COURT OF APPEALS

DECISION

DATED AND FILED

April 13, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP1526-CR Cir. Ct. No. 2019CF45

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KIMEO D. CONLEY, 

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee

County: JANET C. PROTASIEWICZ, Judge. Affirmed.

Before Brash, P.J., Donald and White, 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. Kimeo D. Conley, pro se, appeals his judgment of 

conviction for one count of trafficking of a child. He argues that because the State 
No. 2019AP1526-CR

2

and trial court committed errors during the pretrial, trial, and postconviction 

proceedings, we should vacate his conviction and grant him a new trial. For the 

reasons we explain below, we reject Conley’s arguments and accordingly, we 

affirm the judgment.

BACKGROUND

¶2 The State charged Conley with one count of trafficking of a child for 

knowingly recruiting, harboring, and providing a child for the purpose of a 

commercial sex act contrary to WIS. STAT. § 948.051(1) (2019-20).1 The criminal 

complaint alleged that a Milwaukee Police Department Sensitive Crimes Unit 

officer met with SAB, who explained that between October 30, 2018, and 

December 4, 2018, Conley sold her for money to multiple men for sex acts. SAB 

was seventeen years old throughout this time and she told the police that “all of 

the money she made went to” Conley. SAB told police that Conley had another 

person “take photos of SAB in red lingerie and posted it on escort websites.” SAB 

explained that in the beginning, she got $80 for some “dates” but she started 

charging $200-$300 when Conley told her she could charge more.2 SAB stated 

that Conley “required” her to notify him “when she had a date.” SAB said she 

“would regularly do [three] dates per day.”

¶3 At Conley’s initial appearance on January 4, 2019, on the child 

trafficking case, the trial court was informed that Conley had a pending case for 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

2

 At trial, an officer from Milwaukee Police Department explained that a “date” is “a 

prostitution-related engagement in which [the victim] would have been meeting with a John and 

receiving money for a sex act.”
No. 2019AP1526-CR

3

“human trafficking, strangulation and suffocation, false imprisonment and 

misdemeanor battery” related to another victim, MJH. At a hearing on January 25, 

2019, for both cases, the prosecutor stated that it had filed a motion to join the two 

cases.3 The trial court noted that Conley had a speedy jury trial set for the MJH’s

case. The trial court set the jury trial in SAB’s case to the “same trial date in the 

event that the joinder motion is granted.”

¶4 At the joinder hearing on February 11, 2019, trial counsel 

acknowledged the State had a strong joinder motion, but reminded the court that 

“[w]hen that trial date was set, the defendant had filed a speedy trial demand.” 

The State had recently filed new discovery in the new case. Conley wanted trial 

counsel “to do some additional investigation” in the new case, and trial counsel 

was “not in a position to be ready to go to trial” at the assigned trial date. Trial 

counsel asked the court to adjourn the trial date; he did not think Conley would 

“waive the speedy trial demand,” but there was some time left to work within the 

deadline. The trial court noted that the defense did not object to the motion for 

joinder and granted the motion. The trial court then questioned Conley about 

whether he would like additional discovery and to waive his speedy trial demand 

or if he wanted to proceed with the original trial date in approximately two weeks. 

Conley chose to keep his speedy trial demand.

¶5 A three-day jury trial was conducted in February 2019. After the 

closing statements and jury instructions, the trial court selected two jurors by lot 

and removed them before deliberations, creating the final jury panel of twelve. 

 

3

 At this hearing, a substitute Assistant District Attorney (ADA) appeared in place of the 

ADA who prosecuted the case at trial. 
No. 2019AP1526-CR

4

The jury then began deliberations. Prior to sending the jury panel home at the end 

of the day, the trial court stated on the record that “[o]ne of the alternate jurors has 

stayed in the event you would have had a verdict today. She can’t talk to any of 

you because we’ve talked to her a little bit about the case and some of the things 

behind the scenes.” The jury deliberated the next morning and returned a verdict 

of guilty on the charge of trafficking of a child and not guilty on the charges of 

human trafficking, strangulation and suffocation, false imprisonment, and battery.

¶6 At the sentencing hearing, the trial court heard from SAB, who 

discussed the impact Conley’s crimes had on her, stating that she thought Conley 

deserved “as much [time] as you could possibly give him” and that she had “a lot 

of anxiety” when meeting new people as a result. The trial court also heard from 

Conley,

4

as well as the State and trial counsel. When the trial court discussed the 

sentence it was imposing, it stated:

I will tell you that I watched the jury’s reaction as 

they were watching the evidence come in. And I talked 

with that jury panel. They were horrified with this conduct. 

I did not find you believable when you took the 

stand. And today I don’t find that you’ve taken any 

responsibility for the actions that you were engaged in or 

that it’s even sunk into your head just how serious this was.

....

You tear the community apart at the roots when you 

engage in conduct like this. 

I can’t underscore how serious it is. I can’t 

underscore enough how unfortunate it is that you won’t 

take any responsibility for this, even when a jury found you 

 

4

 At Conley’s sentencing hearing he raised several issues that he does not renew here

regarding relevant evidence and his counsel’s responsiveness to his requested questions and 

witnesses. Because he does not renew them, we do not address these issues. 
No. 2019AP1526-CR

5

guilty and that you appear to have no sympathy or 

compassion for the victim in this case, none. You care 

about one person. You proved that based on the activities 

that you were engaged in; and you proved it again today 

with the statement that you made. 

You care about one person. You care about 

yourself.

The trial court imposed fifteen years of initial confinement and ten years of 

extended supervision.

¶7 Prior to the restitution hearing, Conley filed notice of intent to 

pursue postconviction relief with appointed appellate counsel.

¶8 The final hearing before the trial court was a restitution hearing in 

May 2019. SAB, appearing with counsel, requested the trial court grant restitution 

for the income Conley earned for exploiting her under WIS. STAT. § 973.20(4o)(b). 

SAB testified that she started working for Conley at the “end of October” in 2018 

and stopped when he was arrested in December 2018. She worked every day 

during that time, usually going on three dates each day, and earning $80 for the 

first few dates and then $200-$300 for each date. SAB did not recall any days she 

went on fewer than three dates and she testified that she gave all of her earnings to 

Conley. Trial counsel cross-examined SAB to understand how much Conley spent 

on food and rent and clothing or personal items during this time period; however, 

the trial court informed him that it was not going to offset anything spent on SAB. 

SAB requested restitution of $20,400, based on thirty-four days at three dates a 

day, which equaled 102 dates, and then multiplied by $200 per date for an estimate 

of her gross earnings. The trial court interpreted the statute to include “gross 

income gained by the defendant” and that the trial court did not see anything in the 

statute “for offsetting a trafficker with the little tidbits or crumbs he may have 

given her along the way to keep her housed so he could keep her in his stable.”
No. 2019AP1526-CR

6

The trial court found SAB’s testimony credible and it concluded this was a 

reasonable calculation and ordered $20,400 in restitution to SAB.

¶9 In June through August 2019, Conley pursued postconviction relief, 

both with appointed counsel and pro se. Conley filed a pro se motion for 

reconsideration or a new trial. He argued he had newly discovered evidence, but 

he did not present that evidence to the court. The circuit court informed Conley 

that it would not address Conley’s pro se motion because his appointed 

postconviction attorney’s motion to withdraw as counsel had not been heard yet.

The State Public Defender filed a report pursuant to WIS. STAT. § 809.30(4)(b), 

which advised the court and Conley that “if the motion to withdraw is granted, the 

SPD will not again appoint counsel for Mr. Conley in the future in this case either 

in postconviction proceedings or on appeal.” The trial court held the motion to 

withdraw in abeyance, pending a response from Conley. Conley notified the trial 

court that he understood the risks, was competent to proceed, and he had 

conflicting goals with the appointed counsel about how to proceed on the case. 

The trial court granted appointed counsel’s motion to withdraw. This pro se

appeal followed. Additional facts are included in the discussion as necessary. 

DISCUSSION

¶10 Conley argues several errors in the court proceedings and trial would 

make him eligible for postconviction relief; he requests having his conviction 

vacated or being granted a new trial. We address his motions in three sets: 

pretrial issues, postconviction relief issues, and sufficiency of the evidence. Upon 

review, we reject Conley’s arguments on both procedural grounds and on the 

merits, and we affirm his conviction. 
No. 2019AP1526-CR

7

I. Pretrial issues

¶11 Conley argues that the State’s pretrial actions give us reason to

dismiss this matter, which is relief that is not available to him. We interpret his 

appeal overall to request a new trial. We review his arguments briefly: (1) the 

trial prosecutor did not appear at the January 25, 2019 pretrial hearing, which 

Conley argues is a violation of the trial court’s calendar practice under 

WIS. STAT. § 802.10(7); (2) the State failed to prosecute SAB for violations of the 

prostitution statute, WIS. STAT. § 944.30, which he argues violated 

WIS. STAT. § 805.03, the statute that addresses the failure to prosecute a civil 

action; (3) the State failed to divulge discovery to the defense in a timely manner; 

(4) the trial court improperly joined his two cases; and (5) he was arrested without 

probable cause and he was not read his Miranda5rights.

¶12 First, Conley’s assertion that having a substitute prosecutor at the 

January 25, 2019 pretrial hearing violated the court’s calendar practice rules under 

WIS. STAT. § 802.10(7) fails because our supreme court has addressed the situation 

where “various proceedings in the case were conducted by different assistant 

district attorneys” and found no violation of due process or prejudicial error. 

Bastian v. State, 54 Wis. 2d 240, 249, 194 N.W.2d 687 (1972). We note that 

Conley did not move the trial court at any point to sanction the State for violations 

of calendar practice rules, which forfeits this issue on appeal. State v. Ndina, 

2009 WI 21, ¶¶29-30, 315 Wis. 2d 653, 761 N.W.2d 612. 

 

5

 Miranda v. Arizona, 384 U.S. 486 (1966).
No. 2019AP1526-CR

8

¶13 Second, Conley asserts that the State’s failure to prosecute SAB for 

violations of the prostitution statute, WIS. STAT. § 944.30, violated

WIS. STAT. § 805.03. This argument fails because the failure to prosecute statute 

is not an avenue to challenge the State’s decision to prosecute other cases; any 

charges SAB may have faced are not relevant to Conley’s prosecution. Cf.

Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 

726 N.W.2d 898.

¶14 Third, Conley argues that the State failed to divulge discovery to the 

defense. Conley argues that the defense was not given enough time because some 

discovery was received only fourteen days prior to his final pretrial on 

February 11, 2019. He argues now that this was not enough time, but during the 

February 11, 2019 hearing, the court addressed this issue and whether he might 

want to waive his speedy trial request. Conley requested to proceed to trial under 

the speedy trial demand. We conclude he is estopped from now complaining that 

his defense was not given enough time for discovery when he rejected this 

position earlier. See State v. Johnson, 2001 WI App 105, ¶¶9-10, 244 Wis. 2d 

164, 628 N.W.2d 431. 

¶15 Fourth, Conley argues his cases were improperly joined by the haste 

at which the trial court acted. Two crimes may be joined for trial when the crimes 

“are of the same or similar character or are based on the same act or transaction or 

on [two] or more acts or transactions connected together or constituting parts of a 

common scheme or plan.” WIS. STAT. § 971.12(1). “The initial decision on 

joinder is a question of law that we review de novo.” State v. Salinas, 2016 WI 

44, ¶30, 369 Wis. 2d 9, 879 N.W.2d 609. Here, both cases are based on similar 

charges for trafficking and connected acts involving SAB and MJH. Because we 
No. 2019AP1526-CR

9

conclude these charges could have been charged in a single complaint, joinder was 

not improper.6 See § 971.12(1). 

¶16 Fifth, Conley argues that he was arrested without probable cause and 

he was not read his Miranda rights. He argues that his December 2018 arrest was 

based on MJH’s complaint, but MJH was not a credible witness so the complaint 

was invalid. However, Conley failed to move to suppress his statements to the 

police prior to trial. See WIS. STAT. § 971.31(2). By statute, “defenses and 

objections based on defects in the institution of the proceedings, insufficiency of 

the complaint, information or indictment, invalidity in whole or in part of the 

statute on which the prosecution is founded, or the use of illegal means to secure 

evidence” are required to be raised by motion before trial or these arguments are 

“deemed waived.” Id. Conley did not move the trial court to suppress his 

statements or otherwise object. Therefore, his claim is waived, and thus fails. 

Furthermore, “a conviction resulting from a fair and errorless trial in effect cures 

any error” in the preliminary hearing. State v. Webb, 160 Wis. 2d 622, 628, 467 

N.W.2d 108 (1991). Conley was convicted by the jury. As we discuss below, we 

reject Conley’s claim that the State’s evidence was insufficient to support his 

conviction. We conclude that Conley was convicted in a fair and error-free trial. 

Therefore, his arguments about probable cause are also forfeited. Ndina, 315 

Wis. 2d 653, ¶¶29-30. In summary, all of his pretrial claims fail procedurally or 

on the merits. 

 

6

 Moreover, Conley’s requested relief for improper joinder is that the two cases would be 

severed in any new trial. Although a new trial on the charges involving SAB are potential relief, 

Conley’s acquittal of the charges involving MJH means that any additional prosecution of those 

charges would violate constitutional protections against double jeopardy. See U.S. CONST. art. V; 

WIS. CONST. art. I, § 8(1); State v. Comstock, 168 Wis. 2d 915, 936-37, 485 N.W.2d 354 (1992). 
No. 2019AP1526-CR

10

II. Postconviction Relief Issues

¶17 Conley argues that additional errors entitle him to postconviction 

relief. He argues that he was convicted under the wrong statute because he asserts 

that a seventeen-year-old victim does not fall under the child trafficking laws. He 

also contends that the trial court improperly applied the restitution statute and

tainted the jury panel by speaking to an alternate juror who was then in contact 

with the jury panel. He asserts that he has newly discovered evidence in the form 

of photographs that show that SAB accused another man of trafficking her after 

she testified at Conley’s trial that she was no longer engaged in prostitution and 

that SAB did not give all of her earnings from sex acts to him. 

¶18 Conley has failed to follow statutory procedure to request 

postconviction relief. “An appellant is not required to file a postconviction motion 

in the trial court prior to an appeal if the grounds are sufficiency of the evidence or 

issues previously raised.” WIS. STAT. § 974.02(2).7 Conley has not filed a 

postconviction motion to the trial court on any issue; therefore, none of these 

issues can be considered “previously raised.” Conley did file a pro se motion for 

reconsideration; however, the trial court did not address it because he was still 

represented by counsel. He then filed his direct appeal to this court without first 

having the trial court address his concerns. 

¶19 “Generally, issues not raised or considered by the trial court will not 

be considered for the first time on appeal.” State v. Holland Plastics Co., 111 

Wis. 2d 497, 504, 331 N.W.2d 320 (1983). Conley failed to object to the statute 

 

7

 We address his sufficiency of the evidence claims below as allowed by statute. 
No. 2019AP1526-CR

11

under which he was convicted or to the trial court allowing an alternate juror to 

stay in the courtroom while the jury panel deliberated. Conley’s counsel did not 

object to the application of the restitution statute, although we do note that counsel 

questioned the calculation. Conley’s failure to object forfeits these issues. See

State v. Coffee, 2020 WI 1, ¶19, 389 Wis. 2d 627, 937 N.W.2d 579. 

¶20 Further, even if Conley had not forfeited his objections, his 

arguments fail on the merits. We review his claims separately below. 

A. Application of the trafficking of a child statute

¶21 First, Conley argues that because his victim was seventeen years old, 

he was improperly convicted of trafficking of a child, when he should have been 

charged with human/adult trafficking. See WIS. STAT. §§ 948.051, 940.302. 

Conley argues that because a seventeen-year-old falls under adult jurisdiction for 

the prosecution of certain crimes including prostitution, SAB should be considered 

an adult as a victim for this crime. This argument fails. Our supreme court 

expressly addressed a similar issue in State v. Patterson, 2010 WI 130, ¶¶45-51, 

329 Wis. 2d 599, 790 N.W.2d 909.

¶22 Conley’s argument requires us to interpret WIS. STAT. § 948.015, 

specifically the definition of “child,” for the purpose of that statute. Because 

statutory interpretation is a question of law, our review is de novo. DOR v. River 

City Refuse Removal, Inc., 2007 WI 27, ¶26, 299 Wis. 2d 561, 729 N.W.2d 396. 

“[T]he purpose of statutory interpretation is to determine what the statute means so 

that it may be given its full, proper, and intended effect.” State ex rel. Kalal v. 

Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. 

We first consider the plain and ordinary meaning of the language of the statute.
No. 2019AP1526-CR

12

Id., ¶45. Then we consider context, structure, and any surrounding statutes if the 

meaning is not clear in plain language. Id., ¶46. 

¶23 WISCONSIN STAT. ch. 948 addresses crimes against children. The 

definition provisions state that a “‘[c]hild’ means a person who has not attained 

the age of 18 years, except that for purposes of prosecuting a person who is 

alleged to have violated a state or federal criminal law, ‘child’ does not include a 

person who has attained the age of 17 years.” Sec. 948.01(1). Based on the plain 

language of the definition of “child,” it excludes children over the age of 

seventeen from its definition only for the purposes of prosecuting such a person.

See id. Here, SAB is not being prosecuted. She is the victim of this crime. 

Therefore, we conclude that Conley’s conviction for trafficking a child was not in 

error because SAB was seventeen years old at the time she was victimized. See

Patterson, 329 Wis. 2d 599, ¶¶46-47, 51. 

B. Application of the restitution statute

¶24 Second, Conley argues that the trial court incorrectly applied the 

restitution statute. First, he contends that the trial court failed to consider his 

indigence or his ability to pay. Second, he argues that the trial court exceeded the 

statutory cap by setting restitution at $20,400. We agree with the State that there 

was no error. 

¶25 Under Wisconsin law, “restitution is the rule and not the exception.”

State v. Madlock, 230 Wis. 2d 324, 333, 602 N.W.2d 104 (Ct. App. 1999). “[T]he 

primary purpose of restitution is not to punish the defendant, but to compensate 

the victim.” State v. Canady, 2000 WI App 87, ¶8, 234 Wis. 2d 261, 610 N.W.2d 

147. When the trial court imposes a sentence on a convicted offender, the trial 

court must “order the defendant to make full or partial restitution under this 
No. 2019AP1526-CR

13

section to any victim of a crime considered at sentencing ... unless the court finds 

substantial reason not to do so and states the reason on the record.” WIS. STAT.

§ 973.20(1r).

¶26 At Conley’s restitution hearing, SAB, by counsel, requested 

restitution for the “gross income” she earned that she calculated Conley took from 

her, pursuant to WIS. STAT. § 973.20(4o). Under that statutory provision, a 

defendant convicted of violating human or child trafficking under WIS. STAT.

§ 940.302(2) or WIS. STAT. § 948.051 faces specific restitution calculations: 

the restitution order may require that the defendant pay an 

amount equal to any of the following:

(a) The costs of necessary transportation, housing, 

and child care for the victim.

(b) The greater of the following:

1. The gross income gained by the defendant due to 

the services of the victim.

2. The value of the victim’s services as provided 

under the state minimum wage.

Sec. 973.20(4o). At the restitution hearing, SAB proposed that $20,400 was a fair 

approximation of the gross income that SAB’s services gained Conley. Based on 

the trial court finding SAB credible, the trial court accepted this approximation. 

¶27 Trial counsel did not object to the application of this statute, but did 

question the calculations and attempted to determine what Conley might have 

spent on SAB during the same period. The trial court stated, however, that it did 

not interpret the calculation to call for an offset because the restitution was based 

on “gross income” gained by the defendant. We note that Conley does not renew 

trial counsel’s questioning that an offset was applicable. 
No. 2019AP1526-CR

14

¶28 Instead, Conley first argues that the trial court failed to take into 

account that he was indigent. This misrepresents his burden. “The burden of 

demonstrating, by the preponderance of the evidence, the financial resources of 

the defendant, the present and future earning ability of the defendant ... is on the 

defendant.” WIS. STAT. § 973.20(14)(b).8 Conley made no objection or argument 

about his ability to pay during the restitution hearing. Therefore, he has failed to 

satisfy his evidentiary burden and this argument fails.

¶29 Second, Conley argues that the trial court’s restitution order

exceeded the statutory limit of $10,000. This also misinterprets the trial court 

order and the restitution statutes. It is true that under WIS. STAT. § 973.20(4m), if 

a defendant is convicted of violating WIS. STAT. § 948.051 and the court “finds 

that the crime was sexually motivated,” then “the restitution order may require that 

the defendant pay an amount, not to exceed $10,000, equal to the cost of necessary 

professional services relating to psychiatric and psychological care and treatment.” 

This limit is entirely inapplicable here because SAB does not request restitution 

for medical or professional services. Therefore, both of his arguments with regard 

to restitution fail. 

C. Tainted jury

¶30 Conley argues that the trial court tainted the jury panel by speaking 

with an alternate juror who then relayed information to the jury panel. Beyond the 

fact that Conley needed to bring this allegation to the trial court before pursuing an 

appeal, he had not stated what extraneous information reached the jury panel. 

 

8

 As the State noted, the amendment to this statute after Conley’s sentencing is not 

relevant to this appeal. See 2019 Wis. Act 71.
No. 2019AP1526-CR

15

Further, his claim fails because he has not provided admissible evidence of this 

issue in accordance with WIS. STAT. § 906.06(2). A juror may not testify about 

the deliberations of a trial, but “a juror may testify on the question whether 

extraneous prejudicial information was improperly brought to the jury’s attention 

or whether any outside influence was improperly brought to bear upon any juror.” 

Sec. 906.06(2).

Initially, the party seeking to impeach the verdict must 

demonstrate that a juror’s testimony is admissible under 

sec. 906.06(2) by establishing (1) that the juror’s testimony 

concerns extraneous information (rather than the 

deliberative process of the jurors), (2) that the extraneous 

information was improperly brought to the jury’s attention, 

and (3) that the extraneous information was potentially 

prejudicial. After the [trial] court determines whether the 

party has satisfied sec. 906.06(2), it determines whether 

one or more jurors engaged in the alleged conduct and 

whether the error was prejudicial.

State v. Eison, 194 Wis. 2d 160, 172-73, 533 N.W.2d 738 (1995). The trial 

court’s record of its contact with the alternate juror does not satisfy any part of a 

claim to show that extraneous information reached the jury. Conley has not met 

his burden and this claim fails on the merits as well as procedurally. 

D. Impartial decision maker

¶31 Conley argues that he was denied access to an impartial decision

maker because the trial court stated that it did not find Conley “believable.”

“There is a presumption that a judge has acted fairly, impartially, and without 

prejudice.” State v. Herrmann, 2015 WI 84, ¶24, 364 Wis. 2d 336, 867 N.W.2d 

772. The party asserting judicial bias has the burden to rebut the presumption by a 

preponderance of evidence. Id. The test for bias is both subjective and objective. 

State v. Gudgeon, 2006 WI App 143, ¶20, 295 Wis. 2d 189, 720 N.W.2d 114. 

“Judges must disqualify themselves based on subjective bias whenever they have 
No. 2019AP1526-CR

16

any personal doubts as to whether they can avoid partiality to one side.” Id. The 

objective test for judicial bias is “whether a reasonable person could conclude that 

the trial judge failed to give the defendant a fair trial.” Herrmann, 364 Wis. 2d 

336, ¶27.

¶32 Conley argues that the trial court failed the objective test by 

appearing to be biased, relying on Gudgeon, 295 Wis. 2d 189, ¶30 (“The risk of 

bias that the ordinary reasonable person would discern—which is the test—is 

simply too great to comport with constitutional due process.”). His evidence is 

that the trial court demonstrated bias by stating at sentencing that she did not find 

him “believable.” He argues that means the trial court did not believe any of his 

trial testimony, which he concludes is unfair. Conley does not rebut the 

presumption that the trial court was an impartial decision maker. His arguments 

are not evidence of bias because the trial court made these statements at 

sentencing—after the jury’s credibility determinations were completed and after it 

had convicted Conley. The trial court’s statement did not show bias by agreeing 

with the jury’s credibility determination and verdict. Accordingly, Conley’s claim 

that he was denied an impartial decision maker fails on the merits.

E. Newly discovered evidence

¶33 Conley argues that newly discovered evidence compels a new trial. 

Conley’s newly discovered evidence consists of photographs that he alleges show 

that SAB accused another man of trafficking her shortly after she testified at 

Conley’s trial that she was not engaged in prostitution any longer, which he argues 

shows SAB committed perjury on the stand. He also argues that the photos 

disprove that SAB gave all of her earnings to Conley. 
No. 2019AP1526-CR

17

¶34 “In order to set aside a judgment of conviction based on 

newly[]discovered evidence, the newly[]discovered evidence must be sufficient to 

establish that a defendant’s conviction was a ‘manifest injustice.’” State v. Plude, 

2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (citation omitted). A

postconviction motion based on newly discovered evidence must establish by clear 

and convincing evidence that: “(1) the evidence was discovered after conviction; 

(2) the defendant was not negligent in seeking evidence; (3) the evidence is 

material to an issue in the case; and (4) the evidence is not merely cumulative.” 

State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62 (citations

omitted). If these factors are proven, the trial court must then determine “whether 

a reasonable probability exists that a different result would be reached in a trial.” 

Id., ¶44 (citation omitted). “A reasonable probability of a different outcome exists 

if there is a reasonable probability that a jury, looking at both the old evidence and 

the new evidence, would have a reasonable doubt as to the defendant’s guilt.” 

State v. Vollbrecht, 2012 WI App 90, ¶18, 344 Wis. 2d 69, 820 N.W.2d 443. We 

review the trial court’s decision to grant or deny a motion for a new trial based on 

newly discovered evidence under the erroneous exercise of discretion standard. 

See Plude, 310 Wis. 2d 28, ¶31.

¶35 Conley’s argument again fails procedurally and on the merits. The 

State argues that the photographs are not in the record and even based on Conley’s 

arguments, this information would be cumulative to the defense strategy at trial to 

undermine SAB’s credibility. Because the photographs are properly excluded 

from the record, we cannot review this evidence, and we cannot conclude that it 

satisfies the standard for newly discovered evidence. 

¶36 Procedurally, Conley had to present his newly discovered evidence 

to the trial court prior to making this appeal. Conley has the burden of 
No. 2019AP1526-CR

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establishing that this issue was raised before the trial court; we “will generally not 

review an issue which is raised for the first time on appeal.” Young v. Young, 124 

Wis. 2d 306, 316, 369 N.W.2d 178 (Ct. App. 1985). It appears in the record that 

Conley attempted to submit photographs with this appeal, but new evidence may 

not be added to the record on appeal. Reference to evidence outside of the record 

violates appellate procedure. See WIS. STAT. RULE 809.19(1)(d). Our review is 

limited to the record before us. See Duhame v. Duhame, 154 Wis. 2d 258, 269, 

453 N.W.2d 149 (Ct. App. 1989). Therefore, Conley has not satisfied the newly

discovered evidence standard and he is not entitled to a new trial or evidentiary 

hearing. In sum, Conley’s claims for postconviction relief have all failed 

procedurally and on the merits. 

III. Sufficiency of the evidence

¶37 Conley’s final issue is that he argues that there was insufficient 

evidence to support his conviction. In reviewing the sufficiency of the evidence to 

support a conviction, we may not substitute our judgment for that of the trier of 

fact unless the evidence, viewed most favorably to the verdict, is so lacking in 

probative value and force that no trier of fact, acting reasonably, could have found 

the requisite guilt. See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 

(1990); see also State v. Alles, 106 Wis. 2d 368, 376-77, 316 N.W.2d 378 (1982). 

If more than one reasonable inference can be drawn from the evidence, we must 

adopt the inference that supports the verdict. See Poellinger, 153 Wis. 2d at 506-

07.

¶38 To secure a conviction as to count one, trafficking of a child, the 

State had to prove beyond a reasonable doubt the three elements of the crime of 

trafficking of a child contrary to WIS. STAT. § 948.051(1): (1) the defendant 
No. 2019AP1526-CR

19

knowingly recruited, harbored, or provided the victim; (2) the victim had not 

attained eighteen years of age; and (3) the defendant recruited, provided, or 

harbored the victim for the purpose of commercial sex acts. See WIS JI—

CRIMINAL 2124. 

¶39 This was the evidence presented at trial to support this charge. For 

the first element, SAB testified that Conley recruited her for his “money train” of 

commercial sex acts and he provided an apartment for her to stay with a man 

named JR. SAB testified that Conley paid JR “$20 every pop I made in order for 

me to keep the house.” MJH testified that Conley was paying for SAB to reside at 

an apartment during the time she was performing commercial sex acts.

¶40 For the second element, SAB testified that she told Conley “multiple

times” that she was seventeen years old and she even showed him her “school ID” 

and her birth certificate.

¶41 For the third element, SAB testified that when a patron contacted 

SAB to arrange a commercial sex act, she would let Conley know about the 

request and the price before she would accept the date. SAB testified that she 

would text Conley after a date with a patron and arrange for him to pick up the 

money. She explained that sometimes Conley would take her to the date and she 

would give him the money when she got back in the car. MJH also testified that 

SAB worked as a prostitute for Conley after advertising for SAB’s services was 

placed on multiple websites.

¶42 We conclude that the jury could reasonably infer that Conley 

recruited, harbored, and provided for SAB using the plain meanings of those 

terms, and that Conley harbored SAB for the purpose of commercial sex acts and 

the purpose of receiving the money SAB was earning from those acts. The jury is 
No. 2019AP1526-CR

20

the sole arbiter of witness credibility, and it alone is charged with the duty of 

weighing the evidence. See Poellinger, 153 Wis. 2d at 506. Based on the verdict, 

the jury considered SAB’s and MJH’s testimony to be credible and, ultimately, 

based on the evidence, the jury reasonably inferred that the State proved beyond a 

reasonable doubt the three elements of trafficking of a child. Accordingly, Conley 

has failed to show that his conviction was not supported by sufficient evidence. 

¶43 Conley’s arguments that there was insufficient evidence to support 

his conviction are not developed “reflecting any legal reasoning. Instead, the 

arguments are supported by only general statements. We may decline to review 

issues inadequately briefed.” State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 

633 (Ct. App. 1992). In his reply, Conley introduces several new arguments 

including that the State had to prove eight elements to secure a conviction for 

trafficking a child. We have consistently held that arguments raised for the first 

time in a reply brief will not be considered. Conley “unfairly raises this argument 

for the first time in his reply brief, thereby denying the State an opportunity to 

respond, and denying this court a full analysis of the issue by both parties with 

relevant case and record citations. As such, we will not address the issue.” State 

v. Lock, 2013 WI App 80, ¶38 n.6, 348 Wis. 2d 334, 833 N.W.2d 189. We 

conclude that there was sufficient evidence for the jury to have convicted Conley. 
No. 2019AP1526-CR

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CONCLUSION

¶44 Conley’s request for postconviction relief fails both procedurally and 

on the merits. Accordingly, we affirm Conley’s judgment of conviction. 

By the Court.—Judgment affirmed. 

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.