COURT OF APPEALS

DECISION

DATED AND FILED

May 2, 2024

Samuel A. Christensen

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. 2023AP636-CR Cir. Ct. No. 2019CF242

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ZACHARY T. HOGENSON,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Grant

County: CRAIG R. DAY, Judge. Affirmed. 

Before Kloppenburg, P.J., Blanchard, and Graham, 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. Zachary Hogenson appeals a judgment of 

conviction, following a jury trial, on one count of repeated sexual assault of the 
No. 2023AP636-CR

2

same child in violation of WIS. STAT. § 948.025(1)(e) (2021-22).

1

 Hogenson also 

appeals the denial of his postconviction motion for a new trial. He raises three 

issues.

¶2 Hogenson argues that the circuit court erred in denying his 

postconviction motion because his trial counsel provided constitutionally 

ineffective assistance. Hogenson contends that trial counsel failed to adequately 

cross-examine the victim (“A.B.”) and failed to call several witnesses who could 

potentially provide additional evidence that could be used to undermine A.B.’s 

trial testimony.2 We conclude that Hogenson fails to establish either that his 

counsel performed deficiently or that any supposed deficiency was prejudicial.

¶3 Hogenson also argues that his trial counsel violated Hogenson’s 

Sixth Amendment right to determine the objective of Hogenson’s defense by 

essentially conceding his guilt during closing argument, contrary to Hogenson’s 

desire to claim innocence. We conclude that Hogenson fails to establish that his 

counsel conceded his guilt.

¶4 Hogenson separately argues that the circuit court invaded the 

province of the jury through an instruction that the court gave in response to a 

question the jury sent out during deliberations. We conclude that the court 

properly exercised its discretion under the particular circumstances here, and we 

reject Hogenson’s argument that the instruction inaccurately stated the law.

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.

2

 Consistent with WIS. STAT. § 809.19(1)(g), we refer to the victim as “A.B.” using 

initials that do not correspond with her name. 
No. 2023AP636-CR

3

¶5 Accordingly, we affirm.

BACKGROUND

¶6 The criminal complaint charged Hogenson with one count of 

repeated sexual assault of A.B. when she was under age 16, “from approximately 

May 2007 through 2008.” See WIS. STAT. § 948.025(1)(e).3 During this period, 

A.B. was 13 and 14 years old and Hogenson was 19 and 20 years old. The 

complaint alleged that at least three of the assaults were violations of WIS. STAT.

§ 948.02(1) or (2), based on allegations of penis-to-vagina, penis-to-mouth, and 

anal sexual intercourse. See § 948.02(2) (prohibiting in pertinent part “sexual 

intercourse with a person who has not attained the age of 16 years”); WIS. STAT.

§ 948.01(6) (defining “sexual intercourse”).

¶7 A.B. testified at trial in part as follows. She met Hogenson in the 

spring of 2007 when he, as a senior in high school, was an assistant teacher in one 

of her seventh grade classes. A.B. and Hogenson exchanged messages through 

email, social media, and texting, and eventually they also kissed. Later, during the 

summer of 2007, Hogenson picked A.B. up from her grandmother’s house and

drove her to a campground, where he had penis-to-vagina intercourse with her in 

his car. After the first instance of intercourse, there were several instances of 

Hogenson having mouth-to-penis intercourse with A.B., when he would force her 

head onto his penis. There was also at least one instance of mouth-to-vagina 

intercourse, in addition to repeated instances of anal intercourse. This conduct 

 

3

 As charged by the State here, “Whoever commits 3 or more violations under [WIS.

STAT. §] 948.02(1) or (2) within a specified period of time involving the same child is guilty of

... [a] Class C felony.” See WIS. STAT. § 948.025(1)(e). 
No. 2023AP636-CR

4

occurred one to three times a month beginning in the summer of 2007, lasting

through the fall of 2008. 

¶8 Jumping ahead to May 2019, there was evidence of the following

event, which is pertinent to multiple issues raised on appeal. Hogenson, who was 

then a police officer in Fennimore, stopped a car for speeding. A.B. was a 

passenger in the car. The car was being driven by A.B.’s then-boyfriend (“the 

boyfriend”). A.B. testified at trial that the boyfriend was verbally “aggressive[]” 

with Hogenson during this traffic stop “because [A.B.] had told [the boyfriend] 

what had happened to” A.B. when she was younger. A.B. first reported the 

allegations of sexual assault to police later that month. 

¶9 Hogenson took the position at trial that the prosecution should not be 

permitted to introduce trial testimony regarding prior consistent statements made 

by A.B. to others regarding the alleged sexual assaults before she made her initial 

report to police in 2019. These statements were hearsay because Hogenson was 

not alleging that the allegations were the product of recent fabrication or improper 

influence or motive. See WIS. STAT. § 908.01(4)(a)2. (statement by a witness 

regarding another witness’s prior, out-of-court statement is not hearsay when the 

statement is consistent with the other witness’s testimony and “offered to rebut an 

express or implied charge against the declarant of recent fabrication or improper 

influence or motive”). More specifically, counsel represented that the defense

would not argue at trial that A.B. fabricated the allegations she made to police and 

again in her trial testimony as a result of the conflict between the boyfriend and 

Hogenson during or related to the 2019 traffic stop. The circuit court accepted the 

commitment of the defense that it would not raise this fabrication theory and on 

this basis barred the prosecution from adducing testimony regarding A.B.’s prior 

consistent statements or referencing them. 
No. 2023AP636-CR

5

¶10 The defense did not call Hogenson or any other witness. 

¶11 During closing argument, defense counsel told the jury that the lack 

of corroboration of A.B.’s testimony regarding events that occurred more than 12

years before trial resulted in the prosecution failing to meet its burden to prove 

guilt beyond a reasonable doubt. Counsel emphasized what counsel contended 

were gaps in A.B.’s testimony regarding facts important to the plausibility of 

A.B.’s allegations. Counsel specifically told the jury that he was not arguing that 

A.B.’s reporting of the assaults to police in May 2019 was connected to the traffic 

stop.

¶12 The deliberating jury sent out a question to the circuit court 

regarding the timing of A.B.’s “initial report” of the alleged sexual assaults 

relative to the traffic stop. Over Hogenson’s objection, the court answered the 

question by instructing the jury in part that neither party was asserting that A.B. 

“fabricated the allegations of sexual assault” based on the traffic stop or the 

boyfriend’s influence over A.B. The court told the jury that it should “[d]isregard 

any suggestion” to the contrary. 

¶13 The jury found Hogenson guilty on the single count charged. 

¶14 Hogenson filed a postconviction motion alleging that he had 

received ineffective assistance of trial counsel based on the failure to undermine

A.B.’s trial testimony in various ways, including by failing to call as witnesses the 

very witnesses that defense counsel had sought to exclude with the defense motion 

to keep out A.B.’s prior consistent statements. Hogenson also raised the Sixth

Amendment argument that trial counsel had conceded that he was not innocent

contrary to McCoy v. Louisiana, 584 U.S. 414 (2018). 
No. 2023AP636-CR

6

¶15 The circuit court held an initial Machner hearing at which 

Hogenson’s trial counsel testified. See State v. Machner, 92 Wis. 2d 797, 285 

N.W.2d 905 (Ct. App. 1979). The court rejected some grounds for Hogenson’s 

ineffective assistance claim and the entirety of his concession-of-innocence claim. 

However, the court held a follow-up hearing, at which Hogenson presented 

testimony from some of the individuals who Hogenson argued trial counsel was 

deficient for failing to call as trial witnesses. The court then denied Hogenson’s 

motion, rejecting the remaining grounds for his ineffective assistance claim.

¶16 Hogenson appeals.

DISCUSSION

I. Ineffective Assistance of Trial Counsel

¶17 Hogenson argues that his trial counsel rendered ineffective 

assistance by failing to adequately cross-examine A.B. on “numerous material 

inconsistencies” and for failing to call several witnesses who could have 

undermined A.B.’s testimony. Closely related, Hogenson argues that trial counsel 

was ineffective for conceding that the May 2019 traffic stop and the boyfriend’s 

conduct surrounding the stop did not influence A.B. in making the allegations

against Hogenson. Consistent with the circuit court’s approach, we address this 

argument by dividing it into two categories. The first category relates to potential 

means that trial counsel could have used, but did not use, to contradict details of 

A.B.’s testimony in general. The second specifically challenges her account of the 

chronology of the assaults, which Hogenson argues involved a missed chance for 

counsel to argue for misdemeanor offenses instead of a single felony offense,

based on the argument that she had turned 16 by the time of the assaults.
No. 2023AP636-CR

7

¶18 We now provide pertinent legal standards. Then we summarize

additional background and explain our conclusions regarding each ineffective 

assistance category.

¶19 Under the Sixth and Fourteenth Amendments to the United States 

Constitution, and Article I, Section 7 of the Wisconsin Constitution, a criminal 

defendant is guaranteed the right to effective assistance of counsel. See State v. 

Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93; see also

Strickland v. Washington, 466 U.S. 668 (1984). “Whether a defendant was 

denied effective assistance of counsel is a mixed question of law and fact”: “The 

factual circumstances of the case and trial counsel’s conduct and strategy are 

findings of fact, which will not be overturned unless clearly erroneous”; whether

the facts satisfy the legal requirements of an ineffective assistance of counsel 

claim is an issue of law, reviewed de novo. See Breitzman, 378 Wis. 2d 431, ¶37. 

“To demonstrate that counsel’s assistance was ineffective, the defendant must 

establish that counsel’s performance was deficient and that the deficient 

performance was prejudicial.” Id. (citing Strickland, 466 U.S. at 687). “If the 

defendant fails to satisfy either prong, we need not consider the other.” Id. (citing 

Strickland, 466 U.S. at 697).

¶20 Regarding the deficient performance prong, which we conclude

resolves the first part of Hogenson’s ineffective assistance argument, our supreme 

court has explained:

To establish that counsel’s performance was deficient, the 

defendant must show that it fell below “an objective 

standard of reasonableness.” In general, there is a strong 

presumption that trial counsel’s conduct “falls within the 

wide range of reasonable professional assistance.”

Additionally, “[c]ounsel’s decisions in choosing a trial 

strategy are to be given great deference.”
No. 2023AP636-CR

8

Breitzman, 378 Wis. 2d 431, ¶38 (citations omitted; alteration in Breitzman). 

Demonstrating that another trial strategy “may look better in hindsight” does not 

cause trial counsel’s strategic choices to become unreasonable. See State v. Mull, 

2023 WI 26, ¶49, 406 Wis. 2d 491, 987 N.W.2d 707; see also State v. Harper, 57 

Wis. 2d 543, 556-57, 205 N.W.2d 1 (1973) (“In considering alleged incompetency 

of counsel, one should not by hindsight reconstruct the ideal defense.”). Similarly, 

this court “will not second-guess a trial attorney’s ‘considered selection of trial 

tactics or the exercise of professional judgment in the face of alternatives that have 

been weighed by trial counsel.’” State v. Elm, 201 Wis. 2d 452, 549 N.W.2d 471 

(Ct. App. 1996) (quoting State v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161 

(1983)).

¶21 The following standards apply regarding the prejudice prong, which 

we conclude is dispositive on the chronology issue:

To establish that deficient performance was prejudicial, the 

defendant must show that “there is a reasonable probability 

that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different. A reasonable 

probability is a probability sufficient to undermine 

confidence in the outcome.” 

Breitzman, 378 Wis. 2d 431, ¶39 (quoted source omitted).

A. Impeachment with Prior Inconsistent Statements and 

Presentation of Testimony from Other Witnesses

¶22 Hogenson emphasizes inconsistencies between A.B.’s trial 

testimony and prior statements that she had made to others as reflected in police 

reports and the postconviction testimony. Regarding this category, we agree with 

the State that Hogenson fails to establish that his trial counsel performed 

deficiently, because counsel’s decision not to pursue such impeachment was

grounded in reasonable strategic considerations. Relatedly, we conclude that 
No. 2023AP636-CR

9

Hogenson fails to establish that counsel’s decision not to rely more explicitly on 

facts involving Hogenson’s traffic stop of the boyfriend and A.B. was objectively 

unreasonable. 

Additional Background

¶23 At trial, defense counsel sought to undermine the credibility of 

A.B.’s allegations in a number of respects. For example, after A.B. testified that 

she was afraid of Hogenson, counsel cross-examined her about instances when 

A.B., as an adult, allegedly sought Hogenson’s company. As another example, 

counsel questioned how Hogenson was never caught when he allegedly repeatedly

snuck into A.B.’s grandparents’ house to commit assaults, given that the house 

had an open layout, except for one bathroom where many of the assaults allegedly 

occurred.

¶24 Much of Hogenson’s postconviction motion addressed

inconsistencies between A.B.’s trial testimony and statements given during the 

two interviews that police conducted with A.B. Hogenson’s motion also 

highlighted purported inconsistencies between A.B.’s statements and statements 

that other people made to police. 

¶25 At the initial Machner hearing, trial counsel testified that he would 

have reviewed police reports reflecting the June 2019 interviews of A.B. and other 

potential witnesses. But he further testified that he could not recall details from 

the reports of A.B.’s interviews or how they might have varied from the details in 

the reports of interviews with others or A.B.’s trial testimony.

¶26 Counsel opined that his cross-examination of A.B. was successful in 

causing her to become “surly,” “defensive,” and “uncooperative” in a way that 
No. 2023AP636-CR

10

could cause a jury to doubt the reliability of her testimony, and that in his 

estimation, going further in attempting to impeach her could have jeopardized that 

success. 

¶27 Counsel gave his general views on defense tactics such as attacking 

an alleged victim’s credibility and highlighting prior inconsistent statements that 

included the following. When the topic of impeachment does not relate to an 

element of the offense, “nitpicking” prior inconsistent statements by a witness 

risks the appearance of “pick[ing] on” the witness, and can readily result in the 

defense losing the jury’s interest. In counsel’s view, this type of “nitpicking” is 

easily rebutted by a prosecutor’s predictable argument that victims will naturally 

fail to recall or inaccurately recall some details, while the core of the inculpatory 

testimony remains credible.

¶28 Although defense counsel told the jury that the defense was not 

relying on the 2019 traffic stop to support a claim of fabrication or improper 

influence or motive, counsel testified that he nonetheless tried to hint at that 

theory. Counsel testified that he made a strategic choice to attempt to elicit some 

testimony regarding the traffic stop with the goal of encouraging the jury to 

“distrust [A.B.’s] accusations” based on the conclusion that she made them 

because the boyfriend pushed for a police investigation of Hogenson, even though

A.B. initially did not want to pursue an investigation. However, counsel testified, 

in doing so counsel was careful not to explicitly argue that A.B. “fabricated” her 

allegations “to placate” the boyfriend, because this risked “opening the door”—

prompting a decision by the circuit court to allow the prior consistent statements

that the prosecution wanted to offer. Counsel testified that he believed that 

admission of the prior consistent statements would have “really strengthen[ed]” 

the prosecution case and bolstered A.B.’s credibility. In his view, the prior 
No. 2023AP636-CR

11

consistent statements were “Kryptonite” to the defense case—a reference to the 

fictional material that severely weakens Superman upon exposure. 

¶29 As noted, the circuit court rejected the majority of Hogenson’s 

postconviction claims following the initial Machner hearing. 

Analysis

¶30 Regarding many of the alleged inconsistencies between A.B.’s trial 

testimony and her statements to police, Hogenson fails to account for a dilemma 

that trial counsel faced. The dilemma was that A.B.’s statements to police and her 

trial testimony were consistent in conveying the core, inculpatory points, even as 

they varied in certain related details. As a result, many of the inconsistencies that 

Hogenson now cites were bound up in A.B.’s highly inculpatory, consistently 

asserted statements that she and Hogenson engaged in sexual intercourse when she 

was younger than 16. For example, Hogenson now argues that trial counsel 

should have impeached A.B. regarding details of when, according to A.B., 

Hogenson moved from mere kissing to having sexual intercourse with her.

Hogenson fails to show that it was objectively unreasonable for trial counsel to 

determine that it would have hurt the defense more than it would have helped to

highlight inconsistent details when this would have caused the jury to be reminded 

of her consistent statements about sexual intercourse while she was under 16.

¶31 This same reasoning undermines much of Hogenson’s argument 

about the potential testimony of others who were interviewed by police but not 

called as witnesses at trial. As an example of two potential witnesses, Hogenson 

notes that the boyfriend and another, former boyfriend of A.B. told police that 

A.B. had told each of them that Hogenson used some degree of force or that she 

did not consent to at least some of the alleged sexual assaults. Hogenson now 
No. 2023AP636-CR

12

purports to contrast these statements with statements that A.B. allegedly made to a 

friend and another acquaintance that made no mention of there being a degree of 

force or lack of actual consent during the assaults. It was reasonable for trial 

counsel to conclude that, whatever possible rewards could have arisen for the 

defense from highlighting these purported inconsistencies, they were not worth the 

great risk of inadvertently highlighting the fact that A.B. was consistent over time 

in alleging that Hogenson had sex with her during the time period charged. 

¶32 More generally, Hogenson’s argument on this issue fails to 

adequately account for trial counsel’s detailed testimony at the initial Machner

hearing regarding his strategic assessment of additional potential impeachment

and, more broadly, his chosen trial strategies. 

¶33 Explaining his argument further, Hogenson contends that it would 

have been a stronger defense strategy to rely more explicitly on the traffic stop in 

part by calling the boyfriend, in combination with highlighting inconsistencies in 

A.B.’s statements to others, which Hogenson now argues show a pattern of falsely 

accusing him only to her boyfriends but not to others. The argument is 

complicated, but it appears to go like this. Assuming that the boyfriend testified 

consistently with his statement to police, this would have provided a basis for trial 

counsel to argue to the jury that the boyfriend’s conflict with Hogenson during the 

traffic stop created pressure on A.B. to maintain false allegations against 

Hogenson with law enforcement, which would have been consistent with the 

allegedly false narrative that she had given to the boyfriend before the stop.

¶34 The first problem with this complicated argument is that it is 

speculative. It does not establish the likelihood of highly probative and 

exculpatory new evidence at a second trial, especially given that trial counsel did 
No. 2023AP636-CR

13

seek to rely on the traffic stop, albeit not explicitly so. Second, Hogenson does not 

dispute that this would have opened the door to the introduction of prior consistent 

statements by A.B. that trial counsel viewed as having potentially disastrous 

results for the defense. See WIS. STAT. § 908.01(4)(a). Given the dubious 

potential probative value of, and the likely strategic value in avoiding, the prior 

consistent statements, Hogenson fails to establish deficient performance.

B. A.B.’s Chronology of Assaults

¶35 Turning to Hogenson’s chronology-related category of ineffective 

assistance claims, the argument is based on witness accounts that he contends 

would have undermined key aspects of A.B.’s chronology of relevant events. He 

apparently intends to argue that counsel was ineffective for failing to call these 

witnesses in order to provide the basis for the alternative jury argument that the 

alleged assaults might not have taken place until A.B. was 16 years old. This in 

turn could have resulted in a conviction for a less severe offense. Compare WIS.

STAT. § 948.025(1) (imposing felonies for repeated violations of WIS. STAT.

§ 948.02(1)-(2), which addresses sexual assault of children not yet 12, 13, or 16 

years old depending on other conduct involved) with WIS. STAT. § 948.09 (sexual 

intercourse with a child over the age of 16 is guilty of a Class A misdemeanor if 

the defendant is 19 or older). On this issue we conclude that Hogenson fails to 

show that he was prejudiced.

Additional Background

¶36 To repeat, A.B. told police that the alleged sexual assaults began in 

2007 when she was 13, in the summer between her 7th and 8th grade years, and 

ended in 2008 when she was 14, in the fall of her first year of high school. During 

one of the police interviews, a detective asked A.B. what Hogenson “was ... 
No. 2023AP636-CR

14

doing” “at that time,” in an apparent reference to the general time period of the 

assaults. A.B. responded that “he was milking at a farm ... outside of town and 

living with his parents” in Fennimore, with the farm being outside Fennimore.

During the same interview, A.B. was asked whether Hogenson had contact with 

other young females “during that time.” A.B. responded that “when he was 

farming, there was a ... girl on the farm” who was “a few years younger” than 

A.B. A.B. identified this person by name.

¶37 Police interviewed the person identified by A.B., whom we will refer 

to as C.D. C.D. told police that she and Hogenson worked together on C.D.’s

father’s farm. C.D. could not recall “exactly” when Hogenson started working at 

the farm, but she said that she was in high school at the time. 

¶38 Hogenson’s position is that, based on these statements and A.B.’s 

statements to police about Hogenson’s work during the period of the alleged 

assaults, the defense could have plausibly argued that A.B. would have been 16 or 

older at the time of the assaults. The logic would be that the assaults took place 

while Hogenson lived in Fennimore and worked with C.D. on the nearby farm, 

when C.D. was high-school-aged, i.e., at least 14. This would have meant that, if 

C.D. was “a few years younger” than A.B., then A.B. would have been at least 16.

¶39 At trial, A.B. testified consistently with her statements to police

regarding how and when she met Hogenson—in her 7th grade science class in the 

spring of 2007. She was also consistent, between her statements to police and her 

testimony at trial, in asserting that the first time Hogenson had sexual intercourse 

with her was during the summer of 2007, between her 7th and 8th grade years; and

that, following this first incident, he had oral and anal sex with her up until “the 
No. 2023AP636-CR

15

beginning of” her first year in high school or “the fall of 2008.” Neither side 

called C.D. as a trial witness.

¶40 At the initial Machner hearing, Hogenson’s trial counsel testified in 

pertinent part as follows. Hogenson told him before trial that Hogenson did not 

live in Fennimore or work on the nearby farm “until several years after” the period 

of alleged assaults. Counsel was aware of C.D.’s statement to police about when 

she and Hogenson both worked on the farm, although postconviction counsel’s 

questioning of trial counsel did not delve into the possible inference that A.B. was 

16 or older during the period of alleged assaults. Trial counsel testified that he 

considered this merely “another prior inconsistency that [counsel] really didn’t 

want to bring up” at trial. 

¶41 At the supplemental Machner hearing, C.D., C.D.’s father, and 

Hogenson testified. C.D. and C.D.’s father both testified that Hogenson started 

working on C.D.’s father’s farm near Fennimore in “late fall of 2008” (when A.B. 

was 14 years old). When he started there, C.D. was 12 years old (and, therefore, 

C.D. was 2 years younger than A.B.). C.D. herself started working on the farm a 

few years later in 2011, alongside Hogenson, when she was “14, maybe 15 years 

old.” Hogenson testified that he told his trial attorney in advance of trial that 

A.B.’s purported statement to police that he was working at the farm before late 

fall 2008 was inaccurate. Further, Hogenson testified that he was not living with 

his parents in Fennimore before he started to work on the nearby farm, but was 

instead living in another town. 

¶42 The circuit court made a determination that undermined the premise 

of this argument. The court concluded in pertinent part that A.B.’s and C.D.’s 

statements to police concerned when Hogenson started working on the farm (and 
No. 2023AP636-CR

16

living nearby in Fennimore) in 2008, and they were unrelated to when C.D. began 

working at the farm in 2011. Thus, the court reasoned, there was nothing in 

A.B.’s interview statements to suggest, in light of C.D.’s postconviction 

testimony, that A.B. had turned 16 by the time the alleged assaults began. The 

court went on to consider whether the testimony of C.D. and her father 

nonetheless could have undermined the prosecution theory that the alleged assaults 

took place during the charged time period. In considering this issue, the court 

determined in pertinent part that Hogenson failed to sufficiently examine his trial 

counsel regarding the specifics, and for at least this reason failed to create a record 

from which it could be established that trial counsel performed deficiently in not 

pursuing a chronology-related argument. 

Analysis

¶43 Aspects of Hogenson’s chronology-related argument are unclear. 

But we understand him to argue that he is constitutionally entitled to a trial at 

which C.D. and her father testify, and defense counsel cross-examines A.B.,

regarding her statements to police about Hogenson’s living and working 

arrangements during the period over which the assaults occurred, because this 

would provide a viable defense that she was 16 when the assaults started. The 

argument is that, with that evidence, Hogenson could persuade a jury of the 

following: C.D. was two years younger than Hogenson; the assaults took place

during the time when C.D. was actively working on the farm while Hogenson was 

working there and living in Fennimore, i.e., no earlier than the summer or fall of 

2011, when C.D. was 14 or 15, making A.B. 16 or older; and A.B. was not 

accurate in her chronology that places the assaults at a time earlier than 2011.

Assuming that the circuit court would have allowed the prosecution to amend the 

criminal complaint to charge misdemeanors rather than the criminal information 
No. 2023AP636-CR

17

charging a felony, the prejudice to Hogenson was that he was deprived of the 

chance to be found guilty of a misdemeanor instead of a felony. We reject this 

argument because it depends on misinterpretations of various aspects of the 

record.

¶44 One significant problem with Hogenson’s argument is that A.B.’s 

statements to police were not precise as to when the sexual assaults occurred in 

relation to where Hogenson was living and working. When police asked A.B. 

about Hogenson’s living and working arrangements, the question was framed 

ambiguously as “at the time.” Similarly, when police asked about Hogenson’s 

contact with other young girls, the question was framed as “during that time.”

Moreover, as determined by the circuit court, A.B. did not indicate that she knew 

whether C.D. was actively working on the farm during the time that she 

understood that Hogenson was working there.

¶45 Thus, contrary to Hogenson’s current argument, it is not clear from 

questions and answers reflected in the report of A.B.’s interview that she equated

the entire period of alleged assaults with the entire time that C.D. and Hogenson

worked together on the farm beginning in 2011. A.B.’s statements on these topics

could easily be understood as her memory of Hogenson’s most recent whereabouts 

at the approximate end of the period of assaults, the fall of 2008. This is

approximately the same time period in which C.D. and her father stated that 

Hogenson began working at the farm. At a minimum, it is unclear how inaccurate 

A.B. would have been, compared with the testimony from C.D. and Hogenson, 

regarding the timing of Hogenson’s work and living arrangements. 

¶46 Moreover, so far as Hogenson shows, his working and living 

arrangements during the charged time period were not a significant aspect of 
No. 2023AP636-CR

18

A.B.’s testimony or the prosecution’s theory of guilt. Rather, A.B. testified clearly 

about the timing of the numerous alleged assaults in relation to her firsthand 

experiences: her personal experience of her school semesters and summer breaks, 

including the milestone of starting high school. Further, this aspect of her trial 

testimony was consistent with her statements to police. The clarity of A.B.’s 

testimony regarding the pertinent chronology in reference to her life events

sharply contrasts to what, so far as the record shows, was in general her merely

secondhand knowledge of Hogenson’s life outside of her direct personal contacts

with him. There is no evidence that A.B. ever went to see where Hogenson 

worked or knew about this information other than through what Hogenson or 

others told her. Instead, A.B. told police that she and Hogenson would talk on the 

phone “probably a couple times a week” and that one topic of conversation was 

“his farming job and what he did.” 

¶47 Expanding on this last, to the extent that A.B.’s testimony could 

have been undermined regarding the chronology, including the timing of 

Hogenson’s work, Hogenson fails to show that there was a meaningful probability 

that the jury would have drawn exculpatory inferences. One premise of 

Hogenson’s current argument is that he can show a meaningful probability that the 

jury could have made the following inferences based on the evidence offered at 

the postconviction hearing: nearly 13 years later, A.B. was correct about when 

Hogenson worked on the farm relative to the alleged timing of assaults, but she 

was mistaken about when the assaults took place relative to her detailed 

descriptions of events, including her meeting Hogenson and the first instance of 

sexual intercourse. Only then, so far as Hogenson argues the point, could the jury 

have concluded that the alleged assaults took place after A.B. turned 16. When 
No. 2023AP636-CR

19

taking the record as a whole, Hogenson does not meet his burden to show that 

such an inference would have been sufficiently probable.

II. Right to Assert Innocence

¶48 There is no dispute that Hogenson, in the words of the U.S. Supreme 

Court’s decision in McCoy, “expressly assert[ed]” to his trial counsel that the 

objective of his defense was to assert innocence. See McCoy, 584 U.S. at 423.

Moreover, there is no dispute that Hogenson asserted to his counsel that he did not 

have sex with A.B. at any point. With those points in mind, Hogenson argues that 

his trial counsel’s defense strategy, in particular the closing argument, constituted 

a “refus[al] to present ... Hogenson’s claim of innocence,” which violated 

Hogenson’s rights under the Sixth Amendment as articulated by the U.S. Supreme 

Court in McCoy. Hogenson contends that this is so because his trial counsel in 

essence limited his jury argument to the proposition that the prosecution did not 

meet its burden to prove guilt beyond a reasonable doubt and did not affirmatively 

assert that A.B. fabricated her allegations. We agree with the State that, under 

case law applying pertinent Sixth Amendment principles, Hogenson fails to 

establish his McCoy-based claim. 

¶49 Under the Sixth Amendment to the United States Constitution, “[i]n 

all criminal prosecutions, the accused shall enjoy the right ... to have the 

Assistance of Counsel for his defen[s]e.” In providing this “assistance,” trial 

counsel “makes the decisions regarding trial management,” which generally 

includes “‘what arguments to pursue.’” State v. Chambers, 2021 WI 13, ¶15, 395 

Wis. 2d 770, 955 N.W.2d 144 (quoting McCoy, 584 U.S. at 422). However, the 

Sixth Amendment “reserve[s]” “some decisions” for the defendant—“‘notably, 

whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, 
No. 2023AP636-CR

20

and forgo appeal.’” Id. (quoting McCoy, 584 U.S. at 422). In McCoy, the U.S. 

Supreme Court held that “‘[a]utonomy to decide that the objective of the defense 

is to assert innocence’ belongs in the category of decisions reserved for the 

defendant alone.” Chambers, 395 Wis. 2d 770, ¶18 (quoting McCoy, 584 U.S. at 

422) (alteration in Chambers). “A lawyer violates that autonomy ‘[w]hen a client 

expressly asserts that the objective’” of the client’s defense is to “‘maintain 

innocence of the charged criminal acts’ and the lawyer acts contrary to that 

objective.’” Id. (quoting McCoy, 584 U.S. at 423) (alteration in Chambers). In 

sum, “to succeed on a McCoy claim,” the defendant must show that the defendant

“‘expressly assert[ed] that the objective of [the defendant’s] defen[s]e is to 

maintain innocence of the charged criminal acts’ and the lawyer did not ‘abide by 

that objective and [overrode] it by conceding guilt.’” Id., ¶20 (quoting McCoy, 

584 U.S. at 423) (emphasis omitted; first and fourth alterations in Chambers).

¶50 In Chambers, our supreme court rejected the defendant’s argument 

that trial counsel conceded guilt in closing argument by asking the jury to 

“consider” a lesser included offense. See id., ¶¶23-24. This was primarily 

because counsel’s statement about lesser included offenses, when viewed in the 

context of the entire closing argument, did not concede her client’s guilt. Id., ¶24. 

Among the points that our supreme court counted as the assertion of innocence 

was counsel’s argument to the jury that, despite there being some evidence of 

guilt, the prosecution failed to meet its burden to prove guilt beyond a reasonable 

doubt. See id. 

¶51 Here, Hogenson rests his argument on two statements by his trial 

counsel during closing argument. As paraphrased by Hogenson, these statements 

were the following: “the question” for the jury to answer in reaching a verdict was

“not whether [A.B.] is to be believed”; and counsel “personally [did] not know 
No. 2023AP636-CR

21

whether the assaults happened.” This argument fails largely because these 

paraphrases omit important context from the remainder of counsel’s closing 

argument that demonstrates that both statements were part of a larger argument 

asserting Hogenson’s innocence by way of contending that the prosecution had not 

established guilt beyond a reasonable doubt. See id., ¶24 (evaluating closing 

argument in its entirety). We now explain in more detail.

¶52 Regarding counsel’s statement to the jury that the main issue at trial 

was not whether to believe A.B., this was merely part of an explicit request that 

the jury assess A.B.’s credibility according to the jury instructions. See WIS JI—

CRIMINAL 300 (instructing jurors to evaluate witness credibility based on factors 

including the witness’ demeanor, “lack of clearness of the witness’ recollection,” 

and their “[p]ossible motives for falsifying testimony”). This complemented 

counsel’s challenges to A.B.’s credibility based on, for example, arguing that her 

demeanor suggested that the jury could not consider her testimony sufficient to 

convict. 

¶53 As to counsel’s statement that he did not personally know whether 

Hogenson assaulted A.B., counsel explicitly framed this as a rejoinder to what 

counsel characterized as the prosecutor’s assertion to the jury that the prosecutor 

personally knew that the assaults happened.

4

 Counsel’s argument would have 

 

4

 Although Hogenson does not make it clear in his briefing, we understand him to be 

referring to the following statement by defense counsel during closing argument: 

[The prosecutor] did say: “and it[, meaning the sexual assaults,] 

did happen.” Guess what? He doesn’t know. I don’t know. 

And you don’t know. He used that phrase: “and it did happen.” 

Well, that’s the question. What’s the [“]it[”] and what 

happened[?] 
No. 2023AP636-CR

22

been reasonably processed by the jury as a commonsense critique of the 

suggestion that the prosecutor could have personal knowledge and as a reminder 

that the jury was required to make its finding based on the evidence alone. 

Further, putting aside the prosecutor’s statement, defense counsel’s statement was 

made in the larger context of an argument that the evidence presented by the 

prosecution was insufficient to convict. This included what counsel contended

was an incomplete investigation of whether aspects of A.B.’s testimony could be 

corroborated regarding alleged events from approximately 13 years before trial. 

Taken as a whole, trial counsel’s focus on the prosecution’s ability to meet its 

burden did not disregard or override Hogenson’s objective to claim innocence by 

conceding guilt, much as occurred in Chambers.

¶54 What remains of Hogenson’s argument on this issue rehashes his 

disagreement with trial counsel’s strategy related to the traffic stop evidence and 

additional material that might have undermined A.B.’s testimony, which we have 

already discussed. That is, Hogenson now asserts that counsel was required to 

advance his claim of innocence by being more explicit in contending that A.B. 

fabricated the allegations. As we have noted, however, for purposes of McCoy, 

counsel’s decision not to take that route was strategic and belonged to counsel 

alone. See id., ¶15. 

III. Jury Instructions

¶55 Hogenson argues that the circuit court erred in crafting its instruction 

to the jury in response to a question sent out by the jury during deliberations. The 

jury’s question was short: “Was [A.B.]’s initial report of sexual assault filed 

before or after the traffic stop?” The court instructed the jury as follows:
No. 2023AP636-CR

23

The answers to your question are contained within the 

record of the testimony at the trial. You should rely on 

your collective memory of the evidence in ascertaining the 

answer to that question if you seek that answer.

However, in respect to that factual issue, I want to 

instruct you that neither party in this case asserts that [A.B.] 

fabricated the allegations of sexual assault in response to 

[the boyfriend]’s speeding ticket. Nor do they assert that 

[the boyfriend] somehow thereafter subjected [A.B.] to any 

improper influence to create a false allegation of sexual 

assault. Disregard any suggestion that [A.B.’s] allegations 

are connected to the speeding ticket stop.

Hogenson argues that the second paragraph of this instruction “invaded the 

province of the jury to act as the factfinder” by determining “which evidence was 

relevant and material.” We conclude that the court properly exercised its 

discretion in crafting this instruction under the particular circumstances here.

5

¶56 The parties agree that the circuit court’s decision regarding how to 

respond to the jury’s question here constituted the creation of a jury instruction. 

See WIS. STAT. § 805.13(5) (“After the jury retires, the court may reinstruct the 

jury as to all or any part of the instructions previously given, or may give 

supplementary instructions as it deems appropriate.”). 

¶57 “A circuit court has broad discretion in issuing jury instructions 

based on the facts and circumstances of the case.” State v. Neumann, 2013 WI 

58, ¶89, 348 Wis. 2d 455, 832 N.W.2d 560. “A circuit court must, however, 

‘exercise its discretion in order to fully and fairly inform the jury of the rules of 

law applicable to the case and to assist the jury in making a reasonable analysis of 

the evidence.’” Id. (quoted source omitted). “[W]e analyze the [court’s]

 

5

 Accordingly, we do not reach Hogenson’s argument that the purported error was not 

harmless. 
No. 2023AP636-CR

24

instructions as a whole to determine their accuracy, viewing them in the context of 

the overall charge,” and do not review any “particular instruction in isolation.” 

See State v. McKellips, 2016 WI 51, ¶30, 369 Wis. 2d 437, 881 N.W.2d 258.

¶58 “[A circuit] court cannot pass judgment on either the motives or the 

veracity of a witness in open court. These are matters for the jury, the trier of 

fact.” Murray v. State, 83 Wis. 2d 621, 627, 266 N.W.2d 288 (1978); see also

State v. Vinson, 183 Wis. 2d 297, 302, 515 N.W.2d 314 (Ct. App. 1994) (the rule 

“that it is improper for one witness to comment on the credibility of another 

witness’s testimony ... should apply even more forcefully to judges”). In Murray, 

it was error for the circuit court to allow the jury to inadvertently hear about the 

court’s transcribed, in-chambers comment that a key witness was apparently 

motivated to alter the witness’s testimony to protect the defendant as a friend. See 

id. at 625-28 (concluding that the error was not harmless, but rejecting defense 

argument based on failure to preserve it in circuit court).

Additional Background

¶59 Earlier on in the trial and outside the presence of the jury, the parties 

and the circuit court discussed the possible interaction between the traffic-stop 

evidence (which, as referenced above, could have provided a basis for Hogenson 

to argue that friction between the boyfriend and Hogenson caused or contributed 

to A.B. fabricating the allegations) and the prosecution’s interest in presenting 

A.B.’s prior consistent statements about the sexual assaults (which, as we have 

explained, had to be triggered by a claim of recent fabrication or improper 

influence). Specifically, they discussed Hogenson’s position that, at least to that 

point in the trial, the defense had not “opened the door” to allow the prosecution to 

introduce the inculpatory prior consistent statements. During this discussion, the 
No. 2023AP636-CR

25

circuit court raised the possibility of giving a jury instruction explaining that the 

defense was not pursuing, and would disavow: the theory that A.B. fabricated her 

allegations or was unduly influenced by events arising from or surrounding the 

traffic stop. Defense counsel told the court that he was willing to make such a 

disavowal explicit in his closing argument, making the special instruction 

unnecessary. At this point, the court ruled that it would preclude the prosecution 

from offering the prior consistent statements. The court further explained that it 

would instruct the jury on the topic if, but only if, the closing argument of either 

side raised the “specter of the interplay of the traffic stop with the timing of” 

A.B.’s reporting the sexual assaults to police. 

¶60 In their closing arguments, both the prosecutor and defense counsel 

told the jury that the defense was not arguing that A.B. fabricated assault 

allegations as a result of the events surrounding the traffic stop. Despite this, as 

noted, the jury sent out the short question quoted supra, ¶55.

¶61 Outside the jury’s presence, the circuit court observed that the jury’s 

question could be seen as “a realization of the [c]ourt’s worst fears about what the 

jury would do with the lack of evidence,” namely, the lack of testimony by A.B.

regarding the timing and nature of her statements to various persons about the 

assaults before reporting them to police. The court further said that, “if nothing 

else,” the jury’s question “supports the idea that the parties successfully 

deemphasized that issue,” because the jury appeared not to fully understand the 

chronology that included A.B.’s reporting of the allegations to police. 

¶62 The circuit court shared with the parties its tentative plan for how to 

respond to the jury question: “Given the manner in which the case was 

presented,” the court would instruct the jury to rely on its collective memory to 
No. 2023AP636-CR

26

recall facts in evidence, but also planned to add the language quoted above, supra 

¶55.

¶63 Defense counsel objected, taking the position that the circuit court 

should instruct the jury only that jurors “are to rely upon their recollection of the 

evidence as admitted.” Counsel argued that the court saying more than that would 

not assist the jury and “may further confuse the issue.” The court responded in 

part that failing to more fully instruct the jury regarding the issue they raised

would permit the jury to decide the case other than how it was “very expressly” 

and “explicitly” tried, leaving only other issues to be contested. Failing to give a 

more full instruction would, in the court’s view, have the effect of permitting the 

jury “to decide a different case than was tried.” The court described the decision 

of the defense to explicitly disavow the recent fabrication theory arising from the 

traffic stop as “very consequential,” and that it dictated how both sides tried the 

case. Therefore, the court reasoned, it would be “unjust” not to more fully instruct 

the jury.

¶64 While maintaining his objection to the circuit court’s proposed 

instruction, defense counsel argued that if the court gave it, the court should also 

answer the specific factual question posed by the jury: “Was [A.B.]’s initial report 

of sexual assault filed before or after the traffic stop?” Counsel noted that the 

timing of A.B.’s first report to police relative to the traffic stop (a few weeks later) 

was a fact in evidence. Counsel argued that failing to answer the question directly, 

and instead “steer[ing] their thinking” on the topic, would “invad[e] the province 

of the jury.” The court expressed a concern that, if the court attempted to provide 

facts to the jury, referencing individual pieces of evidence in the record—such as 

the timing of the report relative to the traffic stop—it would inadvertently 

emphasize those pieces of evidence to the exclusion of other evidence bearing on 
No. 2023AP636-CR

27

that topic, such as that A.B. had told the boyfriend about the sexual assaults before 

the traffic stop. Defense counsel acknowledged that referencing certain facts in an 

instruction could create “a slippery slope.” Counsel then circled back to the 

position that the court should instruct the jury only to rely on its collective 

memory. The defense also argued more generally that the court’s proposed 

instruction would “interfere” with the ability of the jury to assess A.B.’s 

credibility. 

¶65 The prosecutor at times took the position that the circuit court should 

instruct the jury to “rely on their collective memory” of the trial evidence, without 

referencing specific evidence. However, the prosecutor at other times appeared to 

express support for the court instructing the jury more fully on the topic of when 

A.B. made her initial report to police. 

¶66 After receiving the instruction quoted above, the jury reached a 

guilty verdict without asking the circuit court another question.

Analysis

¶67 The circuit court did not erroneously exercise its discretion in 

crafting the instruction that it gave under the particular circumstances that arose 

here. The court scrupulously reflected the positions that were consistently and 

explicitly taken by the parties throughout trial on the connection (or the lack 

thereof) between the traffic stop and the potential admission of A.B.’s prior 

consistent statements. Hogenson’s disavowal of a recent fabrication theory was 

taken with the specific intent of avoiding the admission of prior consistent 

statements. The instruction was consistent with the court’s ruling on the prior 

consistent statements and conformed to the pertinent language in WIS. STAT.
No. 2023AP636-CR

28

§ 908.01(4)(a) by addressing whether A.B. “fabricated” her allegations or the 

boyfriend “subjected [A.B.] to any improper influence” based on the traffic stop.

¶68 In effect, the circuit court gave the jury a cautionary instruction on 

evidence relating to the traffic stop. It directed the jury to ignore uses of that 

evidence that Hogenson’s defense explicitly disavowed, as part of defense 

counsel’s reasonable and important strategic choice. See WIS. STAT. § 901.06 

(“When evidence which is admissible ... for one purpose but not admissible ... for 

another purpose is admitted, the judge, upon request, shall restrict the evidence to 

its proper scope and instruct the jury accordingly.”). Hogenson does not argue 

that the instruction at issue was not tailored to the facts of the case as tried by the 

parties. As the court transparently explained to the parties at the time, it was 

tailored to the way the case was tried by the parties. 

¶69 We conclude that the circuit court made a reasonable determination 

that this instruction was necessary to exclude evidentiary inferences whose 

probative value was substantially outweighed by the danger of confusion over the 

issues presented at trial. See WIS. STAT. § 904.03. A.B. was not asked at trial if 

the traffic stop motivated or influenced her testimony. The court’s logic, which 

we conclude was reasonable, was that the jury was not in a position to fairly assess 

whether the traffic stop could have improperly influenced A.B. without also being 

able to assess prior consistent statements to which the jury did not have access. 

¶70 Hogenson asserts that it was improper for the circuit court to attempt 

to “turn[] the jury’s focus ... to matters” that the court considered “in actual 

dispute,” but he generally fails to support this proposition. Hogenson contends

that the instruction was “a legal ruling on an issue of fact,” namely “the credibility 

and motivations” of A.B. as a witness. It is true that the instruction dealt with the 
No. 2023AP636-CR

29

possible inference of whether A.B.’s allegations were specifically motivated or 

unduly influenced by the events surrounding the traffic stop, and that this related

to her overall credibility as a witness. However, the instruction did not direct the 

jury to find that A.B.’s testimony was credible in any respect. Thus, the jury was 

not precluded from determining whether A.B. was incredible or motivated to 

fabricate in general, such as could have occurred if the court had improperly 

supplied its own view of her credibility or motivations. Cf. Murray, 83 Wis. 2d at 

626 (circuit court, through in-chambers remarks inadvertently given to jury, 

“offered its own explanation for” a witness’ “differing stories and hesitation”). 

Put differently, the instruction did not comment on any aspect of A.B.’s 

motivations that was placed at issue by the parties at trial. This distinguishes 

Hogenson’s attempt to rely on, by analogy, case law involving a witness 

improperly vouching for the credibility of another witness. See State v. Haseltine, 

120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984) (expert testimony stating 

opinion that witness was a victim of incest was effectively an opinion that the 

witness was telling the truth about incest allegations); Vinson, 183 Wis. 2d at 302. 

¶71 It further undermines Hogenson’s argument that the circuit court

instructed the jury regarding witness credibility in a way that reinforced the 

concept that the jury was the exclusive judge of the credibility of witnesses and the 

weight of their testimony. The court instructed jurors before the opening of the 

evidence phase of the trial that they were “the judges of the credibility of the 

witnesses and the weight of the evidence.” Similarly, after the close of evidence, 

the court instructed the jurors regarding the weighing of credibility in pertinent 

part as follows:

In determining the credibility of each witness and 

the weight you give to the testimony of each witness 

consider these factors. Whether the witness has an interest 
No. 2023AP636-CR

30

or lack of interest in the result of this trial. The witness’ 

conduct, appearance, and demeanor on the witness stand. 

The clearness or lack of clearness of the witness’ 

recollection. The opportunity the witness had for observing 

and for knowing the matters the witness testified about. 

The reasonableness of the witness’ testimony. The 

apparent intelligence of the witness. Bias or prejudice, if 

any has been shown. Possible motives for falsifying 

testimony. And all other facts and circumstances during 

the trial which tend either to support or to discredit the 

testimony. Then give to the testimony of each witness the 

weight you believe it should receive. 

See WIS JI—CRIMINAL 300. It is true that these standard instructions address 

witness credibility and motivations at the general level. But they could be readily

and properly applied to the specific challenged instruction here, including its first 

portion: “The answers to your question are contained within the record of the 

testimony at the trial. You should rely on your collective memory of the evidence 

in ascertaining the answer to that question if you seek that answer.”

CONCLUSION

¶72 For all of these reasons, we affirm the judgment of conviction and 

the circuit court’s denial of Hogenson’s postconviction motion for a new trial.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS.

STAT. RULE 809.23(1)(b)5.