COURT OF APPEALS

DECISION

DATED AND FILED

October 13, 2022

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. 2021AP2070-CR Cir. Ct. No. 2017CF834

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

VANIN DELL MCKINNON,

 DEFENDANT-APPELLANT.

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

La Crosse County: ELLIOTT M. LEVINE, Judge. Affirmed. 

Before Blanchard, P.J., Kloppenburg, 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). 
No. 2021AP2070-CR

2

¶1 PER CURIAM. Vanin McKinnon appeals a judgment convicting 

him of repeated sexual assault of the same child and an order denying his 

postconviction motion for a new trial. McKinnon argues that his trial counsel

provided constitutionally ineffective assistance in three respects: (1) failing during 

voir dire to ask follow-up questions of a prospective juror, who ultimately sat on 

the jury, after she said that she knew the prosecutor “as a family friend;”

(2) failing to object to or move to strike the forensic interviewer’s testimony that 

she believed what the child, A.B., told her;

1

and (3) failing to properly object to 

the testimony of A.B.’s grandmother that she had been convicted of child neglect 

for failing to protect A.B. from McKinnon’s sexual assaults alleged in this case. 

For the reasons set forth below, we conclude that McKinnon was not denied his 

right to the effective assistance of counsel. We affirm.

BACKGROUND

¶2 The State charged McKinnon with repeated sexual assault of the 

same child between 2014 and 2017, when A.B. was between five and nine years 

old, and the case proceeded to a jury trial in September 2019. During voir dire, a 

prospective juror said that she knew the prosecutor representing the State in this 

case “as a family friend.” In response to questioning by the circuit court, the 

prospective juror said that she could set aside the fact that she knows the 

prosecutor as a family friend and “listen to [the] evidence fairly.” She was

empaneled on the jury. The court asked counsel if there were “[a]ny concerns 

about the jury selection at all,” and neither counsel indicated any concerns. 

 

1

 To protect the identity of the child, we refer to her as “A.B.” See WIS. STAT.

RULES 809.19(1)(g) and 809.86. All references to the Wisconsin Statutes are to the 2019-20 

version unless otherwise noted.
No. 2021AP2070-CR

3

¶3 During the course of the trial, forensic interviewer Jeanne Meyer 

testified regarding her interview of A.B. in August 2017, and portions of a video 

recording of that interview were played for the jury. After the video was played, 

McKinnon’s trial counsel cross-examined Meyer with regard to how she 

conducted interviews. Meyer testified that her job “isn’t to determine whether 

something’s happened or not,” and that as a forensic interviewer she is “neutral in 

that situation.” Trial counsel then asked Meyer if she knew whether or not A.B. 

had experienced the sexual assaults she described, and Meyer testified, “A.B. told 

me she experienced those things, so, yes, I believe her.” Trial counsel then asked, 

“Yes, you know she experienced them?” Meyer testified, “I believed what she 

told me.” Trial counsel did not question Meyer further after that exchange. 

¶4 A.B.’s grandmother also testified during the trial. She testified that 

A.B. lived with her since A.B. was three months old, and that she observed several 

incidents between McKinnon and A.B. that she considered to be inappropriate, 

including: McKinnon caressing A.B.’s shoulders and kissing her neck; McKinnon 

and A.B. being in their bedroom with A.B. naked and kneeling in front of 

McKinnon; and McKinnon caressing A.B.’s breast. On redirect examination by 

the prosecutor, A.B.’s grandmother testified that she was convicted of child 

neglect for failing to protect A.B. from sexual abuse, which the grandmother 

testified “[s]pecifically related to incidents that we are talking about” at the trial. 

¶5 The other witnesses who testified at trial were the detective who 

investigated the allegations and interviewed McKinnon (and portions of a video 

recording of that interview were played for the jury), A.B., and McKinnon. 

McKinnon testified that he acknowledged in the interview with the detective that 

there were times when he touched A.B.’s vagina and butt, including once when 

she was in the bathtub; that the touching in the bathtub was a mistake; that he had 
No. 2021AP2070-CR

4

A.B. sit on his lap and rocked in the chair with her in his lap; that he had 

previously been confronted by A.B.’s mother about inappropriate touching of A.B. 

and ultimately moved out of their shared residence because “there had been one 

too many instances”; and that he did not recall ever touching or putting his mouth 

on A.B.’s nipples.

¶6 The jury found McKinnon guilty of repeated sexual assault of a 

child. 

¶7 In February 2021, McKinnon filed a postconviction motion alleging 

ineffective assistance of counsel and seeking a new trial. Specifically, McKinnon 

alleged that trial counsel was ineffective for: (1) failing during voir dire to ask 

follow-up questions of the prospective juror in order “to develop the facts 

regarding [her] relationship with” the prosecutor; (2) failing to object to or move 

to strike Meyer’s twice-repeated testimony that she believed what A.B. told her, 

on the grounds that the testimony was non-responsive and in violation of the 

Haseltine rule;2and (3) failing to properly object to the testimony of A.B.’s 

grandmother regarding her conviction for child neglect for failing to protect A.B. 

from McKinnon’s sexual abuse. In June 2021, the circuit court held an 

evidentiary Machner3 hearing, at which the juror and trial counsel testified. We 

present the details of their testimony as pertinent to our discussion below.

 

2

 State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (1984) (stating that the 

credibility of a witness is for the jury to decide, and that “[n]o witness ... should be permitted to 

give an opinion that another mentally and physically competent witness is telling the truth.”).

3

 State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (when a 

defendant claims he or she received the ineffective assistance of trial counsel, a postconviction 

hearing “is a prerequisite ... on appeal to preserve the testimony of trial counsel.”). 
No. 2021AP2070-CR

5

¶8 In November 2021, the circuit court denied the motion. The court 

determined that trial counsel did not perform deficiently with respect to counsel’s 

questioning of the prospective juror or counsel’s failure to object to Meyer’s 

testimony. The court also determined that McKinnon was not prejudiced by the 

grandmother’s testimony about her conviction, given the other trial evidence, 

particularly the grandmother’s observations and A.B.’s testimony. McKinnon 

appeals.

DISCUSSION

¶9 McKinnon renews his claims of ineffective assistance of trial 

counsel on appeal.

¶10 Under both the Wisconsin and United States Constitutions, to prevail 

on an ineffective assistance of counsel claim, the defendant must show that 

counsel’s actions or inaction constituted deficient performance and that, as a result 

of that deficient performance, the defendant was prejudiced. Strickland v. 

Washington, 466 U.S. 668, 687 (1984); State v. Love, 2005 WI 116, ¶30, 284 

Wis. 2d 111, 700 N.W.2d 62; State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d 571, 

665 N.W.2d 305.

¶11 To prove deficient performance, “the defendant must establish that 

counsel’s conduct [fell] below an objective standard of reasonableness.” Love, 

284 Wis. 2d 111, ¶30. The defendant must show that, under all of the 

circumstances, counsel’s specific acts or omissions were “outside the wide range 

of professionally competent assistance.” Strickland, 466 U.S. at 690. To prove 

prejudice, the defendant must establish “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 
No. 2021AP2070-CR

6

different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. at 694.

¶12 The defendant bears the burden of proving both of these elements. 

State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111. If we 

conclude that the defendant has not proved one prong, we need not address the 

other. Strickland, 466 U.S. at 697; State v. Nielsen, 2001 WI App 138, ¶27, 246 

Wis. 2d 648, 630 N.W.2d 752.

¶13 Whether counsel’s actions were deficient or prejudicial is a mixed 

question of law and fact. Strickland, 466 U.S at 698. We will uphold the circuit 

court’s findings of fact unless they are clearly erroneous. State v. Thiel, 2003 WI 

111, ¶21, 264 Wis. 2d 71, 665 N.W.2d 305; State v. Kimbrough, 2001 WI App 

138, ¶27, 246 Wis. 2d 648, 630 N.W.2d 752. “Findings of fact include ‘the 

circumstances of the case and the counsel’s conduct and strategy.’” Thiel, 264 

Wis. 2d 571, ¶21 (citation omitted). Whether counsel’s conduct violated the 

defendant’s right to effective assistance of counsel is a legal determination, which 

this court decides de novo. Kimbrough, 246 Wis. 2d 648, ¶27. 

I. Failure to question prospective juror further

¶14 “The United States Constitution and Wisconsin’s Constitution 

guarantee an accused an impartial jury.” State v. Lepsch, 2017 WI 27, ¶21, 374 

Wis. 2d 98, 892 N.W.2d 682 (internal quotation marks and quoted source 

omitted). “To be impartial, a juror must be indifferent and capable of basing his or 

her verdict upon the evidence developed at trial.” State v. Faucher, 227 Wis. 2d 

700, 715, 596 N.W.2d 770 (1999). There are three types of prospective juror bias: 

(1) statutory bias; (2) subjective bias; and (3) objective bias. Faucher, 227 

Wis. 2d at 716. 
No. 2021AP2070-CR

7

¶15 McKinnon argues that trial counsel was ineffective by failing to ask

follow-up questions about the nature of the relationship between the prospective 

juror and the prosecutor in order to determine whether their relationship was such 

that it rendered her objectively biased. “The concept of objective bias relates to 

the question of ‘whether [a] reasonable person in the individual prospective juror’s 

position could be impartial.’” Lepsch, 374 Wis. 2d 98, ¶24 (quoting Faucher, 227 

Wis. 2d at 718). A juror “should be viewed as objectively biased if a reasonable 

person in the juror’s position could not avoid basing his or her verdict upon 

considerations extraneous to evidence put before the jury at trial.” State v. Tody, 

2009 WI 31, ¶36, 316 Wis. 2d 689, 764 N.W.2d 737, abrogated in part as stated 

in State v. Sellhausen, 2012 WI 5, ¶73, 338 Wis. 2d 286, 809 N.W.2d 14 (Ziegler, 

J., concurring). Exclusion of a prospective juror for objective bias requires either: 

“(1) some direct or personal connection between the challenged juror and some 

important aspect of the particular case, or (2) a firmly held negative predisposition 

by the juror regarding the justice system that precludes the juror from fairly and 

impartially deciding the case.” State v. Jimmie R.R., 2000 WI App 5, ¶19, 232 

Wis. 2d 138, 606 N.W.2d 196. Pertinent here, the question is whether the

relationship with the prosecutor was “close enough to have biased a reasonable 

person” in the position of the prospective juror. State v. Beck, No. 2010AP872, 

unpublished slip op. at ¶28 (WI App Oct. 20, 2011).

4

¶16 “Whether a juror is objectively biased is a mixed question of fact 

and law.” Faucher, 227 Wis. 2d at 720. The circuit court’s factual findings will 

be upheld unless they are clearly erroneous. Id. “Whether those facts fulfill the 

 

4

 See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished 

opinions issued after July 1, 2009, for their persuasive value).
No. 2021AP2070-CR

8

legal standard of objective bias is a question of law.” Id. Because the circuit 

court’s conclusion on objective bias is intertwined with its factual findings, “it is 

appropriate that [the appellate] court give weight to the circuit court’s conclusion.” 

Id.

¶17 “A failure to object or to further question a juror may be raised as a 

claim of ineffective assistance of counsel.” State v. Carter, 2002 WI App 55, ¶14, 

250 Wis. 2d 851, 641 N.W.2d 517. In the context of an ineffective assistance of 

counsel claim, the prejudice prong in a claim concerning juror bias presents as a 

question of whether counsel’s performance resulted in the seating of a biased 

juror. See State v. Koller, 2001 WI App 253, ¶14, 248 Wis. 259, 635 N.W.2d 838

(stating that, when a defendant asserts trial counsel was ineffective for failing to

sufficiently question a prospective juror, “[t]he prejudice issue here is whether 

[defendant’s] counsel’s performance resulted in the seating of a biased juror”). 

“[C]ounsel’s failure to act to remove a biased juror who ultimately sat on the jury 

constitutes deficient performance resulting in prejudice” to the defendant. Carter, 

250 Wis. 2d 851, ¶15. 

¶18 To recap, during voir dire, the prospective juror said, “I know [the 

prosecutor] as a family friend.” In response to questioning by the circuit court, she

said, “I can set that aside and listen to evidence fairly.” 

¶19 We assume, without deciding, that it was deficient performance 

during voir dire for counsel to fail to question the prospective juror further about

the nature of her relationship with the prosecutor to determine whether their 

relationship was such that it rendered her objectively biased. See Beck, ¶¶17-18 

(WI App Oct. 20, 2011) (ruling that defense counsel was deficient in not probing 

more deeply into prospective juror’s relationship with the district attorney, whom 
No. 2021AP2070-CR

9

she had known “for several years,” and into her relationship with the assistant 

district attorney, whom she knew “on a social basis”). We turn to whether that 

deficient performance resulted in prejudice to McKinnon, that is, whether 

McKinnon has met his burden of showing that the juror was objectively biased. 

We first review the juror’s testimony at the postconviction hearing along with the 

circuit court’s ruling and then explain our conclusion that McKinnon fails to show 

that the juror was objectively biased.

¶20 At that hearing, the juror offered the following testimony. 

¶21 She and the prosecutor both volunteered at a dog rescue program. 

She and the prosecutor had different roles and levels of involvement in the rescue 

organization, and were not “partners” in it. She saw the prosecutor only at public 

adoption events focused on dogs. She volunteered at adoption events for two 

hours each month for two to three years, always with a group of four or more 

people, never only with the prosecutor. 

¶22 The juror had known the prosecutor for more than five years and 

considered the prosecutor “an acquaintance, someone I trust.” They were not 

close and they did not talk to each other outside of the rescue work. She did not 

have personal conversations on the phone with the prosecutor and did not call the 

prosecutor to go to dinner. She did contact the prosecutor once before the trial in 

this case to ask some “process questions” regarding her then pending divorce. She

respected attorneys and had the opportunity to assess the prosecutor’s credibility 

before trial, but she “was told to put all feelings and relations aside, and I did.” 

She had no discussions with the prosecutor about this case before the trial, and 

during trial they had no communications that were not on the record. 
No. 2021AP2070-CR

10

¶23 The circuit court rejected McKinnon’s claim that counsel was 

ineffective in not further questioning the prospective juror during voir dire about 

her relationship with the prosecutor. The court found that the “prosecutor was 

someone [whom the juror] worked with periodically, not someone she was closely 

tied with,” and that the juror “didn’t describe a relationship at a level showing 

objective bias.” 

¶24 We conclude that the juror’s testimony at the Machner hearing, and 

the circuit court’s factual findings based on that testimony, establish that her

relationship with the prosecutor was “not close enough to have biased a reasonable 

person.” Beck, No. 2010AP872, ¶28 (WI App Oct. 20, 2011) (concluding from a 

reading of the voir dire transcript that three jurors challenged by defendant were 

not objectively biased because their relationships with the district attorney were 

sufficiently distant such that a reasonable person in the position of each of the 

jurors would be able to remain fair and impartial). The record supports the circuit 

court’s findings that the juror and the prosecutor interacted only occasionally and 

did not have a close personal relationship. As in Beck, the interactions between 

the two were sufficiently sporadic and their relationship was sufficiently distant 

that a reasonable person in the juror’s position would be able to remain fair and 

impartial. See id. at ¶28. Because the juror was not objectively biased, trial 

counsel’s failure during voir dire to question her further about her relationship 

with the prosecutor did not prejudice McKinnon. Accordingly, McKinnon fails to 

show that trial counsel was constitutionally ineffective.

¶25 McKinnon argues that the juror was objectively biased because of 

her friendship with the prosecutor. McKinnon characterizes that friendship as a 

“very substantial relationship” between two people who shared the same charitable 

goal, who “saw each other frequently over a lengthy period of time,” and who 
No. 2021AP2070-CR

11

shared “significant social ties.” This characterization exaggerates the record 

reviewed above, which shows that she saw the prosecutor only occasionally and as 

part of larger groups and did not see the prosecutor individually or socially; it is 

also inconsistent to a significant degree with the circuit court’s findings that the 

two worked together only periodically and were not socially close.5 

¶26 McKinnon also points to the juror’s testimony that she considered 

the prosecutor to be fair and honest when she dealt with the prosecutor. 

McKinnon analogizes this situation to that in Faucher, in which our supreme 

court concluded that a prospective juror was objectively biased based on his 

statements that a witness was his former next-door neighbor, who he knew to be 

“a girl of integrity” who “wouldn’t lie.” Faucher, 227 Wis. 2d at 708, 735. 

However, the court in Faucher stressed that it was the juror’s “strongly held 

beliefs” and “strongly held initial assurances” as to the witness’s credibility, not 

their relationship as neighbors, which was the basis for its determination of 

objective bias. Id. The court noted that on three occasions the juror expressed the 

view that the witness’s credibility was unimpeachable. Id. at 732-33. By contrast, 

McKinnon fails to show that the juror in this case possessed such “strongly held 

beliefs” or made such “strongly held” unequivocal assurances as to the 

prosecutor’s credibility. 

¶27 McKinnon also argues that, because the juror did not disclose a

similar relationship with defense counsel, she “would have been more inclined to 

 

5

 McKinnon supports his argument with a citation to Montgomery v. Commonwealth, 

819 S.W.2d 713 (Ky. 1991). That case does not help McKinnon not only because it is a nonWisconsin case that is not binding, but also because the language McKinnon cites presumes bias 

only when a sufficiently close relationship is established, id. at 717, which is not the case here. 
No. 2021AP2070-CR

12

side with” the prosecutor. However, when asked if she “would have been more 

inclined to respect [the prosecutor’s position] than [a position held by] somebody 

else,” the juror testified, “I respect all attorneys,” and that “we were asked to put 

all feelings and relations aside, which I did.” We conclude that, taking into 

account the juror’s testimony as a whole, it was reasonable for the circuit court to 

conclude that a reasonable person in the juror’s position could set aside her 

opinion and be impartial. See Faucher, 227 Wis. 2d at 718-19 (the emphasis of 

the assessment of whether a juror is objectively biased is “on the reasonable 

person in light of” the facts and circumstances surrounding the juror’s statements).

¶28 In sum, McKinnon fails to provide a basis for us to disturb the 

circuit court’s reasonable determination that the prospective juror was not 

objectively biased. See Faucher, 227 Wis. 2d 700 at 731-2, ¶56 (the appellate 

court will reverse the circuit court’s conclusion that a prospective juror is not 

biased “only if as a matter of law a reasonable judge could not have reached such a 

conclusion.”); see also Lepsch, 374 Wis. 2d 98, ¶37 (defendant failed to 

demonstrate he was prejudiced by counsel’s deficient performance at voir dire 

when he failed to provide “sufficient reason to upset the circuit court’s 

determination” that prospective jurors who sat on jury were not biased).

II. Failure to object to Meyer’s testimony that she believed A.B.

¶29 McKinnon argues that trial counsel rendered ineffective assistance 

by failing to object to or move to strike Meyer’s twice-repeated testimony that she 

believed what A.B. told her, on the grounds that the testimony violated the 

Haseltine rule. We decide this issue based on a failure to show prejudice. See 

Strickland, 466 U.S. at 697 (stating that if the court concludes that the defendant 

has not proved one prong, it need not address the other).
No. 2021AP2070-CR

13

¶30 In State v. Krueger, 2008 WI App 162, ¶¶9-13, 314 Wis. 2d 65, 762 

N.W.2d 114, this court reviewed opinions addressing the admissibility of expert 

opinion in cases involving allegations of child sexual assault. We began with

State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984), in which this 

court concluded that “no expert should be permitted to give an opinion that 

another mentally and physically competent witness is telling the truth.” Krueger, 

314 Wis. 2d 65, ¶9 (citing Haseltine, 120 Wis. 2d at 96). Citing Haseltine, 120 

Wis. 2d at 96, we stated, “An opinion that a complainant was sexually assaulted or 

is telling the truth is impermissible. The credibility of a witness is ordinarily 

something a lay juror can knowledgeably determine without the help of an expert 

opinion.” Krueger, 314 Wis. 2d 65, ¶9. 

¶31 We then cited State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 

(1988), in which our supreme court similarly ruled that “‘the expert witness must 

not be allowed to convey to the jury his or her own beliefs as to the veracity of the 

complainant with respect to the assault.’” Krueger, 314 Wis. 2d 605, ¶12 (quoting 

Jensen, 147 Wis. 2d at 256-57). 

¶32 In Krueger, we addressed the defendant’s claim that his trial counsel 

was constitutionally ineffective for failing to object to testimony by the social 

worker who conducted a forensic interview of the alleged child sexual assault 

victim. Krueger, 314 Wis. 2d 605, ¶¶1-3. After the jury viewed the videotaped 

interview and the child testified, the social worker was called as a witness and was 

asked about methods she used to determine whether the child was subject to 

coaching or suggestibility. Id. at ¶5. She was then asked whether she formed an 

opinion as to whether the child’s incriminating statements were the product of any 

coaching or suggestibility. Id. The social worker testified that the child was not 

sophisticated enough to maintain a fabricated story and, therefore, could not have 
No. 2021AP2070-CR

14

consistently recounted the details of the alleged incident “unless it was something 

that she had experienced.” Id. at ¶¶1, 5. We determined that “the social worker 

effectively offered expert opinion testimony that the child was telling the truth, 

which is impermissible under State v. Haseltine.” Id. at ¶¶1, 19 (“Haseltine and 

Jensen make clear that opinion testimony as to a particular child may not cross the 

line by including a subjective determination as to the credibility of the 

complainant.”). Accordingly, we concluded that it was deficient performance for 

trial counsel to fail to object to the testimony; we also concluded that, based on the 

facts of that case, the defendant was prejudiced by counsel’s failure. Id. at ¶¶1, 

17-18.

¶33 Here, as stated, after portions of a video recording of the forensic 

interview of A.B. were played for the jury, McKinnon’s trial counsel crossexamined Meyer with regard to how she conducted interviews. Trial counsel then 

asked Meyer if she knew whether A.B. had experienced the sexual assaults she 

described, and Meyer testified, “A.B. told me she experienced those things, so, 

yes, I believe her.” Trial counsel then asked, “Yes, you know she experienced 

them?” Meyer testified, “I believed what she told me.”6 

¶34 Assuming without deciding that Meyer “effectively offered expert 

opinion testimony that the child was telling the truth, which is impermissible 

under State v. Haseltine,” id. at ¶¶1, 19, we conclude that counsel’s failure to 

object to that testimony, based on the facts of this case, did not prejudice 

McKinnon. Unlike in Krueger, in which the child’s account of the one sexual 

 

6

 The parties do not identify, and we do not discern, any significance in Meyer’s use of 

first the present tense (“believe”) and then the past tense (“believed”) in response to trial 

counsel’s series of related questions.
No. 2021AP2070-CR

15

assault was not corroborated by independent evidence, id. at ¶18, here A.B.’s 

grandmother testified that she witnessed several of the sexual assaults described 

by A.B. In the face of such eye-witness corroboration, we cannot conclude that 

without Meyer’s testimony—that she believed what A.B. told her about the 

assaults that A.B.’s grandmother testified she witnessed—there is a reasonable 

probability that the result of the trial would have been different. 

¶35 McKinnon argues that trial counsel’s failure to object to this 

testimony was prejudicial because the testimony unfairly bolstered A.B.’s 

credibility. Specifically, the argument is that it raised the unreasonable risk that 

the jury would have believed that Meyer’s training allowed her to determine, and 

that Meyer had access to information not presented at trial that showed, that A.B. 

was truthful and McKinnon was guilty. We observe that the risk identified by 

McKinnon is not great—Meyer’s testimony that she believed what A.B. told her

was conclusory in nature, Meyer specifically testified that her job “isn’t to 

determine whether something’s happened or not,” and Meyer did not in any way 

allude to any special training or information not presented at trial that would give 

her special insight or ability to determine truthfulness. But in any event, this 

argument ignores the corroborating evidence, missing in Krueger, in the form of 

the grandmother’s testimony that she witnessed certain of the sexual assaults that 

A.B. described. 

¶36 In sum, McKinnon does not persuade us that, had Meyer’s testimony 

that she believed what A.B. told her been excluded, there is a reasonable 

probability that the jury would have acquitted McKinnon.
No. 2021AP2070-CR

16

III. Failure to object to testimony about grandmother’s conviction

¶37 McKinnon argues that trial counsel rendered ineffective assistance 

by failing to properly object to the testimony of A.B.’s grandmother regarding her 

conviction for child neglect for failing to protect A.B. from the sexual assaults 

alleged in this case. We also decide this issue on the prejudice prong. See 

Strickland, 466 U.S. at 697. 

¶38 McKinnon argues that admission of this testimony “allowed the jury 

to infer [that the grandmother’s] sentencing court had already concluded defendant 

McKinnon had in fact sexually assault[ed]” A.B. McKinnon argues that this 

inference was reinforced when the prosecutor referenced this testimony in closing 

argument. However, McKinnon acknowledges that this error, alone, is not 

sufficiently prejudicial to warrant a new trial. We agree. Had the evidence of the 

grandmother’s conviction been excluded, we conclude that it is not reasonably 

probable that the jury would have acquitted McKinnon of committing the sexual 

assaults that A.B. described and that the grandmother testified she witnessed.

IV. Cumulative Prejudice

¶39 McKinnon argues that, taken together, trial counsel’s two errors—

the Haseltine error and the erroneous admission of A.B.’s grandmother’s 

conviction—are sufficiently unfairly prejudicial as to warrant a new trial. 

¶40 In State v. Thiel, 264 Wis. 2d 571, ¶59, our supreme court directed 

that “prejudice should be assessed based on the cumulative effect of” trial 

counsel’s errors even when “the specific errors, evaluated individually, do not

satisfy the prejudice standard in Strickland.” The court noted that, “in most cases 

errors, even unreasonable errors, will not have a cumulative impact sufficient to 
No. 2021AP2070-CR

17

undermine confidence in the outcome of the trial, especially if the evidence 

against the defendant remains compelling.” Id. at ¶61. Our focus in the analysis 

is on “the totality of the circumstances at trial” and “the overall reliability of the 

trial.” Id. at ¶62. 

¶41 We conclude that McKinnon does not show that trial counsel’s 

failure to object to Meyer’s testimony that she believed what A.B. told her and the 

grandmother’s testimony about her conviction undermines confidence in the 

outcome of the trial. McKinnon disregards the compelling evidence comprising

A.B.’s testimony describing the details of the sexual assaults and the 

grandmother’s testimony that she witnessed several of the assaults that A.B. 

described. Given this compelling evidence, McKinnon fails to show that, had 

Meyer’s testimony that she believed what A.B. told her and the grandmother’s 

testimony about her conviction been excluded, there is a reasonable probability 

that the result of the trial would have been different.

CONCLUSION

¶42 For the reasons explained above, we affirm.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.