State v. Elizabeth A. Erickson

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.
April 22, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP1150-CR Cir. Ct. No. 2023CM371

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ELIZABETH A. ERICKSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Fond du Lac County: ANDREW J. CHRISTENSON, Judge. Affirmed.

¶1 LAZAR, J.1 Elizabeth A. Erickson appeals from her judgment of
conviction and an order of the circuit court denying her motion for postconviction
relief. Erickson asserts the State made impermissible comments at trial regarding

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP1150-CR

her pre- and post-arrest silence in violation of her Fifth Amendment right against
self-incrimination and that she received ineffective assistance of counsel when
counsel failed to object to these comments. This court concludes that the circuit
court did not err in denying Erickson’s motion because, even assuming without
deciding that counsel was ineffective for failing to object to the State’s comments,
the error was harmless.

¶2 In 2023, officers responded to a 911 call from Justin2 at the
residence he shared with Erickson. Justin told officers Erickson became agitated
during an argument about finances, “smacked [his phone] out of his hands[,]”
“pushed him against the wall[,]” “scratched [him with] her fingernails[,] and hit
[him] in the head.” Officers arrested and booked Erickson, who was “extremely
uncooperative.”

¶3 The State charged Erickson with one count of disorderly conduct
with a domestic abuse enhancement. The case proceeded to a one-day trial, at
which the two responding officers provided testimony. Officer Young testified
that, in addition to scratch injuries, she observed “two puncture marks on the back
of [Justin’s] left thigh, similar to a dog bite[.]” When asked whether Erickson had
“state[d] a theory as to how [Justin’s] injuries were sustained[,]” Officer Martinez
testified Erickson told officers “[t]hat [Justin] scratched himself.” During her
encounter with officers, Erickson never stated that the victim’s scratch injuries
may have been inflicted by their dog. Erickson’s counsel did not object when the
State made several comments during argument criticizing Erickson’s failure to

2
Consistent with the policy in WIS. STAT. RULE 809.19(1)(g), the victim is identified by
a pseudonym.

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No. 2025AP1150-CR

attribute the scratch injuries to their dog during questioning by police despite her
reliance on that theory at trial. The jury ultimately convicted Erickson.

¶4 Erickson filed a motion for postconviction relief, asserting trial
counsel was ineffective in “failing to introduce exculpatory evidence of the source
of [Justin’s] injuries” and in “failing to object to improper comments by the State
on [Erickson’s] post-Miranda[3] silence[.]” Specifically, Erickson argued trial
counsel was ineffective for not attempting to admit into evidence the last sentence
of a letter authored by the victim which states that the scratches he sustained came
from the dog and not Erickson. Erickson also argued trial counsel failed to object
to the State’s comments “criticizing … Erickson for not reporting [Justin’s]
injuries from their dog during her questioning by police, and thereby insinuating
that the claim that [Justin’s] scratches were caused by their dog was a recent
fabrication.”

¶5 The circuit court held a hearing on that motion in April 2025. The
court subsequently denied the motion in a written decision, finding that the letter
was inadmissible hearsay and no hearsay exception applied,4 and that, even if it
was admissible, counsel “made a strategic decision not to offer” the letter at trial
because “most of” the contents of the letter were “harmful to [Erickson].” As to
the State’s comments regarding Erickson’s failure to report to responding officers
that the victim’s injuries were caused by their dog, the court found that Erickson
never affirmatively invoked her right to remain silent, made several statements to

3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
The victim, the letter’s purported author, did not testify. Further, the two officers that
testified appeared to have no knowledge of the letter, “which was written more than two months
after the incident[.]”

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No. 2025AP1150-CR

officers “upon initial ‘approach’ and before Miranda warnings were read[,]” and
that, in fact, Erickson never “declined to answer a question, either before or after
being read … Miranda rights.” The court concluded that, because “[t]he
prosecution made reasonable arguments about information from [Erickson’s]
version of events[,]” defense counsel did not perform deficiently by failing to
object to these arguments. Erickson appeals.5

¶6 Whether trial counsel provided ineffective assistance of counsel is a
mixed question of fact and law. State v. Sanchez, 201 Wis. 2d 219, 236, 548
N.W.2d 69 (1996). “An appellate court will not overturn a trial court’s findings of
fact concerning the circumstances of the case and the counsel’s conduct and
strategy unless the findings are clearly erroneous.” Id. (quoting State v. Knight,
168 Wis. 2d 509, 514 n.2, 484 N.W.2d 540 (1992)). Whether “counsel’s
performance was deficient” is a “question[] of law which this court decides
without deference to the … circuit court.” Sanchez, 201 Wis. 2d at 236-37.

¶7 On appeal, Erickson argues the circuit court erred in denying her
postconviction motion because the State’s comments at trial on Erickson’s failure
to report Justin’s injuries from their dog to responding officers constituted a
violation of her right against self-incrimination, relying on State v. Hoyle, 2023
WI 24, 406 Wis. 2d 373, 987 N.W.2d 732. In Hoyle, our state supreme court held
that a comment by the State regarding a defendant’s silence is improper when the
prosecutor’s language is intended to comment on the defendant’s silence, is
intended to suggest that the defendant’s silence is evidence of guilt, and is not “a

5
On appeal, Erickson abandons her claim that counsel was ineffective for failing to offer
the letter at trial and pursues only the ineffectiveness claim regarding counsel’s failure to object
to the State’s comments on her pre- and post-arrest silence.

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No. 2025AP1150-CR

fair response to a claim made by [the defense].” Id., ¶29 (quoting United States v.
Robinson, 485 U.S. 25, 32 (1988)).

¶8 However, it is unnecessary to apply the test in Hoyle to the State’s
comments in this case because, even if the comments were improper, their
admission constitutes harmless error.6 A constitutional error is harmless if it is
“clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error[.]” State v. Mayo, 2007 WI 78, ¶47, 301 Wis. 2d
642, 734 N.W.2d 115. Relevant “factors to aid in harmless error analysis” include
“the frequency of the error, the importance of the erroneously admitted evidence,
the presence or absence [of corroborating] evidence …, whether the erroneously
admitted evidence duplicates untainted evidence, the nature of the defense,” and
the “nature” and “overall strength of the State’s case.” Id., ¶48.

¶9 The State, as the beneficiary of the purported error, has met its
burden of proving “beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Id., ¶47 (citation omitted). The State’s
comments regarding Erickson’s pre- and post-arrest silence were infrequent,7 of
little import, and were duplicative of untainted evidence insofar as they functioned
to impeach Erickson’s credibility.

¶10 After the victim called 911 and officers arrived at the residence,
Erickson voluntarily provided inconsistent statements regarding the night’s events.
When the State asked whether Erickson’s story ever changed regarding what

6
See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286
Wis. 2d 774, 703 N.W.2d 707 (stating that “we decide cases on the narrowest possible grounds”).
7
Erickson complains of nine comments out of a 223-page trial transcript.

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No. 2025AP1150-CR

happened and the manner in which the victim sustained his injuries, Officer
Young testified that Erickson changed her story “[n]umerous times[.]” She first
denied that anything physical occurred, but later admitted to Officer Young that
she had pushed the victim. Despite Erickson’s statement that the victim’s
scratches were caused by the victim “cut[ting] himself,” Officer Young confirmed
the victim’s scratches “seem[ed] consistent … with human fingernails[.]”
Erickson had been drinking, was described as uncooperative with officers, and
was handcuffed after repeated efforts to leave the scene. In consideration of all
the evidence, the State’s comments regarding Erickson’s failure to explain the
victim’s scratches being caused by their dog were not significant. The State
argued Erickson’s omission was evidence that she was, at trial, effectively
changing her story once again. Erickson’s omission thus constituted duplicative
impeachment evidence.

¶11 The elements of disorderly conduct do not require the victim to
sustain any injury. To support a conviction for disorderly conduct, the jury need
only find that Erickson “engage[d] in violent, abusive, indecent, profane,
boisterous, unreasonably loud, or otherwise disorderly conduct” and that
Erickson’s conduct, “under the circumstances as they then existed, tended to cause
or provoke a disturbance.” WIS. JI—CRIMINAL 1900. “‘Disorderly conduct’ may
include physical acts, or language, or both.” Id.

¶12 Of course, a victim’s physical injury can serve as evidence that a
defendant engaged in violent conduct. In this case, however, there is sufficient
evidence of violent and otherwise disorderly conduct, even without the State’s
arguments regarding Erickson’s failure to report the victim’s scratches having
been caused by their dog. The victim, not Erickson, made the 911 call, Erickson
admitted to officers that she pushed the victim, and her inconsistent statements

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No. 2025AP1150-CR

regarding whether a physical confrontation occurred were plainly damaging to her
credibility. The State has shown beyond a reasonable doubt that a rational jury
would have convicted Erickson absent the State’s comments. For the foregoing
reasons, this court affirms.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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