State v. Rex A. Bigger

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.
November 25, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1877-CR Cir. Ct. No. 2020CF62

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

REX A. BIGGER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Buffalo County: RIAN W. RADTKE, 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. Rex A. Bigger appeals a judgment convicting him,
following a jury trial, of repeated sexual assault of the same child. He also appeals
No. 2023AP1877-CR

an order denying his motion for postconviction relief. Bigger argues that his trial
counsel was constitutionally ineffective on the following three grounds:
(1) counsel’s cross-examination of a witness elicited a response that constituted
inadmissible other-acts evidence; (2) counsel failed to object to the investigating
detective’s repeated responses that he believed the victim, which allegedly
violated State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984); and
(3) counsel failed to consult with or hire an expert to support Bigger’s defense
based on his having made a false confession. We reject Bigger’s arguments and
affirm.

BACKGROUND

¶2 In May 2020, the State charged Bigger with repeatedly sexually
assaulting Brittany1 between January 2011 and October 2013. According to the
criminal complaint, Brittany met with Detective Michael Osmond and described
multiple instances of Bigger sexually assaulting her at a residence on East Hudson
Street in Mondovi, Wisconsin. Osmond also met with Bigger, and that interview
was audio-visually recorded. After about one and one-half hours, Bigger admitted
that he and Brittany “had sex” and that he was “positive it was no more than five
times.” The matter proceeded to a jury trial.

¶3 At trial, Brittany testified that her mother and Bigger divorced when
she was very young and that Bigger later married JoAnn Werlein. Brittany
recalled that she was about ten or eleven years old when Bigger moved into the
Hudson Street residence in 2011 and that she and her sister visited Bigger at that

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2023-24), we use a
pseudonym when referring to the victim in this case.

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No. 2023AP1877-CR

residence on the weekends. Brittany testified that she, her sister, and Werlein slept
in the living room when they visited Bigger, while Bigger slept in his bedroom
upstairs.

¶4 Brittany further testified that Bigger began to sexually assault her
when he lived at the Hudson Street residence. She stated that after she fell asleep
in the living room, Bigger would carry her up to his bedroom. Brittany further
testified that Bigger would make her wear a nightgown and would tell her to not
wear her underwear. Brittany continued that she would get on the bed, and Bigger
would sexually assault her. Brittany then described in detail how Bigger would
sexually assault her. She also described instances of Bigger sexually assaulting
her in the restroom and one instance that occurred in the living room.

¶5 Brittany stated that the sexual assaults stopped in 2013 when Bigger
and Werlein separated and both moved out of the residence. Brittany testified that
after the assaults stopped, she told her sister about them, and her sister then told
their mother. Brittany recalled that after telling her sister about the assaults, she
went to a center where she did a forensic interview, but nothing else happened at
that time. On cross-examination, Brittany agreed that there were things she did
not mention in the 2013 forensic interview that she mentioned in her trial
testimony.

¶6 Werlein testified that she and Bigger were married from 2003 to
2016 but separated in 2012. Werlein also testified that she and Bigger moved into
the Hudson Street residence in 2011 and that Brittany and her sister would visit on
the weekends. She further testified that when she lived at the residence, Bigger
slept upstairs while she slept on the couch. When Brittany and her sister visited,
Werlein stated that they would sleep on the couch with her. Werlein also stated

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No. 2023AP1877-CR

that when they fell asleep, Bigger “would carry only [Brittany] upstairs to the
bed.”

¶7 Werlein described one specific night when she went upstairs to use
the restroom and saw Brittany lying on Bigger’s bed with her nightgown pulled up
past her chest. Werlein recalled that Brittany did not have her “undies on, she had
no bottoms on, and I went in and I thought it was strange so I pulled down her
nightgown and then covered her up.” On cross-examination, Werlein testified that
the circumstances of her relationship with Bigger in 2011 and 2012 “were not
good” and that their relationship “was coming to an end.”

¶8 Detective Osmond testified about his meetings with Brittany and
Bigger. Osmond testified that during his interview with Bigger, he asked Bigger
whether he had sex with Brittany, and Bigger “denied it, approximately seven
times, there were 18 times that he stated he didn’t remember, and then there was a
number of times that he said that he had sex with [Brittany].” Elaborating on the
number of times Bigger admitted he had sex with Brittany, Osmond testified that
Bigger first “stated that he woke up and [Brittany] was on top of him having sex
with him. He stated that that occurred two to three more times; again I asked for
more of a definitive number, he then said well, it didn’t happen more than five
times.”

¶9 Osmond also testified that he asked Bigger whether he wanted to
write an apology letter and that Bigger wrote one. The apology letter, addressed to
Brittany, stated the following:

I would like you to know how sorry I am for what I done
[sic] to you. During some of your childhood. I hope your
[sic] will be able to forgive me. I will seek more
counciling [sic] if you want that. I will do what I have to to

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No. 2023AP1877-CR

make this better, and to try to right the wrongs I have done.
I am truly very sorry with all my heart.

The jury then watched portions of Bigger’s recorded interview.

¶10 On cross-examination, Osmond testified that Bigger denied sexually
assaulting Brittany several times in a portion of the interview that the jury did not
watch. Defense counsel also asked several questions about statements Osmond
made in response to Bigger’s denials, indicating Osmond’s belief that Bigger had
sexually assaulted Brittany.

¶11 The jury found Bigger guilty of repeated sexual assault of a child.
The circuit court subsequently imposed a 55-year prison sentence, consisting of 35
years of initial confinement followed by 20 years of extended supervision.

¶12 Bigger moved for postconviction relief, seeking a new trial on the
ground of ineffective assistance of trial counsel. Bigger argued that his counsel
was ineffective by cross-examining Werlein in a way that elicited a response
containing inadmissible other-acts evidence, by failing to object to Osmond’s
repeated responses that vouched for Brittany’s credibility and that expressed his
opinion that Bigger was guilty, and by failing to consult or hire an expert witness
on false confessions to support Bigger’s defense. The circuit court held a
Machner2 hearing, at which Bigger’s trial counsel and his expert witness testified.

¶13 The circuit court denied Bigger’s motion for postconviction relief,
concluding that, even if there were errors by his counsel, Bigger’s defense was not

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

5
No. 2023AP1877-CR

prejudiced by those errors, given the overwhelming and compelling evidence of
guilt. Bigger appeals. Additional facts will be provided below as necessary.

DISCUSSION

¶14 On appeal, Bigger renews his ineffective assistance of counsel
claims, raising the same arguments he made in his postconviction motion. An
ineffective assistance of counsel claim presents a mixed question of fact and law.
State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695. We uphold
the circuit court’s findings of fact unless they are clearly erroneous. Id. Whether
trial counsel’s assistance was ineffective is a question of law that we review de
novo. Id.

¶15 An ineffective assistance of counsel claim requires a defendant to
show both that his or her counsel’s performance was deficient and that the
deficient performance prejudiced the defense. Id., ¶21. We need not address both
deficient performance and prejudice if the defendant fails to make a sufficient
showing on one of those elements. State v. Pico, 2018 WI 66, ¶20, 382 Wis. 2d
273, 914 N.W.2d 95. Counsel’s performance is deficient when his or her
representation falls below an objective standard of reasonableness considering all
the circumstances. Strickland v. Washington, 466 U.S. 668, 688 (1984). We
strongly presume that counsel’s conduct “falls within the wide range of reasonable
professional assistance.” Id. at 689.

¶16 Counsel’s deficient performance is prejudicial if “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. A reasonable probability
means “a probability sufficient to undermine confidence in the outcome.” Id. The
defendant “need not prove the outcome would ‘more likely than not’ be different

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No. 2023AP1877-CR

in order to establish prejudice.” State v. Sholar, 2018 WI 53, ¶44, 381 Wis. 2d
560, 912 N.W.2d 89 (citation omitted). Rather, the defendant must show that “but
for his lawyer’s error, there is a reasonable probability the jury would have had a
reasonable doubt as to guilt.” Id., ¶45. “If there is no reasonable probability that
the jury would have reached a different verdict,” the defendant has not shown
prejudice. Id., ¶46.

I. Werlein’s Cross-examination

¶17 Bigger first argues that his trial counsel was ineffective by eliciting
an inadmissible response from Werlein regarding her relationship with Bigger. As
noted above, Werlein testified on cross-examination that her relationship with
Bigger in 2011 and 2012 was “not good” and that it “was coming to an end.”
Counsel then continued questioning Werlein about her relationship with Bigger,
asking, “[I]s it fair to say it was basically over by the time you moved out of that
apartment?” Werlein answered, “Technically, yes, but there were some other
issues that—with him and I.” The following exchange then occurred:

Q Fair enough. My point, I guess, is at the time that
you were living at that apartment, there were—the
circumstances of the relationship were not good,
right?

A No, he was abusive.

¶18 Bigger’s counsel then requested a sidebar. Afterward, counsel
asked, “You understand that we’re not here today to have a trial about whether or
not Mr. Bigger was abusive to you, right?” Werlein replied, “Correct, correct.”
Counsel, however, continued, asking, “You understand that this isn’t your
opportunity to level accusations against Mr. Bigger, correct?” At this point, the

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No. 2023AP1877-CR

State objected, arguing that counsel was “bullying the witness,” and the circuit
court sustained the objection.

¶19 Following Werlein’s testimony, Bigger’s counsel requested that the
sidebar be placed on the record, which the circuit court did. Counsel argued that
Werlein’s testimony that Bigger was abusive was not responsive to his question,
that his question did not “open the door to having her say that,” and that Werlein
had “a desire to present information to the jury in this context that’s detrimental to
Mr. Bigger.” For these reasons, counsel argued that Werlein’s statement that
Bigger was abusive was irrelevant and requested that the jury be instructed to
disregard Werlein’s response.

¶20 The circuit court agreed, concluding that the response was irrelevant
and that the response could confuse the jury as to what the issues were. The court
subsequently informed the jury that it was striking Werlein’s response that Bigger
was abusive, stating that it was “irrelevant and I ask that you carve that out of your
mind as that is not relevant—that’s not the issue in this matter, and so I’m going to
ask that you—that you disregard the struck testimony.” The court again repeated
its instruction to the jury after closing arguments, stating: “During the trial, the
Court has ordered certain testimony to be stricken. Disregard all stricken
testimony.”

¶21 Bigger argues that there was “no conceivable strategic benefit” for
his counsel to continue questioning Werlein about the circumstances of her
relationship with Bigger after she answered that her relationship with him was
“not good” and that it “was coming to an end.” By continuing to question Werlein
about the relationship, Bigger contends that his counsel elicited an inadmissible
response that prejudiced Bigger because it allowed the jury “to draw the inference

8
No. 2023AP1877-CR

that Mr. Bigger abused women with whom he was in a domestic relationship.”
Bigger further contends that the circuit court’s instruction to the jury did not
mitigate the prejudice caused by Werlein’s response because the court’s
instruction to the jury “was not a directive” to the jury but, instead, was “phrased
as a request.” He thus asserts that the “clear meaning of the court’s statement”
gave the jury “the option of considering the inadmissible testimony.”

¶22 We conclude that Bigger’s defense was not prejudiced by his
counsel eliciting Werlein’s response that Bigger was abusive, given the circuit
court’s curative instruction and the overwhelming evidence of guilt. As an initial
matter, Bigger’s counsel did not elaborate on Werlein’s statement about abuse
after the sidebar. Instead, counsel asked Werlein twice whether she understood
the trial was not related to her accusations, and the State then made an objection,
which the circuit court sustained. Furthermore, Bigger does not point to any
instance during the trial in which the State mentioned or focused on Werlein’s
responses in this line of questioning.

¶23 More importantly, we disagree that the circuit court’s instruction
striking Werlein’s response as being irrelevant was “phrased as a request.” There
was nothing permissive about the court’s instruction, given that it was quite clear
that the court was striking Werlein’s response as being irrelevant to the trial and
that the jurors had to disregard the stricken testimony. The court again repeated
the instruction at the end of the trial: “Disregard all stricken testimony.” Thus, the
court clearly instructed the jury twice to disregard Werlein’s response, and jurors
are presumed to have followed those instructions. See State v. LaCount, 2008 WI
59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780.

9
No. 2023AP1877-CR

¶24 In addition, we agree with the circuit court that Bigger’s defense was
not prejudiced by this alleged deficiency given the overwhelming and compelling
evidence in this case, which we discuss more below. See infra ¶¶41-45.
Therefore, in light of the court’s curative instruction both at the time it struck the
testimony and at the end of the trial, and in light of the overwhelming evidence of
guilt in this case, Bigger fails to show there was a reasonable probability the jury
would have had a reasonable doubt as to his guilt but for Werlein’s statement that
Bigger was abusive.

II. Detective Osmond’s Testimony

¶25 Bigger next argues that his trial counsel was ineffective by not
objecting to Osmond’s unresponsive answers regarding statements that he made to
Bigger in response to Bigger denying that he sexually assaulted Brittany. In
particular, Bigger contends that his counsel caused Osmond to repeatedly tell the
jury his belief that Bigger committed the charged crime. Bigger argues this
testimony violated Haseltine because it amounted to Osmond vouching for
Brittany’s credibility regarding the allegations of sexual assault.

¶26 During Osmond’s cross-examination, Bigger’s counsel asked
whether Osmond “made statements to [Bigger] indicating that your view was that
you knew that he had done it[.]” Osmond answered, “I made indications to
[Bigger] that I believed the witness and that I felt she was telling the truth and that
I believed that he had sexually assaulted [Brittany].”

¶27 Counsel asked similar questions regarding Osmond’s statements to
Bigger during the interview that Osmond believed Bigger had sexually assaulted
Brittany. For example, counsel asked whether Osmond “indicated to [Bigger] that
[he] 110 percent believed that [Bigger] did it[.]” Osmond responded, “Yes.

10
No. 2023AP1877-CR

During the interview, I believe[d] that he had sexually assaulted [Brittany], that’s
accurate.” When counsel asked whether Osmond had stated, “You can tell me
until you’re blue in the face but I know what happened,” Osmond answered that
“during the entire time of the interview I felt that Mr. Bigger had sexually
assaulted [Brittany] and so it’s very possible that I would have said that.”

¶28 When Bigger’s counsel asked Osmond to “confirm that you’re not
denying that you said those things but you just don’t remember the exact verbiage
that I presented to you,” Osmond answered that

throughout the process I felt that Mr. Bigger had sexually
assaulted [Brittany] and so I certainly may have made
comments that I didn’t believe him and didn’t feel he was
telling me the accurate information.… [A]ll I can confirm
is that during the entire interview I felt that Mr. Bigger had
sexually assaulted [Brittany] prior to him telling me that he
sexually assaulted [her].

¶29 Similarly, when Bigger’s counsel asked Osmond if he agreed that he
told Bigger several times “something to the effect of ‘this was not about the what
of what occurred but the why,’” Osmond responded: “I 100 percent believed that
he had sexually assaulted [Brittany] and during our conversation I was requesting
the reasoning why, not if he had or hadn’t done it.” And again, when counsel
asked whether it was fair to say that at the end of the interview Osmond was under
the impression that Bigger’s statements “were an admission to sexually assaulting
or touching [Brittany],” Osmond responded: “I asked him how many times he had
sex with [Brittany] and he told me no more than five; so yes, I believe that he had
sexually assaulted [Brittany] based on his answer of ‘I had sex with [Brittany].’”
Finally, Bigger’s counsel asked whether Osmond agreed that he told Bigger that
he “wholeheartedly 110 percent believe that it did happen.” Osmond responded,
“Yes, I 110 percent wholeheartedly agree that it did happen.”

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No. 2023AP1877-CR

¶30 Bigger points to other similar responses by Osmond and argues that
his counsel never objected to Osmond’s responses and that counsel failed to
provide “a coherent strategy that would explain why he did not object.” At the
Machner hearing, Bigger’s counsel testified that he wanted to point out that
Osmond made statements to Bigger indicating that Osmond did not believe him.
Counsel further testified that he framed his questions to have Osmond “agree that
he utilized certain techniques that were designed to elicit the answer that he was
after” and that counsel’s questions were focused on what Osmond “actually said to
Mr. Bigger during the interview.” Counsel agreed, however, that Osmond’s
answers to several questions regarding Bigger’s interview were nonresponsive,
that he did not object to those answers as being nonresponsive, and that he knew
those answers provided an opinion about Bigger’s guilt or innocence.

¶31 Bigger’s counsel also testified that his overall strategy when
questioning Osmond was to show the jury that Osmond did not have any
information going into the interview with Bigger “other than the fact that
[Brittany] had said it happened.” Counsel stated that the evidence presented at
trial showed Osmond did not have “the requisite information”—other than what
Brittany had told him—to believe that Bigger had sexually assaulted Brittany.
Counsel thus sought to argue to the jury that Osmond went into the interview
without truly believing that Bigger had sexually assaulted Brittany but, rather,
with the objective of getting Bigger to admit that he had.

¶32 We agree with the State that Bigger’s counsel was not deficient by
failing to object to Osmond’s repeated responses because, as the State argues,
those responses did not violate Haseltine. Pursuant to Haseltine, a witness is not
“permitted to give an opinion that another mentally and physically competent
witness is telling the truth.” Haseltine, 120 Wis. 2d at 96. This rule “is intended

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No. 2023AP1877-CR

to prevent witnesses from interfering with the jury’s role as the ‘lie detector in the
courtroom.’” State v. Snider, 2003 WI App 172, ¶27, 266 Wis. 2d 830, 668
N.W.2d 784 (citation omitted). Thus, an opinion “that a complainant was sexually
assaulted or is telling the truth is impermissible.” State v. Krueger, 2008 WI App
162, ¶9, 314 Wis. 2d 605, 762 N.W.2d 114.

¶33 When neither the testimony’s purpose nor its effect is to attest to a
witness’s truthfulness, the Haseltine rule is not violated. See State v. Smith, 170
Wis. 2d 701, 718, 490 N.W.2d 40 (Ct. App. 1992). For example, in Smith, we
concluded that a detective’s testimony did not violate the Haseltine rule when he
testified that an accomplice initially denied involvement in a crime, but he later
changed his story to what the detective “felt was the truth.” Smith, 170 Wis. 2d at
706, 718. We explained that the detective was describing the circumstances of the
accomplice’s interrogation and the reasons for it. Id. at 718. Because the
detective did not believe the accomplice’s initial story, he continued the
interrogation “until he got what he believed to be the truth.” Id. Thus, we held
that the detective’s testimony that the accomplice later changed his story to what
the detective “felt was the truth” was not an attempt to bolster the accomplice’s
credibility but was simply an explanation of events during the interrogation. Id.

¶34 We similarly concluded in Snider that a detective’s repeated
responses to defense counsel’s cross-examination that the detective believed the
victim’s statement—and that he did not believe the defendant’s version of
events—did not violate the Haseltine rule. Snider, 266 Wis. 2d 830, ¶¶25, 27.
We explained that the detective “testified to what he believed at the time he was
conducting the investigation, not whether [the defendant] or the victim was telling
the truth at trial.” Id., ¶27. We therefore held that the detective’s responses to
counsel’s cross-examination did not violate the Haseltine rule because they simply

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No. 2023AP1877-CR

recounted how the detective “conducted the interrogation and his thought
processes at that time.” Snider, 266 Wis. 2d 830, ¶27.

¶35 In the same way, Osmond’s repeated responses to Bigger’s counsel’s
questions did not violate the Haseltine rule. Osmond simply testified to what he
believed at the time he was interviewing Bigger, not to what he believed at trial.
Just like the detective’s responses in Snider, Osmond’s responses here recounted
how he conducted Bigger’s interview—i.e., by telling Bigger he did not believe
him—and his thought process throughout that interview—i.e., that during the
interview, he believed Bigger had sexually assaulted Brittany. At no point did
counsel ever ask Osmond whether he believed Brittany’s trial testimony. Nor did
Osmond ever state that he believed Brittany’s trial testimony. Thus, Osmond’s
repeated responses had neither the purpose nor the effect of attesting to Brittany’s
truthfulness at trial. Consequently, Osmond’s testimony did not violate the
Haseltine rule, and Bigger’s counsel was not deficient for failing to object to the
testimony.

III. Expert Witness Regarding False Confessions

¶36 Finally, Bigger argues that his trial counsel was ineffective because
counsel “did not retain an expert to assist in explaining the phenomenon of false
confessions” in order to “counter the State’s case.” At the Machner hearing,
Bigger’s counsel testified that he sought to show that Bigger’s confession to
Osmond was unreliable. But counsel also stated that he did not consult an expert
because he believed that an expert, “at best, under these circumstances would be
able to describe the circumstances under which a person might give a false
confession or might … be pressured into giving unreliable statements, but not be
able to say that the statements that were given in this case were false.” Counsel

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No. 2023AP1877-CR

also had concerns “about drawing a massive amount of attention to the confession
and making the trial about whether or not it was false.”

¶37 At the Machner hearing, Bigger also presented testimony from
Dr. Brian Cutler. Cutler testified that he does not opine on whether a confession is
true or false, but instead he evaluates interrogations “for levels of coerciveness and
for risk factors to coerce a false confession.” Cutler stated that he had reviewed
Bigger’s recorded interview and the police reports and had concluded that the
interview was “highly coercive” and “intense.” Cutler further concluded that
Osmond used several tactics to attempt to convince Bigger “that he had no chance
of establishing his innocence” and to convince Bigger that “confession is his best
option.”

¶38 Although the circuit court found that an expert would have
supported Bigger’s argument that he falsely confessed, the court concluded that
testimony similar to Cutler’s would not have had a high impact on the trial’s result
because “there was compelling and overwhelming evidence otherwise of guilt.”
In particular, the court explained that “there’s a highly credible victim testifying,
there’s no motive to lie that was shown,” and “[t]here was really no evidence for
the jury to think or to reach a conclusion otherwise other than … what was
presented at trial.”

¶39 Bigger argues that testimony like Cutler’s “would have undercut and
countered the State’s argument that Mr. Bigger confessed to the crime charged”
because it “would have provided an answer to the jury’s most obvious question in
this case: Why would someone falsely confess to a crime they didn’t commit?”
Because his counsel failed to answer this question through expert testimony,
Bigger contends that the State could argue, without contradiction, that Bigger

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No. 2023AP1877-CR

“confessed to sexually assaulting [Brittany], and that this confession was true.”
Had counsel provided an explanation for Bigger’s alleged false confession, Bigger
asserts there was a reasonable probability that the trial’s result would have been
different.

¶40 We agree with the circuit court that even if Bigger’s counsel had
called an expert to provide testimony similar to Cutler’s, there was not a
reasonable probability that the jury would have had a reasonable doubt as to guilt,
given the overwhelming and compelling evidence to the contrary in this case.

¶41 First, Brittany described in explicit detail how Bigger sexually
assaulted her. She testified that Bigger would “penetrate my vagina, and I would
have to touch his penis, scratch his penis”; that Bigger would spit on her or on
himself if “he ever felt that [Brittany] was not wet enough” and “would rub his
penis through the lips of [Brittany’s] vagina”; that if she did not want to do
anything, Bigger would grab Brittany’s hand “and put it on his penis and make
[her] caress his penis.” Brittany stated that Bigger sexually assaulted her in these
ways at least 50 times.

¶42 Brittany further testified that often when Bigger used the restroom,
he would call her into the restroom, take off her pants or lift up her nightgown,
“and rub his penis through the lips of [her] vagina.” Brittany also recalled an
instance in the living room where she “was bent over on the couch and it was very
painful.” Brittany also testified that after sexually assaulting her, Bigger would let

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No. 2023AP1877-CR

her watch her favorite movie, and he would also tell her that he loved her and that
“it was okay what he was doing to [her].”3

¶43 Second, Werlein corroborated Brittany’s testimony regarding the
Hudson Street residence, including where everyone would sleep and who Bigger
would carry upstairs. She also recounted the one night she saw Brittany on
Bigger’s bed with her nightgown pulled up past her chest and “no bottoms on.”
This description was consistent with Brittany’s testimony that she would wear a
nightgown when Bigger sexually assaulted her and that she would not wear any
underwear.

¶44 Finally, and importantly, the State points to Bigger’s letter of
apology to Brittany, which he wrote during his interview with Detective Osmond.
Bigger argues that the letter “does not specify that for which he is apologizing,”
that the letter was “apologizing for unspecified transgressions and failures in
parenting,” and that the State fails to make the connection between the apology
letter and Brittany’s allegations. Although Bigger’s apology letter did not
specifically mention the sexual assaults Brittany described, it did state that Bigger
was sorry for what he had done to Brittany during “some of [her] childhood,” that
he would seek counseling for those acts, and that he wanted to “right the wrongs I
have done.” Here, Brittany testified about events that occurred during her
childhood—specifically, when she was ten or eleven years old. Her testimony

3
Bigger contends that Brittany’s testimony had “some glaring inconsistencies,” given
that specific details to which she testified were not mentioned in her 2013 forensic interview.
However, an earlier omission of details is not the same as making an actual prior inconsistent
statement.

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No. 2023AP1877-CR

detailed Bigger’s sexual assaults and made no mention of anything regarding how
he treated her as a parent or some other occurrence.

¶45 Furthermore, Bigger wrote the apology letter during an interview
with Osmond, and the interview specifically involved Brittany’s sexual assault
allegations. Bigger also confessed to these sexual assault allegations during the
interview. Osmond was not investigating any parenting or other complaints from
Brittany. Bigger does not explain why Osmond would ask Bigger, and Bigger
would agree, to write an apology letter for something other than the sexual assaults
discussed during the interview. Thus, even if the letter did not apologize for
specific acts of sexual assault, the jury could reasonably infer that the letter
referred to the sexual assaults that occurred during Brittany’s childhood and to
which Bigger admitted.

¶46 Given all of the foregoing evidence, we conclude that Bigger has not
shown there is a reasonable probability that the jury would have had a reasonable
doubt as to guilt had his trial counsel consulted or hired an expert on false
confessions.4

By the Court.—Judgment and order affirmed.

4
Bigger additionally argues that his trial counsel’s “instances of deficient performance,”
taken together, are “sufficiently prejudicial to call into question the result of the trial.” Although
“we may aggregate the effects of multiple incidents of deficient performance” when determining
prejudice, “in most cases errors, even unreasonable errors, will not have a cumulative impact
sufficient to undermine confidence in the outcome of the trial, especially if the evidence against
the defendant remains compelling.” State v. Thiel, 2003 WI 111, ¶¶60-61, 264 Wis. 2d 571, 665
N.W.2d 305. Whether counsel’s aggregate errors are enough to meet the prejudice element of an
ineffective assistance of counsel claim depends on the totality of the circumstances at trial. Id.,
¶62. Given the overwhelming and compelling evidence of Bigger’s guilt that we have just
outlined, Bigger fails to establish that absent his trial counsel’s alleged multiple errors, there was
a reasonable probability the jury would have had a reasonable doubt as to Bigger’s guilt.

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No. 2023AP1877-CR

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).

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