State v. Noah D. Clark

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.
January 30, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1130-CR Cir. Ct. No. 2019CF72

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NOAH D. CLARK,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Washburn County: J. MICHAEL BITNEY, 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. Noah D. Clark appeals from a judgment of
conviction, entered following a jury trial, for intentional physical abuse of a child,
No. 2022AP1130-CR

felony bail jumping, and disorderly conduct. He also appeals from the circuit
court’s order denying his motion for postconviction relief. Clark argues that he is
entitled to a new trial because he received constitutionally ineffective assistance of
counsel and because the court erroneously admitted evidence regarding the nature
of his prior convictions. For the reasons that follow, we reject all of Clark’s
arguments on appeal and affirm.

BACKGROUND

¶2 The State charged Clark with one count each of strangulation and
suffocation, felony bail jumping, disorderly conduct, and physical abuse of a child
as the result of Clark’s altercation with his then-girlfriend’s fourteen-year-old son.
At the time, Clark had been in a long-term relationship with Amy, and the
altercation occurred at their shared residence, where Amy’s son from a previous
relationship, Trevor, also resided.1 The case proceeded to a jury trial. Amy,
Trevor, and two law enforcement officers testified for the State.

¶3 On the day in question, Clark and Amy first got into an argument
when Clark accused Amy of failing to return a friend’s truck on time. Clark
returned home at around 5:00 p.m. to retrieve the vehicle, at which time he
“kicked [the locked] door in” and “was yelling and screaming” at Amy and
“calling [her] names.”

¶4 Clark then left and did not return to their home again until
approximately 11:00 p.m. When Clark did return, Amy and Trevor were on the

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use
pseudonyms when referring to the victim and his mother in this case. All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

2
No. 2022AP1130-CR

couch watching a movie. According to Amy, it was clear that Clark was
intoxicated. She explained that Clark “came in calling [Trevor] names and
belittling him, telling him what a little pussy he was[,] and [that] he expected more
out of him,” allegedly due to Trevor’s mental health difficulties and previous
suicide attempt. Trevor responded, “I expected more from [you] and [you’re] a
grown-ass man.” Clark then went upstairs, threw a vacuum cleaner over the
balcony, and came back downstairs “saying he was going to kill” Trevor. In
response, Trevor “grabbed a hatchet [he] had by the couch and lifted it up and
stood there.” According to Trevor,

[Clark] came at me and pushed me down into the couch
and started choking me and ripped the hatchet out of my
hand and held it at me. And then he dropped the hatchet
and started hitting me, and punching me, and kneed me a
couple times. And when he was done doing that, he
grabbed some cans that were sitting on our coffee table.
And they were alcohol cans, and he smashed them on my
head. And while this was happening, [Amy] was
screaming at him to stop and trying to call the cops.

¶5 Officers later found Clark at a friend’s house, and he was arrested.
The arresting officer reported that Clark smelled of alcohol.

¶6 Clark testified in his own defense, asserting that he acted in
self-defense. According to Clark, Trevor was drunk on the couch when he
returned home, and when Clark expressed to Amy that he did not “condone” that
behavior, Amy and Trevor engaged in a verbal altercation with him. Clark stated
that he went upstairs to pack a bag and leave, but when he came downstairs,
Trevor was armed with the hatchet and was “blocking the door.” Clark testified
that he attempted to disarm Trevor and that Clark cut his hand with the hatchet in
the process. He explained that Amy was also “scratching me and hitting me on
my back.” Clark denied hitting Trevor in the face, hitting Trevor with cans,

3
No. 2022AP1130-CR

throwing the vacuum off the balcony, or damaging any doors. According to Clark,
he was not intoxicated during this encounter.

¶7 The jury acquitted Clark of the strangulation and suffocation charge,
but it found him guilty of the remaining charges. Clark then filed a postconviction
motion for a new trial, alleging instances of ineffective assistance of counsel and
asserting that the circuit court erroneously admitted evidence regarding the nature
of his prior convictions at trial. The court held an evidentiary Machner2 hearing
on the motion, during which a potential defense witness and defense counsel
testified. The court denied Clark’s motion. Clark appeals.

DISCUSSION

I. Ineffective Assistance of Counsel

¶8 It is well established that criminal defendants have a constitutional
right to the effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 686 (1984). To prevail on his ineffective assistance claim, Clark must show
both that defense counsel’s performance was deficient and that the deficient
performance prejudiced his defense. See id. at 687. If Clark fails to make a
sufficient showing on one prong of the Strickland test, we need not address the
other. See id. at 697. Here, for the reasons that follow, we conclude that Clark has
failed to establish that defense counsel performed deficiently, and we therefore
need not address the prejudice prong.

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

4
No. 2022AP1130-CR

¶9 To prove deficient performance, a “defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Id.
at 687-88. We are “highly deferential to the reasonableness of counsel’s
performance.” State v. Jenkins, 2014 WI 59, ¶36, 355 Wis. 2d 180, 848 N.W.2d
786. As such, we “must make every effort to reconstruct the circumstances of
counsel’s challenged conduct, to evaluate the conduct from counsel’s perspective
at the time, and to eliminate the distorting effects of hindsight.” Id. “[T]here is a
strong presumption that [defense] counsel’s conduct ‘falls within the wide range
of reasonable professional assistance.’” State v. Breitzman, 2017 WI 100, ¶38,
378 Wis. 2d 431, 904 N.W.2d 93 (citation omitted).

¶10 Accordingly, “[c]ounsel’s decisions in choosing a trial strategy are
to be given great deference.” State v. Balliette, 2011 WI 79, ¶26, 336 Wis. 2d
358, 805 N.W.2d 334. Our role is not to second-guess a reasonable trial strategy
unless it is based on either an irrational trial tactic or upon caprice rather than
judgment. Breitzman, 378 Wis. 2d 431, ¶65. “In fact, where a lower court
determines that counsel had a reasonable trial strategy, the strategy ‘is virtually
unassailable in an ineffective assistance of counsel analysis.’” Id. (citation
omitted); see also Strickland, 466 U.S. at 690 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable ….”). And “[c]ounsel need not be perfect, indeed not even very
good, to be constitutionally adequate.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305 (citation omitted).

¶11 Whether counsel 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

5
No. 2022AP1130-CR

clearly erroneous, but we independently review whether those facts are sufficient
to establish ineffective assistance. Id.

¶12 Clark first argues that defense counsel was ineffective for not calling
Antoinette Weller as a witness at trial. Weller provided an initial statement to a
defense investigator approximately six months before the trial. In her statement,
Weller—a mutual friend of Amy and Clark—described Amy and Clark’s
relationship with each other as “tumultuous.” Weller further relayed that Amy
admitted to her that Amy lied to law enforcement about the incident. Weller also
described how she observed Amy sending messages to herself from Clark’s
Facebook account and stated that Amy then sent screenshots of these messages to
law enforcement. Finally, Weller explained that she also witnessed Amy
providing Trevor alcohol and marijuana.3 Weller testified to the same at the
Machner hearing. Clark claims that Weller’s testimony would have corroborated
his claim of self-defense and that “[t]here was no rational strategic reason for
failing to use Weller’s testimony.”

3
On appeal, Clark also discusses a follow-up interview with Weller that occurred in
October 2021—nine months after the trial—where Weller affirmed her previous statement and
added some information. The State argues that Weller’s October 2021 statement “could not have
been relevant to [defense counsel’s] decision making” because “[t]he second investigation did not
exist at the time of [counsel’s] decision, and it therefore has no bearing on this [c]ourt’s
evaluation of Clark’s claim.”

In reply, Clark does not dispute the State’s argument, stating only that “[t]here was very
little difference between what Weller told the private investigator after the conviction and
sentence and what she told the [State Public Defender] investigator before trial.” Clark explains
that “[t]o the extent there was additional information, it might be newly discovered evidence but
Clark has not argued that it met the criteria for that.” Further, Clark does not argue that his
defense counsel performed deficiently by failing to conduct a more thorough investigation.
See Strickland v. Washington, 466 U.S. 668, 691 (1984) (“[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.”). Thus, we will not address Weller’s second statement further.

6
No. 2022AP1130-CR

¶13 Defense counsel testified at the Machner hearing that he knew about
Weller’s statement prior to trial, he reviewed the statement, he subpoenaed Weller
to ensure she was available to testify, and he ultimately made the strategic decision
not to have Weller testify at trial. Counsel explained that he spoke with Weller on
the day of trial, and he asked

her some basic questions and she struggled to kind of give
a coherent statement. She struggled to be directed. A lot of
what she had to say had to do with drug use of [Trevor] and
his mother. And the timeline didn’t really work out…. I
didn’t think she would hold up to cross-examination and I
thought that she would not be found credible by the jury.

According to defense counsel, he “really struggled” with the decision of whether
to call Weller to testify “because it was clear that she had something positive to
say for [Clark], which is why [counsel] put her on [the] witness list. It’s why [he]
didn’t rule her out and make a final decision on that until even the day of trial.” In
the end, counsel believed that if Weller was found incredible by the jury, then that
“may cause the jury to not believe” Clark and “may make us seem desperate.”
Defense counsel testified that he explained this reasoning to Clark and that Clark
understood and agreed (at the time) with the decision not to call Weller.

¶14 We conclude, as did the circuit court, that defense counsel’s choice
not to call Weller was a reasonable trial strategy and did not constitute deficient
performance. Defense counsel’s testimony provided persuasive evidence that
counsel made an informed, reasonable, strategic decision not to call Weller.
Accordingly, counsel’s decision, based on a thorough explanation of his rational
thought process, is “given great deference,” see Balliette, 336 Wis. 2d 358, ¶26,
and “is virtually unassailable in an ineffective assistance of counsel analysis,”
see State v. Maloney, 2004 WI App 141, ¶23, 275 Wis. 2d 557, 685 N.W.2d 620;
Strickland, 466 U.S. at 690. Defense counsel further testified that Clark agreed

7
No. 2022AP1130-CR

with that decision at the time. See Strickland, 466 U.S. at 691 (“The
reasonableness of counsel’s actions may be determined or substantially influenced
by the defendant’s own statements or actions.”). Therefore, defense counsel did
not provide constitutionally ineffective assistance by deciding not to call Weller to
testify at trial.

¶15 Next, Clark argues that defense counsel performed deficiently by
failing to use photos of Clark’s injuries as evidence at trial. Days after the
incident, an individual named Emily Davis—who was also in a relationship with
Clark at this time—took photographs of Clark’s injuries with her phone camera.
According to Clark, “[t]hose photos show not only bruises and cuts of a defensive
nature, they also demonstrate that Clark received significantly more physical
injuries than” Trevor. Clark also explained that “[t]he photos showed a cut Clark
received from the hatchet, thus corroborating that the edge of [the] hatchet was
facing towards Clark rather than” Trevor. Again, Clark claims that there is “no
conceivable strategic reason for failing to use [the photographs] at trial” as “[t]hey
corroborate Clark’s self-defense theory and his fear of attack.”

¶16 The circuit court concluded, and we agree, that defense counsel’s
strategic decision not to use the photographs at trial was reasonable. At the
Machner hearing, defense counsel explained his decision not to use the
photographs, stating that there was not “any significant dispute” that Clark “was
cut during the course of this altercation” and that Clark suffered bruises from the
struggle. Defense counsel made his decision not to introduce the photographs
because he believed that they would not have been particularly helpful as “[i]t
wasn’t disputed that he had an injury to his hand” and “the photographs seemed to
show a healing injury over time.” The court also expressed skepticism when it
denied Clark’s motion as to whether the photographs would have been admissible.

8
No. 2022AP1130-CR

In particular, the court was concerned that absent expert testimony, Clark would
have been unable to establish that the photographs show “defensive wounds versus
just wounds that occur or bruises that occur during the course of a struggle,” and
because there was no dispute that there was a struggle, “the absence of the
photographs was [not] deficient.”

¶17 Defense counsel provided a reasonable strategic basis for not
introducing the photographs given the fact that whether Clark sustained injuries
during the struggle was not at issue during the trial and given that the photographs
were questionably admissible. Clark has once again failed to overcome the
presumption of reasonable representation; therefore, his defense counsel did not
provide constitutionally ineffective assistance by choosing not to introduce the
photographs.

II. Clark’s Prior Convictions

¶18 Finally, Clark argues that “[t]he circuit court erred when it allowed
the State to reveal the nature of Clark’s past convictions because they did not rebut
his testimony; nor did the probative value of revealing the nature of the
convictions outweigh the prejudicial effect.” On direct examination, Clark was
asked how he felt about the incident with Trevor. Clark responded:

I felt horrible. I hated every bit of it…. I felt like he
was my son. I raised him like a son. And I felt like … I
must have messed up somewhere for him to act like that
towards anyone. And … I guess reflection probably, you
know, when it was all over, I wondered if that was all his
drinking. And I was worried and concerned. And … I
couldn’t talk to him about it because I was accused of
hurting him in a way that I would never hurt anybody like
that, especially a child.

(Emphasis added.)

9
No. 2022AP1130-CR

¶19 In response, and prior to cross-examination, the State argued to the
circuit court, outside the presence of the jury, that Clark’s statement “opened the
door for further impeachment” because his testimony was “inconsistent with his
criminal record.” According to the State, Clark was “testifying about his own
positive character never acting in a way like that when he has prior convictions for
intentionally pointing a firearm at a person times two, intimidating a victim times
two, domestic disorderly use of a dangerous weapon, another domestic
disorderly,” and battery. The State explained, “I believe that by him
characterizing his own character as such, as being a peaceful man with that
criminal history, that that opens the door to address those issues to directly
contradict that statement.”

¶20 The circuit court agreed with the State. It explained that Clark’s
testimony “opens the door, at least to a limited questioning from [the State],” and
it allowed the State to ask whether Clark had ever been convicted of a crime and
whether “at least two of those [convictions] involved domestic abuse and assault
and battery convictions.” If Clark responded, “Yes,” to both those questions,
“then that ends the inquiry.” The court’s intent was to avoid “hav[ing] a bunch of
trials within a trial,” and it limited the discussion to the relevant convictions.
Ultimately, the court reasoned that “it would be unfair and unjust to deprive the
State of at least some limited inquiry.” The State followed the court’s ruling, and
Clark admitted to the convictions.

¶21 The State addressed Clark’s prior convictions again during closing
arguments in response to defense counsel reiterating that Clark “felt horrible about
what happened afterward.” In rebuttal, the State observed:

[Defense counsel] had discussed how Noah Clark, when he
sat in that chair and he gave us his evidence, that he said
how he left and he felt horrible. Then he also said I would

10
No. 2022AP1130-CR

never hurt anyone like that…. [B]ut yet he has two
convictions for domestic disorderly and domestic battery.
He has done that before.

¶22 The general rule in Wisconsin is that “[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.”
WIS. STAT. § 904.04(1). However, pursuant to § 904.04(1)(a), an accused may
produce evidence of his or her good character as substantive evidence of his or her
innocence, but if an accused offers evidence of his or her character, then the State
may “rebut the same.” Sec. 904.04(1)(a). “[T]he State’s introduction of character
evidence is limited to that which rebuts the character trait being established ….”
State v. Brecht, 143 Wis. 2d 297, 322-23, 421 N.W.2d 96 (1988).

¶23 Additionally, the State’s rebuttal character evidence must also meet
traditional principles of admissibility. For example, only relevant evidence is
admissible at trial, which is “evidence having 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,
904.02. However, relevant evidence may be inadmissible “if its probative 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.” WIS. STAT. § 904.03.

¶24 “Unfair prejudice occurs when the evidence ‘influence[s] 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.’”
State v. Gutierrez, 2020 WI 52, ¶35, 391 Wis. 2d 799, 943 N.W.2d 870 (alteration

11
No. 2022AP1130-CR

in original; citation omitted). Nevertheless, “[t]he determination of unfair
prejudice must be made with great care because ‘[n]early all evidence operates to
the prejudice of the party against whom it is offered…. The test is whether the
resulting prejudice of relevant evidence is fair or unfair.’” State v. Payano, 2009
WI 86, ¶88, 320 Wis. 2d 348, 768 N.W.2d 832 (second alteration in original;
citation omitted).

¶25 “The admission of evidence is subject to the circuit court’s
discretion.” State v. Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448.
We “will not disturb the circuit court’s decision to admit evidence unless the court
erroneously exercised its discretion.” Id. Importantly, we will not substitute our
discretion for that of the circuit court, and we will “look for reasons to sustain a
[circuit] court’s discretionary decision.” Gutierrez, 391 Wis. 2d 799, ¶27 (citation
omitted).

¶26 On appeal, Clark argues that the circuit court erroneously exercised
its discretion by admitting evidence about the details of his prior convictions
because that evidence is not relevant. According to Clark, his “statement was
highly qualified” because Clark stated that he would never hurt anyone “in [the]
way” he was accused of hurting Trevor. Therefore, Clark asserts that revealing
the nature of his prior convictions “does not contradict Clark’s testimony.” Clark
also disagrees that his testimony related to a “positive character” trait of “being a
peaceful man.” According to Clark, “he did not say, for example, that he never
assaulted anyone, never hurt anyone, or that he was, in fact, a peaceable man.”

¶27 While we believe that this is a close case, we conclude that the
circuit court did not erroneously exercise its discretion by permitting the State to
inquire about the nature of Clark’s prior convictions. Clark testified that he “was

12
No. 2022AP1130-CR

accused of hurting [Trevor] in a way that I would never hurt anybody like that,
especially a child.” Thus, Clark testified that he would never strangle and
suffocate or cause intentional harm to anyone, especially to a child. That
testimony absolutely was a reflection on Clark’s character that he introduced to the
jury. Absent a response from the State, the jury would be permitted to consider
Clark’s claim that his character was such that he “would never hurt anybody” “in
[that] way,” when he had in fact battered someone previously. We do not agree
that the jury would have considered Clark’s statement in the same narrow manner
that Clark now posits on appeal. Therefore, the court properly determined that a
limited response from the State was warranted under WIS. STAT. § 904.04(1)(a),
because Clark’s testimony went directly to his character, his credibility, and was
relevant to an issue under consideration.

¶28 Clark next argues that the circuit court “never explained how the
prior convictions were probative and consequently, never considered whether the
prejudicial effect outweighed the probative value under WIS. STAT. § 904.03.”
According to Clark, “the prior convictions had no probative value or very little,
[but] the prejudicial effect of domestic battery and disorderly conduct convictions
in the context of a domestic battery case is clear.”

¶29 We conclude that the circuit court properly exercised its discretion in
limiting the State’s presentation of the nature of the prior convictions to account
for the balancing required to admit the evidence. “The fact that the [circuit] court
did not expressly state the name of [WIS. STAT. §] 904.03 or use the words
‘weighing’ or ‘balancing’ or some similar word or words to describe its analysis,
does not mean that the court failed to exercise its discretion.” State v. Gary M.B.,
2004 WI 33, ¶26, 270 Wis. 2d 62, 676 N.W.2d 475. Our case law does not
“recognize such a ‘magic words’ argument.” Id. Instead, “an appellate court

13
No. 2022AP1130-CR

can … affirm[] if the record indicates that balancing is implicit from the circuit
court’s determination.” Id.

¶30 In this case, although Clark had ten prior convictions, the circuit
court limited the State’s cross-examination to details regarding only two of those
convictions, which were both related to Clark’s specific character testimony and
relevant to the charges against Clark. Further, as noted above, the State was not
granted an unlimited discussion regarding those convictions. The court allowed
the State to ask Clark a “yes or no” question, and if Clark responded affirmatively,
then no further discussion was authorized. Finally, the court provided a limiting
jury instruction regarding the nature of Clark’s prior convictions. See id., ¶29;
see also State v. Hurley, 2015 WI 35, ¶89, 361 Wis. 2d 529, 861 N.W.2d 174
(“Limiting instructions substantially mitigate any unfair prejudicial effect.”). That
instruction stated:

Evidence has also been received that the defendant himself,
Mr. Clark, has—has been previously convicted of crimes.
Again, this evidence was received solely as it bears on his
character for truthfulness as a witness. It must not be used
for any other purpose. And, particularly, you should bear
in mind that a criminal conviction at some prior time is not
proof of guilt of the offenses currently charged.

The jury is presumed to follow instructions provided by the court. State v.
LaCount, 2008 WI 59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780.

¶31 Clark responds that the circuit court’s jury instruction did not
prevent unfair prejudice because it was “a boilerplate instruction … making no
mention of ‘rebutting’ Clark’s statement.” Clark, however, never objected to or
requested a different jury instruction. See State v. Huebner, 2000 WI 59, ¶10, 235
Wis. 2d 486, 611 N.W.2d 727. He also does not include this issue within his
ineffective assistance of counsel claim. In any event, the issue before this court is

14
No. 2022AP1130-CR

whether the circuit court erroneously exercised its discretion in admitting the
nature of the prior convictions, not the propriety of the cautionary jury instruction.
We conclude that the court’s instruction that “a criminal conviction at some prior
time is not proof of guilt of the offenses currently charged” was sufficient to
mitigate any unfair prejudicial effect.

¶32 In conclusion, the circuit court’s decision limiting both the number
of and the discussion of the nature of the prior convictions in conjunction with the
limiting jury instruction demonstrates that the court implicitly balanced the
probative value of the evidence against its prejudicial effect and properly
exercised its discretion in admitting the evidence. See Gary M.B., 270 Wis. 2d 62,
¶¶28-29. Thus, Clark is not entitled to a new trial.

By the Court.—Judgment and order affirmed.

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

15