State v. William J. Knapp

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.
September 19, 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. 2023AP525-CR Cir. Ct. No. 2019CF308

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIAM J. KNAPP,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Columbia County: TODD J. HEPLER, Judge. Affirmed.

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).

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

¶1 PER CURIAM. William Knapp appeals a judgment of conviction
and an order denying his postconviction motion for a new trial based on a claim of
No. 2023AP525-CR

ineffective assistance of trial counsel. Knapp was convicted of two counts of first-
degree sexual assault of a child under the age of 13 for the sexual assault of A.B.,
and one count of sexual assault of a child under the age of 16 for the sexual assault
of C.D.1 On appeal, Knapp challenges his conviction as to the two counts for the
sexual assault of A.B. Knapp argues that his trial counsel was ineffective because
counsel failed to object at trial to testimony from a police detective as to what
A.B. told the detective during interviews. He argues that the detective’s testimony
was inadmissible hearsay and that it provided details not testified to by A.B. and
bolstered A.B.’s testimony. We conclude that not objecting to the detective’s
testimony was consistent with counsel’s trial strategy, that this strategy was
objectively reasonable, and that Knapp therefore fails to show that counsel’s
performance was deficient under the constitutional standard. Accordingly, we
affirm.

BACKGROUND

¶2 Knapp was charged with two counts of first-degree sexual assault of
a child under the age of 13 for the sexual assault of A.B., and one count of sexual
assault of a child under the age of 16 for the sexual assault of C.D. Relevant here,
the complaint alleges that Knapp touched A.B.’s breasts on two different
occasions. The following facts are derived from the three-day trial.

To protect the victims’ identities, we refer to them using the letters “A.B.” and “C.D.,”
1

which are not the victims’ initials. See WIS. STAT. RULES 809.19(1)(g) and 809.86 (2021-22).
For the same reason, we later refer to a third victim as “E.F.”

All references to the Wisconsin Statutes are to the 2021-22 version.

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No. 2023AP525-CR

¶3 Knapp was engaged to A.B.’s aunt, who was a close friend of C.D.’s
family, and A.B. and C.D. were friends. A.B. and C.D. and their families used to
go camping in the summer with a group of people that included Knapp.

¶4 Approximately one year before the State filed the complaint in this
action, Knapp pled guilty to and was convicted of the repeated sexual assault of
E.F. Knapp was engaged to E.F.’s mother (A.B.’s aunt), and E.F. and her family
were among the group, including A.B., C.D., and Knapp, that camped together.
E.F. and A.B. are cousins, and E.F. was close friends with both A.B. and C.D.

¶5 The following facts, also derived from the trial, relate specifically to
the two counts against Knapp for the sexual assault of A.B. A.B. testified that
when she was 11 and 12 years old, Knapp, who was in his 40s, sent her Snapchat
messages calling her “beautiful, pretty, and hot.”2 A.B. also testified that Knapp
sent her, via Snapchat, photos of him without his shirt on, photos of him in front of
a mirror wearing only a towel, and photos of him pulling down his waistband to
show his tan line.

¶6 A.B. testified that while camping, Knapp touched her breasts on two
different occasions, once in an “add-a-room”3 connected to a camper, and once
when A.B. was fishing from a pier at the campground. A.B. also testified that on

2
A.B. testified that Snapchat is an application for smart phones through which users can
share text messages and photos with other users, and that those messages and photos disappear
unless the receiver replays them or takes screenshots of them.
3
A.B. testified that “[a]n add-a-room is usually an extra room connected to a camper for
sometimes sleeping space. It looks like a shed. And we used it -- there was futons in there, and
we would meet there in the morning for morning coffee.”

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No. 2023AP525-CR

other occasions, Knapp touched her thigh and slowly moved his hand up her leg,
attempted to kiss her, and touched her buttocks.

¶7 Cheryl Patty, a detective with the Dane County Sheriff’s
Department, also testified at trial. Patty testified that she interviewed A.B. on
three different occasions. Relevant here, Patty testified to certain details that A.B.
told her during the last two interviews, details that A.B. testified at trial she did not
remember:

 Although A.B. testified that she did not remember when Knapp engaged in
the conduct at issue, other than it happened during the summer, Patty
testified that A.B. told her when each of Knapp’s assaults and other conduct
described above occurred, and that they occurred in specific months during
the summer of 2016, when A.B. was 11 years old.

 Although A.B. testified that she did not recall how many times Knapp
touched her buttocks or where those incidents took place, Patty testified
that A.B. told her that Knapp touched her buttocks on two different
occasions. Patty also testified to details about the two occasions, including
that A.B. said that Knapp touched A.B.’s buttocks the first time while A.B.
was walking around the campground after dark, and that Knapp touched
A.B.’s buttocks the second time while A.B. was swimming in the lake and
playing on a water trampoline.

 Although A.B. testified that she could not remember whether Knapp
touched her breasts over or under her bra on either of the two occasions,
Patty testified that A.B. told her that the first time Knapp touched A.B.’s
breasts he did so under her bra, and that the second time he did so over her
bra.

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No. 2023AP525-CR

¶8 Patty’s testimony also revealed inconsistencies between A.B.’s
interview statements and A.B.’s trial testimony that the jury would not otherwise
have been aware of. For example, A.B. testified at trial that in the add-a-room and
on the pier Knapp touched only one of her breasts on each occasion. In contrast,
Patty testified that A.B. told her that Knapp touched both of A.B.’s breasts on the
first occasion in the add-a-room and further that Patty “believe[d]” that A.B. told
her that Knapp touched both of A.B.’s breasts while A.B. and Knapp were on the
pier. Additionally, although A.B. testified that, when Knapp touched her breast on
the pier, he was standing next to her, Patty testified that A.B. told her during the
interviews that Knapp pressed up against A.B. from behind and that A.B. “could
feel [Knapp’s] penis pushed up against her butt.”

¶9 Knapp testified on his own behalf. He admitted that he sent A.B.
Snapchat messages telling A.B. that she was beautiful, hot, and sexy, but he
denied ever attempting to kiss A.B. or ever touching A.B.’s thigh, breasts, or
buttocks.

¶10 The jury found Knapp guilty on all three counts and a judgment of
conviction and sentence were subsequently entered.

¶11 Knapp moved for postconviction relief, arguing that he is entitled to
a new trial because Patty’s testimony regarding A.B.’s interview statements was
inadmissible hearsay and trial counsel’s failure to object to Patty’s testimony on
that basis constituted ineffective assistance of counsel. The circuit court denied
Knapp’s motion after a Machner hearing at which trial counsel testified. See
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). The court
determined that counsel’s failure to object did not constitute ineffective assistance
of counsel because Patty’s testimony was admissible under hearsay exceptions.

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No. 2023AP525-CR

The court further determined that, even if Patty’s testimony was not admissible,
not objecting to it was consistent with counsel’s trial strategy, which was to
undermine A.B.’s and C.D.’s credibility by pointing out inconsistencies and
suggesting that A.B. and C.D. had embellished their accounts of the relevant
events over time.

¶12 Knapp appeals.

DISCUSSION

¶13 Whether a defendant received ineffective 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 counsel’s conduct constitutes ineffective
assistance is a question of law, which we review de novo.” State v. Breitzman,
2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93.

¶14 “A claim of ineffective assistance of counsel has two prongs:
deficient performance and prejudice.” State v. Jackson, 2023 WI 3, ¶10, 405
Wis. 2d 458, 983 N.W.2d 608. The burden is on the defendant to prove both
prongs. State v. Moats, 156 Wis. 2d 74, 100, 457 N.W.2d 299 (1990). Because,
as we explain below, we conclude that Knapp fails to show that counsel’s
performance was deficient under the relevant standard, we need not address
whether Knapp shows that he was prejudiced. See State v. Bucki, 2020 WI App
43, ¶81, 393 Wis. 2d 434, 947 N.W.2d 152 (“If the defendant fails to make a
sufficient showing on one prong, it is unnecessary to address the other.”).

¶15 “To demonstrate deficient performance, the defendant must show
that his counsel’s representation ‘fell below an objective standard of

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No. 2023AP525-CR

reasonableness’ considering all the circumstances.” State v. Carter, 2010 WI 40,
¶22, 324 Wis. 2d 640, 782 N.W.2d 695 (quoting Strickland v. Washington, 466
U.S. 668, 688). Counsel’s performance is not deficient if it falls within the “‘wide
range of professionally competent assistance.’” State v. Pico, 2018 WI 66, ¶19,
382 Wis. 2d 273, 914 N.W.2d 95 (quoting Strickland, 466 U.S. at 690). “We
presume that counsel’s assistance fell within that range,” id., and our “review of
counsel’s performance is highly deferential and reviewed from counsel’s
perspective at the time of trial, not based on hindsight,” State v. Robinson, 177
Wis. 2d 46, 55-56, 501 N.W.2d 831 (Ct. App. 1993); 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.”). We “‘will not
second-guess a reasonable trial strategy, [unless] it was based on an irrational trial
tactic or based upon caprice rather than upon judgment.’” Breitzman, 378 Wis. 2d
431, ¶65 (alteration in original) (quoting State v. Domke, 2011 WI 95, ¶49, 337
Wis. 2d 268, 805 N.W.2d 364). “A valid strategy is not ‘deficient performance’
just because it fails.” State v. Libecki, 2013 WI App 49, ¶25, 347 Wis. 2d 511,
830 N.W.2d 271.

¶16 On appeal, Knapp renews his argument that counsel was
constitutionally ineffective by failing to object to Patty’s testimony regarding
A.B.’s interview statements. Specifically, Knapp argues that Patty’s testimony
was inadmissible hearsay and that counsel did not have a strategic reason for not
objecting to Patty’s testimony as hearsay. As we explain, Knapp fails to show that
trial counsel’s failure to object was deficient because, even if we assume that
Patty’s testimony was inadmissible hearsay, not objecting to it was consistent with
counsel’s trial strategy, which we conclude was objectively reasonable.

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No. 2023AP525-CR

¶17 In arguing that counsel’s performance was deficient because counsel
did not have a strategic reason for not objecting to Patty’s testimony about A.B.’s
interview statements, Knapp relies on counsel’s failure, at the Machner hearing, to
provide a strategic reason for failing to object. Specifically, at the hearing,
counsel testified that he thought he objected to Patty’s testimony regarding A.B.’s
interview statements, but that the circuit court ruled that A.B. was unavailable.
However, the trial transcript does not show that counsel made, or that the court
ruled on, an objection regarding what Patty would testify that A.B. told her.4
When the absence of such an objection was pointed out to counsel and counsel
was asked if he had “a strategic reason specifically for not objecting,” other than
believing that “there was a ruling,” counsel responded, “No.”

¶18 However, counsel also agreed at the Machner hearing that his
strategy “involved … poking at the veracity of the [victims’] stories”; that in his
opening argument, counsel had invoked a “theme of embellishment”; that
“hav[ing] inconsistent testimony … fit with the theme that the [victims]
embellished details over[ ]time”; and that in closing, counsel “hammer[ed] on” the
theme of “[a]dded details over time by the [victims].”

¶19 “[T]rial counsel’s conduct and strategy are findings of fact, which
will not be overturned unless clearly erroneous.” Breitzman, 378 Wis. 2d 431,
¶37. In ruling on Knapp’s postconviction motion, the circuit court found that
counsel’s trial strategy was to use Patty’s testimony “to argue that the witnesses

4
Patty testified as to what C.D. told Patty during interviews before Patty testified as to
what A.B. told Patty during interviews. At the beginning of Patty’s testimony regarding C.D.’s
interview statements, counsel raised a hearsay objection that was overruled. However, counsel
did not subsequently raise a hearsay objection regarding Patty’s testimony about A.B.’s interview
statements.

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No. 2023AP525-CR

were not credible because of the purported inconsistencies and embellishments in
their testimony.” The court further found that in Knapp’s opening statement and
closing argument, counsel “suggested that the victims and witnesses were not
telling the whole truth and [that they] embellished or added facts to the events.”
Knapp does not argue that these findings are clearly erroneous.

¶20 Consistent with the circuit court’s findings, during Knapp’s opening
statement, counsel told the jury:

And you’ll hear probably testimony about these
incidents but it’s the circumstances with which they are
alleged to have happened that become troublesome. It’s the
way they unfold and how there are multiple versions of
different incidents and added facts and added elements and
they get bigger and bigger and bigger.

So when you’re listening to this and thinking about
all the times that this witness has told the story, I also want
you to think about how that story came out and say … that
it’s usual for these things to come out in these ways.

But I would submit to you that it’s not necessary
and that certainly there are circumstances where a person
can just tell the entire story and tell it once … and get it out
there and then it builds or details are added after the fact.
But you have significant moments where it wraps it up over
the course of time and over the course of a number of
interviews.

¶21 Consistent with this theme, during trial, counsel also: cross-
examined E.F. about her close relationship with A.B. and C.D.; cross-examined
A.B. about whether and when A.B. spoke with E.F. about Knapp’s repeated sexual
assaults of E.F.; and cross-examined Patty about the use of leading questions and
successive interviews during child sexual assault investigations. Additionally, in
closing argument, counsel told the jury to “remember what’s happened here and
what’s uncon[tro]verted, that … Knapp was in [the victims’ lives] and violated

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No. 2023AP525-CR

their good friend criminally. And so he’s become the bad guy and that the natural
inclination is to get the bad guy.” Counsel further argued:

Is it inconceivable that … even if you don’t find that [the
victims] specifically lied about things, that they
embellish[ed] things, that they told them some things, that
they built these stories, and over the course of these
interviews and this confirmation and this encouragement
that extra facts came out and more facts came out and more
parts to this story that weren’t actually true but [that] they
told themselves …. [T]hey’ve been encouraged so often
that they told them and it seemed true to them and seemed
like the right thing to do, even if they didn’t remember it
exactly.

¶22 These aspects of the record strongly support the circuit court’s
finding that counsel’s strategy was to undermine A.B.’s credibility by calling
attention to inconsistent statements and by highlighting how A.B.’s descriptions of
events had changed over time. Accordingly, we accept the court’s finding, which
is not challenged by Knapp. See id. Not objecting to Detective Patty’s testimony
regarding A.B.’s interview statements was consistent with counsel’s strategy, and,
as we now explain, Knapp has not shown that counsel’s strategy was objectively
unreasonable.

¶23 Knapp relies heavily on counsel’s subjective statement that he did
not have a specific strategic reason for not objecting to Patty’s testimony.
However, Knapp does not argue that not objecting was objectively unreasonable.
This is significant because, as our supreme court observed in Jackson: “Deficient
performance is judged by an objective test, not a subjective one. So, regardless of
defense counsel’s thought process, if counsel’s conduct falls within what a
reasonably competent defense attorney could have done, then it was not deficient
performance.” Jackson, 333 Wis. 2d 665, ¶9 (citation omitted); see also State v.
Honig, 2016 WI App 10, ¶24, 366 Wis. 2d 681, 874 N.W.2d 589 (“A reviewing

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No. 2023AP525-CR

court can determine that defense counsel’s performance was objectively
reasonable, even if trial counsel offers no sound strategic reasons for decisions
made.”). As we now explain, we conclude that counsel’s trial strategy was
objectively reasonable.

¶24 The prosecution’s case regarding the two counts of sexual assault
against A.B. rested on crediting A.B.’s version of events and discrediting Knapp’s.
The prosecution told the jury that the case was a “credibility contest,” and Knapp’s
counsel similarly told the jury that “it’s always been about credibility.” Patty
testified that she had interviewed A.B. on three different occasions—in January,
February, and August 2018—and that A.B. did not disclose that Knapp had
touched her breasts or buttocks until the third interview. Patty’s testimony thus
showed that what A.B. reported to Patty changed during the course of the three
different interviews. Further, the jury learned that A.B., at trial, did not relate
much of what Patty testified that A.B. told her during the interviews. Moreover,
some of what Patty testified that A.B. told her during the interviews was
inconsistent with A.B.’s trial testimony.5 All of this supported the defense trial
strategy of showing that the victims—allegedly motivated by a desire to see
Knapp punished further for his sexual assault of E.F., and allegedly encouraged by
the manner in which the case was investigated—embellished, over time, their
accounts of what happened, which resulted in inconsistencies across the
successive interviews and between their interview statements and their trial

5
We observe that the inconsistencies between A.B.’s testimony and Patty’s testimony
concerned the jury, as reflected in the following question that the jury posed to the court during
the course of deliberations: “We are concerned with the divergence of the testimony of [A.B.]
and Det[ective] Patty on the breast touching at the [pier]. May we hear the recording, or see the
transcript or the minutes if they would be helpful to help us reconcile?”

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No. 2023AP525-CR

testimony. Given these circumstances, it was objectively reasonable for counsel to
fail to object to Patty’s testimony in an attempt to undermine A.B.’s credibility.
We are satisfied that counsel’s representation was well within the “‘wide range of
professionally competent assistance.’” Pico, 382 Wis. 2d 273, ¶19 (quoting
Strickland, 466 U.S. at 690).6

¶25 Accordingly, for the reasons explained above, we affirm.

By the Court.—Judgment and order affirmed.

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

6
Knapp appears to argue that, as a rule, not objecting to inadmissible hearsay is
constitutionally deficient performance, and as support he cites State v. Domke, 2011 WI 95, 337
Wis. 2d 268, 805 N.W.2d 364, and State v. Jimmie R.R., 2004 WI App 168, 276 Wis. 2d 447,
688 N.W.2d 1. However, in the cases that Knapp cites, there was no objectively reasonable basis
for counsel’s failure to object to the inadmissible hearsay. Domke, 337 Wis. 2d 268, ¶¶41, 46;
Jimmie R.R., 276 Wis. 2d 447, ¶23. And as we have noted, counsel’s conduct does not constitute
deficient performance when it is consistent with a reasonable trial strategy. See, e.g., State v.
Breitzman, 2017 WI 100, ¶74, 378 Wis. 2d 431, 904 N.W.2d 93 (“We conclude that trial
counsel’s failure to object … was not deficient performance, and thus not ineffective assistance of
counsel, because declining to object was part of a reasonable trial strategy.”).

12