State v. Jeffrey M. McCulloch

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.
March 3, 2026
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. 2024AP56-CR Cir. Ct. No. 2020CF264

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY M. MCCULLOCH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dunn County: CHRISTINA M. MAYER, Judge. Affirmed.

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jeffrey M. McCulloch appeals from a judgment
convicting him, pursuant to a jury verdict, of incest with a child by a stepparent,
No. 2024AP56-CR

first-degree sexual assault of a child, and three counts of repeated sexual assault of
the same child. McCulloch also appeals from the circuit court’s order denying his
motion for postconviction relief. McCulloch seeks a new trial, arguing that the
circuit court erred by admitting other-acts evidence that he had assaulted the
victim on two occasions in a different county and asserting that defense counsel
provided him constitutionally ineffective assistance in four ways. For the reasons
that follow, we reject his arguments and affirm.

BACKGROUND

¶2 The victim in this case, Aspen,1 alleged that McCulloch had
repeatedly sexually assaulted her over an eleven-year period, beginning in 2006
when she was seven years old. Aspen first disclosed the abuse to her college
boyfriend, Jacob, in 2018. She also told her cousin, Angela; two counselors; and
her mother, Bonnie, about the abuse before reporting the crimes to police in 2020.

¶3 The State charged McCulloch based on Aspen’s disclosure to law
enforcement, and the case was set for trial. Prior to the trial, the parties litigated
several evidentiary issues. First, the State moved, under WIS. STAT. § 904.04(2),
to admit other-acts evidence that McCulloch had sexually assaulted Aspen on two
occasions at the family’s cabin in Ashland County.2 McCulloch objected to the
admission of the Ashland County incidents on the grounds that they were offered

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2023-24), we refer to
the victim, the victim’s mother, the victim’s cousin, the victim’s aunt, and the victim’s college
boyfriend using pseudonyms. All references to the Wisconsin Statutes are to the 2023-24
version.
2
McCulloch was charged for this conduct in Ashland County Case No. 2020CF196, and
he subsequently pled no contest to one count of incest with a child by a stepparent in that case.

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to show propensity, were prejudicial, and would confuse the jury. After
considering the three-part test outlined in State v. Sullivan, 216 Wis. 2d 768, 576
N.W.2d 30 (1998), the circuit court allowed Aspen to testify regarding
McCulloch’s Ashland County conduct.

¶4 Second, the State filed a notice of expert witness testimony for
Michelle Harris, a social worker and forensic interviewer. The notice stated that
Harris would testify about (1) “Delayed Reporting/Piecemeal
disclosure/Non-disclosure”; and (2) the “[e]ffect of trauma on memory.”
McCulloch challenged the admissibility of Harris’s testimony as an expert
witness, and the circuit court held a Daubert3 hearing. After reviewing the
standards under WIS. STAT. § 907.02(1), the court issued an oral ruling,
concluding that Harris’s testimony was admissible because she had specialized
knowledge about interviewing children, her testimony was relevant to the issues in
the case, and her knowledge was based on a reliable foundation.

¶5 Third, the State filed a motion for a pretrial ruling on the
admissibility of certain evidence. The motion explained that “[t]he State intends
to introduce evidence that during the time period the defendant was sexually
abusing the victim,” he exhibited “controlling/jealous behaviors” (hereinafter, the
motion evidence). According to the State, the motion evidence was “relevant to
the defendant’s relationship with the victim” and “relate[d] to how his relationship
was not that of a parent and child but instead more like a jealous boyfriend.” The
motion also stated that the State was “filing this motion in anticipation that the
defense may object to this evidence [as other-acts evidence] at trial,” but it alleged

3
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

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No. 2024AP56-CR

that the evidence was not other-acts evidence. Rather, the State contended, “[t]he
evidence sought to be admitted … all relates to the defendant’s frame of mind in
the timeframe that he was assaulting the victim,” such “that he viewed her and
treated her like a romantic partner and not as a child.”

¶6 The circuit court addressed the State’s motion on the morning of the
first day of trial. Defense counsel objected to both the late filing of the motion and
to the prematureness of any ruling on the evidence, as it was unclear how the
evidence would be presented and whether there might be other grounds to object.
The court agreed that it could not make a ruling “without hearing the surrounding
evidence.” Therefore, it deferred ruling on the evidence’s admissibility until there
were objections during the trial.

¶7 The case proceeded to a three-day jury trial in February 2022. The
State’s first witness was Aspen, who was 23 years old at the time of the trial.
Aspen explained that the first time McCulloch sexually assaulted her was in
November 2006, when she was seven years old, and she woke up to his hand in
her underwear touching her vagina. According to Aspen, after this incident,
McCulloch began to have sexual contact with her multiple times every week,
usually when he was in her room putting her to bed for the night. Aspen testified
that McCulloch “would tell [her] good night and then he would begin to kiss
[her]”—“a slow, long kiss” on the mouth—“and then he would begin to touch
[her]; sometimes on the outside of [her] pants and sometimes on the inside.”
Aspen explained that “[a]lmost every time” McCulloch would penetrate her
vagina with his hands. She stated that at some point, McCulloch began removing
her pants so that she was in just her underwear during these assaults, and
eventually McCulloch began taking off his own pants, so he was in just his
underwear too.

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No. 2024AP56-CR

¶8 According to Aspen, McCulloch would also touch his penis to her
vagina while they both were either clothed or in their underwear, either to “just,
rub against” her or to engage in what she called “pony rides,” where she was
“sitting over [the] top of … his groin.” Aspen specifically recounted other assaults
that she remembered, including one that occurred while Bonnie was taking a bath
and that stopped when they heard Bonnie get out of the tub; one when Aspen was
older and McCulloch rubbed his groin against her buttocks while they were at
McCulloch’s business; and one that occurred after a dance team performance at a
basketball game during her senior year of high school.

¶9 Aspen also testified regarding the other-acts evidence in Ashland
County, which we discuss in more detail below, see infra ¶¶25-26, and about the
motion evidence. She explained that McCulloch’s behavior toward her was “very
controlling,” as he restricted her ability to engage in after-school activities, go out
with friends, or be on her phone at home. According to Aspen, her brother was
not treated similarly. McCulloch was also demanding about getting hugs and
kisses from her when she left or arrived at home, which only got worse as she got
older, and he required “full-on face-to-face hug[s]” instead of “just a side hug”
because “then it meant that [she] didn’t love him.” He required her to text him
often and with “a heart emoji,” and if she did not, “he would think that [she] didn’t
love him.” Aspen also observed that McCulloch would sometimes talk to her with
the “door cracked open” when she was naked before she got in the shower.

¶10 Aspen recounted that she had a boyfriend during her junior year of
high school, and McCulloch “told [her] that he wasn’t happy that [she] was
dating” and that he “didn’t like [her] boyfriend” before he met him. In another
instance, when she was texting with her boyfriend while watching television with
McCulloch, McCulloch threw her phone at their turtle tank, shattering the tank.

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No. 2024AP56-CR

Aspen also testified about a time when McCulloch accused her of engaging in
inappropriate sexual activity when she accompanied her boyfriend to the door
after a New Year’s Eve party. On another occasion, McCulloch got upset and
refused to watch Aspen compete during a dance competition because her
boyfriend was also there, and she was not “showing [McCulloch] enough love.”

¶11 Aspen testified that the sexual assaults ended when she moved out of
the house and went to college in 2017. She explained that she did not disclose the
abuse to anyone while it was occurring, despite being directly asked about sexual
abuse by Bonnie; by her aunt, Stacy; and by a counselor in high school. Aspen
stated that she did not report the assaults because “[i]t had been going on for so
long that I … didn’t want people to know that I had let that happen for that long”
and “my hope was that it would, just, end once I went to college and I would never
have to deal with it again.”

¶12 The State also called as witnesses Jacob; Bonnie; one of Aspen’s
brothers; Angela; Stacy, who was the sister of Aspen’s biological father; Diane
Stieper, Aspen’s college counselor; and Shanna Krueger, Aspen’s high school
counselor. Overwhelmingly, their testimony confirmed certain aspects of Aspen’s
testimony. Stacy explained that, after Aspen went to college, Aspen “reached out
to [her] for help in relation to her relationship with” McCulloch, and something
Aspen said caused Stacy to ask “if [Aspen] had ever been sexually touched by”
McCulloch. According to Stacy, Aspen “visually … hesitated and took a minute
to pause and got very quiet,” but ultimately Aspen denied it.

¶13 Stieper and Krueger both confirmed that Aspen did not disclose any
sexual abuse during their initial counseling screenings. But Stieper observed that
Aspen’s relationship with McCulloch came up in almost every session. Krueger

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No. 2024AP56-CR

explained that Aspen “came in with a struggling relationship with her stepfather”
and that they specifically addressed how Aspen could be more assertive and
confident given McCulloch’s excessive text messages. Krueger also testified that,
“based on things [Aspen had] shared during her counseling,” Krueger
recommended that Aspen not have unsupervised contact with McCulloch because
she “had a hunch there was more going on.” Stieper explained that it did not
surprise her that Aspen did not disclose the assaults to her earlier.

¶14 Harris testified, based on both her experience and the research
literature, that delayed disclosure of child sexual assault is common, often
extending into adulthood. She identified common barriers to disclosure, including
doubt that others would believe an initial disclosure, fear of family disruption or
economic loss, and the perpetrator’s status of a parent or parental figure with
power over the child. According to Harris, trauma and feelings of guilt, shame, or
embarrassment may also impede disclosure and can result in piecemeal reporting
over time. Finally, she testified that prolonged abuse may affect memory for
specific incidents and that traumatic events may be compartmentalized as a coping
mechanism.

¶15 Rebecca Merryfield, a sheriff’s department investigator, was also
called to testify. During her testimony, a 40-minute portion of McCulloch’s police
interrogation was played for the jury, during which McCulloch vehemently denied
inappropriately touching Aspen “intentionally” but admitted to having Aspen in
his sleeping bag “to stay warm” and to kissing Aspen on the neck and lips.

¶16 After a colloquy with the circuit court, McCulloch waived his right
to testify in his own defense. The defense rested without calling any witnesses.

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No. 2024AP56-CR

¶17 The circuit court provided instructions to the jury, including the
cautionary instruction on other-acts evidence. See WIS JI—CRIMINAL 275 (2016).
Then, while the jury was deliberating, it sent a note to the court asking to see the
transcript of McCulloch’s interrogation.4 No transcript had been admitted into
evidence, and after a discussion with the parties about how to proceed, the court
advised the jury that the transcript was not in evidence and instructed it to review
WIS JI—CRIMINAL 103 (2000), which defines “evidence.”

¶18 The jury eventually returned guilty verdicts on all five counts. The
circuit court sentenced McCulloch to a total of 35 years’ incarceration, consisting
of 25 years’ initial confinement followed by 10 years’ extended supervision.

¶19 McCulloch filed a postconviction motion, alleging ineffective
assistance of counsel and requesting a Machner5 hearing on his motion and a new
trial. In a written decision, the circuit court denied the motion without a hearing
based on its conclusion that the record demonstrated that McCulloch was not
entitled to relief. McCulloch appeals.

DISCUSSION

¶20 On appeal, McCulloch explains that “[t]his case turned entirely on
the jury’s assessment of the credibility of [Aspen] and McCulloch,” but “the jury’s

4
Before asking for the transcript of the interrogation, the jury sent the circuit court a note
stating that it was “at an impasse.” With the agreement of the parties, the court advised the jury
to continue to deliberate, and it informed the jury that it “should make every effort to reach a
unanimous verdict.” Almost two hours after asking for the transcript, the jury advised the court it
was “unable to be unanimous” in its vote, informing the court that it was split ten-to-two. The
court responded by reading WIS JI—CRIMINAL 520 (2001), the supplemental instruction on jury
agreement.
5
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2024AP56-CR

evaluation of credibility was skewed by” “evidence that it should not have heard
and by its lack of a second opportunity to review the video of McCulloch’s
interrogation.” Accordingly, McCulloch argues that the circuit court erroneously
exercised its discretion by admitting the other-acts evidence about the two assaults
in Ashland County. McCulloch also renews his ineffective assistance of counsel
claim, asserting that he is entitled to an evidentiary hearing to address defense
counsel’s four alleged errors. For the reasons that follow, we reject each of
McCulloch’s arguments.

I. Other-acts evidence

¶21 The admission of other-acts evidence is governed by WIS. STAT.
§ 904.04(2), which prohibits the admission of “evidence of other crimes, wrongs,
or acts … to prove the character of a person in order to show that the person acted
in conformity therewith.” The statute, however, “does not exclude the evidence
when offered for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
Sec. 904.04(2)(a).

¶22 To determine the admissibility of other-acts evidence, we apply the
three-prong test outlined in Sullivan. Under that test, other-acts evidence is
admissible if: (1) the evidence is offered for a permissible purpose under WIS.
STAT. § 904.04(2)(a); (2) the evidence is relevant under WIS. STAT. § 904.01; and
(3) the evidence’s “probative value is not substantially outweighed by the risk of
unfair prejudice under WIS. STAT. § 904.03.” State v. Dorsey, 2018 WI 10, ¶39,
379 Wis. 2d 386, 906 N.W.2d 158. The State bears the burden of proving the first
two prongs of the Sullivan analysis, and if it does so successfully, the burden then
shifts to the defendant to prove that the probative value of the evidence is

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No. 2024AP56-CR

substantially outweighed by the danger of unfair prejudice. State v. Gutierrez,
2020 WI 52, ¶35, 391 Wis. 2d 799, 943 N.W.2d 870.

¶23 “[A]longside this general framework, there also exists in Wisconsin
law the longstanding principle that in sexual assault cases, particularly cases that
involve sexual assault of a child, courts permit a ‘greater latitude of proof as to
other like occurrences.’” State v. Davidson, 2000 WI 91, ¶36, 236 Wis. 2d 537,
613 N.W.2d 606 (citation omitted). The greater latitude rule applies to each part
of the Sullivan test, and “[t]he effect of the rule is to permit the more liberal
admission of other crimes evidence in sex crime cases in which the victim is a
child.” Davidson, 236 Wis. 2d 537, ¶¶51-52.

¶24 We review a circuit court’s decision to admit or exclude other-acts
evidence for an erroneous exercise of discretion. State v. Marinez, 2011 WI 12,
¶17, 331 Wis. 2d 568, 797 N.W.2d 399. We will uphold the court’s decision if it
“examined the relevant facts, applied a proper standard of law, used a
demonstrated rational process and reached a conclusion that a reasonable judge
could reach.” Id. (citation omitted).

¶25 In the first Ashland County incident, Aspen testified that she and
McCulloch were alone in the family-owned cabin, and McCulloch pulled her into
his sleeping bag. McCulloch was wearing only his underwear, and he proceeded
to remove her clothing. Aspen testified that he put his fingers inside her vagina,
kissed her on the mouth, and pushed his groin against hers until his penis was
“hard” and his underwear was wet. According to Aspen, “while it was happening,
[McCulloch] just kept commenting about how [she] must be liking it because [she]
was so relaxed,” and this was the only time he had said anything to her during an
assault.

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No. 2024AP56-CR

¶26 In the second incident, other family members were at the cabin, but
they had all gone hunting. According to Aspen, this incident was the only time
McCulloch took off all of their clothing, and he began kissing her and “rubbing his
penis against [her] vagina.” Aspen “flinched and moved backwards” when
McCulloch’s penis started to penetrate her, and he stopped and said “he didn’t
want to hurt [her].”

¶27 On appeal, McCulloch argues that the circuit court erred by
admitting the other-acts evidence because the evidence fails Sullivan’s first and
third prongs. Given that McCulloch challenges only the first and third prongs of
the Sullivan analysis, we will narrow our analysis to those two issues.

A. Permissible purpose

¶28 “As long as the proponent identifies one acceptable purpose for
admission of the evidence that is not related to the forbidden character inference,
the first step [of the Sullivan analysis] is satisfied.” State v. Payano, 2009 WI 86,
¶63, 320 Wis. 2d 348, 768 N.W.2d 832 (footnote omitted). “Consequently, this
‘first step is hardly demanding.’” Id. (citation omitted). Permissible purposes are
listed in WIS. STAT. § 904.04(2)(a), but that list is not exhaustive, see Payano, 320
Wis. 2d 348, ¶63 n.12, and the permissible purposes may also include “context,
credibility, and providing a more complete background,” Marinez, 331 Wis. 2d
568, ¶27.

¶29 We conclude that the circuit court did not erroneously exercise its
discretion under the first Sullivan prong. The court outlined each prong of the
Sullivan test on the record; stated that it considered the facts of the other-acts
evidence and researched the case law; and reasonably determined that the
other-acts evidence was offered by the State to prove “a plan, a scheme, and a

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No. 2024AP56-CR

continuing course of action” and to “support the credibility of the victim,” which
are permissible purposes under WIS. STAT. § 904.04(2)(a) and Marinez.
Specifically, the court observed,

[E]very single case that I saw regarding sexual assault and
the greater latitude test and the Sullivan test addressed
sexual assault of another victim; not the same victim. This
is sexual assault of the same victim, simply in another
county, and so I think that this passes the Sullivan test;
regardless of the greater latitude test.

The court went on to explain that the other-acts evidence “support[ed] the
credibility of the victim. Simply because the parties went on vacation, the alleged
sexual assaults didn’t stop…. It was an alleged continuing course of action.” The
greater latitude rule supports the circuit court’s exercise of discretion in
concluding that the Ashland County conduct was offered for a permissible
purpose.

¶30 McCulloch, for his part, concedes that the State identified proper
purposes in its motion—“motive, plan or scheme”—but he argues that those
purposes are not actually applicable to the other-acts evidence in this case and that
“the court cannot list those purposes without explaining how the Ashland County
assaults provide[] a motive for McCulloch to commit the assaults in this case or
how the Ashland County conduct was a step in a plan to commit the assaults in
this case.”

¶31 First, as to motive or intent, during McCulloch’s interview with law
enforcement, when asked if he ever rubbed his penis against Aspen’s genitals or
put his finger into her vagina, he repeatedly responded that he never did so
“intentionally” and that he would never do those things “in a million years.” An
element of some of the offenses McCulloch was charged with is “sexual contact,”
which is defined as “intentional touching … either for the purpose of sexually

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No. 2024AP56-CR

degrading or sexually humiliating the complainant or sexually arousing or
gratifying the defendant.” See WIS. STAT. §§ 948.01(5), 948.06(1m), 948.025(1).
Thus, the other-acts evidence was offered for the admissible purpose of proving
that McCulloch’s motive was to intentionally touch Aspen for sexual arousal or
gratification. See State v. Hurley, 2015 WI 35, ¶¶72-73, 361 Wis. 2d 529, 861
N.W.2d 174.

¶32 As to McCulloch’s argument that the other-acts evidence does not
establish a “plan,” we conclude that he utilizes too narrow a definition for that
term. McCulloch asserts that the “[s]imilarities between the charged conduct and
the other acts [are] not sufficient to demonstrate a common scheme or plan” and
that “there are differences between the offenses,” including that the Ashland
County assaults “involved the only time McCulloch spoke during an assault and
the only time he removed his underwear.”

¶33 We are not persuaded by McCulloch’s argument. First, there is no
general rule governing “[t]he required degree of similarity between the other act
and the charged offense.” See State v. Opalewski, 2002 WI App 145, ¶16, 256
Wis. 2d 110, 647 N.W.2d 331 (citation omitted). Further, we disagree that the
incidents are insufficiently similar. All of the assaults occurred when Aspen was
alone with McCulloch; they all involved McCulloch rubbing his intimate parts on
Aspen’s intimate parts or touching her intimate parts with his hands; they all
occurred when Aspen was a child; and, most importantly, they all involved the
same victim.

¶34 McCulloch also cites State v. Cofield, 2000 WI App 196, 238
Wis. 2d 467, 618 N.W.2d 214, in support of his position. There, this court noted
that the definition of plan “means a design or scheme formed to accomplish some

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No. 2024AP56-CR

particular purpose.” Id., ¶13 (citation omitted). McCulloch latches onto language
from Cofield stating that “[t]here must be some evidence that the prior acts were a
step in a plan leading to the charged offense,” but the court also said “or some
other result of which the charged offense was but one step.” See id. (emphasis
added). If we consider the “plan” or “result” to be that McCulloch would use
Aspen for his own sexual gratification, then the other-acts evidence and the
charged offenses were absolutely each a step in that plan. Regardless of that
definition, however, the circuit court identified that the other-acts evidence was
properly admitted to show a continuing course of conduct, to bolster Aspen’s
credibility, and to provide context, which are undoubtedly permissible purposes.
See Marinez, 331 Wis 2d 568, ¶27.

¶35 Nevertheless, McCulloch also argues that admitting the evidence to
show a continuing course of conduct is not a permissible purpose and is “simply a
proxy for propensity evidence” because “[i]t asks the jury to conclude that if he
would commit these assaults at the cabin, then he must be the kind of person who
is capable of sexually assaulting his stepdaughter, and he must have also
committed the assaults in” this case. We agree with the State that this argument
might hold water in a different case, where the other-acts victim and the victim of
the charged conduct are different individuals. Here, however, as the State
explains, “the record … shows that the circuit court … used the phrase ‘continuing
course of conduct’ … as a way of expressing that the two assaults at the cabin
were part of ‘an ongoing pattern of sexual assault’ against the same victim.”

B. Balancing test

¶36 Moving to the third prong of the Sullivan test, the question is
whether McCulloch has demonstrated that the other-acts evidence’s “probative

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No. 2024AP56-CR

value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” See Payano, 320 Wis. 2d
348, ¶80 (quoting WIS. STAT. § 904.03). “The term ‘substantially’ indicates that if
the probative value of the evidence is close or equal to its unfair prejudicial effect,
the evidence must be admitted.” Id. (emphasis omitted). However, as the circuit
court also acknowledged, “[n]early all evidence operates to the prejudice of the
party against whom it is offered”; the question “is whether the resulting prejudice
of relevant evidence is fair or unfair.” See id., ¶88 (alteration in original; citation
omitted).

Unfair prejudice results when the proffered evidence has
a tendency to influence the outcome by improper means or
if it appeals to the jury’s sympathies, arouses its sense of
horror, provokes its instinct to punish or otherwise causes a
jury to base its decision on something other than the
established propositions in the case.

Sullivan, 216 Wis. 2d at 789-90.

¶37 We conclude that McCulloch has failed to establish that the
probative value of the other-acts evidence was substantially outweighed by the
danger of unfair prejudice. “The probative value of evidence ‘is a function of its
relevance under WIS. STAT. § 904.01,’” Marinez, 331 Wis. 2d 568, ¶41 (citation
omitted), and, again, McCulloch does not challenge the circuit court’s conclusions
that the other-acts evidence was relevant and that it had probative value under
Sullivan’s second prong. Given that the other-acts evidence involved the same
victim and similar conduct, that Aspen was a child when the charged conduct
occurred, that McCulloch’s charges included an intent element, and that
McCulloch told police that he would never “intentionally” touch Aspen in that
way, the probative value of the other-acts evidence was significant, and the circuit

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No. 2024AP56-CR

court reasonably concluded that the probative value was not substantially
outweighed by the risk of unfair prejudice. See State v. Gray, 225 Wis. 2d 39, 56,
590 N.W.2d 918 (1999) (“Other acts evidence is properly admitted to show
absence of mistake if it tends to undermine a defendant’s innocent explanation for
his or her behavior.”); Davidson, 236 Wis. 2d 537, ¶65; see also State v. Johnson,
184 Wis. 2d 324, 340, 516 N.W.2d 463 (Ct. App. 1994) (“In most instances, as the
probative value of relevant evidence increases, so will the fairness of its
prejudicial effect.”).

¶38 Furthermore, the circuit court provided a cautionary instruction to
the jury regarding the proper basis for considering the other-acts evidence, which
case law has stated “substantially mitigate[s] any unfair prejudicial effect.”
See Hurley, 361 Wis. 2d 529, ¶89; see also Dorsey, 379 Wis. 2d 386, ¶55 (“We
presume that jurors follow the instructions given by the court.”).6 Thus, in light of
the probative value of the other-acts evidence, the greater latitude rule, and the
cautionary instruction, we cannot conclude that the circuit court erroneously
exercised its discretion under Sullivan’s third prong.

¶39 McCulloch challenges this conclusion by questioning the State’s
assertion that the other-acts evidence was not prejudicial because it involved the
same victim. For support, McCulloch cites Payano, where the court stated that the
“situation in which unfair prejudice is most likely to occur is when one party
attempts to put into evidence other acts allegedly committed by the opposing party

6
McCulloch also suggests that the other-acts evidence “could have created confusion
about which assaults could be considered to convict, given that most of the charging periods
spanned multiple years,” but beyond this statement, he does not develop this argument. We need
not address undeveloped arguments. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d
633 (Ct. App. 1992).

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No. 2024AP56-CR

that are similar to the act at issue in the current case.” Payano, 320 Wis. 2d 348,
¶90. The example the Payano court provided, however, was in State v.
McGowan, 2006 WI App 80, ¶¶1, 23-24, 291 Wis. 2d 212, 715 N.W.2d 631,
where “the prosecution was allowed to introduce evidence suggesting that the
defendant had assaulted a different female cousin when he was 10 and she was 5.”
Payano, 320 Wis. 2d 348, ¶90. This court concluded that the circuit court erred
by admitting the other-acts evidence because we were “concerned that the jury,
after hearing evidence of another heinous sexual assault of a young child, would
decide to punish the defendant based on that fact alone rather than the facts
comprising the current charges.” Id., ¶91.

¶40 The circumstances described in Payano are not similar to those in
this case; neither Payano nor McGowan involved other-acts evidence with the
same victim as the charged offense. Thus, we are not persuaded by McCulloch’s
argument that, based on Payano’s holding, unfair prejudice occurred in this case.

¶41 Next, McCulloch argues that the other-acts evidence is unfairly
prejudicial because “it appeals to the jury’s sympathies, arouses its sense of horror,
[and] provokes its instinct to punish.” According to McCulloch, “the testimony
about the Ashland County assaults described vivid and horrific details about the
assaults that took place.” For example, “[t]he jury heard that the victim was told
‘she must be liking it’ and that she flinched in pain,” which details “were largely
absent from the testimony about the allegations McCulloch was on trial for in this
case,” and “[t]hose are also the types of details that once heard by the jury cannot
be simply erased from their minds because of an instruction at the close of
evidence.” “Thus,” McCulloch contends, “the jury would have been horrified and
would have had a desire to punish after hearing that testimony.”

17
No. 2024AP56-CR

¶42 As we determined above, the Ashland County other-acts evidence
was highly probative, see supra, ¶37, and we agree with the circuit court’s
assessment that it did not “see these acts as substantially different.” The Ashland
County incidents when Aspen was a teenager were not especially “vivid and
horrific,” especially in comparison to the charged conduct where Aspen alleged
weekly sexual assaults beginning at age seven. Thus, the probative value of the
other-acts evidence was not substantially outweighed by the danger of unfair
prejudice, especially given the greater latitude rule. See Gutierrez, 391 Wis. 2d
799, ¶36 (citing State v. Veach, 2002 WI 110, ¶91, 255 Wis. 2d 390, 648 N.W.2d
447, for the proposition “that even ‘graphic, disturbing, and extremely prejudicial’
testimony detailing a similar other act of child sexual assault is admissible under
the greater latitude rule”).

¶43 In summary, the circuit court applied the correct legal standard,
considered the relevant facts, and reasonably concluded that the Ashland County
other-acts evidence was admissible. McCulloch’s challenge to his conviction on
this basis fails.

II. Ineffective assistance of counsel

¶44 McCulloch next argues that the circuit court erred by denying him a
Machner hearing on his ineffective assistance of counsel claim. “When a circuit
court summarily denies a postconviction motion alleging ineffective assistance of
counsel without holding a Machner hearing, the issue for the court of
appeals … is whether the defendant’s motion alleged sufficient [material] facts
entitling him to a hearing.” State v. Sholar, 2018 WI 53, ¶51, 381 Wis. 2d 560,
912 N.W.2d 89; State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d

18
No. 2024AP56-CR

433. This determination is a question of law that we review de novo. State v.
Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659.

¶45 If a defendant’s motion asserting ineffective assistance “does not
raise facts sufficient to entitle the movant to relief, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is not
entitled to relief, the circuit court has the discretion to grant or deny a hearing.”
Id. (citation omitted). “We review a circuit court’s discretionary decisions under
the deferential erroneous exercise of discretion standard.” Id. (citation omitted).

¶46 A defendant claiming ineffective assistance of counsel must prove
both that his or her counsel’s representation was deficient and that he or she
suffered prejudice as a result of that deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In order to establish deficient
performance, the defendant must show that “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. To prove prejudice, the defendant must demonstrate 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. “It is
not enough for the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding.” Id. at 693. However, “a defendant need not
prove the outcome would ‘more likely than not’ be different in order to establish
prejudice in ineffective assistance cases.” Sholar, 381 Wis. 2d 560, ¶44 (citation
omitted).

¶47 Our review of an ineffective assistance of counsel claim “is a mixed
question of fact and law.” State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d

19
No. 2024AP56-CR

749 (1999). “We will not disturb the circuit court’s findings of fact unless they are
clearly erroneous.” Id. Whether an attorney rendered constitutionally ineffective
assistance under the Strickland standard is a question of law that we review
independently. Erickson, 227 Wis. 2d at 768.

¶48 As an initial matter, and as a foundation for our discussion below,
we wish to address McCulloch’s statement that the circuit court was “critical” of
his ineffective assistance of counsel arguments, which, McCulloch admits, allege
that “counsel should have made different objections than he did.” According to
McCulloch, because he “cannot make an argument on appeal that his [defense]
counsel did not make in the circuit court,” see State v. Rogers, 196 Wis. 2d 817,
826-29, 539 N.W.2d 897 (Ct. App. 1995), he “must allege ineffective assistance of
counsel to preserve the issue for appeal,” “even though [his defense] counsel
attempted to exclude the evidence at issue.”

¶49 McCulloch’s argument improperly conflates forfeiture with
ineffective assistance of counsel. Although a party may not raise on appeal an
evidentiary argument that was not presented to the circuit court as a basis to
overturn the court’s decision, ineffective assistance is not established merely
because appellate counsel identifies a different objection that defense counsel
could have made. Rogers addresses issue preservation, not constitutional
deficiency of counsel, and does not convert every unraised evidentiary theory into
an ineffective assistance of counsel claim. As will be made clear below, for most
of his ineffective assistance of counsel arguments, McCulloch concedes that
defense counsel objected to the evidence and sought its exclusion. He fails,
however, to argue that the objections defense counsel actually made were
unreasonable.

20
No. 2024AP56-CR

A. The motion evidence

¶50 First, McCulloch argues that his defense counsel was
constitutionally ineffective because he failed to properly object to the motion
evidence. As noted above, see supra ¶¶5, 9-10, the State sought a pretrial ruling
on the admissibility of the motion evidence, and, as McCulloch admits, his
defense counsel successfully objected to the motion. McCulloch further concedes
that, at trial, “counsel made some hearsay objections to specific questions or
answers regarding some of this evidence.” Nevertheless, McCulloch argued in his
postconviction motion that defense counsel performed deficiently because “he did
not object to [the motion evidence’s] admission generally on the ground it was
inadmissible under [WIS. STAT. §] 904.04,” he did not argue that the motion
evidence was unfairly prejudicial, and he did not request a cautionary instruction
to tell the jury that the motion evidence should be considered for “context or
background, and not as evidence of [McCulloch’s] character or propensity.”

¶51 First, we emphasize McCulloch’s admissions that defense counsel
objected to the State’s attempt to obtain a pretrial ruling on the admissibility of the
motion evidence, that his objection was successful because the circuit court did
not grant the State’s motion, and that counsel continued to object to some of the
evidence as it came up at trial. McCulloch does not argue that the objections that
defense counsel did make before the circuit court were unreasonable. Because
McCulloch challenges only the sufficiency of counsel’s objections, rather than
their objective reasonableness, he fails to allege deficient performance under
Strickland.

¶52 Furthermore, we conclude that McCulloch has also failed to
sufficiently allege that his defense counsel performed deficiently because the

21
No. 2024AP56-CR

motion evidence was not other-acts evidence under WIS. STAT. § 904.04(2) subject
to a Sullivan analysis.7 “[S]imply because an act can be factually classified as
‘different’—in time, place and, perhaps, manner than the act complained of—that
different act is not necessarily ‘other acts’ evidence in the eyes of the law”;
instead, “[w]hen the State or the defense offers a ‘different’ act to show a
similarity between that other act and the act complained of, then it is properly
termed ‘other acts evidence.’” State v. Bauer, 2000 WI App 206, ¶7 n.2, 238
Wis. 2d 687, 617 N.W.2d 902 (emphasis added).

¶53 The motion evidence was “part of the panorama of evidence needed
to completely describe the crime that occurred and is thereby inextricably
intertwined with the crime.” See State v. Dukes, 2007 WI App 175, ¶28, 303
Wis. 2d 208, 736 N.W.2d 515. The motion evidence was not submitted to
demonstrate that McCulloch had a certain character trait, such as an interest in
sexually assaulting children, and that he “acted in conformity therewith.”
See WIS. STAT. § 904.04(2). In other words, the motion evidence, which
McCulloch said tended to show his “mean and demeaning behavior,” does not
“show a similarity” to the charged sexual assaults. See Bauer, 238 Wis. 2d 687,
¶7 n.2. Instead, the motion evidence provided context and was submitted to
“completely describe” how McCulloch treated Aspen and the nature of his
relationship with her because, as the State explained in its motion, the evidence
had a tendency to make it more probable that McCulloch had sexually abused
Aspen because he was acting like a “jealous boyfriend.” See Dukes, 303 Wis. 2d

7
Further, because this evidence was not other-acts evidence, the State was not required
to file the motion in advance of trial. Therefore, to the extent McCulloch argues that the motion
was untimely, that argument has no merit.

22
No. 2024AP56-CR

208, ¶28. Given our conclusion that the motion evidence was not other-acts
evidence, we reject all of McCulloch’s arguments on this issue related to the
Sullivan analysis. See State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270,
647 N.W.2d 441 (stating that counsel is not ineffective for failing to make
meritless arguments).

¶54 Finally, McCulloch characterized all the motion evidence as
evidence that “shows McCulloch to be a difficult, controlling, profane, and angry
man generally.” As a result of this characterization, he argued in his
postconviction motion that all the evidence had a “very slight probative value” that
was “outweighed by the danger of unfair prejudice and the evidence should have
been excluded.”

¶55 The motion evidence was not admitted collectively at trial, however.
The motion evidence was offered individually as the witnesses were asked
questions. Therefore, we must look at each item of evidence to determine whether
defense counsel performed deficiently by allowing the evidence to be admitted.
We concur with the State that all evidence is still subject to WIS. STAT. § 904.03’s
balancing test, see Davidson, 236 Wis. 2d 537, ¶34, and, therefore, “[a] separate
analysis is required for each piece of evidence,” see State v. Jackson, 2014 WI 4,
¶57, 352 Wis. 2d 249, 841 N.W.2d 791. McCulloch’s postconviction motion not
only failed to outline which evidence defense counsel actually objected to, but it
also failed to present an argument for each piece of evidence that he argued was
erroneously admitted.

¶56 McCulloch states in his reply brief on appeal that “that is just why a
Machner hearing is required,” because then “[c]ounsel could be asked about each
piece of evidence that was admitted and why he did not object.” Our case law,

23
No. 2024AP56-CR

however, does not sanction a fishing expedition at a Machner hearing without first
setting forth sufficient facts to allege a prima facie case of ineffective assistance of
counsel.

B. Rebuttal witness

¶57 Next, McCulloch argues that defense counsel performed deficiently
“by failing to fully develop his objection to allowing [Angela] to testify because
she was not a bona fide rebuttal witness.” On the second day of trial, outside the
presence of the jury, the State informed the circuit court that it would like to call
Angela to testify, but it admitted that she was not on its original witness list.
Instead, the State argued that it could call Angela as a rebuttal witness because
“the defense ha[d] adequately put forward” the theory, during cross-examination,
“that the victim made up the assaults.” Additionally, the State understood the
defense to be “putting forward a theory that [Aspen] was motivated to disclose to
her counselor the sexual abuse … because of some motive related to her mom
wanting a divorce or some discussion about a divorce.” Therefore, the State
planned to call Angela to testify that Aspen informed her of the sexual assaults
around December 2019 and that Aspen asked Angela “not to say anything to
anybody” because “she didn’t want it to ruin their family.”

¶58 After taking the issue under advisement, the circuit court determined
that Angela was a bona fide rebuttal witness because her testimony “goes to the
issue of whether or not [Aspen] is telling the truth and when she disclosed.” The
court noted that it had researched the issue, and it cited State v. Hatcher,

24
No. 2024AP56-CR

No. 2015AP297-CR, unpublished slip op., ¶35 (WI App Aug. 16, 2016),8 reading
that case to hold that the court has discretion to allow the State to call a rebuttal
witness even if the defendant does not call any witnesses.

¶59 In response, defense counsel argued that Angela was not a bona fide
“rebuttal witness because rebuttal does not come in as part of the [S]tate’s
case-in-chief.” He also asserted that the State had already put forward similar
evidence from Jacob, Bonnie, and Stieper, and he argued that Angela did not meet
the standard under Hatcher.

¶60 In his postconviction motion, McCulloch conceded that defense
counsel “cited the relevant legal standard in his initial argument that [Angela] was
not a bona fide rebuttal witness, and [he] continued to argue even after the court
provided a copy of Hatcher that, factually, [Angela] did not meet that standard.”
Nevertheless, McCulloch faulted defense counsel for failing to “argue that the
court should not rely on Hatcher’s conclusion that the defense raising an issue on
cross-examination could make rebuttal evidence necessary and appropriate.” He
specifically argued that “Hatcher is not binding authority, but is citable only for
its persuasive value”; “none of the binding published authority on bona fide
rebuttal evidence involves a situation where the rebuttal evidence was not offered
in response to the defendant’s case-in-chief”; and “Hatcher contains scant analysis
and reasoning.” See id., ¶¶28-35. Thus, he argues that his counsel “should have
developed this argument because it is based on facts and law upon which an
ordinarily prudent lawyer would have relied.”

8
An unpublished opinion that is authored by a member of a three-judge panel and issued
on or after July 1, 2009, may be cited for its persuasive value. WIS. STAT. RULE 809.23(3)(b).

25
No. 2024AP56-CR

¶61 We conclude that defense counsel did not perform deficiently by
failing to make a different objection to Angela’s testimony. As the State asserts,

McCulloch acknowledged that counsel cited the statute
requiring disclosure of witnesses, argued that “the [S]tate
should not be allowed to amend the witness list during
trial,” presented two arguments based on case law to show
“that [Angela] was not a proper rebuttal witness,” and
argued in the alternative that the [S]tate had already elicited
“similar evidence to rebut the defense theory” from three
witnesses.

(Citation omitted.) McCulloch does not argue that any of the objections or
arguments counsel actually made were unreasonable, legally deficient, or outside
the wide range of professionally competent assistance. Instead, he explains in his
reply brief that he has “identified a different way [defense counsel] could have
successfully achieved” the goal of excluding Angela’s testimony and that “he
raised the issue as ineffective assistance of counsel in order to avoid an argument
from the [S]tate that his objection was waived.”

¶62 Again, McCulloch’s contention misunderstands the purpose and
limits of an ineffective assistance of counsel claim. Ineffective assistance of
counsel is not established by showing that counsel could have made a different or
additional argument after the fact, particularly where counsel objected and fully
litigated the issue. The constitutional inquiry is not whether an alternative
objection might have been available or more successful, but the inquiry is whether
the objection counsel chose to make was objectively unreasonable. A
constitutionally sufficient attorney does not require the best possible objection, the
most creative argument, or an error-free performance. See State v. Williquette,
180 Wis. 2d 589, 605, 510 N.W.2d 708 (Ct. App. 1993) (“Counsel need not be
perfect, indeed not even very good, to be constitutionally adequate.” (citation
omitted)). Courts must evaluate counsel’s performance with substantial deference

26
No. 2024AP56-CR

and may not employ the “distorting effects of hindsight.” State v. Thiel, 2003 WI
111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted).

¶63 Here, defense counsel objected and argued against Angela testifying
as a rebuttal witness, and the fact that counsel may have had other bases to do so
does not constitute ineffective assistance of counsel. Further, the circuit court was
aware that Hatcher is an unpublished—but authored—decision, and, therefore, it
was aware that it could only rely on the case for persuasive authority. Pointing out
that fact to the court—i.e., essentially arguing that it was erroneously persuaded by
the only legal authority it found on an unsettled question—seems to be the most
tenuous argument and the one least likely to succeed. Regardless, as McCulloch
admits, the law is unsettled in this area, and counsel is not required to take action
in an area where the law is unsettled. See State v. Hanson, 2019 WI 63, ¶29, 387
Wis. 2d 233, 928 N.W.2d 607; State v. Maloney, 2005 WI 74, ¶¶26, 28-29, 281
Wis. 2d 595, 698 N.W.2d 583. Therefore, whether counsel made no argument or
made the wrong argument, any alleged failure in this regard cannot constitute
deficient performance.

C. Expert witness

¶64 Similarly, McCulloch next argues that his defense counsel
performed deficiently by failing to present proper arguments to support his
objection to admitting Harris’s expert testimony. According to McCulloch,
although defense counsel objected to Harris’s testimony, and convinced the circuit
court to hold a Daubert hearing, counsel should have challenged the testimony as
exposition testimony under State v. Dobbs, 2020 WI 64, ¶43, 392 Wis. 2d 505,

27
No. 2024AP56-CR

945 N.W.2d 609, rather than WIS. STAT. § 907.02.9 In his postconviction motion,
McCulloch argued that Harris gave exposition testimony because she “was
intended to ‘educate’ the jury about topics putatively outside of common
knowledge rather than offer a specific opinion about [Aspen’s] conduct or case,
which she did not review.” McCulloch further contended that because his counsel
did not explicitly cite the four-factor test in Dobbs, the court applied the wrong
legal standard.

¶65 On this issue, we conclude that McCulloch’s postconviction motion
failed to sufficiently allege deficient performance by defense counsel. First,
McCulloch’s arguments appear to focus on why the circuit court erred by
admitting Harris’s testimony, rather than identifying an objective failure by
defense counsel. We understand McCulloch to argue that defense counsel’s
alleged deficiencies led to the court’s error, but his position in this regard is
merely a symptom of his flawed reasoning.

¶66 As before, McCulloch admits that defense counsel “reasonably
objected to Harris’s testimony, in his written arguments, at the Daubert hearing,
and later at trial.” This concession is significant. Nevertheless, McCulloch again
posits that “counsel failed to [make] the proper challenges to Harris’s testimony.”

9
Our supreme court explained in State v. Dobbs, 2020 WI 64, ¶43, 392 Wis. 2d 505, 945
N.W.2d 609, that

[w]hen expert testimony is proffered in the form of an exposition
on general principles, the circuit court, as gatekeeper, must
consider the following four factors: (1) whether the expert is
qualified; (2) whether the testimony will address a subject matter
on which the factfinder can be assisted by an expert; (3) whether
the testimony is reliable; and (4) whether the testimony will “fit”
the facts of the case.

28
No. 2024AP56-CR

(Emphasis added.) McCulloch contends that defense counsel should have framed
his objection differently, but Dobbs merely clarified the circuit court’s existing
gatekeeping duties under WIS. STAT. § 907.02(1) as applied to exposition
testimony. Further, our supreme court explained in Dobbs that the “considerations
differ [only] slightly from the considerations to admit opinion testimony of an
expert.” See Dobbs, 392 Wis. 2d 505, ¶43 n.20.10

¶67 By successfully moving for a Daubert hearing and challenging the
reliability and qualifications of the witness, defense counsel effectively triggered
the circuit court’s gatekeeping function, which is strong evidence of effective
advocacy. As we have said, ineffective assistance is not established by showing
that counsel failed to make every conceivable argument. For these reasons,
McCulloch has failed to sufficiently allege deficient performance.

D. Jury deliberations

¶68 Finally, McCulloch argues that defense counsel “performed
deficiently by failing to assure [that] the deliberating jury was told it could review
the recording of McCulloch’s interrogation” with police. According to
McCulloch, when the jury asked to see the transcript of McCulloch’s
interrogation, defense counsel was aware of the option to have the recording

10
We note that McCulloch’s postconviction motion did not describe how and why the
circuit court would have reached a different result under the Dobbs standard as compared to WIS.
STAT. § 907.02. He merely argued in his postconviction motion that Harris was not qualified to
testify on issues regarding memory and that her testimony was not relevant because the reasons
someone would delay reporting a sexual assault are now well understood and Aspen actually
testified as to her own reasons for not disclosing McCulloch’s conduct earlier. Whether a witness
is qualified and whether their testimony will assist the trier of fact are both questions considered
under either standard. Compare State v. Hogan, 2021 WI App 24, ¶19, 397 Wis. 2d 171, 959
N.W.2d 658, and WIS. STAT. § 907.02, with Dobbs, 392 Wis. 2d 505, ¶43.

29
No. 2024AP56-CR

played again for the jury, and he contends that failing to ask the court for this
option constituted deficient performance. See State v. Anderson, 2006 WI 77, 291
Wis. 2d 673, 717 N.W.2d 74, overruled on other grounds by, State v. Alexander,
2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126. Therefore, according to
McCulloch, because of defense counsel’s deficient performance, “the jury never
heard the recording again, and ultimately they returned a verdict without
benefitting from the opportunity to refresh or clarify their recollections of the
defendant’s statements,” resulting in prejudice to McCulloch.

¶69 On this issue, we resolve the question on the prejudice prong. We
conclude that McCulloch is not entitled to a Machner hearing on the jury
deliberation issue because he has failed to sufficiently allege prejudice with
respect to his defense counsel’s handling of the jury’s request to review the
transcript of his police interview. We agree with the State that McCulloch’s
argument is speculative and, therefore, fails to satisfy the prejudice prong.
See State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 616 N.W.2d 126
(“A defendant must base a challenge to counsel’s representation on more than
speculation.”); Erickson, 227 Wis. 2d at 774.11

11
McCulloch disputes that his argument is speculative, asserting that “we know that
[the] jury was interested in reviewing McCulloch’s statement to police because they specifically
asked about it”; therefore, he contends that “[i]t is not mere speculation to say that reviewing his
side of the story as they deliberated would have mattered.” We disagree. First, the prejudice
standard is not whether it “would have mattered.” As we explained above, “[i]t is not enough for
the defendant to show that the errors had some conceivable effect on the outcome of the
proceeding.” Strickland v. Washington, 466 U.S. 668, 693 (1984). Further, it is just as likely
that the jury asked to review the transcript because the ten jurors who originally voted to convict
McCulloch were trying to convince the two remaining jurors to vote guilty by reminding them of
statements he made during his interview. See supra note 4.

30
No. 2024AP56-CR

¶70 Even if defense counsel had requested that the jury be told it could
rewatch the video, there is no evidence that the circuit court would have granted
that request, and McCulloch presents no legal authority in support of the
proposition that the court would have been required to do so. See Anderson, 291
Wis. 2d 673, ¶30 (stating that whether to “allow a jury to replay a recording during
deliberations” is an exercise of discretion). Furthermore, McCulloch’s argument
assumes that if the jury had reviewed the video again, the result would have been a
different trial outcome, but that argument emphasizes McCulloch’s police
interrogation over all the other evidence presented at trial. Moreover, the jury had
already seen the interview, and there is nothing in McCulloch’s postconviction
motion or the record to suggest that the jury would have reached a different
decision merely by viewing it again.12

By the Court.—Judgment and order affirmed.

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

12
McCulloch also argues that the circuit court improperly “assumed trial counsel had a
strategic decision for making the decision” not to request that the jury rewatch the interrogation
video. Strategic reasons for counsel’s decisions or actions are established only through testimony
at a Machner hearing. See Machner, 92 Wis. 2d at 804 (“We hold that it is a prerequisite to a
claim of ineffective representation on appeal to preserve the testimony of trial counsel. We
cannot otherwise determine whether trial counsel’s actions were the result of incompetence or
deliberate trial strategies.”). The State concedes that the court erred on this point, and we agree.
Given that we conclude that McCulloch has failed to establish prejudice on this issue, not
deficient performance, we will not address this issue further. See State v. Earl, 2009 WI App 99,
¶18 n.8, 320 Wis. 2d 639, 770 N.W.2d 755 (“[W]e may affirm on different grounds than those
relied on by the [circuit] court.”).

31