COURT OF APPEALS

DECISION

DATED AND FILED

February 1, 2023

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. 2021AP2139-CR Cir. Ct. No. 2018CF831

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

THOMAS J. BAGGESEN,

 DEFENDANT-APPELLANT.

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

County: TIMOTHY D. BOYLE, Judge. Affirmed. 

Before Gundrum, P.J., Grogan and Lazar, 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. 2021AP2139-CR

2

¶1 PER CURIAM. Thomas J. Baggesen appeals from a judgment of 

conviction for three counts of sexually assaulting a person under twelve years of age 

in violation of WIS. STAT. § 948.02(1)(b) (2019-20)1and from an order resolving 

his motion for postconviction relief.2 Baggesen argues that the trial court erred by 

refusing to declare a mistrial after a witness for the prosecution told the jury that he 

was incarcerated. We conclude that the record supports a finding that the curative 

jury instructions (both immediately following the statement and right before jury 

deliberation) were sufficient to remove any prejudice and that the trial court’s denial 

of Baggesen’s request for a mistrial was a proper exercise of discretion. 

Accordingly, we affirm.

¶2 There were three witnesses who testified at Baggesen’s jury trial. The 

first, Vanessa,3 was Baggesen’s accuser and the granddaughter of his wife, Martha, 

to whom he had been married since before Vanessa was born. Vanessa was nineteen 

years old at the time of trial. She testified that when she was six years old, she and 

her younger brother would spend the night at her grandmother and Baggesen’s 

house approximately once per month. She said that on each visit, she and her 

brother alternated where they would sleep. One of them would sleep on the second 

floor of the house, where Martha slept, and the other would sleep in the basement, 

where Baggesen slept. On three different occasions when she was spending the 

night in the basement, Vanessa testified, Baggesen “climb[ed] on top of [her] and 

[held her] down and insert[ed] his fingers into [her] vagina.” After each incident, 

 

1

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

noted.

2

 Baggesen does not challenge the decisions reflected in the trial court’s order, entered on 

November 23, 2021, granting in part and denying in part his motion for postconviction relief.

3

 To protect the identity of the victim, we use a pseudonym. See WIS. STAT.

RULES 809.19(1)(g) and 809.86.
No. 2021AP2139-CR

3

she said, he threatened to hurt Martha in various violent ways if Vanessa told anyone 

what happened. 

¶3 On cross-examination, Vanessa testified that she did not tell anyone 

about Baggesen’s abuse until she was sixteen years old. A friend of hers had 

described a bad relationship that she was in, and Vanessa told the friend about the 

sexual abuse she endured from both a boyfriend and her step-grandfather, Baggesen. 

This conversation with the friend led to Vanessa disclosing the abuse to a school 

counselor and then, several weeks later, to a videotaped interview at a child 

advocacy center. In response to questioning from Baggesen’s counsel about the 

quality of her memory at the time of the recorded interview as compared to at trial, 

Vanessa testified that “some things are more clear today than when I recalled them 

in the video.” 

¶4 When the State asked Vanessa on redirect why some things were more 

clear at trial than they were in the interview recorded several years earlier, Vanessa 

mentioned stress and fear she was going through and said that “knowing that 

[Baggesen]’s incarcerated makes it easier for me to recall things because I am able 

to actually not have to worry about that fear” that he would hurt her grandmother or 

come find her. Baggesen immediately objected. The trial court held a sidebar 

outside the presence of the jury during which Baggesen requested a mistrial, arguing 

that Vanessa’s statement presented a “bias issue.” The court took the matter under 

advisement and took some time to research the issue. 

¶5 After noting that “[t]here was no specific case law cited for the Court 

to review,” the trial court denied Baggesen’s request. The court explained that it 

had independently reviewed the law related to mistrial and determined that “it’s the 

Court’s discretion based upon information that is presented whether or not there is 
No. 2021AP2139-CR

4

prejudice to the point where there is no other alternative but to declare the mistrial” 

and that it did “not find that any potential prejudice associated with [Vanessa’s 

statement] rises to a level to the extent that it’s necessary to declare a mistrial.” The 

court then took several steps to cure the situation. It instructed Vanessa that she was 

prohibited from mentioning that Baggesen was in custody and, after calling the jury 

back into the courtroom, immediately provided the jury with a curative instruction 

that they were to disregard any testimony about whether or not Baggesen may have 

been incarcerated “as that testimony [was] not to be considered by [the jury] in any 

way, shape or form as evidence in this case. It is being completely stricken from 

the Court record.” 

¶6 The trial continued, with Baggesen testifying in his own defense. He 

explained that he had a falling out with his wife early in their marriage, and that is 

why she slept upstairs and he slept in the basement even when the children were not 

staying with them. In conflict with Vanessa’s testimony, he said that at the time in 

question, “the girls always slept with the girls and the boys slept with the boys.” 

Baggesen denied that Vanessa ever spent the night in the basement with him during 

the time in question. He further testified that Vanessa fabricated her entire story, 

and, although he couldn’t think of a reason why she would lie, he did note that she 

made the accusations against him about a year after Martha had gotten a restraining 

order against him by alleging that he had threatened Martha. 

¶7 Finally, the State called Martha as a rebuttal witness. She 

corroborated Vanessa’s version of the sleeping arrangements, testifying that up until 

Vanessa was ten years old, Vanessa often slept in the basement with Baggesen. She 

also testified that when Vanessa was around ten years old and Martha put a stop to 

her sleeping in the basement with Baggesen out of a sense that it was inappropriate 

for a more mature girl to do so, Baggesen oddly “got very angry.” 
No. 2021AP2139-CR

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¶8 After the close of evidence, the trial court again instructed the jury 

that it was to disregard stricken testimony. It further instructed the jury that every 

person accused of a crime is presumed innocent and that a finding of not guilty was 

required unless the jury determined that the presumption was overcome by evidence 

that showed guilt beyond a reasonable doubt. The jury deliberated and then returned 

a guilty verdict on all three counts, and the trial court subsequently sentenced 

Baggesen to the mandatory minimum twenty-five years of initial confinement and 

ten years of extended supervision for each count, to be served concurrently.4 

Baggesen appeals, arguing that the trial court’s denial of his request for a mistrial 

based on Vanessa’s disclosure of his incarceration warrants reversal of his 

conviction and a new trial.

¶9 Baggesen is correct that evidence of a defendant’s incarceration status 

is generally inadmissible because of its potential to impair the presumption of 

innocence so fundamental to our system of justice. See, e.g., Estelle v. Williams, 

425 U.S. 501, 504-05 (1976). Some evidence related to incarceration may be so 

prejudicial that its introduction warrants a mistrial. See State v. Castillo, 

No. 2020AP983-CR, unpublished slip op. ¶57 (WI App June 29, 2021) (finding that 

inadmissible testimony from two different witnesses warranted a mistrial because it 

could have led a reasonable jury to conclude that a defendant on trial for sexual 

assault of a minor had previously been incarcerated for sexually assaulting other 

young girls).5 But not every mistake requires a new trial, and “the law prefers less 

drastic alternatives, if available and practical.” State v. Givens, 217 Wis. 2d 180, 

 

4

 Baggesen incorrectly states in his brief that terms are to be served consecutively. 

5

 Unpublished opinions may not be cited for precedential value, but authored unpublished 

opinions issued on or after July 1, 2009, may be cited for persuasive value. See WIS. STAT.

RULE 809.23(3)(a), (b).
No. 2021AP2139-CR

6

191, 580 N.W.2d 340 (Ct. App. 1998) (citation omitted). “Whether to grant a 

mistrial is a decision that lies within the sound discretion of the [trial] court.” State 

v. Doss, 2008 WI 93, ¶69, 312 Wis. 2d 570, 754 N.W.2d 150; see also State v. 

Bunch, 191 Wis. 2d 501, 506, 529 N.W.2d 923 (Ct. App. 1995). “The trial court 

must determine, in light of the whole proceeding, whether the basis for the mistrial 

request is sufficiently prejudicial to warrant a new trial.” Bunch, 191 Wis. 2d at 

506.

¶10 Our review of a trial court’s discretionary decision to deny a motion 

for mistrial depends on the reason for the defendant’s motion. Id. at 507. If the 

request for mistrial was based on “the State’s overreaching or laxness,” we apply 

strict scrutiny to the trial court’s decision “out of concern for the defendant’s double 

jeopardy rights.” Id. But where, as here, a defendant’s request is based on an error 

not caused by the State, we give “great deference” to the trial court’s ruling. Id. 

(citation omitted). We reverse only on a clear showing of an erroneous exercise of 

discretion, i.e., a clear showing that no reasonable court could have found the error 

insufficiently prejudicial to warrant a new trial. See id.; State v. Jeske, 197 Wis. 2d 

905, 912-13, 541 N.W.2d 225 (Ct. App. 1995).

¶11 We will discuss each of Baggesen’s two arguments in turn. First, 

Baggesen argues that Vanessa’s disclosure was sufficiently prejudicial such that it 

“cannot be remedied by a curative instruction and cannot be unheard by the jury,” 

likening it to the United States Attorney’s statements to the jury in Dunn v. United 

States, 307 F.2d 883, 885-86 (5th Cir. 1962), where the attorney included improper 

personal opinion and facts not in evidence when he told the jury that “the case was 

the most flagrant he had ever tried and was replete with fraud.” In that Fifth Circuit 

case, which is not binding on this court, the trial court’s vague jury instruction to 

“disabuse your minds of that statement” was deemed insufficient to cure the 
No. 2021AP2139-CR

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prejudice. Id. at 885-86 (“[I]f you throw a skunk into the jury box, you can’t instruct 

the jury not to smell it.”).

¶12 As Baggesen acknowledges, however, curative instructions like the 

ones given in his case are presumed to erase the prejudice from erroneously admitted 

evidence. E.g., State v. Jennaro, 76 Wis. 2d 499, 508, 251 N.W.2d 800 (1977);

State v. Pharm, 2000 WI App 167, ¶31, 238 Wis. 2d 97, 617 N.W.2d 163. To 

overcome that presumption, he offers argument—and no evidence—that Vanessa’s 

statement was “especially prejudicial” because the trial was short, with the State’s 

case relying primarily on Vanessa’s testimony, and because the statement was tied 

to Vanessa’s credibility, with Vanessa stating that she was able to recall some details 

of Baggesen’s abuse more clearly because she did not have to fear that he would 

hurt her or her grandmother due to his incarceration. 

¶13 We disagree that this is enough to overcome the presumption that the 

jury followed the trial court’s curative instructions. See State v. Sigarroa, 2004 WI 

App 16, ¶24, 269 Wis. 2d 234, 674 N.W.2d 894 (2003) (“Where the trial court gives 

the jury a curative instruction, this court may conclude that such instruction erased 

any possible prejudice, unless the record supports the conclusion that the jury 

disregarded the trial court’s admonition.”). We note that curative instructions have 

been deemed sufficient to overcome prejudice when a defendant’s incarceration 

status was known to jurors because the defendant was seen by a juror in shackles, 

State v. Knighten, 212 Wis. 2d 833, 844-45, 569 N.W.2d 770 (Ct. App. 1997), and 

when a defendant’s criminal history was improperly disclosed, Sigarroa, 269 
No. 2021AP2139-CR

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Wis. 2d 234, ¶¶24-25.6 In this case, the trial court’s instructions were thorough and 

specific; it immediately told the jury to “completely disregard” any testimony about 

whether Baggesen may have been incarcerated and not to consider that testimony 

“in any way, shape or form.” The court reiterated that stricken testimony was not 

to be considered in its final jury instructions. 

¶14 We also note that, although Vanessa’s testimony as to the abuse was, 

as Baggesen says, “uncorroborated”—no one else is alleged to have witnessed the 

assaults—Baggesen’s wife, Martha, did corroborate Vanessa’s testimony (and 

contradicted Baggesen’s denial) that Vanessa sometimes slept downstairs during the 

time in question. The jury believed Vanessa over Baggesen. We will not disturb 

the trial court’s determination, which could reasonably be made on this record, that 

the jury made that credibility determination without undue prejudice based on the 

comment about Baggesen being incarcerated. The trial court was in the best 

position to “assess[] the impact and effect” of the inadmissible statement (and the 

court’s curative instructions) “on the outcome of the proceedings.” Bunch, 191 

Wis. 2d at 510 (citation omitted). 

¶15 Second, Baggesen argues that the trial court applied the wrong legal 

standard when it determined that it should deny the request for mistrial unless “there 

is prejudice to the point where there is no other alternative but to declare the 

 

6

 Baggesen cites two Wisconsin cases in which, he says, a curative instruction was “found 

insufficient to remedy a jury hearing improper evidence at trial” despite a lack of record evidence 

that the jurors ignored the instruction. Neither of these persuade us that the curative instruction in 

his case was insufficient. Baggesen’s citation to State v. Payano, 2009 WI 86, ¶104, 320 Wis. 2d 

348, 768 N.W.2d 832, is confusing. In that case, our supreme court affirmed a trial court’s decision 

to admit evidence of “other acts” even without a cautionary jury instruction because its probative 

value outweighed its danger of unfair prejudice. Id., ¶¶100-104. Further, besides being an 

unpublished, nonbinding decision, State v. Castillo, No. 2020AP983-CR, unpublished slip op. ¶57 

(WI App June 29, 2021), dealt with the combined prejudice resulting from improper evidence of 

other acts and incarceration status.
No. 2021AP2139-CR

9

mistrial.” See State v. Davis, 2001 WI 136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62 

(“An erroneous exercise of discretion results when the exercise of discretion is 

based on an error of law.”). The parties agree that under the correct standard, 

articulated in Bunch, the trial court should determine, “in light of the whole 

proceeding, whether the basis for the mistrial request is sufficiently prejudicial to 

warrant a new trial.” 191 Wis. 2d at 506. 

¶16 The record shows that this is what the trial court did, rather than 

applying a “per se” rule as Baggesen asserts. It weighed the prejudice to Baggesen 

resulting from Vanessa’s statement in the context of the entire proceeding—“under 

[the] circumstances and from the jury’s standpoint”—and found that “any potential 

prejudice” did not “rise[] to a level to the extent that it’s necessary to declare a 

mistrial.” Our case law encourages courts to consider “less drastic alternatives, if 

available and practical,” to mistrial. Bunch, 191 Wis. 2d at 512. We conclude that 

the trial court properly assessed the prejudice, considered its alternatives, and 

exercised its discretion to decide that a curative instruction was sufficient to 

overcome any prejudice from Vanessa’s improper disclosure of Baggesen’s 

incarceration status. Under the deferential standard we apply to the decision before 

us, which is grounded in the notion that the trial court is in the best position to 

evaluate what occurred, we must affirm if we can perceive a reasonable basis for 

the court’s decision. Bunch, 191 Wis. 2d at 510; Jeske, 197 Wis. 2d at 912-13. We 

find that to be the case here.

¶17 We conclude that the record supports a finding that the curative jury 

instructions (both immediately following the statement and right before jury 

deliberation) were sufficient to remove any prejudice resulting from Vanessa’s 

disclosure of Baggesen’s incarceration and that the trial court’s denial of Baggesen’s 

request for a mistrial was a proper exercise of discretion. We therefore reject 
No. 2021AP2139-CR

10

Baggesen’s arguments regarding the trial court’s denial of his request for mistrial 

and affirm his conviction.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.