State v. Carlos Tovar, Jr.

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
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MADISON, WISCONSIN 53701-1688
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Web Site: www.wicourts.gov
DISTRICT II
September 30, 2026
To:
Hon. Angela W. Sutkiewicz
Circuit Court Judge
Electronic Notice
Chris Koenig
Clerk of Circuit Court
Sheboygan County Courthouse
Electronic Notice
Gregory Bates
Electronic Notice
Lisa E.F. Kumfer
Electronic Notice
Brandon Zegiel
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2025AP1559-CR State of Wisconsin v. Carlos Tovar, Jr. (L.C. #2022CF13)
Before Lazar, P.J., Gundrum, and Grogan, JJ.
Summary disposition orders 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).
Carlos Tovar, Jr. appeals from a judgment of conviction and the order denying his
postconviction motion. Based upon our review of the briefs and Record, we conclude at
conference that this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21
(2023-24).1 For the following reasons, we affirm.
In January 2022, Tovar was charged with one count of repeated sexual assault of a child
in violation of WIS. STAT. § 948.02(1)(am), (b), or (c), contrary to WIS. STAT. § 948.025(1)(b).
1 All references to the Wisconsin Statutes are to the 2023-24 version.

No. 2025AP1559-CR
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Tovar denied the allegations and proceeded to trial. The jury found Tovar guilty. The child
testified that Tovar repeatedly sexually assaulted her, including by forcing her to perform oral
sex. She also testified that he made her rinse her mouth and brush her teeth afterward. Testing
revealed no semen on items collected from locations associated with the alleged assaults.
However, testing detected male DNA on the interior of the child’s toothbrush cover, and a partial
Y-STR2 profile was consistent with Tovar’s DNA. The State’s DNA analyst testified on
cross-examination that secondary transfer was a possible explanation for the DNA and that she
could not determine how it came to be on the cover.
Tovar first argues that trial counsel was ineffective for failing to seek exclusion of the
DNA evidence and for failing to retain a defense DNA expert. To establish ineffective
assistance of counsel, a defendant must prove both deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Breitzman, 2017 WI 100, ¶37, 378
Wis. 2d 431, 904 N.W.2d 93. “If the defendant fails to satisfy either prong, we need not consider
the other.” Breitzman, 378 Wis. 2d 431, ¶37. We uphold the circuit court’s factual findings
unless clearly erroneous but independently determine whether counsel’s performance was
constitutionally deficient or prejudicial. State v. Jenkins, 2014 WI 59, ¶38, 355 Wis. 2d 180,
848 N.W.2d 786. Tovar has failed to meet his burden for two reasons.
First, Tovar fails to establish deficient performance. A defendant must identify specific
acts or omissions by counsel that fall “outside the wide range of professionally competent
2 At the jury trial, the State’s DNA analyst testified that “a Y-STR profile is a profile that is male
specific, the testing is only conducted on the Y ... chromosome.”

No. 2025AP1559-CR
3
assistance.” State v. Arredondo, 2004 WI App 7, ¶24, 269 Wis. 2d 369, 674 N.W.2d 647 (2003)
(citation omitted).
Here, the DNA evidence was relevant. The child testified that Tovar made her brush her
teeth following oral assaults, and DNA consistent with Tovar’s profile was found on the interior
of her toothbrush cover. At the same time, the testing revealed no semen and no male DNA on
the toothbrush itself or the other tested items. The jury also heard that Tovar’s DNA could have
reached the toothbrush cover through secondary transfer. Thus, the evidence was capable of
supporting each of the State’s and defendant’s theories of the case.
Trial counsel reasonably chose to use those limitations in the DNA evidence to Tovar’s
advantage rather than seek its exclusion. At the postconviction hearing, Tovar’s counsel
explained that the absence of semen and the lack of male DNA on the other tested items allowed
her to argue that the State lacked physical evidence corroborating the child’s account. Tovar’s
counsel also elicited from the State’s expert that secondary transfer could explain the DNA on
the toothbrush cover. We do not second-guess a reasonable trial strategy merely because another
strategy was available. Breitzman, 378 Wis. 2d 431, ¶65; see also Strickland, 466 U.S. at
689-90 (“There are countless ways to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a particular client in the same way.”).
Nor was trial counsel deficient for failing to retain a separate DNA expert. Tovar
presented no postconviction expert identifying testimony that a defense expert would have
offered. Tovar’s counsel obtained from the State’s expert the very same testimony Tovar
contends another expert should have provided: no semen was detected, secondary transfer was

No. 2025AP1559-CR
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possible, and the analyst could not determine how Tovar’s DNA came to be on the toothbrush
cover. Tovar’s counsel was not required to call a second expert to repeat those points.
Second, Tovar fails to establish prejudice. Although we need not address prejudice
because Tovar has failed to establish deficient performance, we conclude that he has failed to
establish either prong. See Breitzman, 378 Wis. 2d 431, ¶37. A motion to exclude the DNA
evidence would not have succeeded, and Tovar has not shown that another expert would have
provided materially different evidence. He therefore has not demonstrated a reasonable
probability of a different result. See State v. Romero-Georgana, 2014 WI 83, ¶41, 360 Wis. 2d
522, 849 N.W.2d 668 (“The prejudice inquiry asks whether ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” (citation omitted)).
Tovar next challenges the sufficiency of the evidence but does not adequately develop his
argument. We therefore decline to address this claim. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (explaining that we may decline to review
inadequately briefed issues).
Therefore,
IT IS ORDERED that the judgment and order of the circuit court are summarily affirmed.
See WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Samuel A. Christensen
Clerk of Court of Appeals