State v. Robert L. Dorgay

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 29, 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. 2021AP954-CR Cir. Ct. No. 2014CF3513

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT L. DORGAY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: ELLEN R. BROSTROM, Judge. Affirmed.

Before White, C.J., Geenen and Colón, 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. Robert L. Dorgay, pro se, appeals from the
judgment of conviction and the circuit court’s order denying his motion for
No. 2021AP954-CR

postconviction relief. Dorgay argues that the prosecutor engaged in misconduct and
that his trial attorney was constitutionally ineffective for various reasons, including
that his attorney labored under an actual conflict of interest. Dorgay also seeks a
new trial in the interest of justice. We reject Dorgay’s arguments and affirm.

BACKGROUND

¶2 After a trial in late July 2016, a jury found Dorgay guilty of
strangulation and suffocation, battery, intimidation of a victim, false imprisonment,
and second-degree sexual assault with the use of force, all arising out of a violent
altercation with his then-girlfriend, Amber, in a hotel room in Milwaukee between
July 30-31, 2014.1 Each charge carried a domestic abuse enhancer. Dorgay struck,
choked, and restrained Amber, and forced her to write a letter to his probation agent
recanting her previous report to police that Dorgay beat her on a camping trip in
Tomahawk, Wisconsin, the weekend prior to the altercation in the Milwaukee
hotel.2 After Amber wrote the letter, Dorgay sexually assaulted her. The circuit
court sentenced Dorgay to fifteen years of initial confinement and fifteen years of
extended supervision.

¶3 Dorgay filed a pro se WIS. STAT. RULE 809.30 motion for a new trial
raising most of the same claims he now presents on appeal. The circuit court denied
the motion in a written decision without a hearing, and it denied a subsequent motion

We use the pseudonym “Amber” to refer to the victim in this case. See WIS. STAT.
1

RULE 809.86 (2021-22).

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
At the time, Dorgay was on probation for an unrelated prior criminal conviction. While
the fact of probation is relevant to our analysis herein, the prior conviction is not.

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for reconsideration. Dorgay appeals from the judgment and order. Additional
relevant facts will be discussed below.

DISCUSSION

¶4 Dorgay raises four issues on appeal: (1) prosecutorial misconduct;
(2) the denial of trial counsel’s motion to withdraw; (3) ineffective assistance of
counsel; and (4) our discretionary authority to order a new trial in the interest of
justice. We reject each of Dorgay’s arguments.

I. Prosecutorial Misconduct

¶5 On the morning before the second day of trial, Dorgay had an
appointment with his probation agent, Chad Schepp. Earlier that morning, the
prosecutor had lost contact with Amber and was investigating her whereabouts. By
the time Dorgay arrived at Agent Schepp’s office for his appointment, the
prosecutor had learned from Amber’s boyfriend that she was at work. The
prosecutor stated that at the same time, Agent Schepp was contacting her to let her
know that Dorgay was in his office early for his 8:00 a.m. appointment. The
prosecutor told Agent Schepp that she had sent an officer to Amber’s place of
employment to pick her up and bring her to court, and asked Agent Schepp to stall
Dorgay and delay his appointment that morning until she and police confirmed
Amber’s whereabouts. Agent Schepp did not begin the scheduled appointment with
Dorgay on time. Dorgay initially waited but, within the hour, left Agent Schepp’s
office. Shortly thereafter, Agent Schepp received an email alert that the strap on the
GPS monitor Dorgay wore had been tampered with. The monitor was later found

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No. 2021AP954-CR

in a cemetery. Dorgay never returned and was tried in absentia from the second day
through the end of the trial.3

¶6 Dorgay argues that the prosecutor’s request to Agent Schepp to stall
him constituted an unlawful detention and amounts to prosecutorial misconduct. If
the prosecutor engages in “misconduct” that “‘poisons the entire atmosphere of the
trial,’ it violates due process” and warrants a new trial unless the misconduct was
harmless beyond a reasonable doubt. State v. Lettice, 205 Wis. 2d 347, 352, 556
N.W.2d 376 (Ct. App. 1996) (citation omitted). An error is harmless if there is no
“reasonable possibility” that the error “contributed to the conviction.” State v.
Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985).

¶7 Whether the prosecutor engaged in misconduct and whether such
conduct requires a new trial is generally within the circuit court’s discretion.
Lettice, 205 Wis. 2d at 352. “An appellate court will sustain a discretionary act if
the [circuit] court examined the relevant facts, applied a proper standard of law, and
used a rational process to reach a conclusion that a reasonable judge could reach.”
Id. (citation omitted). However, whether a constitutional error is harmless is a
question of law that we review de novo. State v. Beamon, 2011 WI App 131, ¶7,
336 Wis. 2d 438, 804 N.W.2d 706.

¶8 Dorgay argues that he was subject to an unlawful seizure ordered by
the prosecutor. Although the circuit court correctly pointed out that Dorgay was not
“actually arrested, handcuffed, [or] put in a nonpublic area,” a seizure may also
occur by a show of authority, e.g., when an officer’s words and actions objectively

3
It is unclear in the record when Dorgay returned to participate in the criminal
proceedings, but we observe that Dorgay was present for an adjourned hearing on September 23,
2016, and his sentencing hearing on November 21, 2016.

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convey to a reasonable person that they are not free to leave. See, e.g., State v.
Washington, 2005 WI App 123, ¶¶12-14, 284 Wis. 2d 456, 700 N.W.2d 305. In
order to show this type of seizure, the defendant must have actually yielded to the
show of authority. See id., ¶¶13-14.

¶9 In his motion for postconviction relief and on appeal, Dorgay avers
that he made contact with Agent Schepp while he was waiting in Agent Schepp’s
office. Dorgay claims that he told Agent Schepp he was concerned about being late
for trial, and Agent Schepp responded, “You are not going anywhere right now, I
am dealing with an emergency, I called the courts, they know you are going to be
late, and if you leave, you will be arrested and revoked[.]” Initially, Dorgay waited,
but he argues in his brief that while waiting, he overheard an agent telling other
agents that the prosecutor wanted Dorgay taken into custody. Dorgay claims that a
group of officers and probation agents who had previously assaulted Dorgay had
been sent to take him into custody, and this triggered his post-traumatic stress
disorder (PTSD), causing him to flee.

¶10 Dorgay’s argument fails because he does not explain how his alleged
unlawful seizure caused him to abscond from trial. Dorgay appears to argue that
after he learned that the prosecutor was attempting to have him unlawfully detained,
he had a mental breakdown causing him to abscond from trial. Critically, however,
Dorgay presents no facts or evidence that his PTSD or any other condition caused
or even influenced his decision to abscond. There was no medical evidence
presented to support Dorgay’s argument, and more fundamentally, there was no
evidence presented or allegations made in Dorgay’s postconviction motion that
Dorgay overheard anything at Agent Schepp’s office, let alone a nefarious scheme
by the prosecutor to have Dorgay unlawfully detained by officers that had
previously assaulted him. As the circuit court correctly summarized, Dorgay’s

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No. 2021AP954-CR

decision “to flee his trial was his own. The State is not responsible for that.” We
also observe that Dorgay’s decision not to return for the duration of his trial was
likewise his own, and not attributable to the State.

¶11 Dorgay also argues that the prosecutor engaged in misconduct during
her opening statement and closing argument by commenting negatively on Dorgay’s
absence and arguing that the jury should infer his absence as consciousness of guilt.
The circuit court deemed the argument forfeited because defense counsel did not
contemporaneously object to the prosecutor’s remarks, although it observed that
defense counsel did effectively counter the prosecutor’s argument with his own
argument, (i.e., that the jurors should decide their verdict only on the evidence and
not speculate as to why Dorgay was not present). We agree that the issue is
forfeited. See State v. Huebner, 2000 WI 59, ¶¶10-11 & n.2, 235 Wis. 2d 486, 611
N.W.2d 727. Nonetheless, as we have explained, Dorgay, not the State, was
responsible for Dorgay’s absence at trial, and it is well settled that flight can be
considered by the jury as consciousness of guilt. Gauthier v. State, 28 Wis. 2d 412,
419-20, 137 N.W.2d 101 (1965); State v. Knighten, 212 Wis. 2d 833, 839-40, 569
N.W.2d 770 (Ct. App. 1997).

¶12 Accordingly, we conclude that Dorgay, not prosecutorial misconduct,
caused the alleged prejudice of which Dorgay complains, and thus, we affirm the
denial of Dorgay’s motion for a new trial premised on prosecutorial misconduct.

II. Conflict of Interest

¶13 On the morning before the first day of trial, Dorgay’s trial counsel,
Nathan Opland-Dobs, moved to withdraw. Although Dorgay complained generally
of a lack of communication between him and Attorney Opland-Dobs and that
Attorney Opland-Dobs was not investigating parts of the case that Dorgay viewed

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No. 2021AP954-CR

as important, the basis for Attorney Opland-Dobs’s motion to withdraw was a
potential conflict of interest created by Dorgay’s filing of a complaint against
Attorney Opland-Dobs with the Office of Lawyer Regulation (OLR).
Attorney Opland-Dobs specifically stated that he had no issues communicating with
Dorgay and that he was prepared for trial, but he questioned whether the OLR
complaint created an irreconcilable conflict.

¶14 The record reflects that before Attorney Opland-Dobs was appointed,
Dorgay had three other attorneys. Dorgay complained to the supervisor of his first
attorney and was assigned a new one. Dorgay’s second attorney moved to withdraw
due to a breakdown in the relationship, and the motion was granted. Dorgay filed
an OLR complaint against his third attorney, the attorney moved to withdraw, and
the motion was granted.

¶15 The circuit court denied Attorney Opland-Dobs’s motion to withdraw,
concluding that Dorgay’s OLR complaint against Attorney Opland-Dobs did not
create an irreconcilable conflict and that “this effort on Mr. Dorgay’s behalf is an
effort that is dilatory and designed to thwart the timely administration of justice in
these cases.” Postconviction, the circuit court deemed Dorgay’s “right to conflict-
free counsel” argument as “insufficient to warrant relief” and declined to revisit its
finding that no conflict existed.

¶16 The United States and Wisconsin Constitutions guarantee criminal
defendants the right to the effective assistance of counsel, and that right includes
representation that is “free from conflicts of interest.” State v. Street, 202 Wis. 2d
533, 541, 551 N.W.2d 830 (Ct. App. 1996). We review the denial of a motion to
withdraw and substitute counsel for an erroneous exercise of discretion while
considering a number of factors, including:

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No. 2021AP954-CR

(1) the adequacy of the court’s inquiry into the defendant’s
complaint; (2) the timeliness of the motion; and (3) whether
the alleged conflict between the defendant and the attorney
was so great that it likely resulted in a total lack of
communication that prevented an adequate defense and
frustrated a fair presentation of the case.

State v. Jones, 2010 WI 72, ¶25, 326 Wis. 2d 380, 797 N.W.2d 378 (quoting State v.
Lomax, 146 Wis. 2d 356, 359, 432 N.W.2d 89 (1988)).4 “A discretionary
determination ‘must be the product of a rational mental process by which the facts
of record and law relied upon are stated and are considered together for the purpose
of achieving a reasoned and reasonable determination.’” Lomax, 146 Wis. 2d at
359 (citation omitted).

¶17 Here, the circuit court made an adequate inquiry into the bases of the
motion: Attorney Opland-Dobs was solely concerned with the effect of Dorgay’s
OLR complaint, while Dorgay complained of a breakdown in communication and
differences of opinion with respect to pretrial investigation efforts and trial strategy.
The motion was made the morning of trial, and after considering Dorgay’s history
with three previously appointed attorneys, the circuit court found that Dorgay’s
request was made for the purpose of delaying trial. See id. at 361-62 (“Eleventh-
hour requests are generally frowned upon as a mere tactic to delay the trial.”).

4
The State argues that we should apply cases that ask, after the trial has already occurred,
whether a pretrial potential conflict developed into an actual conflict during the course of the trial.
See, e.g., State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999); State v. Kaye, 106 Wis. 2d 1, 315
N.W.2d 337 (1982); State v. Medina, 2006 WI App 76, 292 Wis. 2d 453, 713 N.W.2d 172. We
decline to do so, as those cases apply when the defendant raises the issue of the conflict for the first
time postconviction. State v. Henyard, 2020 WI App 51, ¶16, 393 Wis. 2d 727, 948 N.W.2d 396.
Here, Attorney Opland-Dobs and Dorgay both preserved the issue of Attorney Opland-Dobs’s
substitution.

We observe, however, that the trial record reveals no basis for concluding that Attorney
Opland-Dobs did, in fact, labor under a conflict of interest during trial.

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No. 2021AP954-CR

Finally, the circuit court concluded that the OLR complaint, by itself, did not
mandate Attorney Opland-Dobs’s withdrawal, and because Attorney Opland-Dobs
was otherwise prepared for trial and did not agree with Dorgay’s account of a
breakdown in communication, it denied the motion to withdraw.5

¶18 In our view, the circuit court considered the proper factors in relation
to the facts of record and reached a reasoned and reasonable conclusion. Id. at 359.
Accordingly, we conclude that the circuit court acted within its discretion in denying
the motion to withdraw and substitute counsel.

III. Ineffective Assistance of Counsel

¶19 In rejecting Dorgay’s ineffective assistance challenges without a
hearing, the circuit court applied the two-pronged test for deficient performance and
prejudice established in Strickland v. Washington, 466 U.S. 668, 687 (1984).
“When a circuit court summarily denies a postconviction motion alleging
ineffective assistance of counsel without holding a Machner[6] hearing, the issue for
the court of appeals ... is whether the defendant’s motion alleged sufficient facts
entitling [the defendant] to a hearing.” State v. Sholar, 2018 WI 53, ¶51, 381 Wis.

5
Dorgay has not pointed to, the circuit court did not find, and we have not located, any
Wisconsin case law directly pertinent to whether the filing of an OLR complaint against a defense
attorney creates an irreconcilable conflict of interest. However, we are guided by and agree with
the position set forth in a directly relevant Formal Ethics Opinion by the Professional Ethics
Committee of the Wisconsin State Bar, Wisconsin Formal Ethics Opinion EF-20-
01: Responsibilities of a Lawyer when a Grievance is filed against the Lawyer, (2020)
https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-20-01%20Responsibilities%
20when%20a%20Grievance%20is%20filed.pdf.

In sum, the opinion concludes that the fact that a client has filed a grievance against a
lawyer who is currently representing the client does not, by itself, create a conflict that requires the
lawyer to withdraw from the matter or seek the informed consent of the client to continue the
representation, though it may be a basis for permissive withdrawal.
6
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP954-CR

2d 560, 912 N.W.2d 89. However, even if the motion alleges specific facts, “an
evidentiary hearing is not mandatory if a defendant’s motion presents only
conclusory allegations or if the record as a whole conclusively demonstrates that the
defendant is not entitled to relief.” State v. Ruffin, 2022 WI 34, ¶38, 401 Wis. 2d
619, 974 N.W.2d 432.

¶20 To establish deficient performance, the motion must specifically
allege more than that counsel’s performance was “imperfect or less than ideal.”
State v. Balliette, 2011 WI 79, ¶22, 336 Wis. 2d 358, 805 N.W.2d 334. There is a
strong presumption that counsel performed reasonably, and the question is “whether
the attorney’s performance was reasonably effective considering all the
circumstances.” Id., ¶¶22, 25-28.

¶21 The motion must also allege prejudice, i.e., “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In order to
satisfy this prong, the defendant must allege more than “that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. “[R]ank
speculation” is insufficient. State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d
749 (1999).

¶22 Many of Dorgay’s complaints relate to trial counsel’s failure either to
object to the admission of evidence or to introduce certain evidence. The decision
whether to admit or exclude evidence is addressed to the circuit court’s sound
discretion. State v. Gutierrez, 2020 WI 52, ¶17, 391 Wis. 2d 799, 943 N.W.2d 870.
“An appellate court upholds a circuit court’s exercise of discretion to admit or
exclude evidence where it ‘examined the relevant facts, applied a proper legal

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No. 2021AP954-CR

standard, and, using a demonstrated rational process, reached a reasonable
conclusion.’” Id., ¶21 (citation omitted). We “look for reasons to sustain [the]
[circuit] court’s discretionary decision.” Id., ¶27 (citation omitted).

¶23 Whether a postconviction motion is sufficient on its face to require an
evidentiary hearing and whether the record conclusively demonstrates that the
defendant is not entitled to relief are both questions of law that we review
independently of the circuit court while benefiting from its analysis. Ruffin, 401
Wis. 2d 619, ¶27; Balliette, 336 Wis. 2d 358, ¶18.

a. Evidence of Dorgay’s threat to injure victim and third party

¶24 Dorgay’s first claim is that trial counsel was ineffective for failing to
timely object to testimony about threats Dorgay made, and for failing to argue that
testimony about Dorgay’s threats directed at a person who did not testify violated
his rights under the confrontation clause. In August 2015, Dorgay was arrested and
charged in a separate case with bail jumping and resisting an officer; all charges
were joined for the July 2016 trial. As the factual basis for the charges, the State
alleged that on August 25, 2015, Dorgay called his former business partner, Tom
H., and threatened to shoot both Tom H. and Amber. At that time, Dorgay was on
probation, and when his probation agent and police went to Dorgay’s residence the
next day to arrest him, Dorgay resisted. The State sought to introduce evidence of
these threats to explain why police went to arrest Dorgay. Defense counsel objected
to any evidence of a threat against Tom H., and the prosecutor agreed to elicit
testimony to the effect only that police had a valid arrest warrant for Dorgay.

¶25 At trial, Milwaukee Police Officer Danilo Cardenas testified that
Dorgay called Amber in August 2015 and offered her a large sum of money “to
make this all go away.” He then added that Dorgay threatened to put “a bullet” in

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No. 2021AP954-CR

someone else. The prosecutor immediately stopped him, defense counsel objected,
and the circuit court ordered the “bullet” comment stricken and instructed the jury
to disregard it. However, the circuit court allowed Officer Cardenas’s testimony
about Dorgay’s threat to Amber as relevant to why police went to arrest Dorgay on
August 26, 2015.

¶26 Dorgay’s probation agent at the time of this arrest, Paul Reif, testified
that he received a report of a threat by Dorgay and was involved in his arrest. He
explained that there were two threats, one of which was related to Amber. Reif
testified that he went with police to arrest Dorgay on a warrant, and Dorgay resisted.
The jury acquitted Dorgay of the bail jumping and resisting arrest charges.

¶27 Dorgay argues that his attorney’s objection to Officer Cardenas’s
“bullet” comment came too late and that counsel also should have argued that
Dorgay was denied the right to confront Tom H. Dorgay’s argument fails to
sufficiently allege either deficient performance or prejudice.

¶28 First, Dorgay’s trial counsel did not perform deficiently because he
filed a successful motion in limine to prohibit the State from referring to threats
against Tom H., and, when Officer Cardenas gave testimony referring to that threat,
counsel objected, causing the court to instruct the jury to disregard Officer
Cardenas’s comment. Juries are presumed to follow limiting instructions. State v.
Dorsey, 2018 WI 10, ¶55, 379 Wis. 2d 386, 906 N.W.2d 158. Additionally, counsel
did not perform deficiently for failing to raise a confrontation challenge because no
out-of-court statements of Tom H. were admitted into evidence, testimonial or
otherwise. See Crawford v. Washington, 541 U.S. 36, 53-59 (2004). Counsel does
not perform deficiently for failing to raise meritless arguments and objections.
State v. Sanders, 2018 WI 51, ¶29, 381 Wis. 2d 522, 912 N.W.2d 16.

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No. 2021AP954-CR

¶29 Second, Dorgay could not have been prejudiced because Dorgay was
acquitted of the only two offenses to which the threats against Amber and Tom H.
were directly related: bail jumping and resisting arrest. Dorgay does not explain
how or if the threats prejudiced his defense as to the other charges on which he was
convicted, and as a result, we reject this basis for relief.

b. Counsel’s failure to introduce evidence that the victim wanted to
move in with him

¶30 Dorgay’s second ineffectiveness claim is that counsel should have
introduced letters and text messages that he claims would show that he and Amber
planned to move in together, the plans fell through, and she got angry. This, he
says, would have supported his defense that Amber fabricated her allegations
against him because he refused to continue a romantic relationship with her.

¶31 We first observe that Dorgay fails to explain how the letters and text
messages would have been admissible given that a witness generally cannot be
impeached with extrinsic evidence on collateral matters. WIS. STAT. § 906.08(2)
(2015-16); State v. Sonnenberg, 117 Wis. 2d 159, 175, 344 N.W.2d 95 (1984).
Moreover, the circuit court correctly held that the proffered letters and texts did not
show any “plans” for Amber and Dorgay to move in together. They showed only
that Amber expressed an interest in moving in with Dorgay but realized that such
an arrangement would not work out. Amber also admitted at trial that she still had
feelings for Dorgay after the incident in Tomahawk, was concerned for Dorgay’s
well-being, and felt somewhat guilty when she learned that Dorgay had found out
that she reported him. Thus, even if the letters and text messages had been admitted,
they would have amounted to cumulative evidence attacking Amber’s credibility.
State v. McAlister, 2018 WI 34, ¶39, 380 Wis. 2d 684, 911 N.W.2d 77 (“Where the
credibility of a prosecution witness was tested at trial, evidence that again attacks

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No. 2021AP954-CR

the credibility of that witness is cumulative.”).7 Because Dorgay failed to make a
sufficient showing of both deficient performance and prejudice, we reject this basis
for relief.

c. Failure to present evidence that the victim had a key to the hotel
room

¶32 Dorgay’s third ineffectiveness argument is that counsel should have
offered evidence that Amber had a key to the hotel room to defend against the false
imprisonment charge. That counsel did not offer such evidence was not deficient
performance or prejudicial. Dorgay does not explain how a key to the hotel room
would have helped Amber leave the hotel room, and trial counsel thoroughly
challenged on cross-examination and closing argument Amber’s testimony that she
was not free to leave the room. Accordingly, we reject this basis for relief.

d. Trial counsel’s performance regarding evidence of the
Tomahawk assault

¶33 Dorgay’s fourth argument is that counsel was ineffective for failing to
object to the admission of other-acts evidence of the Tomahawk assault. Further,
Dorgay argues that counsel did not object to the State’s breach of a stipulation to
limit references to it. We agree with the State and the postconviction court that the
limited references to the Tomahawk incident were admissible as other-acts evidence
under WIS. STAT. § 904.04(2) (2015-16).

7
Relatedly, Dorgay argues that trial counsel should have introduced phone records
showing that Amber called him a number of times after the Tomahawk assault. Dorgay did not
make this argument in his postconviction motion, and he has therefore forfeited the issue. State v.
Huebner, 2000 WI 59, ¶¶10-11 & n.2, 235 Wis. 2d 486, 611 N.W.2d 727. Forfeiture aside,
counsel’s failure to introduce the phone records was not deficient performance or prejudicial
because Amber admitted to contacting Dorgay a number of times after the Tomahawk incident.
The phone records would have been cumulative.

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No. 2021AP954-CR

¶34 In deciding whether “other-acts” evidence is admissible under WIS.
STAT. § 904.04(2) (2015-16), we apply the three-step analytical framework adopted
in State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998). We first
determine whether the other-acts evidence is offered for a permissible purpose under
§ 904.04(2) (2015-16). Sullivan, 216 Wis. 2d at 772. The State’s burden to prove
a permissible purpose is “hardly demanding.” State v. Payano, 2009 WI 86, ¶63,
320 Wis. 2d 348, 768 N.W.2d 832 (citation and emphasis omitted). We then
determine whether the other-acts evidence is relevant to proving those permissible
purposes, i.e., whether the evidence “relates to a fact or proposition that is of
consequence to the determination of the action.” Sullivan, 216 Wis. 2d at 772.
Finally, we determine whether the probative value of the other-acts evidence is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
waste of time, or other similar concerns. Id., at 772-73. If the analysis reaches this
final stage, the burden is on the defendant to show that the probative value of the
other-acts evidence is substantially outweighed by unfair prejudice. State v. Hurley,
2015 WI 35, ¶58, 361 Wis. 2d 529, 861 N.W.2d 174.

¶35 Here, other-acts evidence of the Tomahawk incident was offered for
several permissible purposes, namely, to prove Dorgay’s motive, intent, plan, and
preparation to assault Amber in the Milwaukee hotel a few days later because she
would not recant her report of the Tomahawk incident. As the State put it, “[t]he
hotel incident does not happen without the Tomahawk incident.” The probative
value of the evidence for these permissible purposes was high, and Dorgay fails to
sufficiently allege that this probative value is substantially outweighed by the danger
of unfair prejudice.

¶36 Moreover, the references to the Tomahawk incident were vague,
reducing the potential for unfair prejudice. On direct examination, Dorgay’s close

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No. 2021AP954-CR

friend and then-potential business partner, Brian Kelly, testified for the defense.
Kelly testified that he flew into Milwaukee on July 30, 2014 and found himself in
the Milwaukee hotel room with Dorgay and Amber. He denied discussing a
recantation letter with Amber, testifying that he told Amber to “tell the truth.” After
leaving the hotel room to smoke a cigarette, Kelly testified that he was asked to
bring paper from Amber’s car up to the room. Kelly retrieved the paper and left it
by the door but did not enter the room. Kelly later returned to the room where he
was given Amber’s recantation letter.

¶37 At first, Kelly claimed that he did not know the specifics about what
happened in Tomahawk and that he, Dorgay, and Amber met at the hotel only
because Amber wanted to spend the night with Dorgay. Kelly’s denial that he knew
any specifics of the Tomahawk incident opened the door to limited questions
challenging that testimony, and Kelly later admitted on cross-examination that he
asked Dorgay about what happened in Tomahawk, and Dorgay told him. The circuit
court properly instructed the jury to consider this evidence only on the issues of
motive, preparation, plan, or context. Cautionary jury instructions limiting the use
of other-acts evidence help ensure that jurors consider the other-acts evidence only
for a proper purpose, and jurors are presumed to follow those limiting instructions.
Dorsey, 379 Wis. 2d 386, ¶55; State v. Missouri, 2006 WI App 74, ¶19, 291 Wis. 2d
466, 714 N.W.2d 595. Accordingly, we reject this basis for relief.8

8
Dorgay appears to argue that trial counsel was ineffective for not introducing more
evidence of the Tomahawk incident, presumably after the State elicited limited testimony of the
incident from Brian Kelly. Dorgay does not explain how the failure to introduce more evidence of
the Tomahawk incident prejudiced his defense, and this strategy’s potential to backfire was
enormous. It was not deficient performance or prejudicial for trial counsel to keep the door to the
more violent details of the Tomahawk incident closed.

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No. 2021AP954-CR

e. Counsel’s failure to object to photographs of the victim’s injuries

¶38 Dorgay’s fifth argument is that trial counsel was ineffective because
he did not point out that photographs of Amber’s injuries taken by Milwaukee police
after the hotel incident showed the same injuries that appeared in photographs taken
by Oak Creek police the day after the Tomahawk incident, before the hotel incident.

¶39 Dorgay has not shown deficient performance or prejudice by the
admission of the photos. Several officers testified to observing new injuries when
they saw Amber on July 31, 2014, after she called for help from the hotel room.
The photographs introduced at trial taken after the hotel incident, when compared
with the photographs taken after the Tomahawk incident, reflect what appear to be
new injuries to Amber’s eye and chin, and to the extent both sets of photographs
depict injuries in the same place, the injuries in the photographs taken after the hotel
incident are noticeably more severe than the photographs taken after the Tomahawk
incident. The State also introduced expert testimony that strangulation injuries in
general may not always be obvious, but the injuries reflected in the photographs
were consistent with Amber’s version of events. We reject this basis for relief.9

Dorgay also argues that trial counsel should have objected to a few references to Dorgay’s
probationary status. We disagree because, as the State points out, evidence that Dorgay was on
probation and had a probation officer was unavoidable. The evidence showed that Dorgay forced
Amber to draft the recantation letter so that he could send it to his probation agent, and he did in
fact send the letter to his probation officer on July 31, 2014. The evidence of Dorgay’s probationary
status was relevant, highly probative, and not unfairly prejudicial.
9
Additionally, we note that Dorgay’s argument implies that he wanted trial counsel to
introduce the post-Tomahawk, pre-hotel photographs. As we previously observed, this would open
the door for the jury to hear more violent details of the Tomahawk incident, and it was reasonable
for trial counsel to keep this door closed.

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No. 2021AP954-CR

f. Counsel’s failure to object to alleged prosecutorial misconduct
regarding Brian Kelly’s testimony

¶40 Dorgay’s final argument regarding trial counsel’s effectiveness is that
trial counsel should have objected to alleged prosecutorial misconduct related to
Kelly’s testimony. In short, Dorgay says that Kelly gave “a completely different
account than [Amber], of what took place that evening [at the Milwaukee hotel],”
and that it was improper for the State to imply “that Kelly knew more about the
Tomahawk incident” and was “hiding it from the jury.”

¶41 Dorgay has not made a showing of deficient performance or prejudice.
Although some parts of Kelly’s testimony contradicted Amber’s testimony, Kelly
corroborated significant portions of her testimony; other parts of his testimony
neither supported nor contradicted Amber’s version of events, and on cross-
examination, Kelly admitted to knowing more about the Tomahawk incident than
he originally let on. Kelly also personally observed Amber’s partially-healed
injuries from the Tomahawk incident. Given this evidence, there was nothing
improper about the State’s argument. The jury could infer from this evidence, and
the State was allowed to argue, that Kelly’s original account (i.e., that he rented and
paid for the hotel room so that Dorgay and Amber could have a romantic night
together at her request) was false, that Kelly knew details about what happened in
Tomahawk despite testifying that he did not know any specifics, and that Kelly was
lying to protect his close friend and potential business partner. We reject this basis
for relief.

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No. 2021AP954-CR

IV. Interest of Justice

¶42 Finally, Dorgay seeks a new trial in the interest of justice because, he
argues, the real controversy “involving credibility” was not fully tried.10 WIS. STAT.
§ 752.35. This court’s discretionary reversal power is formidable and should only
be exercised in “exceptional cases.” State v. Avery, 2013 WI 13, ¶38, 345 Wis. 2d
407, 826 N.W.2d 60 (citation omitted); Vollmer v. Luety, 156 Wis. 2d 1, 11, 456
N.W.2d 797 (1990). We are reluctant to grant a new trial in the interest of justice,
approaching such requests with “great caution.” Avery, 345 Wis. 2d 407, ¶38.

¶43 The real controversy here was fully tried. The jury had every reason
to believe Amber because her testimony was strongly corroborated. The only
defense witness, Kelly, contradicted some of her testimony, but he also corroborated
much it. Moreover, Amber’s credibility was subject to exacting cross-examination
by trial counsel. Dorgay’s absconding from trial was also probative of his guilt and
supported Amber’s credibility. We do not find any compelling circumstances that
suggest this is an “exceptional case” justifying discretionary reversal. Id.
Accordingly, we reject Dorgay’s request for a new trial in the interest of justice.

10
As the legal basis for his request for a new trial in the interest of justice, Dorgay cites to
cases of the Wisconsin Supreme Court interpreting and applying WIS. STAT. § 751.06. E.g., State
v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996); State v. Cuyler, 110 Wis. 2d 133, 327 N.W.2d
662 (1983). Our discretionary reversal power is “coterminous” with that of the Wisconsin Supreme
Court, State v. Avery, 2013 WI 13, ¶38 n.17, 345 Wis. 2d 407, 826 N.W.2d 60, so we interpret and
review Dorgay’s argument as requesting this court to exercise its discretionary authority to order a
new trial under WIS. STAT. § 752.35. See Vollmer v. Luety, 156 Wis. 2d 1, 17-18, 456 N.W.2d
797 (1990) (“[W]e conclude that, because secs. 751.06 and 752.35, Stats., are identical, the
legislature did not intend for the court of appeals’ power to reverse under sec. 752.35 to be less
than that of the supreme court under sec. 751.06.”).

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No. 2021AP954-CR

CONCLUSION

¶44 Dorgay failed to demonstrate that he is entitled to relief because of
prosecutorial misconduct, ineffective assistance of counsel, or in the interest of
justice. Accordingly, we affirm his judgment of conviction and the circuit court’s
order denying his motion for postconviction relief.

By the Court.—Judgment and order affirmed.

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

2