COURT OF APPEALS

DECISION

DATED AND FILED

February 17, 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. 2019AP2064-CR Cir. Ct. No. 2017CF860

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JOSEPH GONZALES,

 DEFENDANT-APPELLANT.

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

Brown County: THOMAS J. WALSH, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, 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. Joseph Gonzales appeals a judgment of conviction, 

entered upon a jury’s verdict, convicting him of attempted second-degree sexual 
No. 2019AP2064-CR

2

assault, contrary to WIS. STAT. § 940.225(2)(d) (2017-18),1and of possessing drug 

paraphernalia, contrary to WIS. STAT. § 961.573(1). He also appeals an order 

denying his postconviction motion for a new trial. Gonzales argues the State 

violated its statutory discovery obligations by failing to disclose before trial that 

the alleged victim, Maria,

2 had been previously convicted of fraud in California. 

Gonzales also contends that his trial counsel was ineffective by failing to discover 

Maria’s conviction and by failing to object to—and by actually eliciting—Maria’s 

testimony that Gonzales was taking pills on the night of the incident. Gonzales 

alternatively claims that the cumulative effect of these claimed errors entitles him 

to a new trial in the interest of justice. We reject Gonzales’ arguments and, 

accordingly, affirm the judgment and order. 

BACKGROUND

¶2 The following facts are taken from the evidence at Gonzales’ jury 

trial. Gonzales was living in an apartment with his girlfriend, Alicia, along with 

Alicia’s adult daughter, Maria, and Maria’s three children. In June of 2017, Maria

awoke in her bedroom at around 2:00 a.m. to find that her shorts and underwear 

were pulled down around her knees. Maria also found Gonzales on his knees,

facing her. When Maria asked Gonzales what he was doing, he said he was 

looking for a pacifier for one of Maria’s sons, whom he said was crying. Maria

realized that her baby was not on the bed on which she had fallen asleep, so she 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted. 

2

 In accordance with the policy underlying WIS. STAT. RULE 809.86(4), we refer to the 

victim by a pseudonym. 
No. 2019AP2064-CR

3

got up and walked to Gonzales’ room—where she found the baby—and grabbed 

him.

¶3 Maria felt scared and violated, and she went back into her room,

“put [her] son down, and ... hid in [her] closet.” While she was in the closet, she 

called her brother and told him what had happened, and he told her to call the 

police. DNA was collected from Maria during a subsequent sexual assault 

examination. The examination, upon testing, revealed DNA from multiple males 

but with no positive match to Gonzales. The examination also yielded no signs of 

injury or penetration. 

¶4 The State charged Gonzales with attempted second-degree sexual 

assault, in violation of WIS. STAT. § 940.225(2)(d); and with possession of drug 

paraphernalia, in violation of WIS. STAT. § 961.573(1). The latter charge was in 

relation to marijuana pipes that law enforcement found in Gonzales’ room while 

questioning him. Given the facts that there was neither DNA evidence nor other 

witnesses tying Gonzales to a sexual assault of Maria, the State’s case primarily 

relied on the statements Maria made and the testimony of the responding officers,

who restated what they had been told by Maria and Gonzales. 

¶5 Gonzales had disclosed to the responding officers that he went into 

Maria’s room to look for a pacifier because the baby in his room was crying. 

Initially, Gonzales denied being on his knees in the bedroom, but later admitted 

that he was on his knees looking for a pacifier. Gonzales further denied Maria’s 

accusations and the possibility that there would be DNA evidence on Maria’s 

clothes or person. The officers also asked Gonzales about the pipes they found

and if they were used for smoking marijuana, and Gonzales replied affirmatively. 
No. 2019AP2064-CR

4

¶6 The jury found Gonzales guilty of both charges, and the circuit court 

sentenced him to seven years’ initial confinement followed by seven years’

extended supervision. Gonzales filed a motion for postconviction relief. He

argued that his trial counsel provided ineffective assistance because 

counsel: (1) failed to impeach Maria with her prior California forgery conviction;

and (2) failed to object to, and actually elicited, Maria’s testimony that Gonzales 

took pills on the night of the assault. 

¶7 As to the impeachment claim, Gonzales asserted that Maria was 

convicted3in California in 2014 of misdemeanor forgery for passing a fraudulent 

check. To support that claim, Gonzales attached a “minute order” from a court in 

Fresno County, California. He later provided the circuit court with the criminal 

complaint that authorities from Fresno County had filed wherein the case number 

matched that of the minute order. Gonzales argued the two documents

collectively showed that in 2014, the Fresno County court accepted Maria’s 

no-contest plea to misdemeanor forgery, deferred judgment, and placed her on 

three years’ conditional probation.

¶8 The State filed a response to Gonzales’ motion, questioning Maria’s 

prior California criminal conviction stating that it was unaware of that conviction

until Gonzales filed his motion. It also said that Maria’s criminal conviction was 

not listed on the National Crime Information Center (NCIC)4report which it had 

 

3

 There are questions about whether there was ever a conviction on the plea in California, 

but Gonzales refers to it as a conviction. We will use “criminal history” where appropriate.

4

 “NCIC is a computerized index of criminal justice information .... It is available to 

[f]ederal, state, and local law enforcement and other criminal justice agencies.” 

https://fas.org/irp/agency/doj/fbi/is/ncic.htm (last viewed Feb. 3, 2021).
No. 2019AP2064-CR

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conducted prior to trial. Nevertheless, Gonzales filed a supplemental 

postconviction motion alleging that the State had violated its statutory discovery

obligations by not searching further for Maria’s criminal conviction and by not 

alerting Gonzales about that prior history before trial. 

¶9 The circuit court held a Machner5 hearing at which Gonzales’ trial 

counsel, George Pappas, testified. Pappas stated the prosecutor told him that 

Maria had a “deferred judgment out of California,” and that Pappas and the State 

entered into “an informal agreement” not to use the deferred judgment to impeach

Maria. Gonzales alleged that if his attorney was aware of the deferred judgment 

prior to trial, then he provided ineffective assistance by reaching an “informal 

agreement” with the State by not using the case to impeach Maria.

¶10 As to the evidence regarding Gonzales ingesting pills on the night of 

the assault, Gonzales testified at the Machner hearing that he told his lawyer the 

pills were for a skin condition. Gonzales also denied that he and his trial counsel 

agreed that part of his defense was that the apartment was a “carefree 

environment” between Gonzales and Maria by showing that “drugs and alcohol 

were involved.” Pappas testified that the pill evidence could be used to Gonzales’

advantage in supporting the theory that this was “a consensual act, that these two, 

Mr. Gonzales and this woman, were engaged in sexual behavior, sexual acts on 

this particular night.” Pappas stated “Gonzales was satisfied and okay with 

proceeding on the theory that it was somewhat of a carefree environment.” When 

Gonzales objected to the trial strategy, Pappas was “shocked” because he thought 

 

5 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). 
No. 2019AP2064-CR

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there was an “understanding together that this was how we were going to proceed 

with the trial.” 

¶11 After the Machner hearing, the circuit court issued an oral ruling. 

The court first found that the State had not uncovered any criminal conviction for 

Maria before trial. The court concluded that the State made reasonable efforts to 

uncover Maria’s prior criminal history, and that Pappas was not deficient for 

relying upon the State’s representations based upon the NCIC search. Further, the 

court questioned whether Maria’s prior California prosecution resulted in a 

conviction, based upon the minute order and criminal complaint, which showed 

the California court’s deferred judgment. As such, the court questioned whether 

that was, in fact, a conviction that could be used to impeach Maria under WIS.

STAT. § 906.09(3). The court further concluded that even if evidence of Maria’s 

prior criminal history had been provided to the jury, it would not have made a 

difference in the outcome of the trial. 

¶12 As to the pill consumption evidence, the circuit court stated it was 

not convinced that Pappas’ strategy was inappropriate or deficient. Finally, the 

court also concluded that a new trial was not warranted in the interest of justice. 

The court therefore denied Gonzales’ postconviction motion for a new trial, and 

this appeal follows. 

DISCUSSION

I. Discovery Violation

¶13 Wisconsin’s discovery statute for criminal proceedings requires the 

State to disclose to the defense, within a reasonable time before trial, certain 

materials and information that are within the possession, custody or control of the 
No. 2019AP2064-CR

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State. WIS. STAT. § 971.23(1). The statute further provides that “[u]pon demand, 

the district attorney shall, within a reasonable time before trial, disclose to the 

defendant or his or her attorney ... [t]he criminal record of a prosecution witness 

which is known to the district attorney.” Sec. 971.23(1)(f) (emphasis added). The 

State’s duty is not limited to disclosing only a criminal record that it actually 

knows about before trial. Rather, the “test of whether evidence should be 

disclosed is not whether in fact the prosecutor knows of its existence but, rather, 

whether by the exercise of due diligence he [or she] should have discovered it.” 

Jones v. State, 69 Wis. 2d 337, 349, 230 N.W.2d 677 (1975) (citation omitted). 

The State may not avoid this duty by asserting that it “did not know of those things 

within the ambit of § 971.23 that could have been reasonably discovered.” State 

v. White, 2004 WI App 78, ¶23, 271 Wis. 2d 742, 680 N.W.2d 362.

¶14 Whether the State complied with the discovery statute is a question 

of law, which we review de novo. See State v. DeLao, 2002 WI 49, ¶14, 252 

Wis. 2d 289, 643 N.W.2d 480. If we conclude that the State violated the statute 

without good cause, we then decide whether the violation was harmless. See State 

v. Rice, 2008 WI App 10, ¶19, 307 Wis. 2d 335, 743 N.W.2d 517 (2007). An 

error is harmless if it is clear beyond a reasonable doubt that a rational jury would 

have found the defendant guilty absent the error. State v. Harvey, 2002 WI 93, 

¶49, 254 Wis. 2d 422, 647 N.W.2d 189. Harmless error is a question of law that 

we review de novo. State v. Nelson, 2014 WI 70, ¶18, 355 Wis. 2d 722, 849 

N.W.2d 317. 

¶15 Gonzales makes three arguments related to his claim that the State 

violated the discovery statute. Gonzales’ first argument is based solely upon his 

supplemental postconviction motion, in which he claimed that the State told his 

trial attorney prior to trial that Maria self-reported that she had committed a crime. 
No. 2019AP2064-CR

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In his motion, however, Gonzales presented no evidence to support that assertion. 

The circuit court held an evidentiary hearing on Gonzales’ motion. Maria, 

however, was not called to testify at that hearing, and the alleged pretrial 

self-reporting was not otherwise mentioned at the hearing. On appeal, Gonzales 

only contends that the State did not deny the self-reporting assertion made in his 

postconviction submissions, but he does not contest his failure to raise the issue or 

provide evidence concerning it at the hearing. Without any facts of record to 

support his claim of Maria’s self-report of her prior criminal history, the argument 

necessarily fails. See State v. Allen, 2004 WI 106, ¶15, 274 Wis. 2d 568, 682 

N.W.2d 433 (stating that a postconviction motion cannot be maintained on the 

basis of conclusory allegations).

¶16 Second, Gonzales argues that the State had specific knowledge about 

Maria’s forgery case because his trial counsel testified that the State told him 

about the criminal history before trial. This claim fails, however, because it 

necessarily would be self-contradictory and self-defeating. That is to say, the

State could not have failed to disclose Maria’s prior criminal history if it actually 

informed Gonzales’ trial counsel of it. Additionally, the claim fails because the 

circuit court made a factual finding that the State did not know about the criminal

history prior to trial. This finding is not clearly erroneous, see WIS. STAT.

§ 805.17(2), and Gonzales makes no argument that this finding is clearly 

erroneous. 

¶17 Third, Gonzales argues that the State’s failure to satisfactorily 

research Maria’s criminal background and provide evidence of the criminal record 

is proven by the ease with which his investigator found her criminal history after 

the trial. How easily Gonzales’ investigator located the prior criminal history, 

however, is not the test to determine whether the State violated its discovery 
No. 2019AP2064-CR

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obligation to search with due diligence. The State did search the FBI database, 

and we agree with the circuit court that reliance on that search was reasonable. 

The State explained that it had no specific knowledge regarding Maria’s California 

criminal history, even after searching the NCIC, which explanation the circuit 

court found credible. The State is not required to research a witness’s criminal 

history from other jurisdictions absent specific knowledge that the witness had an 

out-of-state conviction or a specific request from defense counsel that the 

prosecutor do so. See Jones, 69 Wis. 2d at 349-51. Gonzales does not cite any 

evidence in the appellate record that he or his attorney made any specific request 

before trial that the State conduct any out-of-state record search beyond NCIC. 

We therefore affirm the court’s conclusion that the State complied with its 

discovery obligations, and we need not address the State’s alternative argument of 

harmless error. 

II. Ineffective Assistance of Counsel

¶18 Gonzales next argues that his trial counsel was ineffective by failing 

to impeach Maria’s credibility with her prior California criminal history and by

not objecting to—but rather actually eliciting—Maria’s testimony that Gonzales 

used pills on the night of the attempted assault. This court’s review of an 

ineffective assistance of counsel claim presents a mixed question of fact and law. 

State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). The circuit 

court’s findings of fact will not be disturbed unless they are clearly erroneous. Id. 

However, the ultimate determination of whether the attorney’s performance fell 

below the constitutional minimum is a question of law that we review 

independently. Id. 
No. 2019AP2064-CR

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¶19 In order to substantiate a claim of ineffective assistance of counsel, a 

defendant must show both that his or her counsel’s performance was deficient and

that counsel’s errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 

687 (1984). We need not address both components if a defendant fails to make a 

sufficient showing on one. See id. at 697. 

¶20 Deficient performance requires a defendant to show that counsel 

made errors so serious that counsel was not functioning as the counsel guaranteed 

the defendant by the Sixth Amendment. Id. at 687. In order to prove prejudice, a 

defendant must demonstrate 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. Id. at 694. “It is not enough for the defendant to show 

that the errors had some conceivable effect on the outcome of the proceeding.” Id. 

at 693. However, a defendant need not prove the outcome would more likely than 

not be different in order to establish prejudice in ineffective assistance cases. 

State v. Sholar, 2018 WI 53, ¶44, 381 Wis. 2d 560, 912 N.W.2d 89. Thus, “a 

defendant need not prove the jury would have acquitted him [or her], but he [or 

she] must prove there is a reasonable probability it would have, absent the error.” 

Id., ¶46. 

A. Maria’s Prior Criminal History

¶21 Gonzales’ postconviction motion alleged his trial counsel was 

ineffective by failing to independently research Maria’s prior criminal history and 

failing to use the resulting evidence of her prior California forgery to impeach 

Maria’s credibility at trial. Gonzales further asserts that his counsel performed 
No. 2019AP2064-CR

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deficiently by reaching an agreement with the State not to use her prior criminal 

history to impeach Maria.

¶22 Gonzales’ trial counsel testified at the Machner hearing that he did 

not independently investigate Maria’s criminal background, but instead he relied 

upon the district attorney’s representation that Maria had a deferred judgment in 

California. In light of that information, counsel testified that he and the prosecutor 

had an “informal agreement” that he would not use Maria’s prior criminal record 

to impeach her. Meanwhile, Gonzales’ counsel denied having any recollection of 

Gonzales independently disclosing to him that Maria had a criminal history. 

¶23 As noted above, the circuit court found that the State had not 

uncovered any criminal history for Maria before the trial; it also found that trial 

counsel relied on the State’s representation that it found no criminal conviction for 

Maria. The court further found that trial counsel relied on the State’s 

representation to that effect, and that reliance did not constitute deficient 

performance because the State’s search efforts were reasonable. Further, the court 

found the California “minute order” record provided by Gonzales confusing. The 

court stated it was not satisfied Maria had been convicted of a crime because the 

order said Maria’s judgment and sentence were both suspended. Gonzales would 

not have been able to impeach Maria with the California information, because she 

had not been convicted of a crime within the meaning of Wisconsin’s statutes. See 

WIS. STAT. § 906.09(3). 

¶24 Even assuming the California judgment was admissible as 

impeachment evidence, and that counsel’s failure to impeach Maria with it was 

deficient performance, Gonzales fails to establish that this failure was prejudicial. 

Maria testified to the details regarding the night of the attempted sexual assault. 
No. 2019AP2064-CR

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Assuming Maria would have been truthful if asked about her “criminal” history—

and Gonzales offered no reason to believe she would not have been—the jury 

would have, at most, heard that she was convicted of a single crime. See State v. 

Rutchik, 116 Wis. 2d 61, 76, 341 N.W.2d 639 (1984) (“The examiner may ask the 

witness if he [or she] has ever been convicted of a crime and if so how many 

times. No further inquiry into the nature and circumstances of the crimes is 

permitted.”). Thus, the jury would not have heard that Maria was convicted of a 

crime of dishonesty, despite Gonzales’ suggestion to the contrary. See State v. 

Lobermeier, 2012 WI App 77, ¶16, 343 Wis. 2d 456, 821 N.W.2d 400 (stating 

that in Wisconsin, the jury “does not know what the crimes were—just how many, 

unless either the witness does not follow the script and give the number approved 

by the trial court ... or identifying the crimes is necessary to rehabilitate that 

witness”). Given Maria’s detailed testimony and the lack of any indication that 

the jury would not have learned the nature of Maria’s crime, Gonzales has not 

demonstrated a reasonable probability the verdict would have been different had 

his trial counsel impeached Maria’s credibility with her prior criminal history. 

¶25 In addressing the issue of prejudice in his reply brief, Gonzales

merely makes a cursory argument that Maria’s testimony was “fairly implausible.” 

Gonzales claims that, given Maria’s testimony about the circumstances of the 

assault, no one would be able to “move Maria, remove her pants, and attempt to 

sexually assault her.” The jury, however, found otherwise, and there is no reason 

to believe the jury would have questioned Maria’s account if they knew she had 

one prior conviction. In other words, there is no reason to believe the evidence 

from Maria’s California criminal case would have “tipped the scales,” as Gonzales 

contends.
No. 2019AP2064-CR

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B. Pill Testimony

¶26 Gonzales next claims that his attorney performed deficiently by 

failing to object to Maria’s testimony that she observed Gonzales taking “some 

kind of pills” on the night of the assault. He claims this information impugned his 

credibility because implicit in Maria’s testimony was the inference that he was 

taking an illegal substance. Gonzales further contends counsel was deficient by 

failing to object to, and actually eliciting the pill consumption statement, because 

the information was inadmissible as “other acts” evidence under State v. Sullivan, 

216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998). Additionally, Gonzales 

contends he did not agree to his counsel’s strategy to paint a picture of a “carefree 

environment” in which Maria and Gonzales were taking pills and drinking alcohol 

together. In all, he asserts that the pill testimony caused the jury to question 

Gonzales’ character and credibility, thus prejudicing him.

¶27 The circuit court found that, although counsel’s strategy may not 

have been a “winning strategy,” it was not convinced that it was “inappropriate.” 

The court concluded that Gonzales had not established that counsel’s performance 

was “an ineffective demonstration of legal skills.” On appeal, Gonzales argues 

that the strategy made little sense in light of the testimony Maria provided. 

¶28 Assuming without deciding that counsel was deficient by eliciting

the pill-consumption testimony, Gonzales has not shown how his counsel’s 

strategy prejudiced him. Gonzales contends Maria’s testimony regarding 

Gonzales taking pills made Gonzales seemed unpredictable and dangerous to the 

jury. This claim, however, is based on speculation. Gonzales cannot establish 

prejudice on speculation alone. See State v. Leighton, 2000 WI App 156, ¶38, 

237 Wis. 2d 709, 616 N.W.2d 126. 
No. 2019AP2064-CR

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¶29 In addition, Gonzales has not shown any probability that the circuit 

court would have excluded the pill-consumption evidence even if his attorney had

lodged an objection. This evidence was not that of “other acts,” as Gonzales 

contends. Instead, it was direct, contextual evidence related to Maria’s 

explanation of what happened before the attempted assault, and her state of mind 

after it. Maria testified that she was fearful of Gonzales as she saw him take some 

kind of pills, and did not know how they might affect him and how he would act. 

See State v. Dukes, 2007 WI App 175, ¶28, 303 Wis. 2d 208, 736 N.W.2d 515 

(“Evidence is not ‘other acts’ evidence if it is part of the panorama of evidence 

needed to completely describe the crime that occurred and is thereby inextricably 

intertwined with the crime.”).

¶30 Finally, even if Gonzales successfully moved to exclude the pill 

testimony, he has failed to show that there is a reasonable probability that the jury 

would have returned a different verdict. The testimony at issue was very minimal, 

and did not insinuate the use of illegal drugs. The jury would still have heard 

evidence about Maria’s fearful demeanor through her own testimony and the 

testimony of law enforcement and the sexual assault examining nurse. Gonzales

fails to show any deficient performance on his attorney’s part in failing to object to 

the pill testimony was prejudicial.

III. Interest of Justice

¶31 Under WIS. STAT. § 752.35, we may grant a new trial in the interest 

of justice when it appears that either: (1) the real controversy has not been fully 

tried; or (2) it is probable that justice has for any reason miscarried. Gonzales 

contends that the controversy has not been fully tried, based on the cumulative 

effect of the alleged errors discussed above. However, we have already rejected 
No. 2019AP2064-CR

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each of Gonzales’ challenges, and “[a]dding them together adds nothing. Zero 

plus zero equals zero.” See Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 

752 (1976). Accordingly, we decline to grant Gonzales 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.