State v. Zachary T. Hogenson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 2, 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. 2023AP636-CR Cir. Ct. No. 2019CF242

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ZACHARY T. HOGENSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Grant
County: CRAIG R. DAY, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, 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. Zachary Hogenson appeals a judgment of
conviction, following a jury trial, on one count of repeated sexual assault of the
No. 2023AP636-CR

same child in violation of WIS. STAT. § 948.025(1)(e) (2021-22).1 Hogenson also
appeals the denial of his postconviction motion for a new trial. He raises three
issues.

¶2 Hogenson argues that the circuit court erred in denying his
postconviction motion because his trial counsel provided constitutionally
ineffective assistance. Hogenson contends that trial counsel failed to adequately
cross-examine the victim (“A.B.”) and failed to call several witnesses who could
potentially provide additional evidence that could be used to undermine A.B.’s
trial testimony.2 We conclude that Hogenson fails to establish either that his
counsel performed deficiently or that any supposed deficiency was prejudicial.

¶3 Hogenson also argues that his trial counsel violated Hogenson’s
Sixth Amendment right to determine the objective of Hogenson’s defense by
essentially conceding his guilt during closing argument, contrary to Hogenson’s
desire to claim innocence. We conclude that Hogenson fails to establish that his
counsel conceded his guilt.

¶4 Hogenson separately argues that the circuit court invaded the
province of the jury through an instruction that the court gave in response to a
question the jury sent out during deliberations. We conclude that the court
properly exercised its discretion under the particular circumstances here, and we
reject Hogenson’s argument that the instruction inaccurately stated the law.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Consistent with WIS. STAT. § 809.19(1)(g), we refer to the victim as “A.B.” using
initials that do not correspond with her name.

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No. 2023AP636-CR

¶5 Accordingly, we affirm.

BACKGROUND

¶6 The criminal complaint charged Hogenson with one count of
repeated sexual assault of A.B. when she was under age 16, “from approximately
May 2007 through 2008.” See WIS. STAT. § 948.025(1)(e).3 During this period,
A.B. was 13 and 14 years old and Hogenson was 19 and 20 years old. The
complaint alleged that at least three of the assaults were violations of WIS. STAT.
§ 948.02(1) or (2), based on allegations of penis-to-vagina, penis-to-mouth, and
anal sexual intercourse. See § 948.02(2) (prohibiting in pertinent part “sexual
intercourse with a person who has not attained the age of 16 years”); WIS. STAT.
§ 948.01(6) (defining “sexual intercourse”).

¶7 A.B. testified at trial in part as follows. She met Hogenson in the
spring of 2007 when he, as a senior in high school, was an assistant teacher in one
of her seventh grade classes. A.B. and Hogenson exchanged messages through
email, social media, and texting, and eventually they also kissed. Later, during the
summer of 2007, Hogenson picked A.B. up from her grandmother’s house and
drove her to a campground, where he had penis-to-vagina intercourse with her in
his car. After the first instance of intercourse, there were several instances of
Hogenson having mouth-to-penis intercourse with A.B., when he would force her
head onto his penis. There was also at least one instance of mouth-to-vagina
intercourse, in addition to repeated instances of anal intercourse. This conduct

3
As charged by the State here, “Whoever commits 3 or more violations under [WIS.
STAT. §] 948.02(1) or (2) within a specified period of time involving the same child is guilty of
… [a] Class C felony.” See WIS. STAT. § 948.025(1)(e).

3
No. 2023AP636-CR

occurred one to three times a month beginning in the summer of 2007, lasting
through the fall of 2008.

¶8 Jumping ahead to May 2019, there was evidence of the following
event, which is pertinent to multiple issues raised on appeal. Hogenson, who was
then a police officer in Fennimore, stopped a car for speeding. A.B. was a
passenger in the car. The car was being driven by A.B.’s then-boyfriend (“the
boyfriend”). A.B. testified at trial that the boyfriend was verbally “aggressive[]”
with Hogenson during this traffic stop “because [A.B.] had told [the boyfriend]
what had happened to” A.B. when she was younger. A.B. first reported the
allegations of sexual assault to police later that month.

¶9 Hogenson took the position at trial that the prosecution should not be
permitted to introduce trial testimony regarding prior consistent statements made
by A.B. to others regarding the alleged sexual assaults before she made her initial
report to police in 2019. These statements were hearsay because Hogenson was
not alleging that the allegations were the product of recent fabrication or improper
influence or motive. See WIS. STAT. § 908.01(4)(a)2. (statement by a witness
regarding another witness’s prior, out-of-court statement is not hearsay when the
statement is consistent with the other witness’s testimony and “offered to rebut an
express or implied charge against the declarant of recent fabrication or improper
influence or motive”). More specifically, counsel represented that the defense
would not argue at trial that A.B. fabricated the allegations she made to police and
again in her trial testimony as a result of the conflict between the boyfriend and
Hogenson during or related to the 2019 traffic stop. The circuit court accepted the
commitment of the defense that it would not raise this fabrication theory and on
this basis barred the prosecution from adducing testimony regarding A.B.’s prior
consistent statements or referencing them.

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No. 2023AP636-CR

¶10 The defense did not call Hogenson or any other witness.

¶11 During closing argument, defense counsel told the jury that the lack
of corroboration of A.B.’s testimony regarding events that occurred more than 12
years before trial resulted in the prosecution failing to meet its burden to prove
guilt beyond a reasonable doubt. Counsel emphasized what counsel contended
were gaps in A.B.’s testimony regarding facts important to the plausibility of
A.B.’s allegations. Counsel specifically told the jury that he was not arguing that
A.B.’s reporting of the assaults to police in May 2019 was connected to the traffic
stop.

¶12 The deliberating jury sent out a question to the circuit court
regarding the timing of A.B.’s “initial report” of the alleged sexual assaults
relative to the traffic stop. Over Hogenson’s objection, the court answered the
question by instructing the jury in part that neither party was asserting that A.B.
“fabricated the allegations of sexual assault” based on the traffic stop or the
boyfriend’s influence over A.B. The court told the jury that it should “[d]isregard
any suggestion” to the contrary.

¶13 The jury found Hogenson guilty on the single count charged.

¶14 Hogenson filed a postconviction motion alleging that he had
received ineffective assistance of trial counsel based on the failure to undermine
A.B.’s trial testimony in various ways, including by failing to call as witnesses the
very witnesses that defense counsel had sought to exclude with the defense motion
to keep out A.B.’s prior consistent statements. Hogenson also raised the Sixth
Amendment argument that trial counsel had conceded that he was not innocent
contrary to McCoy v. Louisiana, 584 U.S. 414 (2018).

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No. 2023AP636-CR

¶15 The circuit court held an initial Machner hearing at which
Hogenson’s trial counsel testified. See State v. Machner, 92 Wis. 2d 797, 285
N.W.2d 905 (Ct. App. 1979). The court rejected some grounds for Hogenson’s
ineffective assistance claim and the entirety of his concession-of-innocence claim.
However, the court held a follow-up hearing, at which Hogenson presented
testimony from some of the individuals who Hogenson argued trial counsel was
deficient for failing to call as trial witnesses. The court then denied Hogenson’s
motion, rejecting the remaining grounds for his ineffective assistance claim.

¶16 Hogenson appeals.

DISCUSSION

I. Ineffective Assistance of Trial Counsel

¶17 Hogenson argues that his trial counsel rendered ineffective
assistance by failing to adequately cross-examine A.B. on “numerous material
inconsistencies” and for failing to call several witnesses who could have
undermined A.B.’s testimony. Closely related, Hogenson argues that trial counsel
was ineffective for conceding that the May 2019 traffic stop and the boyfriend’s
conduct surrounding the stop did not influence A.B. in making the allegations
against Hogenson. Consistent with the circuit court’s approach, we address this
argument by dividing it into two categories. The first category relates to potential
means that trial counsel could have used, but did not use, to contradict details of
A.B.’s testimony in general. The second specifically challenges her account of the
chronology of the assaults, which Hogenson argues involved a missed chance for
counsel to argue for misdemeanor offenses instead of a single felony offense,
based on the argument that she had turned 16 by the time of the assaults.

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No. 2023AP636-CR

¶18 We now provide pertinent legal standards. Then we summarize
additional background and explain our conclusions regarding each ineffective
assistance category.

¶19 Under the Sixth and Fourteenth Amendments to the United States
Constitution, and Article I, Section 7 of the Wisconsin Constitution, a criminal
defendant is guaranteed the right to effective assistance of counsel. See State v.
Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93; see also
Strickland v. Washington, 466 U.S. 668 (1984). “Whether a defendant was
denied effective assistance of counsel is a mixed question of law and fact”: “The
factual circumstances of the case and trial counsel’s conduct and strategy are
findings of fact, which will not be overturned unless clearly erroneous”; whether
the facts satisfy the legal requirements of an ineffective assistance of counsel
claim is an issue of law, reviewed de novo. See Breitzman, 378 Wis. 2d 431, ¶37.
“To demonstrate that counsel’s assistance was ineffective, the defendant must
establish that counsel’s performance was deficient and that the deficient
performance was prejudicial.” Id. (citing Strickland, 466 U.S. at 687). “If the
defendant fails to satisfy either prong, we need not consider the other.” Id. (citing
Strickland, 466 U.S. at 697).

¶20 Regarding the deficient performance prong, which we conclude
resolves the first part of Hogenson’s ineffective assistance argument, our supreme
court has explained:

To establish that counsel’s performance was deficient, the
defendant must show that it fell below “an objective
standard of reasonableness.” In general, there is a strong
presumption that trial counsel’s conduct “falls within the
wide range of reasonable professional assistance.”
Additionally, “[c]ounsel’s decisions in choosing a trial
strategy are to be given great deference.”

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No. 2023AP636-CR

Breitzman, 378 Wis. 2d 431, ¶38 (citations omitted; alteration in Breitzman).
Demonstrating that another trial strategy “may look better in hindsight” does not
cause trial counsel’s strategic choices to become unreasonable. See State v. Mull,
2023 WI 26, ¶49, 406 Wis. 2d 491, 987 N.W.2d 707; see also State v. Harper, 57
Wis. 2d 543, 556-57, 205 N.W.2d 1 (1973) (“In considering alleged incompetency
of counsel, one should not by hindsight reconstruct the ideal defense.”). Similarly,
this court “will not second-guess a trial attorney’s ‘considered selection of trial
tactics or the exercise of professional judgment in the face of alternatives that have
been weighed by trial counsel.’” State v. Elm, 201 Wis. 2d 452, 549 N.W.2d 471
(Ct. App. 1996) (quoting State v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161
(1983)).

¶21 The following standards apply regarding the prejudice prong, which
we conclude is dispositive on the chronology issue:

To establish that deficient performance was prejudicial, 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.”

Breitzman, 378 Wis. 2d 431, ¶39 (quoted source omitted).

A. Impeachment with Prior Inconsistent Statements and
Presentation of Testimony from Other Witnesses

¶22 Hogenson emphasizes inconsistencies between A.B.’s trial
testimony and prior statements that she had made to others as reflected in police
reports and the postconviction testimony. Regarding this category, we agree with
the State that Hogenson fails to establish that his trial counsel performed
deficiently, because counsel’s decision not to pursue such impeachment was
grounded in reasonable strategic considerations. Relatedly, we conclude that

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No. 2023AP636-CR

Hogenson fails to establish that counsel’s decision not to rely more explicitly on
facts involving Hogenson’s traffic stop of the boyfriend and A.B. was objectively
unreasonable.

Additional Background

¶23 At trial, defense counsel sought to undermine the credibility of
A.B.’s allegations in a number of respects. For example, after A.B. testified that
she was afraid of Hogenson, counsel cross-examined her about instances when
A.B., as an adult, allegedly sought Hogenson’s company. As another example,
counsel questioned how Hogenson was never caught when he allegedly repeatedly
snuck into A.B.’s grandparents’ house to commit assaults, given that the house
had an open layout, except for one bathroom where many of the assaults allegedly
occurred.

¶24 Much of Hogenson’s postconviction motion addressed
inconsistencies between A.B.’s trial testimony and statements given during the
two interviews that police conducted with A.B. Hogenson’s motion also
highlighted purported inconsistencies between A.B.’s statements and statements
that other people made to police.

¶25 At the initial Machner hearing, trial counsel testified that he would
have reviewed police reports reflecting the June 2019 interviews of A.B. and other
potential witnesses. But he further testified that he could not recall details from
the reports of A.B.’s interviews or how they might have varied from the details in
the reports of interviews with others or A.B.’s trial testimony.

¶26 Counsel opined that his cross-examination of A.B. was successful in
causing her to become “surly,” “defensive,” and “uncooperative” in a way that

9
No. 2023AP636-CR

could cause a jury to doubt the reliability of her testimony, and that in his
estimation, going further in attempting to impeach her could have jeopardized that
success.

¶27 Counsel gave his general views on defense tactics such as attacking
an alleged victim’s credibility and highlighting prior inconsistent statements that
included the following. When the topic of impeachment does not relate to an
element of the offense, “nitpicking” prior inconsistent statements by a witness
risks the appearance of “pick[ing] on” the witness, and can readily result in the
defense losing the jury’s interest. In counsel’s view, this type of “nitpicking” is
easily rebutted by a prosecutor’s predictable argument that victims will naturally
fail to recall or inaccurately recall some details, while the core of the inculpatory
testimony remains credible.

¶28 Although defense counsel told the jury that the defense was not
relying on the 2019 traffic stop to support a claim of fabrication or improper
influence or motive, counsel testified that he nonetheless tried to hint at that
theory. Counsel testified that he made a strategic choice to attempt to elicit some
testimony regarding the traffic stop with the goal of encouraging the jury to
“distrust [A.B.’s] accusations” based on the conclusion that she made them
because the boyfriend pushed for a police investigation of Hogenson, even though
A.B. initially did not want to pursue an investigation. However, counsel testified,
in doing so counsel was careful not to explicitly argue that A.B. “fabricated” her
allegations “to placate” the boyfriend, because this risked “opening the door”—
prompting a decision by the circuit court to allow the prior consistent statements
that the prosecution wanted to offer. Counsel testified that he believed that
admission of the prior consistent statements would have “really strengthen[ed]”
the prosecution case and bolstered A.B.’s credibility. In his view, the prior

10
No. 2023AP636-CR

consistent statements were “Kryptonite” to the defense case—a reference to the
fictional material that severely weakens Superman upon exposure.

¶29 As noted, the circuit court rejected the majority of Hogenson’s
postconviction claims following the initial Machner hearing.

Analysis

¶30 Regarding many of the alleged inconsistencies between A.B.’s trial
testimony and her statements to police, Hogenson fails to account for a dilemma
that trial counsel faced. The dilemma was that A.B.’s statements to police and her
trial testimony were consistent in conveying the core, inculpatory points, even as
they varied in certain related details. As a result, many of the inconsistencies that
Hogenson now cites were bound up in A.B.’s highly inculpatory, consistently
asserted statements that she and Hogenson engaged in sexual intercourse when she
was younger than 16. For example, Hogenson now argues that trial counsel
should have impeached A.B. regarding details of when, according to A.B.,
Hogenson moved from mere kissing to having sexual intercourse with her.
Hogenson fails to show that it was objectively unreasonable for trial counsel to
determine that it would have hurt the defense more than it would have helped to
highlight inconsistent details when this would have caused the jury to be reminded
of her consistent statements about sexual intercourse while she was under 16.

¶31 This same reasoning undermines much of Hogenson’s argument
about the potential testimony of others who were interviewed by police but not
called as witnesses at trial. As an example of two potential witnesses, Hogenson
notes that the boyfriend and another, former boyfriend of A.B. told police that
A.B. had told each of them that Hogenson used some degree of force or that she
did not consent to at least some of the alleged sexual assaults. Hogenson now

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No. 2023AP636-CR

purports to contrast these statements with statements that A.B. allegedly made to a
friend and another acquaintance that made no mention of there being a degree of
force or lack of actual consent during the assaults. It was reasonable for trial
counsel to conclude that, whatever possible rewards could have arisen for the
defense from highlighting these purported inconsistencies, they were not worth the
great risk of inadvertently highlighting the fact that A.B. was consistent over time
in alleging that Hogenson had sex with her during the time period charged.

¶32 More generally, Hogenson’s argument on this issue fails to
adequately account for trial counsel’s detailed testimony at the initial Machner
hearing regarding his strategic assessment of additional potential impeachment
and, more broadly, his chosen trial strategies.

¶33 Explaining his argument further, Hogenson contends that it would
have been a stronger defense strategy to rely more explicitly on the traffic stop in
part by calling the boyfriend, in combination with highlighting inconsistencies in
A.B.’s statements to others, which Hogenson now argues show a pattern of falsely
accusing him only to her boyfriends but not to others. The argument is
complicated, but it appears to go like this. Assuming that the boyfriend testified
consistently with his statement to police, this would have provided a basis for trial
counsel to argue to the jury that the boyfriend’s conflict with Hogenson during the
traffic stop created pressure on A.B. to maintain false allegations against
Hogenson with law enforcement, which would have been consistent with the
allegedly false narrative that she had given to the boyfriend before the stop.

¶34 The first problem with this complicated argument is that it is
speculative. It does not establish the likelihood of highly probative and
exculpatory new evidence at a second trial, especially given that trial counsel did

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No. 2023AP636-CR

seek to rely on the traffic stop, albeit not explicitly so. Second, Hogenson does not
dispute that this would have opened the door to the introduction of prior consistent
statements by A.B. that trial counsel viewed as having potentially disastrous
results for the defense. See WIS. STAT. § 908.01(4)(a). Given the dubious
potential probative value of, and the likely strategic value in avoiding, the prior
consistent statements, Hogenson fails to establish deficient performance.

B. A.B.’s Chronology of Assaults

¶35 Turning to Hogenson’s chronology-related category of ineffective
assistance claims, the argument is based on witness accounts that he contends
would have undermined key aspects of A.B.’s chronology of relevant events. He
apparently intends to argue that counsel was ineffective for failing to call these
witnesses in order to provide the basis for the alternative jury argument that the
alleged assaults might not have taken place until A.B. was 16 years old. This in
turn could have resulted in a conviction for a less severe offense. Compare WIS.
STAT. § 948.025(1) (imposing felonies for repeated violations of WIS. STAT.
§ 948.02(1)-(2), which addresses sexual assault of children not yet 12, 13, or 16
years old depending on other conduct involved) with WIS. STAT. § 948.09 (sexual
intercourse with a child over the age of 16 is guilty of a Class A misdemeanor if
the defendant is 19 or older). On this issue we conclude that Hogenson fails to
show that he was prejudiced.

Additional Background

¶36 To repeat, A.B. told police that the alleged sexual assaults began in
2007 when she was 13, in the summer between her 7th and 8th grade years, and
ended in 2008 when she was 14, in the fall of her first year of high school. During
one of the police interviews, a detective asked A.B. what Hogenson “was …

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No. 2023AP636-CR

doing” “at that time,” in an apparent reference to the general time period of the
assaults. A.B. responded that “he was milking at a farm … outside of town and
living with his parents” in Fennimore, with the farm being outside Fennimore.
During the same interview, A.B. was asked whether Hogenson had contact with
other young females “during that time.” A.B. responded that “when he was
farming, there was a … girl on the farm” who was “a few years younger” than
A.B. A.B. identified this person by name.

¶37 Police interviewed the person identified by A.B., whom we will refer
to as C.D. C.D. told police that she and Hogenson worked together on C.D.’s
father’s farm. C.D. could not recall “exactly” when Hogenson started working at
the farm, but she said that she was in high school at the time.

¶38 Hogenson’s position is that, based on these statements and A.B.’s
statements to police about Hogenson’s work during the period of the alleged
assaults, the defense could have plausibly argued that A.B. would have been 16 or
older at the time of the assaults. The logic would be that the assaults took place
while Hogenson lived in Fennimore and worked with C.D. on the nearby farm,
when C.D. was high-school-aged, i.e., at least 14. This would have meant that, if
C.D. was “a few years younger” than A.B., then A.B. would have been at least 16.

¶39 At trial, A.B. testified consistently with her statements to police
regarding how and when she met Hogenson—in her 7th grade science class in the
spring of 2007. She was also consistent, between her statements to police and her
testimony at trial, in asserting that the first time Hogenson had sexual intercourse
with her was during the summer of 2007, between her 7th and 8th grade years; and
that, following this first incident, he had oral and anal sex with her up until “the

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No. 2023AP636-CR

beginning of” her first year in high school or “the fall of 2008.” Neither side
called C.D. as a trial witness.

¶40 At the initial Machner hearing, Hogenson’s trial counsel testified in
pertinent part as follows. Hogenson told him before trial that Hogenson did not
live in Fennimore or work on the nearby farm “until several years after” the period
of alleged assaults. Counsel was aware of C.D.’s statement to police about when
she and Hogenson both worked on the farm, although postconviction counsel’s
questioning of trial counsel did not delve into the possible inference that A.B. was
16 or older during the period of alleged assaults. Trial counsel testified that he
considered this merely “another prior inconsistency that [counsel] really didn’t
want to bring up” at trial.

¶41 At the supplemental Machner hearing, C.D., C.D.’s father, and
Hogenson testified. C.D. and C.D.’s father both testified that Hogenson started
working on C.D.’s father’s farm near Fennimore in “late fall of 2008” (when A.B.
was 14 years old). When he started there, C.D. was 12 years old (and, therefore,
C.D. was 2 years younger than A.B.). C.D. herself started working on the farm a
few years later in 2011, alongside Hogenson, when she was “14, maybe 15 years
old.” Hogenson testified that he told his trial attorney in advance of trial that
A.B.’s purported statement to police that he was working at the farm before late
fall 2008 was inaccurate. Further, Hogenson testified that he was not living with
his parents in Fennimore before he started to work on the nearby farm, but was
instead living in another town.

¶42 The circuit court made a determination that undermined the premise
of this argument. The court concluded in pertinent part that A.B.’s and C.D.’s
statements to police concerned when Hogenson started working on the farm (and

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No. 2023AP636-CR

living nearby in Fennimore) in 2008, and they were unrelated to when C.D. began
working at the farm in 2011. Thus, the court reasoned, there was nothing in
A.B.’s interview statements to suggest, in light of C.D.’s postconviction
testimony, that A.B. had turned 16 by the time the alleged assaults began. The
court went on to consider whether the testimony of C.D. and her father
nonetheless could have undermined the prosecution theory that the alleged assaults
took place during the charged time period. In considering this issue, the court
determined in pertinent part that Hogenson failed to sufficiently examine his trial
counsel regarding the specifics, and for at least this reason failed to create a record
from which it could be established that trial counsel performed deficiently in not
pursuing a chronology-related argument.

Analysis

¶43 Aspects of Hogenson’s chronology-related argument are unclear.
But we understand him to argue that he is constitutionally entitled to a trial at
which C.D. and her father testify, and defense counsel cross-examines A.B.,
regarding her statements to police about Hogenson’s living and working
arrangements during the period over which the assaults occurred, because this
would provide a viable defense that she was 16 when the assaults started. The
argument is that, with that evidence, Hogenson could persuade a jury of the
following: C.D. was two years younger than Hogenson; the assaults took place
during the time when C.D. was actively working on the farm while Hogenson was
working there and living in Fennimore, i.e., no earlier than the summer or fall of
2011, when C.D. was 14 or 15, making A.B. 16 or older; and A.B. was not
accurate in her chronology that places the assaults at a time earlier than 2011.
Assuming that the circuit court would have allowed the prosecution to amend the
criminal complaint to charge misdemeanors rather than the criminal information

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No. 2023AP636-CR

charging a felony, the prejudice to Hogenson was that he was deprived of the
chance to be found guilty of a misdemeanor instead of a felony. We reject this
argument because it depends on misinterpretations of various aspects of the
record.

¶44 One significant problem with Hogenson’s argument is that A.B.’s
statements to police were not precise as to when the sexual assaults occurred in
relation to where Hogenson was living and working. When police asked A.B.
about Hogenson’s living and working arrangements, the question was framed
ambiguously as “at the time.” Similarly, when police asked about Hogenson’s
contact with other young girls, the question was framed as “during that time.”
Moreover, as determined by the circuit court, A.B. did not indicate that she knew
whether C.D. was actively working on the farm during the time that she
understood that Hogenson was working there.

¶45 Thus, contrary to Hogenson’s current argument, it is not clear from
questions and answers reflected in the report of A.B.’s interview that she equated
the entire period of alleged assaults with the entire time that C.D. and Hogenson
worked together on the farm beginning in 2011. A.B.’s statements on these topics
could easily be understood as her memory of Hogenson’s most recent whereabouts
at the approximate end of the period of assaults, the fall of 2008. This is
approximately the same time period in which C.D. and her father stated that
Hogenson began working at the farm. At a minimum, it is unclear how inaccurate
A.B. would have been, compared with the testimony from C.D. and Hogenson,
regarding the timing of Hogenson’s work and living arrangements.

¶46 Moreover, so far as Hogenson shows, his working and living
arrangements during the charged time period were not a significant aspect of

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No. 2023AP636-CR

A.B.’s testimony or the prosecution’s theory of guilt. Rather, A.B. testified clearly
about the timing of the numerous alleged assaults in relation to her firsthand
experiences: her personal experience of her school semesters and summer breaks,
including the milestone of starting high school. Further, this aspect of her trial
testimony was consistent with her statements to police. The clarity of A.B.’s
testimony regarding the pertinent chronology in reference to her life events
sharply contrasts to what, so far as the record shows, was in general her merely
secondhand knowledge of Hogenson’s life outside of her direct personal contacts
with him. There is no evidence that A.B. ever went to see where Hogenson
worked or knew about this information other than through what Hogenson or
others told her. Instead, A.B. told police that she and Hogenson would talk on the
phone “probably a couple times a week” and that one topic of conversation was
“his farming job and what he did.”

¶47 Expanding on this last, to the extent that A.B.’s testimony could
have been undermined regarding the chronology, including the timing of
Hogenson’s work, Hogenson fails to show that there was a meaningful probability
that the jury would have drawn exculpatory inferences. One premise of
Hogenson’s current argument is that he can show a meaningful probability that the
jury could have made the following inferences based on the evidence offered at
the postconviction hearing: nearly 13 years later, A.B. was correct about when
Hogenson worked on the farm relative to the alleged timing of assaults, but she
was mistaken about when the assaults took place relative to her detailed
descriptions of events, including her meeting Hogenson and the first instance of
sexual intercourse. Only then, so far as Hogenson argues the point, could the jury
have concluded that the alleged assaults took place after A.B. turned 16. When

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No. 2023AP636-CR

taking the record as a whole, Hogenson does not meet his burden to show that
such an inference would have been sufficiently probable.

II. Right to Assert Innocence

¶48 There is no dispute that Hogenson, in the words of the U.S. Supreme
Court’s decision in McCoy, “expressly assert[ed]” to his trial counsel that the
objective of his defense was to assert innocence. See McCoy, 584 U.S. at 423.
Moreover, there is no dispute that Hogenson asserted to his counsel that he did not
have sex with A.B. at any point. With those points in mind, Hogenson argues that
his trial counsel’s defense strategy, in particular the closing argument, constituted
a “refus[al] to present … Hogenson’s claim of innocence,” which violated
Hogenson’s rights under the Sixth Amendment as articulated by the U.S. Supreme
Court in McCoy. Hogenson contends that this is so because his trial counsel in
essence limited his jury argument to the proposition that the prosecution did not
meet its burden to prove guilt beyond a reasonable doubt and did not affirmatively
assert that A.B. fabricated her allegations. We agree with the State that, under
case law applying pertinent Sixth Amendment principles, Hogenson fails to
establish his McCoy-based claim.

¶49 Under the Sixth Amendment to the United States Constitution, “[i]n
all criminal prosecutions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defen[s]e.” In providing this “assistance,” trial
counsel “makes the decisions regarding trial management,” which generally
includes “‘what arguments to pursue.’” State v. Chambers, 2021 WI 13, ¶15, 395
Wis. 2d 770, 955 N.W.2d 144 (quoting McCoy, 584 U.S. at 422). However, the
Sixth Amendment “reserve[s]” “some decisions” for the defendant—“‘notably,
whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf,

19
No. 2023AP636-CR

and forgo appeal.’” Id. (quoting McCoy, 584 U.S. at 422). In McCoy, the U.S.
Supreme Court held that “‘[a]utonomy to decide that the objective of the defense
is to assert innocence’ belongs in the category of decisions reserved for the
defendant alone.” Chambers, 395 Wis. 2d 770, ¶18 (quoting McCoy, 584 U.S. at
422) (alteration in Chambers). “A lawyer violates that autonomy ‘[w]hen a client
expressly asserts that the objective’” of the client’s defense is to “‘maintain
innocence of the charged criminal acts’ and the lawyer acts contrary to that
objective.’” Id. (quoting McCoy, 584 U.S. at 423) (alteration in Chambers). In
sum, “to succeed on a McCoy claim,” the defendant must show that the defendant
“‘expressly assert[ed] that the objective of [the defendant’s] defen[s]e is to
maintain innocence of the charged criminal acts’ and the lawyer did not ‘abide by
that objective and [overrode] it by conceding guilt.’” Id., ¶20 (quoting McCoy,
584 U.S. at 423) (emphasis omitted; first and fourth alterations in Chambers).

¶50 In Chambers, our supreme court rejected the defendant’s argument
that trial counsel conceded guilt in closing argument by asking the jury to
“consider” a lesser included offense. See id., ¶¶23-24. This was primarily
because counsel’s statement about lesser included offenses, when viewed in the
context of the entire closing argument, did not concede her client’s guilt. Id., ¶24.
Among the points that our supreme court counted as the assertion of innocence
was counsel’s argument to the jury that, despite there being some evidence of
guilt, the prosecution failed to meet its burden to prove guilt beyond a reasonable
doubt. See id.

¶51 Here, Hogenson rests his argument on two statements by his trial
counsel during closing argument. As paraphrased by Hogenson, these statements
were the following: “the question” for the jury to answer in reaching a verdict was
“not whether [A.B.] is to be believed”; and counsel “personally [did] not know

20
No. 2023AP636-CR

whether the assaults happened.” This argument fails largely because these
paraphrases omit important context from the remainder of counsel’s closing
argument that demonstrates that both statements were part of a larger argument
asserting Hogenson’s innocence by way of contending that the prosecution had not
established guilt beyond a reasonable doubt. See id., ¶24 (evaluating closing
argument in its entirety). We now explain in more detail.

¶52 Regarding counsel’s statement to the jury that the main issue at trial
was not whether to believe A.B., this was merely part of an explicit request that
the jury assess A.B.’s credibility according to the jury instructions. See WIS JI—
CRIMINAL 300 (instructing jurors to evaluate witness credibility based on factors
including the witness’ demeanor, “lack of clearness of the witness’ recollection,”
and their “[p]ossible motives for falsifying testimony”). This complemented
counsel’s challenges to A.B.’s credibility based on, for example, arguing that her
demeanor suggested that the jury could not consider her testimony sufficient to
convict.

¶53 As to counsel’s statement that he did not personally know whether
Hogenson assaulted A.B., counsel explicitly framed this as a rejoinder to what
counsel characterized as the prosecutor’s assertion to the jury that the prosecutor
personally knew that the assaults happened.4 Counsel’s argument would have

4
Although Hogenson does not make it clear in his briefing, we understand him to be
referring to the following statement by defense counsel during closing argument:

[The prosecutor] did say: “and it[, meaning the sexual assaults,]
did happen.” Guess what? He doesn’t know. I don’t know.
And you don’t know. He used that phrase: “and it did happen.”
Well, that’s the question. What’s the [“]it[”] and what
happened[?]

21
No. 2023AP636-CR

been reasonably processed by the jury as a commonsense critique of the
suggestion that the prosecutor could have personal knowledge and as a reminder
that the jury was required to make its finding based on the evidence alone.
Further, putting aside the prosecutor’s statement, defense counsel’s statement was
made in the larger context of an argument that the evidence presented by the
prosecution was insufficient to convict. This included what counsel contended
was an incomplete investigation of whether aspects of A.B.’s testimony could be
corroborated regarding alleged events from approximately 13 years before trial.
Taken as a whole, trial counsel’s focus on the prosecution’s ability to meet its
burden did not disregard or override Hogenson’s objective to claim innocence by
conceding guilt, much as occurred in Chambers.

¶54 What remains of Hogenson’s argument on this issue rehashes his
disagreement with trial counsel’s strategy related to the traffic stop evidence and
additional material that might have undermined A.B.’s testimony, which we have
already discussed. That is, Hogenson now asserts that counsel was required to
advance his claim of innocence by being more explicit in contending that A.B.
fabricated the allegations. As we have noted, however, for purposes of McCoy,
counsel’s decision not to take that route was strategic and belonged to counsel
alone. See id., ¶15.

III. Jury Instructions

¶55 Hogenson argues that the circuit court erred in crafting its instruction
to the jury in response to a question sent out by the jury during deliberations. The
jury’s question was short: “Was [A.B.]’s initial report of sexual assault filed
before or after the traffic stop?” The court instructed the jury as follows:

22
No. 2023AP636-CR

The answers to your question are contained within the
record of the testimony at the trial. You should rely on
your collective memory of the evidence in ascertaining the
answer to that question if you seek that answer.

However, in respect to that factual issue, I want to
instruct you that neither party in this case asserts that [A.B.]
fabricated the allegations of sexual assault in response to
[the boyfriend]’s speeding ticket. Nor do they assert that
[the boyfriend] somehow thereafter subjected [A.B.] to any
improper influence to create a false allegation of sexual
assault. Disregard any suggestion that [A.B.’s] allegations
are connected to the speeding ticket stop.

Hogenson argues that the second paragraph of this instruction “invaded the
province of the jury to act as the factfinder” by determining “which evidence was
relevant and material.” We conclude that the court properly exercised its
discretion in crafting this instruction under the particular circumstances here.5

¶56 The parties agree that the circuit court’s decision regarding how to
respond to the jury’s question here constituted the creation of a jury instruction.
See WIS. STAT. § 805.13(5) (“After the jury retires, the court may reinstruct the
jury as to all or any part of the instructions previously given, or may give
supplementary instructions as it deems appropriate.”).

¶57 “A circuit court has broad discretion in issuing jury instructions
based on the facts and circumstances of the case.” State v. Neumann, 2013 WI
58, ¶89, 348 Wis. 2d 455, 832 N.W.2d 560. “A circuit court must, however,
‘exercise its discretion in order to fully and fairly inform the jury of the rules of
law applicable to the case and to assist the jury in making a reasonable analysis of
the evidence.’” Id. (quoted source omitted). “[W]e analyze the [court’s]

5
Accordingly, we do not reach Hogenson’s argument that the purported error was not
harmless.

23
No. 2023AP636-CR

instructions as a whole to determine their accuracy, viewing them in the context of
the overall charge,” and do not review any “particular instruction in isolation.”
See State v. McKellips, 2016 WI 51, ¶30, 369 Wis. 2d 437, 881 N.W.2d 258.

¶58 “[A circuit] court cannot pass judgment on either the motives or the
veracity of a witness in open court. These are matters for the jury, the trier of
fact.” Murray v. State, 83 Wis. 2d 621, 627, 266 N.W.2d 288 (1978); see also
State v. Vinson, 183 Wis. 2d 297, 302, 515 N.W.2d 314 (Ct. App. 1994) (the rule
“that it is improper for one witness to comment on the credibility of another
witness’s testimony … should apply even more forcefully to judges”). In Murray,
it was error for the circuit court to allow the jury to inadvertently hear about the
court’s transcribed, in-chambers comment that a key witness was apparently
motivated to alter the witness’s testimony to protect the defendant as a friend. See
id. at 625-28 (concluding that the error was not harmless, but rejecting defense
argument based on failure to preserve it in circuit court).

Additional Background

¶59 Earlier on in the trial and outside the presence of the jury, the parties
and the circuit court discussed the possible interaction between the traffic-stop
evidence (which, as referenced above, could have provided a basis for Hogenson
to argue that friction between the boyfriend and Hogenson caused or contributed
to A.B. fabricating the allegations) and the prosecution’s interest in presenting
A.B.’s prior consistent statements about the sexual assaults (which, as we have
explained, had to be triggered by a claim of recent fabrication or improper
influence). Specifically, they discussed Hogenson’s position that, at least to that
point in the trial, the defense had not “opened the door” to allow the prosecution to
introduce the inculpatory prior consistent statements. During this discussion, the

24
No. 2023AP636-CR

circuit court raised the possibility of giving a jury instruction explaining that the
defense was not pursuing, and would disavow: the theory that A.B. fabricated her
allegations or was unduly influenced by events arising from or surrounding the
traffic stop. Defense counsel told the court that he was willing to make such a
disavowal explicit in his closing argument, making the special instruction
unnecessary. At this point, the court ruled that it would preclude the prosecution
from offering the prior consistent statements. The court further explained that it
would instruct the jury on the topic if, but only if, the closing argument of either
side raised the “specter of the interplay of the traffic stop with the timing of”
A.B.’s reporting the sexual assaults to police.

¶60 In their closing arguments, both the prosecutor and defense counsel
told the jury that the defense was not arguing that A.B. fabricated assault
allegations as a result of the events surrounding the traffic stop. Despite this, as
noted, the jury sent out the short question quoted supra, ¶55.

¶61 Outside the jury’s presence, the circuit court observed that the jury’s
question could be seen as “a realization of the [c]ourt’s worst fears about what the
jury would do with the lack of evidence,” namely, the lack of testimony by A.B.
regarding the timing and nature of her statements to various persons about the
assaults before reporting them to police. The court further said that, “if nothing
else,” the jury’s question “supports the idea that the parties successfully
deemphasized that issue,” because the jury appeared not to fully understand the
chronology that included A.B.’s reporting of the allegations to police.

¶62 The circuit court shared with the parties its tentative plan for how to
respond to the jury question: “Given the manner in which the case was
presented,” the court would instruct the jury to rely on its collective memory to

25
No. 2023AP636-CR

recall facts in evidence, but also planned to add the language quoted above, supra
¶55.

¶63 Defense counsel objected, taking the position that the circuit court
should instruct the jury only that jurors “are to rely upon their recollection of the
evidence as admitted.” Counsel argued that the court saying more than that would
not assist the jury and “may further confuse the issue.” The court responded in
part that failing to more fully instruct the jury regarding the issue they raised
would permit the jury to decide the case other than how it was “very expressly”
and “explicitly” tried, leaving only other issues to be contested. Failing to give a
more full instruction would, in the court’s view, have the effect of permitting the
jury “to decide a different case than was tried.” The court described the decision
of the defense to explicitly disavow the recent fabrication theory arising from the
traffic stop as “very consequential,” and that it dictated how both sides tried the
case. Therefore, the court reasoned, it would be “unjust” not to more fully instruct
the jury.

¶64 While maintaining his objection to the circuit court’s proposed
instruction, defense counsel argued that if the court gave it, the court should also
answer the specific factual question posed by the jury: “Was [A.B.]’s initial report
of sexual assault filed before or after the traffic stop?” Counsel noted that the
timing of A.B.’s first report to police relative to the traffic stop (a few weeks later)
was a fact in evidence. Counsel argued that failing to answer the question directly,
and instead “steer[ing] their thinking” on the topic, would “invad[e] the province
of the jury.” The court expressed a concern that, if the court attempted to provide
facts to the jury, referencing individual pieces of evidence in the record—such as
the timing of the report relative to the traffic stop—it would inadvertently
emphasize those pieces of evidence to the exclusion of other evidence bearing on

26
No. 2023AP636-CR

that topic, such as that A.B. had told the boyfriend about the sexual assaults before
the traffic stop. Defense counsel acknowledged that referencing certain facts in an
instruction could create “a slippery slope.” Counsel then circled back to the
position that the court should instruct the jury only to rely on its collective
memory. The defense also argued more generally that the court’s proposed
instruction would “interfere” with the ability of the jury to assess A.B.’s
credibility.

¶65 The prosecutor at times took the position that the circuit court should
instruct the jury to “rely on their collective memory” of the trial evidence, without
referencing specific evidence. However, the prosecutor at other times appeared to
express support for the court instructing the jury more fully on the topic of when
A.B. made her initial report to police.

¶66 After receiving the instruction quoted above, the jury reached a
guilty verdict without asking the circuit court another question.

Analysis

¶67 The circuit court did not erroneously exercise its discretion in
crafting the instruction that it gave under the particular circumstances that arose
here. The court scrupulously reflected the positions that were consistently and
explicitly taken by the parties throughout trial on the connection (or the lack
thereof) between the traffic stop and the potential admission of A.B.’s prior
consistent statements. Hogenson’s disavowal of a recent fabrication theory was
taken with the specific intent of avoiding the admission of prior consistent
statements. The instruction was consistent with the court’s ruling on the prior
consistent statements and conformed to the pertinent language in WIS. STAT.

27
No. 2023AP636-CR

§ 908.01(4)(a) by addressing whether A.B. “fabricated” her allegations or the
boyfriend “subjected [A.B.] to any improper influence” based on the traffic stop.

¶68 In effect, the circuit court gave the jury a cautionary instruction on
evidence relating to the traffic stop. It directed the jury to ignore uses of that
evidence that Hogenson’s defense explicitly disavowed, as part of defense
counsel’s reasonable and important strategic choice. See WIS. STAT. § 901.06
(“When evidence which is admissible … for one purpose but not admissible … for
another purpose is admitted, the judge, upon request, shall restrict the evidence to
its proper scope and instruct the jury accordingly.”). Hogenson does not argue
that the instruction at issue was not tailored to the facts of the case as tried by the
parties. As the court transparently explained to the parties at the time, it was
tailored to the way the case was tried by the parties.

¶69 We conclude that the circuit court made a reasonable determination
that this instruction was necessary to exclude evidentiary inferences whose
probative value was substantially outweighed by the danger of confusion over the
issues presented at trial. See WIS. STAT. § 904.03. A.B. was not asked at trial if
the traffic stop motivated or influenced her testimony. The court’s logic, which
we conclude was reasonable, was that the jury was not in a position to fairly assess
whether the traffic stop could have improperly influenced A.B. without also being
able to assess prior consistent statements to which the jury did not have access.

¶70 Hogenson asserts that it was improper for the circuit court to attempt
to “turn[] the jury’s focus … to matters” that the court considered “in actual
dispute,” but he generally fails to support this proposition. Hogenson contends
that the instruction was “a legal ruling on an issue of fact,” namely “the credibility
and motivations” of A.B. as a witness. It is true that the instruction dealt with the

28
No. 2023AP636-CR

possible inference of whether A.B.’s allegations were specifically motivated or
unduly influenced by the events surrounding the traffic stop, and that this related
to her overall credibility as a witness. However, the instruction did not direct the
jury to find that A.B.’s testimony was credible in any respect. Thus, the jury was
not precluded from determining whether A.B. was incredible or motivated to
fabricate in general, such as could have occurred if the court had improperly
supplied its own view of her credibility or motivations. Cf. Murray, 83 Wis. 2d at
626 (circuit court, through in-chambers remarks inadvertently given to jury,
“offered its own explanation for” a witness’ “differing stories and hesitation”).
Put differently, the instruction did not comment on any aspect of A.B.’s
motivations that was placed at issue by the parties at trial. This distinguishes
Hogenson’s attempt to rely on, by analogy, case law involving a witness
improperly vouching for the credibility of another witness. See State v. Haseltine,
120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984) (expert testimony stating
opinion that witness was a victim of incest was effectively an opinion that the
witness was telling the truth about incest allegations); Vinson, 183 Wis. 2d at 302.

¶71 It further undermines Hogenson’s argument that the circuit court
instructed the jury regarding witness credibility in a way that reinforced the
concept that the jury was the exclusive judge of the credibility of witnesses and the
weight of their testimony. The court instructed jurors before the opening of the
evidence phase of the trial that they were “the judges of the credibility of the
witnesses and the weight of the evidence.” Similarly, after the close of evidence,
the court instructed the jurors regarding the weighing of credibility in pertinent
part as follows:

In determining the credibility of each witness and
the weight you give to the testimony of each witness
consider these factors. Whether the witness has an interest

29
No. 2023AP636-CR

or lack of interest in the result of this trial. The witness’
conduct, appearance, and demeanor on the witness stand.
The clearness or lack of clearness of the witness’
recollection. The opportunity the witness had for observing
and for knowing the matters the witness testified about.
The reasonableness of the witness’ testimony. The
apparent intelligence of the witness. Bias or prejudice, if
any has been shown. Possible motives for falsifying
testimony. And all other facts and circumstances during
the trial which tend either to support or to discredit the
testimony. Then give to the testimony of each witness the
weight you believe it should receive.

See WIS JI—CRIMINAL 300. It is true that these standard instructions address
witness credibility and motivations at the general level. But they could be readily
and properly applied to the specific challenged instruction here, including its first
portion: “The answers to your question are contained within the record of the
testimony at the trial. You should rely on your collective memory of the evidence
in ascertaining the answer to that question if you seek that answer.”

CONCLUSION

¶72 For all of these reasons, we affirm the judgment of conviction and
the circuit court’s denial of Hogenson’s postconviction motion for 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.

30