COURT OF APPEALS

DECISION

DATED AND FILED

July 13, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2020AP583-CR Cir. Ct. No. 2017CF1813

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NICHOLAS JOHN HANSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County: 

DAVID A. HANSHER, Judge. Affirmed. 

Before Brash, P.J., Donald and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Nicholas John Hanson appeals the judgment of 

conviction, following a jury trial, of one count of armed robbery with the threat of 
No. 2020AP583-CR

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force. Hanson contends that the trial court erred in denying his motion to suppress 

eyewitness identification evidence. Upon review, we affirm.

BACKGROUND

¶2 On April 13, 2017, the State charged Hanson with one count of armed 

robbery with the threat of force. According to the criminal complaint, on April 8, 

2017, Hanson held a cashier at a Milwaukee liquor store, S.L., at gunpoint and left 

with beer. The complaint states that Hanson, whom S.L. knew as a regular customer 

but not by name, came to the store earlier in the day and found a cell phone on the 

counter. Hanson gave S.L. the phone, telling him that it belonged to a friend. Later 

in the afternoon, Hanson returned to the store and asked S.L. for the phone back. 

When S.L. told Hanson that the original owner picked up the phone, Hanson became 

angry, swore at S.L., and stole beer from the store. Later that night, Hanson returned 

and asked for the phone again, this time brandishing a gun. The complaint further 

states that Hanson pointed the gun at S.L., demanded that S.L. come out from behind 

the counter, threatened to shoot S.L., swore at S.L., and then went to the beer cooler 

and walked out with multiple packs of beer. S.L. identified Hanson as the robber 

that night after police showed S.L. a photograph of Hanson. S.L. later identified 

Hanson again following a photo array. 

¶3 Hanson, through counsel, filed a motion to suppress the identification 

evidence, specifically: (1) S.L.’s identification of Hanson from a single photograph

of Hanson that police showed S.L. on the night of the robbery; (2) S.L.’s 

identification of Hanson from the photo array, which he viewed the following day; 

and (3) S.L.’s anticipated in-court identification of Hanson. Hanson argued that 

both the single photograph of Hanson and the photo array were unnecessarily 
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suggestive, that the photo array was unreliable, and that a subsequent in-court 

identification would be unreliable. 

¶4 At a hearing on the motion, Milwaukee Police Officer Nicholas 

Gronwall testified that on the night of April 8, 2017, he was dispatched to the liquor 

store in response to an armed robbery report. When Gronwall arrived, S.L. told him 

that the store had been robbed. 

¶5 Gronwall testified that while he was on the scene, a man from the 

neighborhood, D.C., approached him and said that Hanson had approached him 

earlier and said that he was going to return to the store later and “start a problem”

with S.L. D.C., who used to work at the store and knew Hanson personally, told 

Gronwall that he wrote Hanson’s name on a post-it behind the counter and told S.L. 

that if anyone causes problems, it would likely be Hanson. 

¶6 Gronwall testified that he hoped to identify the robber as soon as 

possible because he was armed and on foot, thus likely in the area. Gronwall printed 

a black and white photograph of Hanson that was on file and showed it to S.L., who 

then identified Hanson as the person who robbed the liquor store. S.L. did not know 

Hanson by name, but told Gronwall that Hanson had been in the store on prior 

occasions and that Hanson frequently stole from the store. Gronwall testified that 

he showed S.L. the photograph of Hanson because of the need to quickly locate 

Hanson, who presented a “public safety urgency.” 

¶7 Gronwall further testified that the next day, he presented S.L. with a 

photo array consisting of six photographs, including a color version of the 

photograph of Hanson that S.L. viewed the night before. Two empty folders were 

placed along with the six folders. Another officer shuffled the folders so that 

Gronwall did not know which folder contained Hanson’s photo, other than verifying 
No. 2020AP583-CR

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that Hanson’s photo was not in the first folder. Gronwall testified that he gave S.L. 

a form explaining the identification procedure and read the instructions to S.L. S.L. 

then went through the folders, one at time, circling “Yes” for folder three. Folder 

three contained Hanson’s photo; thus, S.L. identified the person in photo “number 

3” as the perpetrator of the robbery. 

¶8 The trial court denied Hanson’s suppression motion, finding that 

because S.L. knew the perpetrator, Gronwall appropriately showed S.L. a black and 

white photo of Hanson to determine if he was the robber. The trial court also 

determined that the victim’s identification was reliable. 

¶9 At trial, S.L. identified Hanson as the robber, telling the jury that 

during the incident Hanson stood approximately five feet away from him. S.L. 

stated that he had no doubt Hanson was the perpetrator. 

¶10 A jury ultimately found Hanson guilty as charged. The trial court 

sentenced Hanson to a ten-year term of imprisonment. This appeal follows. 

DISCUSSION

¶11 On appeal, Hanson challenges the identification evidence, arguing 

that Gronwall’s method of showing S.L. photographs of Hanson was impermissibly

suggestive, rendering the two out-of-court identifications inadmissible. 

¶12 In reviewing a trial court’s decision on a motion to suppress, we apply 

a two-step standard of review. See State v. Eason, 2001 WI 98, ¶9, 245 Wis. 2d 

206, 629 N.W.2d 625. We first review the trial court’s findings of fact, and will 

uphold them unless they are clearly erroneous. See id. We then “review the 

application of constitutional principles to those facts de novo.” See id.
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¶13 A defendant’s due process rights are violated if identification 

evidence is admitted that stems from a police procedure that is “impermissibly 

suggestive.” State v. Benton, 2001 WI App 81, ¶5, 243 Wis. 2d 54, 625 N.W.2d 

923. A police identification procedure is impermissibly suggestive if it “give[s] rise 

to a very substantial likelihood of irreparable misidentification[.]” State v. 

Roberson, 2019 WI 102, ¶31, 389 Wis. 2d 190, 935 N.W.2d 813 (citations and 

internal quotation marks omitted).

¶14 Hanson argues that Gronwall’s presentation of the single photograph 

violated both the Wisconsin Department of Justice’s “Model Policy and Procedure 

for Eyewitness Identification,” as well as his due process rights because: (1) it 

suggested to S.L. that Hanson was indeed the perpetrator; (2) the photograph was a 

mugshot of Hanson, suggesting that he was a criminal and likely to have committed 

the crime; and (3) it may have swayed S.L. into identifying Hanson following S.L.’s 

conversation with D.C.

¶15 As to the photo array, Hanson contends that Gronwall again violated 

the Department of Justice’s model policy because the model policy discourages the 

use of multiple identification procedures in which the suspect is viewed more than 

once. Both violations, Hanson contends, rendered S.L.’s identifications unreliable. 

Even assuming for the sake of argument that the photo identification procedures in 

this case were unduly suggestive, we conclude that any error resulting from the 

admission of that evidence at trial was harmless.

¶16 If a constitutional error at trial does not affect the substantial rights of 

the defendant, the error is considered harmless. See Martindale v. Ripp, 2001 WI 

113, ¶30, 246 Wis. 2d 67, 629 N.W.2d 698. Accordingly, this court “will reverse 

only where there is a reasonable possibility that the error contributed to the final 
No. 2020AP583-CR

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result.” Id. Stated differently, 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. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851 N.W.2d 

434 (citations omitted). The burden of establishing harmless error lies with the 

beneficiary of the error, which in this case is the State. See State v. Martin, 2012 

WI 96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270. Based on our review of the record, 

we agree with the State that an error, if any, resulting from the admission at trial of 

the out-of-court identifications was harmless.

¶17 Several factors have been identified by our supreme court for 

consideration when evaluating whether a particular error is harmless. These factors 

include,

the frequency of the error, the importance of the erroneously 

admitted evidence, the presence or absence of evidence 

corroborating or contradicting the erroneously admitted 

evidence, whether the erroneously admitted evidence 

duplicates untainted evidence, the nature of the defense, the 

nature of the State’s case, and the overall strength of the 

State’s case.

State v. Mayo, 2007 WI 78, ¶48, 301 Wis. 2d 642, 734 N.W.2d 115.

¶18 The record establishes that even if S.L. was not shown either the single 

photo or the photo array, a rational jury still would have convicted Hanson. S.L. 

told police and testified that he knew Hanson as a regular customer. S.L. testified 

that while he did not know Hanson by name, he would converse with Hanson when 

he would come to the store and that Hanson would buy “the same stuff all the time.”

S.L. testified in detail about his encounter with Hanson and stated that Hanson was 

at close range. 
No. 2020AP583-CR

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¶19 D.C. testified that he knew Hanson from his elementary school days 

and that Hanson would visit the liquor store a few times a month while D.C. was an 

employee. D.C. testified that on the day of the robbery, Hanson approached him 

and asked if he would be working at the store that day. Hanson told D.C. that he 

wanted to get a phone back from S.L. and that he would beat up S.L. D.C. further 

stated that later that night, he saw yellow police tape around the liquor store and 

asked police officers what had happened. D.C. then told police about his earlier 

encounter with Hanson. 

¶20 Given that S.L. had an independent means of identifying Hanson, as 

well as D.C.’s interaction with Hanson, there is no reasonable probability that the 

jury would have acquitted Hanson based on the strength of the other evidence 

against him.

¶21 Hanson does not challenge S.L.’s in-court identification on appeal, 

thus, we agree with the State that this argument is forfeited. See State v. Pettit, 171 

Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (this court may decline to 

review inadequately briefed issues). Nonetheless, we conclude that S.L.’s in-court

identification was admissible.

¶22 “The admissibility of an in-court identification depends upon whether 

that identification evidence has been tainted by illegal activity.” State v. Roberson, 

2006 WI 80, ¶32, 292 Wis. 2d 280, 717 N.W.2d 111. That is, an admissible in-court 

identification must rest on the witness’s independent recollection of encounters with 

the suspect, untainted by any illegality. See id., ¶34.

¶23 Here, as discussed, S.L. testified that he had multiple encounters with 

Hanson prior to the robbery, that Hanson gave him the phone at issue on the day of 

the robbery, that Hanson was upset when he returned to the store and wanted the 
No. 2020AP583-CR

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phone back, that Hanson stood about five feet away from him while pointing a gun, 

and that he had “no doubt” Hanson was the robber. Given S.L.’s independent 

recollection of his encounters with Hanson, we conclude that S.L.’s in-court 

identification was admissible. 

¶24 For the foregoing reasons, we affirm the trial court.

By the Court.—Judgment affirmed. 

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

RULE 809.23(1)(b)5.