney did not perform deficiently by failing to raise such an
objection. See Berggren, 320 Wis. 2d 209, ¶21.

¶80 Zastrow further argues that his trial attorney should have objected to
Martha’s testimony regarding the operation of the video cameras and the “cause of
a data loss” based upon a lack of foundation. In support of this assertion, Zastrow
cites two decisions that he contends “govern the proper foundation for testimony
on the operation of similar equipment.” One of those decisions held that a speed
reading from a radar device is admissible without expert testimony, as long as the
operating officer testifies, among other things, that he or she “has adequate

31
No. 2023AP1628-CR

training and experience in [the device’s] operation.” State v. Hanson, 85 Wis. 2d
233, 244-45, 270 N.W.2d 212 (1978). The other decision held that expert
testimony is not required to admit a report from an electronic monitoring device
(EMD) used to monitor an individual under supervision by the Department of
Corrections (DOC), but that a court “should not afford a presumption of accuracy
to a particular report or EMD until the State has put forth evidence regarding the
installation of the specific device and testimony as to its accuracy and reliability
by a DOC employee familiar with its operation.” State v. Kandutsch, 2011 WI
78, ¶¶40, 45, 336 Wis. 2d 478, 799 N.W.2d 865, superseded by statute on other
grounds as stated in State v. Jones, 2018 WI 44, ¶30, 381 Wis. 2d 284, 911
N.W.2d 97.

¶81 Both Hanson and Kandutsch are materially distinguishable from
this case. Unlike Hanson and Kandutsch, this case does not involve the reliability
or accuracy of a report or reading from a particular device. Rather, Martha briefly
testified that she installed video cameras in the apartment; that the cameras were
plugged into the walls; that someone unplugged the cameras while she was not at
home; that the video footage from the cameras was stored on SD cards; and that
some of the SD cards “disappeared”—in other words, were removed from the
cameras. This type of testimony bears no relation to the testimony at issue in
Hanson and Kandutsch. As such, any argument that the same type of foundation
required by Hanson and Kandutsch was also required for Martha’s testimony
would have failed. Accordingly, Zastrow’s trial attorney did not perform
deficiently by failing to raise that argument. See Berggren, 320 Wis. 2d 209, ¶21.

32
No. 2023AP1628-CR

3. Failure to effectively cross-examine Alice

¶82 Next, Zastrow argues that his trial attorney was constitutionally
ineffective by failing to effectively cross-examine Alice. He notes that his
attorney’s strategy at trial “was to highlight the various inconsistent and
implausible remarks that Alice made throughout the investigation.” He argues,
however, that counsel failed to confront Alice with these inconsistencies and
implausible statements on cross-examination. He contends that counsel’s failure
to do so was unreasonable, in light of counsel’s chosen trial strategy.

¶83 During the Machner hearing, Zastrow’s trial attorney testified that
her strategy at trial was to attack Alice’s testimony regarding the sexual assaults as
implausible. To that end, counsel elicited evidence showing inconsistencies
between Alice’s trial testimony, her forensic interview, and other witness’s
testimony. However, counsel made a strategic decision to bring out those
inconsistencies during the cross-examination of other witnesses, rather than
Alice’s cross-examination. Counsel explained that “going after a child in front of
a jury doesn’t make you look very sympathetic, and by [attacking the child’s
credibility] through other witnesses[,] you’re not having to outright call the child a
liar.”

¶84 The postconviction court found that Zastrow’s trial attorney made a
reasonable strategic decision not to cross-examine Alice regarding her inconsistent
and implausible statements and, instead, to highlight those inconsistencies during
the testimony of other witnesses. “[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.’” State v. Breitzman, 2017 WI 100,
¶65, 378 Wis. 2d 431, 904 N.W.2d 93 (citation omitted). We agree with the

33
No. 2023AP1628-CR

postconviction court that trial counsel’s strategic decision not to cross-examine
Alice regarding her inconsistent and implausible statements was reasonable, under
the circumstances. Zastrow has therefore failed to show that his trial attorney
performed deficiently in that respect.

4. Failure to object to Martha’s testimony regarding Alice’s
behavioral changes and suicide attempt

¶85 Finally, Zastrow argues that his trial attorney was ineffective by
failing to object to Martha’s testimony regarding Alice’s behavioral changes and
suicide attempt following the sexual assaults. He argues that this testimony
“should have been excluded as irrelevant, prejudicial, and as an inadmissible
character trait.” We agree with the State that the testimony at issue was not
inadmissible on any of these grounds, and, accordingly, Zastrow’s trial attorney
did not perform deficiently by failing to object. See Berggren, 320 Wis. 2d 209,
¶21.

¶86 First, Martha’s testimony regarding Alice’s behavioral changes and
suicide attempt was relevant because it went to Alice’s credibility. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” WIS. STAT. § 904.01. “A witness’s
credibility is always ‘consequential’ within the meaning of … § 904.01.” State v.
Hurley, 2015 WI 35, ¶81, 361 Wis. 2d 529, 861 N.W.2d 174 (citation omitted).
Here, Martha’s testimony supported Alice’s credibility by showing that Alice’s
mood and behavior noticeably changed in 2016, when Alice alleged that the
sexual assaults began. Martha’s testimony also corroborated Alice’s statements
during her forensic interview about changes in her mood and behavior following

34
No. 2023AP1628-CR

the assaults. Consequently, any relevancy objection to this testimony would have
been properly overruled.

¶87 Second, the probative value of Martha’s testimony was not
substantially outweighed by the danger of unfair prejudice under WIS. STAT.
§ 904.03. The evidence was offered to bolster the credibility of Alice’s testimony
that Zastrow had sexually assaulted her, which was the central issue at trial, and
the evidence’s probative value was therefore high. Although the evidence was
undoubtedly prejudicial to Zastrow, he has not shown that its probative value was
substantially outweighed by the danger of unfair prejudice. The testimony about
Alice’s behavioral changes, generally, was not so inflammatory as to “appeal[] to
the jury’s sympathies, arouse[] its sense of horror, provoke[] its instinct to punish
or otherwise cause[] [the] jury to base its decision on something other than the
established propositions in the case.” See State v. Sullivan, 216 Wis. 2d 768, 790,
576 N.W.2d 30 (1998). Furthermore, Martha’s testimony about Alice’s suicide
attempt amounted to a single sentence, and the State did not elicit any additional
details about the suicide attempt or refer to that topic during its closing argument.
Under these circumstances, any objection to this testimony under § 904.03 would
have been properly overruled.

¶88 Third, Martha’s testimony regarding Alice’s behavioral changes and
suicide attempt was not “character evidence” under WIS. STAT. § 904.04(1). That
subsection provides that, subject to certain exceptions, “[e]vidence of a person’s
character or a trait of the person’s character is not admissible for the purpose of
proving that the person acted in conformity therewith on a particular occasion.”
Id. Here, evidence that Alice experienced behavioral changes following the
alleged assaults was introduced to bolster Alice’s credibility. It was not
introduced to show that Alice acted in conformity with a particular character trait

35
No. 2023AP1628-CR

on a particular occasion. Nor was it introduced to show that Zastrow acted in
conformity with a particular character trait when he sexually assaulted Alice. As
such, any objection to Martha’s testimony under § 904.04(1) would have been
properly denied.

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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