COURT OF APPEALS

DECISION

DATED AND FILED

September 7, 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. 2021AP224-CR Cir. Ct. No. 2018CF501

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JASON H. LAVIGNE,

 DEFENDANT-APPELLANT.

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

Outagamie County: VINCENT R. BISKUPIC, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, 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. Jason LaVigne appeals a judgment convicting him 

of one count of repeated sexual assault of the same child and an order denying his 
No. 2021AP224-CR

2

motion for postconviction relief. LaVigne argues that he should be granted a new 

trial because he received ineffective assistance of trial counsel; because a witness 

changed her testimony after trial; because he discovered new evidence after trial; 

and because the circuit court erroneously exercised its discretion by not dismissing

a juror for bias, by allowing the State to amend the Information at trial, by not 

striking a witness’s testimony, and by admitting other-acts evidence. We reject 

LaVigne’s arguments and affirm.

BACKGROUND

¶2 LaVigne was a teacher at Little Chute High School for twenty years, 

starting in the 1990s and continuing until the summer of 2018 when he resigned.

In 2009, Lyla1reported to a school official that she had a keyboarding class with 

LaVigne her “freshman year from late January to late March of 1999” and that 

LaVigne used to “rub his erect penis on [her] back” while she was typing on her 

computer in the back row of the classroom. Lyla recalled “seeing a distinct bump 

in his pants” and said “[i]t was quite noticeable that he was erect.” Lyla felt 

compelled to report the incident after ten years, in part, because her younger sister 

was attending Little Chute High School at the time. The report was later closed 

“without any substantial findings” and placed in LaVigne’s personnel file. Law 

enforcement was never notified.

¶3 In June of 2018, LaVigne was accused of sexually assaulting Zoey, 

his daughter’s sixteen-year-old friend, on LaVigne’s pontoon boat in Marinette 

 

1

 Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2019-20), we use 

pseudonyms instead of the victims’ names. All references to the Wisconsin Statutes are to the 

2019-20 version unless otherwise noted.
No. 2021AP224-CR

3

County. While investigating Zoey’s allegations, law enforcement discovered 

Lyla’s 2009 report in LaVigne’s personnel file. Based on Lyla’s report, the State 

subsequently charged LaVigne in this case with one count of repeated sexual 

assault of a child. LaVigne was also charged in Marinette County with one count 

of third-degree sexual assault based on Zoey’s allegations.

¶4 Prior to trial in this case, the circuit court granted the State’s motion 

to admit other-acts evidence involving Zoey’s allegations from Marinette County

and allegations by Natasha, another friend of LaVigne’s daughter. Natasha had 

reported that LaVigne rubbed her shoulder while giving her a ride home late at 

night in August 2017 and then, upon arriving at her home, put his arms around her 

and attempted to kiss her. The court permitted the State to present the other-acts 

evidence for purposes of demonstrating LaVigne’s motive, method of operation, 

absence of mistake, and the context of the case. The State, however, was not 

permitted to present evidence of Zoey’s allegations of sexual intercourse; it could 

only present evidence that LaVigne had touched Zoey’s breasts and vagina and 

that his DNA was found on Zoey’s left breast.

¶5 At trial, several witnesses testified in support of the State’s case, 

including Lyla, Bryan Collar (a friend and classmate of Lyla), Officer Brandon 

Stahmann (the investigating officer), Natasha and Zoey. Lyla described how 

LaVigne would sometimes stop behind her in class, rub her neck and her side with 

his hands, and rub his erect penis on her back. Lyla also recounted how LaVigne

once asked her to come to his classroom during the lunch hour. Lyla was afraid to 

go alone, so she asked Collar to go with her. LaVigne asked Collar to wait in the 

hallway and then asked Lyla to read a note on a computer screen, which said, “I’m 

sorry. Don’t tell anyone about this. It won’t happen again.” Collar testified that 

he recalled going to LaVigne’s classroom with Lyla, who seemed nervous at the 
No. 2021AP224-CR

4

time, and that Lyla told him about “a note or a computer or something” upon 

exiting the room, but he could not remember what it said.

¶6 During Lyla’s cross-examination, LaVigne’s trial counsel 

established that Lyla would have been in eighth grade at the beginning of 1999—

the time period charged in the Information—and that Lyla did not have LaVigne’s 

keyboarding class until the first three months of 2000, which was Lyla’s freshman 

year of high school. Over LaVigne’s objection, the circuit court allowed the State 

to amend the Information to reflect that the offense occurred at the beginning of 

2000, not 1999.

¶7 LaVigne adjusted his defense to the amended Information

accordingly, and he presented evidence that he took paternity leave “[f]or a large 

chunk” of the time when Lyla was a student in his keyboarding class. LaVigne

also attempted to show, using a chair similar to that in which Lyla might have sat

as demonstrative evidence, that it would have been impossible for him to rub his 

penis on Lyla’s back because the chairs in his keyboarding class were too tall.

Testifying in his own defense, LaVigne denied touching Lyla with his penis or 

walking around the classroom with an erection.

¶8 In addition, LaVigne testified to his version of events regarding the 

other-acts evidence involving Natasha and Zoey. According to LaVigne, he did 

not rub Natasha’s shoulder or put his arms around her, but he did make a joke 

about kissing her that “went over her head” and that she “misunderstood.” 

LaVigne also described how Zoey was the initial aggressor on his pontoon boat

and that he fell asleep on the boat and woke up to Zoey on his lap, kissing him,

and “trying to get [him] to do things with her that were inappropriate.” LaVigne

testified that he pushed Zoey away and yelled at her to stop.
No. 2021AP224-CR

5

¶9 The jury found LaVigne guilty. Thereafter, the circuit court

sentenced LaVigne to five years’ initial confinement followed by eleven years’

extended supervision. LaVigne was also later convicted in Marinette County for 

his sexual assault of Zoey.

¶10 LaVigne subsequently filed a postconviction motion seeking a new 

trial in this case. In support, he argued that his trial counsel was ineffective, that

Natasha had changed her testimony in the later-tried Marinette County case, that 

he had discovered new evidence regarding the height of the chairs in his

keyboarding classroom, and that the circuit court erroneously exercised its 

discretion several times throughout this case. In a written decision, the court 

concluded that LaVigne was entitled to a Machner2 hearing on his ineffective 

assistance of counsel claims, but the court denied relief on the remainder of the

claims without a hearing. Following the Machner hearing—at which LaVigne,

his trial counsel, and his wife and daughter all testified—the court issued a written 

decision denying LaVigne’s ineffective assistance of counsel claims.

¶11 LaVigne now appeals, renewing each of the claims in his 

postconviction motion. Additional facts will be provided as necessary below.

DISCUSSION

I. Ineffective assistance of counsel

¶12 A criminal defendant has the constitutional right to effective 

assistance of counsel. State v. Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912 

 

2

 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2021AP224-CR

6

N.W.2d 89. To prevail on an ineffective assistance of counsel claim, the 

defendant bears the burden of proving: (1) that counsel’s performance was 

deficient; and (2) that the deficient performance prejudiced the defense. Id. A 

court need not address both components of this inquiry if the defendant does not 

make a sufficient showing on one. State v. Smith, 2003 WI App 234, ¶15, 268 

Wis. 2d 138, 671 N.W.2d 854.

¶13 To establish deficient performance, a defendant must demonstrate

that his or her trial counsel’s performance fell below “an objective standard of 

reasonableness.” State v. Savage, 2020 WI 93, ¶28, 395 Wis. 2d 1, 951 N.W.2d 

838 (citation omitted). “Courts afford great deference to trial counsel’s conduct, 

presuming that it ‘falls within the wide range of reasonable professional 

assistance.’” Id. (citation omitted). “Counsel need not be perfect, indeed not even 

very good, to be constitutionally adequate.” State v. Thiel, 2003 WI 111, ¶19, 264 

Wis. 2d 571, 665 N.W.2d 305.

¶14 To establish prejudice, “a defendant must show that there is a 

reasonable probability that, but for counsel’s professional errors, the result of the 

proceeding would have been different.” Savage, 395 Wis. 2d 1, ¶32 (quoting 

Strickland v. Washington, 466 U.S. 668, 694 (1984)). A reasonable probability is 

a probability sufficient to undermine confidence in the outcome. Strickland, 466 

U.S. at 694. However, “a defendant need not prove the outcome would ‘more 

likely than not’ be different in order to establish prejudice in ineffective assistance 

cases.” Sholar, 381 Wis. 2d 560, ¶44 (citing Strickland, 466 U.S. at 693).

¶15 Whether a defendant has been denied the effective assistance of 

counsel is a mixed question of law and fact. Savage, 395 Wis. 2d 1, ¶25. We will 

not overturn a circuit court’s findings of fact, including findings regarding the 
No. 2021AP224-CR

7

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

those findings are clearly erroneous. Id. We review de novo whether counsel 

performed deficiently and, if so, whether counsel’s deficient performance was 

prejudicial to the defense. Id.

 A. Counsel’s decision not to provide LaVigne with a recorded jail phone call 

involving other-acts evidence

¶16 At trial, LaVigne testified about his recollection of the other-acts 

incident involving Zoey. LaVigne explained how his daughter was sleeping on 

the boat but apparently woke up during the incident. The State questioned 

LaVigne regarding a telephone conversation between him and his daughter while 

LaVigne was in jail. Specifically, the State asked whether LaVigne recalled his 

daughter asking him about what she should tell police about the incident involving 

Zoey and whether he recalled “instructing and directing [her] on the story that she 

is to tell police.” LaVigne responded multiple times that he did not communicate 

with his daughter about the incident between his arrest and her speaking to police 

about the incident. Upon further questioning, LaVigne confidently stated: “I did 

not speak to my daughter before she was interviewed. Prove that please.”

¶17 Subsequently, over LaVigne’s objection, the State presented a

recorded jail phone conversation between LaVigne and his daughter that occurred 

prior to LaVigne’s daughter speaking to police. Upon being confronted with the 

recording, LaVigne clarified that he had spoken to his daughter in that time frame

but did not instruct her what to tell police. According to LaVigne, he had simply 

told his daughter to tell the same story she had previously told him.

¶18 LaVigne argues that his counsel performed deficiently because 

counsel did not review or provide him with the recording of the phone call 
No. 2021AP224-CR

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between him and his daughter. He concedes that “[t]he jail call did involve a 

collateral issue,” but he contends that his credibility was the “central issue” in the 

trial and that his credibility was severely undercut by counsel failing to give him

the recording.

¶19 The circuit court concluded, and we agree, that counsel’s failure to 

provide LaVigne with the recording of his phone call did not fall below an 

objective standard of reasonableness. At the Machner hearing, counsel testified 

that, before trial, he had heard the recording of the phone call and reviewed the 

transcript of the recording. Counsel also testified, however, that he did not prepare 

LaVigne for cross-examination on the recording because the recording was about 

the Marinette County case and because he did not anticipate that it would be 

admitted into evidence. Indeed, the court recognized in its decision on LaVigne’s 

postconviction motion that “[b]ased on the scope of pretrial hearings and rulings, 

the jail call was not likely to be relevant in the Outagamie County case unless 

someone unexpectedly opened the door.” Counsel could therefore reasonably 

conclude that LaVigne did not need to be prepared for cross-examination on the 

recorded jail phone call.

¶20 LaVigne disagrees with the circuit court’s suggestion that he had 

opened the door to the introduction of the recording, arguing that “[t]he State 

opened the door by asking the question.” LaVigne fails to recognize, however,

that had he admitted speaking to his daughter on the phone before she spoke to 

police and had he not challenged the prosecutor to “[p]rove that” he had spoken to 

his daughter, the recording likely would not have been admitted into evidence.

We surmise this likelihood based on the court’s assessment of the pretrial rulings, 

which LaVigne does not question. Although LaVigne emphasizes his later 

testimony that he had made many phone calls to his family while in jail and that he 
No. 2021AP224-CR

9

did not recall speaking to his daughter at the particular time in question, the court 

never credited his testimony. Indeed, LaVigne’s claimed uncertainty could be 

viewed as incredible because he never expressed such uncertainty in his trial

testimony. Furthermore, the court observed that LaVigne “was a party to the jail 

call and should have been fully aware of what he said to his daughter.” LaVigne

does not contend that such a finding of fact is clearly erroneous, nor do we think it 

is under the circumstances.

¶21 In addition, LaVigne’s personal knowledge of the phone call 

buttresses the conclusion that his trial counsel’s performance did not fall below an 

objective standard of reasonableness. Trial counsel could reasonably prioritize 

other, more important matters before reminding LaVigne about facts concerning 

other-acts evidence that LaVigne would or should likely know already. In 

retrospect, counsel might have advised LaVigne about the State’s possession of 

the recorded phone call and to not challenge the State to prove certain facts, but 

we do not rely on hindsight when determining whether counsel’s performance was 

objectively reasonable. See State v. Pico, 2018 WI 66, ¶22, 382 Wis. 2d 273, 914 

N.W.2d 95. Under the relevant circumstances, counsel did not perform deficiently

by deciding not to provide the recording or transcript of the jail phone call to 

LaVigne.

 B. Counsel’s decision not to prepare or call LaVigne’s daughter as a witness

¶22 LaVigne argues that his trial counsel was also deficient for not 

preparing or calling LaVigne’s daughter as a witness. He contends that his 

daughter’s testimony would have refuted the State’s argument that he had 

instructed her about what to tell police. He also asserts that his daughter could 
No. 2021AP224-CR

10

have produced text messages that she had sent to Zoey before the recorded jail 

call, in which she confronted Zoey about “going after” her dad.

¶23 “[A] lawyer’s decision to call or not to call a witness is a strategic 

decision generally not subject to review. The Constitution does not oblige counsel 

to present each and every witness that is suggested to him [or her].” United States 

v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (citation omitted). Moreover, “[a]s a 

matter of trial strategy, counsel could well decide not to call family members as 

witnesses because family members can be easily impeached for bias.” Bergmann 

v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995).

¶24 Counsel made a reasonable, strategic decision not to call LaVigne’s 

daughter as a witness. Counsel testified at the Machner hearing that LaVigne’s 

daughter “wasn’t very strong” as a witness and “was emotional.” Counsel also 

perceived LaVigne’s daughter to be asking counsel “what do you want me to 

testify to? And it didn’t seem like she had a lot of facts that she was aware of at 

that time that would be helpful.”

¶25 LaVigne’s daughter might have been able to testify about text 

messages between her and LaVigne on the night of the incident involving Zoey, 

but those messages would have shown LaVigne telling his daughter his version of 

the facts: “[Zoey] was drunk and acting crazy and I kept trying to push her away.” 

Although LaVigne’s daughter responded, “I know,” suggesting she might have 

knowledge of the facts, she later asked “what happened[?]” LaVigne then 

responded, “I would rather just talk to you about it instead of text.” Thus, the texts 

largely corroborated trial counsel’s testimony that LaVigne’s daughter did not 

know much of the underlying facts and that her testimony would likely have been 

informed by LaVigne’s version of events. Under the circumstances, counsel could 
No. 2021AP224-CR

11

reasonably determine that LaVigne’s daughter would not have been a persuasive 

or an effective witness because of her emotions, her relationship to LaVigne, and 

her lack of personal knowledge about the incident.

¶26 In addition, LaVigne’s counsel testified that he was concerned that 

having LaVigne’s daughter testify in the Outagamie County case “was going to 

compromise what [LaVigne] had to deal with in Marinette [County].” Such a 

concern was reasonable because his daughter’s testimony could have adversely 

affected LaVigne’s defense to the then-unresolved charges in Marinette County. 

For example, LaVigne’s daughter could have revealed inculpatory statements by 

LaVigne, or she might have made statements that could be used to impeach her 

later testimony in the Marinette County case. Ultimately, as the circuit court 

found, LaVigne himself agreed that his daughter should not be called as a witness, 

which further supports the reasonableness of counsel’s decision not to call her as a 

witness.

¶27 Counsel’s decision not to spend more time preparing LaVigne’s 

daughter was also objectively reasonable under the circumstances. Counsel 

testified that he 

saw the whole Marinette matter as collateral. I kn[e]w it 

would have an impact. But I thought the strength of the 

Outagamie case was strong enough to be decided on its 

own merits. And that was not our focus as to what 

occurred in Marinette County. Our focus was on what was 

being claimed in Outagamie County.

Indeed, although refuting the other-acts evidence related to Zoey was an important 

part of LaVigne’s defense, counsel could reasonably focus his attention on the 

underlying allegations in the present case.
No. 2021AP224-CR

12

¶28 Moreover, it is undisputed that counsel met with LaVigne’s daughter 

at least once to discuss her potential testimony. The circuit court also found that 

“counsel was aware of what the daughter had said in her police interview.” While 

LaVigne suggests that his daughter would have been less emotional if counsel had 

spent more time preparing her, he fails to identify any evidence in the record to

support that assertion. To the contrary, LaVigne’s daughter testified at the 

Machner hearing—over a year after the trial—that she was still “pretty upset 

about the whole situation[.]”

 C. Counsel’s decision not to recall a witness to testify about LaVigne’s 

statement

¶29 LaVigne testified at trial that he would stand behind the students in 

his keyboarding class to ensure they “were typing properly.” When asked twice 

on cross-examination whether LaVigne told Officer Stahmann that LaVigne

would not stand behind students, LaVigne responded, “No.” Prior to this line of 

questioning, the jury had viewed portions of the recorded interview between 

Stahmann and LaVigne.

¶30 LaVigne argues his trial counsel performed deficiently by not 

recalling Officer Stahmann as a witness to testify that LaVigne had not denied 

standing behind his students. He asserts that the prosecutor’s questioning implied

that he had lied to Stahmann, which reflected poorly on LaVigne’s credibility. He 

further argues that Stahmann’s rebuttal testimony would not have been cumulative 

because it would have corroborated his testimony.

¶31 We reject LaVigne’s arguments. LaVigne established, through his 

own testimony, that he regularly stood behind the students and that he never 

previously denied doing so. Although the prosecutor’s questioning might have 
No. 2021AP224-CR

13

implied that LaVigne had previously lied to Officer Stahmann about where 

LaVigne stood in the classroom, the State did not introduce any evidence to that 

effect or attempt to impeach LaVigne’s statements. The jury therefore had no 

basis to find that LaVigne had previously lied to Stahmann. Moreover, the jury 

viewed portions of LaVigne’s recorded interview with Stahmann, and it would 

have known that LaVigne’s statements to Stahmann were consistent with his 

testimony at trial. It would have been reasonable for LaVigne’s trial counsel to 

conclude—based on the evidence presented at trial—that recalling Stahmann was 

unnecessary and largely cumulative of evidence already presented and that 

Stahmann’s potential testimony could have only minimal, if any, value in 

bolstering LaVigne’s credibility.

 D. Counsel’s lack of knowledge regarding a magazine article used to impeach 

LaVigne’s expert witness

¶32 In support of LaVigne’s defense at trial, forensic psychologist 

Hollida Wakefield testified as an expert witness about delayed reporting. During 

the State’s cross-examination, she acknowledged that a “pro-pedophilia magazine”

in Europe had interviewed her and her late husband around the early 1990s. When 

asked whether the magazine had represented that Wakefield believed “pedophilia 

is an acceptable expression of God’s will,” Wakefield responded: “I did not say

that.” Wakefield then explained that her late husband, who was a Lutheran 

minister, made a poorly phrased comment about “free will” that was taken out of 

context. Wakefield further testified that “nowhere in our writings will you find 

that we approve of adult/child contact” and that she has “never been in favor of 

adult/child sexual contact and neither was [her] late husband.”

¶33 LaVigne argues on appeal that his trial counsel performed 

deficiently by failing to investigate the magazine article used to impeach 
No. 2021AP224-CR

14

Wakefield. He also asserts that, due to counsel’s lack of investigation, counsel 

failed to rehabilitate Wakefield on redirect examination.

¶34 LaVigne’s arguments are undeveloped. “[A] defendant who alleges 

a failure to investigate on the part of his or her counsel must allege with specificity 

what the investigation would have revealed and how it would have altered the 

outcome of the case.” State v. Leighton, 2000 WI App 156, ¶38, 237 Wis. 2d 709, 

616 N.W.2d 126. LaVigne does not explain what counsel’s investigation into 

Wakefield’s history would have revealed, nor does he explain how further 

investigation would have altered the outcome of this case. Although LaVigne

suggests that counsel failed to rehabilitate Wakefield on redirect due to an 

insufficient investigation, counsel testified that he did not ask about the article on 

redirect because he thought Wakefield had provided “an adequate explanation” to 

the State’s questioning by not accepting or affirming the views expressed in the 

article. He also testified, “I thought she was good on what I wanted her to testify 

to. And that’s all I thought we needed.” Indeed, the transcript establishes that 

Wakefield explained her disagreements with the article and that she rejected any 

suggestion that she approved of pedophilia or sexual contact between adults and 

children. Therefore, counsel could reasonably determine that Wakefield did not 

need to be rehabilitated on redirect examination.

 E. Counsel’s decision not to object during the State’s closing argument

¶35 The State began its closing argument by stating: “Throughout this 

trial, we heard about Jason LaVigne’s dark side. His pattern of attraction towards 

young, underage girls. His disgusting desire to be sexually gratified by these 

young, underage girls in a public setting.” LaVigne’s trial counsel later stated at 
No. 2021AP224-CR

15

the Machner hearing that he considered objecting to the State’s closing argument

but did not do so because he “concluded it was argument.”

¶36 LaVigne argues his trial counsel performed deficiently by failing to 

object to the State’s closing argument. He contends that the State’s argument 

“was an attack on [his] character” and “vilif[ied him] ... as one who seeks young 

girls for sexual satisfaction.”

¶37 Contrary to LaVigne’s arguments, the prosecutor’s comments—that 

LaVigne had a “dark side” and a “pattern of attraction towards young, underage 

girls”—were not impermissible. Attorneys are given “considerable latitude in 

closing arguments.” State v. Hurley, 2015 WI 35, ¶95, 361 Wis. 2d 529, 861 

N.W.2d 174 (citation omitted). Considered in the context of the State’s case and 

the prosecutor’s closing argument, it would have been reasonable for trial counsel 

to conclude that the prosecutor was emphasizing LaVigne’s “pattern of attraction”

for the permissible purposes of showing LaVigne’s motive, intent, and lack of 

mistake or accident in rubbing his penis on Lyla’s back. See WIS. STAT.

§ 904.04(2)(a). Indeed, other acts that demonstrate a “pattern” can be highly 

probative of facts at issue in a case. See, e.g., State v. Opalewski, 2002 WI App 

145, ¶¶17-18, 256 Wis. 2d 110, 647 N.W.2d 331 (recognizing that the pattern of 

other acts showed how the acts were similar to each other and that the other-acts 

evidence was relevant to proving intent, motive, and absence of mistake); see also 

State v. Midell, 39 Wis. 2d 733, 737, 159 N.W.2d 614 (1968) (upholding a 

decision to admit other-acts evidence that “show[ed] a pattern and a state of mind 

of the defendant”).

¶38 Even if the State’s closing argument did suggest that LaVigne had a

character and a propensity to commit sexual assault, it would have been 
No. 2021AP224-CR

16

reasonable for trial counsel to determine, under the circumstances, that the State’s 

closing argument was permissible and that LaVigne would not benefit from his 

trial counsel objecting and calling attention to the State’s argument. Accordingly, 

trial counsel did not perform deficiently by choosing not to object to the State’s 

closing argument.

 F. Counsel’s decision to advance two consistent defense theories

¶39 LaVigne’s trial counsel asserted in closing arguments that there were 

multiple reasonable doubts as to whether LaVigne committed the offense of 

repeated sexual assault of a child. Counsel argued that LaVigne could not have 

committed the offense during the first three months of 2000, which was the 

relevant period of time alleged in the amended Information, because LaVigne was 

on paternity leave during those months. Counsel also argued, however, that it 

would be impossible for LaVigne to have committed the offense because the back

of the chair that Lyla would have sat in was too high for LaVigne to press his 

penis on her back. As counsel described it, LaVigne “would have to be some sort 

of a contortionist to put his penis up near her shoulder as she sat in the chair.”

¶40 LaVigne contends his trial counsel performed deficiently because he 

argued “competing” defense theories, which “confuse[] the jury as to what the 

defense really is.” He argues that such a strategy undermines the outcome of the 

trial.

¶41 LaVigne’s argument is a nonstarter. LaVigne’s trial counsel 

explained at the Machner hearing that his strategy going into trial was to show 

that LaVigne could not have physically committed the offense based on the height 

of the classroom chairs. When the State amended the Information to reflect a 

charging period between January 1, 2000, and March 31, 2000, counsel also 
No. 2021AP224-CR

17

attempted to show that LaVigne was on paternity leave during that time. Counsel 

recognized, however, that the paternity-leave argument was not a complete 

defense because LaVigne and his wife “were uncertain as to the length of 

[LaVigne’s] time ... away from school,” so “the door was open for him to be there 

at least part time at different days.” Indeed, LaVigne testified at trial that he was 

on paternity leave “[f]or a large chunk” of the time when the offenses allegedly 

occurred. Nonetheless, counsel believed that “either way ... it created a 

reasonable doubt.”

¶42 As the circuit court correctly observed, “[t]hese two theories are 

concurrent to each other, not competing. There was little risk that the jury would 

be confused about [LaVigne’s] position.” Trial counsel’s argument was 

abundantly clear that LaVigne was on paternity leave for a majority of the relevant 

time period, which reduced LaVigne’s opportunity to commit the offense, and that 

LaVigne could not physically commit the offense—even when he was in class—

due to the height of the chairs in the classroom. Counsel could reasonably believe 

that if a jury accepted one or both of these arguments, a jury might find that the 

State failed to prove the offense beyond a reasonable doubt. Trial counsel did not 

perform deficiently by arguing two compatible defenses.

 G. Counsel’s decision not to present videos prepared by LaVigne

¶43 In preparation for trial, LaVigne created a few short video files, 

which he thought would be relevant to his defense, from larger video clips that 

contained police interviews of Lyla and Collar. LaVigne believed that one part of 

Lyla’s interview was particularly important because “she said the word neck and 

pointed to her neck when she described the touching.” LaVigne also believed that 

part of Collar’s interview was important because “[s]everal times he said that he 
No. 2021AP224-CR

18

had very poor memory of anything that happened.” LaVigne’s trial counsel did 

not present either of these two videos at trial.

¶44 LaVigne argues his trial counsel performed deficiently by not 

playing the videos at trial. He contends that the video of Lyla describing the 

touching near her neck area would have impeached her trial testimony that 

LaVigne pressed his penis on a lower part of her back. He also asserts that trial

counsel could have impeached Collar’s trial testimony by showing Collar’s video 

statement that Collar had a poor memory about Lyla’s comments to him in 2000 

and by Collar failing to mention a note or computer in his interview.

¶45 LaVigne’s argument again misses the mark. As the circuit court 

appropriately observed, Lyla’s statement in the video that LaVigne had touched 

her around her neck was largely consistent with her trial testimony. Although 

Lyla testified that she felt LaVigne’s erect penis on her “upper back,” she also

testified that LaVigne would “stand behind me and touch my neck with his hands 

and sometimes along my side with his hands.” Accordingly, playing a short video 

of Lyla saying “neck” and pointing to an area around her neck would not have 

impeached her credibility because her statements in the video were consistent with 

her testimony at trial.

¶46 Similarly, LaVigne’s trial counsel was able to establish on 

cross-examination—without playing any videos—that Collar had a poor 

recollection of what occurred in 2000. Collar testified that he could not recall 

what time of day, day of the week, or month that he had escorted Lyla down to 

LaVigne’s classroom. He described Lyla as appearing nervous, but he struggled 

to explain how she appeared nervous, other than saying she was shaking a little 

bit. Collar also testified that he could not recall whether Lyla told him why she 
No. 2021AP224-CR

19

was nervous, nor could he recall whether he gave Lyla any advice after her 

meeting with LaVigne. Collar conceded that he “possibly” told Officer Stahmann 

that his “memory was real vague,” but he had not read the police report. Nearly 

the entire cross-examination of Collar emphasized Collar’s poor memory of when 

he walked Lyla down to LaVigne’s classroom. Thus, playing a video of Collar 

stating he had a “poor memory” of the event would have only reiterated what trial 

counsel had already established in cross-examination.

¶47 To the extent trial counsel failed to show that Collar did not

previously mention that Lyla had said something about a note or a computer, trial 

counsel would have needed to show the entire video of Collar’s interview to 

establish this fact, not one short video clip. Regardless, it was readily apparent

from Collar’s testimony that his memory about the note or computer statement 

was questionable. He testified: “I can remember like a note or a computer or 

something. What it said I don’t remember.” In short, trial counsel acted 

reasonably by choosing not to play the videos that LaVigne had created.

 H. Counsel’s decision not to investigate the home of an other-acts witness

¶48 Natasha testified at trial that LaVigne massaged her shoulder for 

about thirty seconds while he drove her home one evening, and upon arriving at 

her home, LaVigne exited the vehicle, “put his arms around [her,] and tried to kiss 

[her].” Natasha then pushed LaVigne away and ran into her home. At the time, 

Natasha was fifteen years old. Natasha specifically testified that LaVigne was 

driving the vehicle and that he used his right hand to massage her left shoulder. At

the trial in the Marinette County case, Natasha again testified about this incident,

but she acknowledged on cross-examination that she, not LaVigne, drove 

LaVigne’s vehicle that night.
No. 2021AP224-CR

20

¶49 LaVigne argues his trial counsel performed deficiently by failing to 

investigate the layout of Natasha’s home. He contends that if counsel had done so, 

“he would have found that [Natasha’s] driveway was to the left of the front door to 

[her] house,” and counsel could have then asked Natasha why she did not go 

directly to her home’s front door from the passenger side of the vehicle. He also 

asserts that such questioning would have shown that Natasha’s story was 

implausible and impeached Natasha’s credibility.

¶50 Trial counsel’s decision not to investigate the layout of Natasha’s 

home was reasonable under the circumstances. Even if Natasha had admitted to 

driving the vehicle on cross-examination, such an admission would not have 

contradicted or disproved her testimony that LaVigne massaged her shoulder, 

wrapped his arms around her, and attempted to kiss her. LaVigne testified at trial 

that Natasha “was pretty excited to drive” his vehicle and “had stopped in front of 

the [vehicle] to take a selfie.” He admitted that he “got into the selfie with her”

and told her: “I feel like I am dropping you off for a date and I should be asking 

for a kiss.” Although LaVigne denied attempting to kiss Natasha, LaVigne’s own 

testimony established that he was physically close to Natasha and that he made a 

concerning comment about kissing her. The jury could have therefore believed 

Natasha’s testimony about the attempted kiss even if it believed that Natasha had 

driven LaVigne’s vehicle.

¶51 In addition, and as noted earlier, LaVigne’s trial counsel reasonably 

prioritized preparing a defense to the charged crime over defending against every 

detail of the other-acts evidence in this case. The fact that Natasha drove instead 

of LaVigne was a minor detail explaining how LaVigne and Natasha came to be 

standing in front of LaVigne’s vehicle. A jury might have found Natasha slightly 

less credible had she admitted on cross-examination that she had, in fact, driven
No. 2021AP224-CR

21

the vehicle, but LaVigne’s own testimony still established that he had made a 

concerning comment about kissing Natasha while in close proximity to her. 

Counsel could reasonably decide to avoid focusing on the small factual 

discrepancies in Natasha’s testimony and to focus instead on the allegations in the 

present case.

 I. Cumulative prejudice

¶52 Finally, LaVigne argues “that in the aggregate, trial counsel’s 

multiple deficient actions and omissions prejudiced [his defense].” This argument 

fails, however, because LaVigne has not shown that his trial counsel performed 

deficiently in any respect. Courts do not consider the cumulative effect of 

counsel’s alleged deficiencies where “the alleged errors, taken in isolation, did not 

constitute a deficient act or omission.” State v. Hunt, 2014 WI 102, ¶55 n.15, 360 

Wis. 2d 576, 851 N.W.2d 434. As discussed above, none of trial counsel’s alleged 

deficiencies amount to deficient performance, which leaves nothing for us to

aggregate.

II. Discretionary reversal

¶53 LaVigne next argues that we should vacate his conviction and grant 

him a new trial under WIS. STAT. § 752.35 because “he was convicted based upon 

the untruthful testimony of [Natasha].” LaVigne contends that Natasha’s 

subsequent testimony in the Marinette County case was “vastly different” from her 

“very detailed testimony” in this case that LaVigne drove the vehicle and used his 

right hand to massage her shoulder. He contends that these discrepancies create a 

question about Natasha’s veracity and explain why he excited the vehicle, which 

bolsters his credibility.
No. 2021AP224-CR

22

¶54 This court may reverse a judgment and remand for a new trial if it 

appears from the record that the real controversy has not been fully tried or it is 

probable that justice has for any reason miscarried. WIS. STAT. § 752.35. The real 

controversy has not been fully tried if:

(1) Either the jury was not given an opportunity to hear 

important testimony that bore on an important issue in the 

case, or (2) the jury had before it testimony or evidence 

which had been improperly admitted, and this material 

obscured a crucial issue and prevented the real controversy 

from being fully tried.

State v. Burns, 2011 WI 22, ¶24, 332 Wis. 2d 730, 798 N.W.2d 166 (citation 

omitted). In addition, justice has been miscarried if “there would be a substantial 

probability that a different result would be likely on retrial.” Id. (citation omitted).

“We exercise our discretionary-reversal powers ‘only in exceptional cases.’” Id., 

¶25 (citation omitted).

¶55 This is not an exceptional case warranting discretionary reversal. As 

discussed more fully below, the circuit court did not erroneously exercise its 

discretion by admitting other-acts evidence involving Natasha. In addition, 

Natasha’s incorrect statements—that LaVigne was driving (instead of her) and that 

LaVigne was massaging her shoulder with his right hand (instead of his left 

hand)—are minor, incidental facts to her testimony. Although Natasha’s change 

in testimony in the Marinette County case bears on her credibility and further 

explains that LaVigne needed to exit the vehicle to return to the driver’s seat, 

Natasha maintained in the Marinette County case that LaVigne massaged her 

shoulder and attempted to kiss her. Moreover, and most significantly, Natasha’s 

testimony concerned other-acts evidence, not the charge for which LaVigne was 

on trial—i.e., repeatedly rubbing his erect penis on Lyla’s back.
No. 2021AP224-CR

23

¶56 In light of LaVigne’s admission that he made a concerning comment 

about kissing Natasha in front of his vehicle and the other-acts evidence involving 

Zoey, there is not a reasonable probability that Natasha’s change in testimony in 

the Marinette County case would affect the jury’s conclusion that LaVigne

violated WIS. STAT. § 948.025(1) by repeatedly rubbing his erect penis on Lyla. 

In short, the real controversy has been tried in this case, and it is not probable that 

justice has been miscarried.

III. Newly discovered evidence

¶57 LaVigne also argues that the circuit court erroneously exercised its 

discretion by not holding an evidentiary hearing to consider his request for a new 

trial based on newly discovered evidence. He contends that he discovered after his 

trial and conviction that the classroom chair produced at trial was “a standard 

size.” He suggests that this evidence would have rebutted the State’s trial 

argument that Lyla might have sat in chair with a lower height than the chair 

shown at trial.

¶58 A circuit court is required to hold a hearing on a postconviction 

motion “only when the movant states sufficient material facts that, if true, would 

entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 

568, 682 N.W.2d 433. Whether a motion meets this standard is a question of law 

that we review de novo. Id., ¶9. “[I]f the motion does not raise facts sufficient to 

entitle the movant to relief, or presents only conclusory allegations, or if the record 

conclusively demonstrates that the defendant is not entitled to relief, the circuit 

court has the discretion to grant or deny a hearing.” Id. We review a court’s 

discretionary decisions for an erroneous exercise of discretion. Id.
No. 2021AP224-CR

24

¶59 To set aside a judgment of conviction based on newly discovered 

evidence, the defendant must prove, by clear and convincing evidence, that 

“(1) the evidence was discovered after conviction; (2) the defendant was not 

negligent in seeking the evidence; (3) the evidence is material to an issue in the 

case; and (4) the evidence is not merely cumulative.” State v. Avery, 2013 WI 13, 

¶25, 345 Wis. 2d 407, 826 N.W.2d 60 (citation omitted). If the defendant 

establishes those four factors, then the court must determine whether a reasonable 

probability exists that a different result would be reached in a trial. Id.

¶60 LaVigne alleged in his postconviction motion that Clyde Trudeau, 

the sales person who sold the chairs that were to be used in LaVigne’s classroom,

said that the chairs were “an Artco-Bell Transitional Series Model 7167 Uniflex 

Chair with casters,” which “comes in a standard height, with or without casters.” 

LaVigne further asserted that this evidence “was not negligently missed because 

the height of the chair was not an issue until cross[-]examination at trial” and that 

the evidence “is not cumulative [because] Mr. Trudeau would verify the chair in 

question is the same style chair with a standardized height.” LaVigne also claimed 

that there is reasonable doubt as to his guilt because, contrary to the State’s 

argument at trial, “this new evidence [showed] that there is no way the chair had a 

different height.”

¶61 Contrary to the allegation in LaVigne’s postconviction motion, the 

height of the chairs was an issue at trial prior to any cross-examination by the 

State. LaVigne’s main defense at trial was that the height of the chairs used in his 

classroom in 2000 would have made it physically impossible for him to commit
No. 2021AP224-CR

25

the offense.3 To potentially prevail on that defense, LaVigne needed to establish 

the type of chair used in his classroom in 2000, the height of those chairs, and his 

height as compared to those chairs. LaVigne produced evidence addressing each 

of those issues by testifying that a chair brought to the courtroom was “exactly the 

same” as the chairs used in his classroom in 2000, that he was five feet, seven 

inches tall, and that, in relation to the chair in the courtroom, his genitalia was 

“just below the edge of the top of the chair.”

¶62 Although Trudeau might now be able to provide additional 

testimony addressing the model and height of the chairs that were to be used in 

LaVigne’s classroom, LaVigne should have spoken to Trudeau before trial

because LaVigne knew that such information would have been helpful to his 

defense. LaVigne has not provided any explanation for not doing so—other than 

his erroneous argument that the height of the chair was not an issue—and his

postconviction motion therefore fails to allege that he was not negligent in seeking 

evidence from Trudeau.

¶63 The record also conclusively establishes that Trudeau’s potential 

testimony would be cumulative of evidence already presented at trial. “Newly 

discovered evidence is cumulative where it tends to address ‘a fact established by 

existing evidence.’” State v. McAlister, 2018 WI 34, ¶37, 380 Wis. 2d 684, 911 

N.W.2d 77 (citation omitted). As alleged in LaVigne’s postconviction motion,

Trudeau’s testimony would establish that the chair used in LaVigne’s classroom 

 

3

 At the Machner hearing, LaVigne’s trial counsel confirmed what the trial record 

plainly demonstrates—namely, that “from day one our strategy was that it was just physically 

impossible where this occurred in the manner that it was being claimed.” Trial counsel further 

testified that part of LaVigne’s defense was based on the height of the chair and that the chair was 

a critical issue.
No. 2021AP224-CR

26

and produced at trial “comes in a standard height, with or without casters.” 

Although no witness testified at trial about whether the chair came in a “standard 

height,” LaVigne unequivocally testified at trial that the chair brought into the 

courtroom was exactly the same as the chairs used in his classroom in 2000. In 

other words, LaVigne’s trial testimony established that the height of the chair in 

the courtroom was the same height as the chairs used in his classroom in 2000. 

The superintendent and a computer technician for the Little Chute School District 

also testified, respectively, at trial that the chair in the courtroom was the same 

chair as the chairs used in the area of the school where LaVigne’s class was 

located and that the chair was the “same type of chair” that was used in the Little 

Chute High School computer room in 2000. Trudeau’s testimony that “the chair 

in question is the same style chair with a standardized height” is therefore 

cumulative of facts already established by existing evidence. See id.

¶64 Finally, even if Trudeau would testify to the facts alleged in 

LaVigne’s postconviction motion, Trudeau’s testimony would not create a 

reasonable probability that a different result would be reached in a new trial. “A 

reasonable probability of a different outcome exists if ‘there is a reasonable 

probability that a jury, looking at both the [old evidence] and the [new evidence], 

would have a reasonable doubt as to the defendant’s guilt.’” State v. Plude, 2008 

WI 58, ¶33, 310 Wis. 2d 28, 750 N.W.2d 42 (alterations in original; citation 

omitted). At most, Trudeau’s testimony would establish that he sold the chairs 

that were to be used in LaVigne’s classroom and that those chairs were a standard 

height. He could not establish, however, that those chairs were, in fact, used in the 

classroom or that Lyla sat in one of those chairs when LaVigne rubbed his penis 

against her back. Thus, Trudeau’s testimony would not debunk the State’s theory 

that the chair used in the courtroom at trial might not have been the chair in which 
No. 2021AP224-CR

27

Lyla sat. Accordingly, there is not a reasonable probability that a jury, considering 

both the evidence presented at trial and the facts alleged in LaVigne’s 

postconviction motion, would have a reasonable doubt as to LaVigne’s guilt. See 

id.

¶65 In short, LaVigne’s postconviction motion fails to allege sufficient 

facts to entitle him to relief, and the record conclusively establishes that he is not 

entitled to relief. The circuit court therefore did not erroneously exercise its 

discretion by denying, without a hearing, LaVigne’s request for a new trial based 

on newly discovered evidence.

IV. Erroneous exercises of discretion before and during trial

¶66 LaVigne’s final arguments challenge several of the circuit court’s 

discretionary decisions before and during trial. We review these decisions for an

erroneous exercise of discretion. Allen, 274 Wis. 2d 568, ¶9.

¶67 LaVigne first argues that the circuit court erroneously exercised its 

discretion by not excusing Juror Wegand, a juror believed to have improperly 

communicated with Lyla during the trial, for being biased. LaVigne’s brother, 

Allen LaVigne, testified at a break in the trial (outside the presence of the jury) 

that he had observed a juror give a “sympathetic look” and mouth or say the words 

“so sorry” to Lyla. LaVigne’s brother acknowledged, however, that he was “too 

far away” to know exactly what was said or gestured. Lyla subsequently testified 

that she did not recall any juror looking or mouthing anything to her. Later, when 

the jurors were back in the courtroom, the court asked if any of them had any kind 

of contact or communication with someone in the “back of the courtroom.” None 

of the jurors responded affirmatively, with the exception of one juror 
No. 2021AP224-CR

28

acknowledging that she had asked for a Kleenex. The court did not excuse any

jurors.

¶68 A criminal defendant has a constitutional right to an impartial jury. 

State v. Funk, 2011 WI 62, ¶31, 335 Wis. 2d 369, 799 N.W.2d 421. A juror is 

presumed to be impartial, and the party challenging a juror’s impartiality bears the 

burden of rebutting this presumption and proving bias. Id. A circuit court’s 

findings of fact as to a juror’s bias will not be overturned unless they are clearly 

erroneous. See State v. Lindell, 2001 WI 108, ¶¶36, 39, 245 Wis. 2d 689, 629 

N.W.2d 223.

¶69 The circuit court found that Juror Wegand had not engaged in 

improper communications with Lyla, and it concluded that Wegand was not 

biased. These findings are not clearly erroneous because no juror admitted to 

communicating with anyone in the courtroom gallery, nor could Lyla recall a juror 

interacting with her. The court could also reasonably conclude that LaVigne’s 

brother misinterpreted what had occurred because he was sitting “too far away”

from the purported event. Accordingly, the court did not erroneously exercise its 

discretion by not excusing Juror Wegand.

¶70 LaVigne next argues that the circuit court erroneously exercised its 

discretion by allowing the State to amend the relevant period of time alleged in the 

Information from the first three months in 1999 to the first three months in 2000. 

He contends that he was prejudiced by the amendment because he “could not fully 

develop an alibi defense” that he was on paternity leave at the beginning of 2000.

¶71 A circuit court may allow amendment of the Information at trial “to 

conform to the proof where such amendment is not prejudicial to the defendant.”

WIS. STAT. § 971.29(2). A defendant is not prejudiced by an amendment to the 
No. 2021AP224-CR

29

Information at trial if the defendant had notice of “the nature and cause of the 

accusations.” State v. Neudorff, 170 Wis. 2d 608, 619, 489 N.W.2d 689 (Ct. App. 

1992).

¶72 Amending the Information to conform to the proof at trial did not 

prejudice LaVigne’s defense. Although the amended Information changed the 

year in which the offense allegedly occurred, it did not change the nature or 

substance of the allegations, charge a new or additional offense, or preclude the 

assertion of a defense. Furthermore, LaVigne’s trial counsel had notice at least 

two weeks before trial that there was a potential mistake in the charging period. 

Consequently, trial counsel began developing an alibi defense by submitting a 

public records request to ascertain the timing of LaVigne’s paternity leave during 

the 1999-2000 school year, but counsel was later “told by the school that those 

records no longer exist[ed].”

¶73 Despite the obstacles LaVigne faced in developing his alibi defense, 

he did not earlier notify the circuit court about the apparent mistake in the 

charging period or seek to postpone the trial to gather additional evidence. Rather, 

as the court recognized in its decision allowing the amendment, “there was a 

strategic decision not to raise [the] issue[] prior to the jury being sworn.” 

Nevertheless, the court, with the State’s agreement, removed barriers to LaVigne

asserting the alibi defense by waiving LaVigne’s obligation to give the State 

notice of the alibi defense and by permitting LaVigne’s wife and an additional 

witness to testify without being named as witnesses on LaVigne’s witness list. See 

WIS. STAT. § 971.23(8)(a). LaVigne also testified on his own behalf that he “was 

on paternity leave” for “a large chunk of” the time period alleged in the amended 

Information.
No. 2021AP224-CR

30

¶74 LaVigne was therefore able to assert an additional defense he would 

not otherwise have had under the original Information. While LaVigne suggests 

that he did not have enough time to develop witness testimony or discover other 

employment records to support his alibi defense, he has not identified any 

documents or witnesses that would have been found with additional time to 

investigate. Under the circumstances, allowing amendment of the Information at 

trial did not prejudice LaVigne’s defense because he had adequate notice of the 

allegations and of the charge, and because the amendment allowed him to assert an 

additional defense. As a result, the circuit court did not erroneously exercise its 

discretion by allowing the State to amend the Information at trial.

¶75 LaVigne also argues that the circuit court erroneously exercised its 

discretion by not instructing the jury to disregard Zoey’s testimony that there was 

blood in her swimsuit. Before trial, the court concluded that other-acts evidence 

involving Zoey would be limited to “touching” allegations and that allegations of 

sexual intercourse would be inadmissible unless raised by LaVigne. At trial, Zoey 

testified that “[t]here was some blood left in [her swimsuit]” in response to 

LaVigne’s trial counsel asking her whether “there [was] any damage done to the

swimsuit.” Trial counsel did not object to Zoey’s testimony, however, and neither 

trial counsel nor the State asked any follow-up questions regarding the blood.

¶76 Contrary to LaVigne’s argument, Zoey’s testimony was admissible 

because the circuit court specifically did not “clos[e] the door” on LaVigne

eliciting testimony related to Zoey’s allegations of intercourse, and LaVigne’s trial 

counsel elicited the testimony at issue. Although LaVigne suggests—in a single 

sentence—that his trial counsel was ineffective for eliciting the testimony, he does 

not develop that argument on appeal, and he failed to raise this issue in the circuit 

court or at his Machner hearing. Accordingly, we need not consider this 
No. 2021AP224-CR

31

undeveloped ineffective assistance of counsel claim. See State v. Thompson, 222 

Wis. 2d 179, 190 n.7, 585 N.W.2d 905 (Ct. App. 1998) (we need not consider an 

ineffective assistance of counsel claim that was not raised in the trial court or 

addressed at a Machner hearing). Finally, even if the testimony was inadmissible, 

the court had no duty to sua sponte strike Zoey’s testimony. See State v. Delgado, 

2002 WI App 38, ¶12, 250 Wis. 2d 689, 641 N.W.2d 490 (“It is not the duty of the 

trial court to sua sponte strike testimony that is inadmissible.”).

¶77 Lastly, LaVigne argues the circuit court erroneously exercised its 

discretion by admitting the other-acts evidence at trial. Other-acts evidence is 

admissible where: (1) it is offered for a permissible purpose pursuant to WIS.

STAT. § 904.04(2)(a); (2) it is relevant under the two relevancy requirements in 

WIS. STAT. § 904.01; and (3) its probative value is not substantially outweighed by 

the risk or danger of unfair prejudice under WIS. STAT. § 904.03. State v. 

Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. In a child sexual 

assault case, the greater latitude rule under § 904.04(2)(b) permits a more liberal 

admission of other-acts evidence and applies to each prong of our other-acts 

analysis. See Marinez, 331 Wis. 2d 568, ¶20.

¶78 LaVigne does not dispute that the State offered the other-acts 

evidence for the permissible purposes of proving LaVigne’s motive, method of 

operation, intent, and lack of mistake or accident. See WIS. STAT. § 904.04(2)(a). 

Nor does he dispute that the State had to prove that he intentionally touched Lyla

for the purpose of sexual arousal or gratification and to prove that Lyla was a 

credible witness, both of which were consequential facts in this action. See State 

v. Gutierrez, 2020 WI 52, ¶33, 391 Wis. 2d 799, 943 N.W.2d 870; WIS. STAT.

§§ 948.01(5)(a), 948.025(1). He argues, however, that the other-acts evidence was 

not probative of these consequential facts because the environments in which the 
No. 2021AP224-CR

32

other acts took place were different in nature from the classroom environment 

where the alleged acts took place in this case. He also argues that the other acts 

are too remote in time from the alleged offense in this case.

¶79 “‘The measure of probative value in assessing relevance is the 

similarity between the charged offense and the other act.’ Similarity is 

demonstrated by showing the ‘nearness of time, place, and circumstance’ between 

the other-act and the charged crime.” Hurley, 361 Wis. 2d 529, ¶79 (citations 

omitted). A circuit court has discretion to determine whether other-acts evidence 

is too remote. Id.

¶80 Here, despite the length of time between the charged offense and the 

other acts, the circuit court concluded that the other acts were probative of 

LaVigne’s method of operation because the charged offense and the other acts 

were similar in nature and environment. We agree that the charged offense and 

the other acts were similar. First, the charged offense and the other acts involved 

unwanted, intimate contact with the victims. Second, all of the victims were 

female high school teenagers—ages fifteen or sixteen. Third, the acts occurred 

when the victims were isolated from others but not completely alone. Fourth, the 

victims were subject to LaVigne’s control in his classroom, on his boat, or in his 

car. Fifth, LaVigne was acquainted with all of the victims through either his 

daughter or his role as a teacher.

¶81 Although LaVigne is correct that there was a roughly seventeen-year 

gap between the alleged offense and the other-acts evidence, that gap is not 

dispositive of whether the other acts are probative. “Even when evidence may be 

considered too remote, the evidence is not necessarily rendered irrelevant if the 

remoteness is balanced by the similarity of the two incidents.” Id., ¶80. On 
No. 2021AP224-CR

33

balance, the similarities between the charged offense and the other acts outweigh 

the time between LaVigne’s actions. In addition, and as the circuit court 

recognized, the probative value of the other-acts evidence is further buttressed by

the greater latitude rule, which permits a more liberal admission of other-acts 

evidence. See id., ¶59.

¶82 LaVigne faults the circuit court for relying on the greater latitude 

rule, and he contends that the greater latitude rule is not a rule of “automatic 

admission.” The court, however, did not treat the greater latitude rule as a rule of 

“automatic admission.” Rather, it considered each prong of the other-acts 

analysis, and, as it related to the relevancy prong, the court concluded that the 

similarity between the charged offense and the other acts outweighed the length of 

time between LaVigne’s actions, especially in light of the greater latitude rule. 

The court did not erroneously exercise its discretion in weighing the probative 

value of the other-acts evidence.

¶83 LaVigne also argues that the other-acts evidence was “unfairly 

prejudicial” because the State’s closing argument used the other-acts evidence for 

impermissible purposes and to arouse the jury’s sense of horror and to provoke it 

to punish him. LaVigne fails to recognize, however, that we consider only the 

facts that were before the circuit court when reviewing the court’s decision to 

admit other-acts evidence. See Marinez, 331 Wis. 2d 568, ¶45. “[W]e will not 

conclude that a circuit court erred by failing to divine exactly how the evidence 

would be used at trial.” Id.

¶84 When considering only the facts before the circuit court when it 

decided to admit the other-acts evidence, we conclude the court did not 

erroneously exercise its discretion. The court considered the prejudicial effect of 
No. 2021AP224-CR

34

the other-acts evidence and concluded that it did not substantially outweigh the 

probative value of the evidence, especially once the jury was given a limiting 

instruction.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.