COURT OF APPEALS

DECISION

DATED AND FILED

November 8, 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 Nos. 2021AP804-CR

2021AP805-CR

Cir. Ct. Nos. 2017CF3795

2018CF137

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN ANTHONY JACKSON,

DEFENDANT-APPELLANT.

APPEALS from judgments and orders of the circuit court for 

Milwaukee County: JOSEPH R. WALL, Judge. Affirmed. 

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

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). 
Nos. 2021AP804-CR

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2

¶1 PER CURIAM. In this consolidated appeal, John Anthony Jackson 

appeals from judgments convicting him of two counts of trafficking of a child, one 

count of human trafficking, one count of second-degree sexual assault of a child, 

one count of soliciting a child for prostitution, and one count of physical abuse of 

a child. Jackson also appeals from orders denying in part his postconviction 

motion. 

¶2 On appeal, Jackson contends that: (1) his conviction for human 

trafficking and one of his convictions for child trafficking were multiplicitous; 

(2) the circuit court erroneously instructed the jury that Jackson could be convicted 

of child trafficking if he transported a child, and the error was not harmless; and 

(3) newly discovered evidence entitles him to a new trial. For the reasons 

discussed below, we reject Jackson’s arguments, and affirm. 

BACKGROUND

¶3 Jackson was charged with seven different crimes relating to three 

children—Angela, Melanie, and Greta—in two separate complaints.

1

 In 

Milwaukee County Circuit Court case No. 2017CF3795, the State charged Jackson 

with five counts involving Angela: (1) child trafficking; (2) human trafficking

where the trafficking was done by causing or threatening to cause bodily harm; 

(3) second-degree sexual assault of a child who had not attained the age of sixteen

years; (4) soliciting a child for prostitution; and (5) physical abuse of a child

intentionally causing bodily harm. 

 

1

 For confidentiality purposes, we adopt the pseudonyms used by Jackson to refer to the 

victims. 
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¶4 In Milwaukee County Circuit Court case No. 2018CF137, the State 

charged Jackson with two counts of child trafficking. The first count alleged that 

Jackson knowingly attempted to recruit Greta, a child, for the purpose of a 

commercial sex act. The second count alleged that Jackson knowingly transported 

Melanie, a child, for the purpose of a commercial sex act. 

¶5 The circuit court joined both cases for trial. The jury found Jackson 

guilty of all counts as charged. Jackson filed a motion for postconviction relief. 

Relevant to this appeal, Jackson contended that: (1) the child trafficking counts 

which involved Melanie and Greta should be dismissed because the circuit court 

improperly instructed the jury that trafficking could be committed by transporting 

a child, and to the extent that Jackson’s objection was forfeited, trial counsel was 

ineffective; (2) Jackson could not be convicted of both child trafficking of Angela 

and human trafficking of Angela; and (3) Jackson was entitled to a new trial based 

on newly discovered evidence. 

¶6 The circuit court granted in part, and denied in part, the 

postconviction motion. The circuit court granted Jackson’s request to dismiss the 

child trafficking count involving Melanie. The circuit court denied the remainder 

of Jackson’s claims. The circuit court found that the inclusion of the 

“transportation modality” in the jury instructions for the count involving Greta 

constituted harmless error. Next, the circuit court found that child trafficking and 

human trafficking were not identical in law and fact, and Jackson failed to meet 

his burden of demonstrating that the legislature did not intend cumulative 

punishments. In addition, the circuit court found that Jackson had not met the 

criteria for showing newly discovered evidence. 
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¶7 Jackson now appeals from the part of the order denying him relief. 

Additional relevant facts are discussed below. 

ARGUMENT

I. Multiplicity

¶8 Jackson first argues that his conviction for human trafficking,

involving Angela and his conviction for child trafficking involving Angela are 

multiplicitous. 

¶9 “Multiplicity arises where the defendant is charged in more than one 

count for a single offense.” State v. Rabe, 96 Wis. 2d 48, 61, 291 N.W.2d 809 

(1980). “[M]ultiplicitous charges are impermissible, because they violate the 

double jeopardy provisions of the state and federal constitutions.” Id. Whether 

two offenses are multiplicitous is a question of law that we review de novo. State 

v. Brantner, 2020 WI 21, ¶8, 390 Wis. 2d 494, 939 N.W.2d 546. 

¶10 When reviewing a multiplicity claim, a two-step test is used. State 

v. Davison, 2003 WI 89, ¶¶42-45, 263 Wis. 2d 145, 666 N.W.2d 1. First, we 

examine whether the offenses are identical in law and fact. Id., ¶43. Second, we

examine whether the legislature intended to allow multiple punishments. Id., ¶45. 

¶11 To start, Jackson observes that the two offenses at issue involve the 

same person (Angela), the same time period, and the same address. Even if we 

were to assume that the offenses are identical in fact—and we emphasize we are 

not making that finding here—the offenses are not identical in law. Each offense 

requires proof of an element that the other does not. See id., ¶41 (stating that “[a]s 

a general proposition, different elements of law distinguish one offense from 

another when different statutes are charged”). 
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¶12 Child trafficking requires proof that the individual trafficked was a 

child,

2

and was trafficked for the purpose of a commercial sex act. WIS. STAT.

§ 948.051(1) (2015-16).

3

 In contrast, human trafficking does not require that the 

individual trafficked was a certain age. See WIS. STAT. § 940.302. Human 

trafficking is also not limited to trafficking for the purpose of a commercial sex 

act, but includes trafficking “for the purposes of labor or services.” 

Sec. 940.302(2)(a)1. In addition, human trafficking requires proof that the 

defendant engaged in certain types of acts, including “causing or threatening to 

cause bodily harm,” “using or threatening to use force or violence,” or “using any 

scheme, pattern, or other means to directly or indirectly coerce, threaten, or 

intimidate any individual.” Sec. 940.302(2)(a)2. Thus, child trafficking and 

human trafficking are not the same in law. 

¶13 Having concluded that Jackson’s convictions are not the same in 

law, we next examine whether the legislature intended to prohibit multiple 

punishments. See Davison, 263 Wis. 2d 145, ¶45. If the offenses are different in 

law or fact, the defendant bears the burden of overcoming the presumption that the 

legislature intended to authorize multiple punishments. State v. Ziegler, 2012 WI 

73, ¶62, 342 Wis. 2d 256, 816 N.W.2d 238. 

¶14 To determine legislative intent we analyze four factors: “(1) all 

applicable statutory language; (2) the legislative history and context of the statute; 

 

2

 A child is a person who has not attained the age of eighteen years. See WIS. STAT.

§ 948.01(1). 

3

 All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise 

noted.
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(3) the nature of the proscribed conduct; and (4) the appropriateness of multiple 

punishment for the conduct.” Davison, 263 Wis. 2d 145, ¶50. 

¶15 We first examine the applicable statutory language. Jackson focuses 

on the language in the human trafficking statute, WIS. STAT. § 940.302(2)(a). The 

human trafficking statute states “[e]xcept as provided in s. 948.051 [the child 

trafficking statute], whoever knowingly engages in trafficking is guilty of a Class 

D felony[.]” According to Jackson, the “except as provided” language means 

“don’t charge here” and instead charge under the child trafficking statute. We 

disagree. 

¶16 As the State suggests, the “except as provided” language simply

means that there is another way that a defendant may be found guilty of 

trafficking. If the legislature intended to prohibit a court from sentencing a 

defendant for both human trafficking and child trafficking, the legislature could 

have said so. See Southport Commons, LLC v. DOT, 2021 WI 52, ¶32, 397 

Wis. 2d 362, 960 N.W.2d 17 (“The legislature is presumed to ‘carefully and 

precisely’ choose statutory language to express a desired meaning.” (citation

omitted)). For example, the legislature could have expressly stated that a person 

shall not be convicted under both the human trafficking statute and the child

trafficking statute. Cf. WIS. STAT. § 939.72 (prohibiting convictions for both 

inchoate and completed crimes). Alternatively, the legislature could have 

designated one of the offenses as a lesser included offense and prohibited a court 

from entering a conviction for both crimes. See WIS. STAT. § 939.66(1)-(7) 

(stating that “[u]pon prosecution for a crime, the actor may be convicted of either 

the crime charged or an included crime, but not both”). 
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¶17 Next, we consider the legislative history and the context. The 

legislature created both the human trafficking statute and the child trafficking 

statute in 2007 Wisconsin Act 116, §§35, 37. An accompanying Wisconsin 

Legislative Council Act Memo references both crimes, but does not include any 

language indicating that multiple punishments are prohibited or explain the 

“except as provided” language. Thus, we conclude that the legislative history and 

context does nothing to overcome the presumption that the legislature intended 

multiple punishments. 

¶18 Finally, we examine the nature of the proscribed conduct and the 

appropriateness of multiple punishments.4 Here, each statute addresses different 

interests. Child trafficking focuses on prohibiting children from being trafficked. 

See WIS. STAT. § 948.051(1). In contrast, human trafficking prohibits any 

individual from being trafficked by the use of violence, threats, coercion, or other 

types of specified behavior. See WIS. STAT. § 940.302(2)(a). Thus, the legislature 

could have thought it appropriate to convict and punish a defendant for both 

offenses—trafficking a child and trafficking using violence, threats, coercion, or 

other types of behavior. See Davison, 263 Wis. 2d 145, ¶99; State v. Selmon, 175 

Wis. 2d 155, 159, 165-67, 498 N.W.2d 876 (Ct. App. 1993) (rejecting a 

multiplicity challenge to a defendant’s convictions for second-degree sexual 

assault of a child and second-degree sexual assault with the use of force because 

the legislature had recognized two distinct groups of victims—those assaulted

through the use of force and those assaulted due to age). 

 

4

 In multiplicity analyses, oftentimes the analysis of the nature of the proscribed conduct 

and the appropriateness of multiple punishments overlap. See State v. Davison, 2003 WI 89, ¶98, 

263 Wis. 2d 145, 666 N.W.2d 1. Such is the case here. 
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¶19 Therefore, for the reasons stated above, we conclude that Jackson 

has not overcome the presumption that the legislature intended multiple

punishments. 

II. Child Trafficking Jury Instruction

¶20 During trial, the circuit court instructed the jury that child trafficking

is committed “by one who knowingly recruits, entices, provides, obtains, harbors, 

or transports any child for the purpose of commercial sex acts.” (Emphasis 

added). 

¶21 The State does not dispute that the circuit court erred when it 

included the word “transports” in the list of ways that Jackson could have 

trafficked Greta. Transporting was not included in the definition of child 

trafficking under WIS. STAT. § 948.051(1) until May 29, 2017. See 2015 Wis. Act 

367, §§ 8m, 10. The State alleged that Jackson had trafficked Greta in 

November 2016, prior to the amendment. 

¶22 Jackson argues that the circuit court’s error was not harmless. The 

State responds that Jackson forfeited his right to challenge the jury instruction by 

failing to object, and as a result, Jackson’s claim should be analyzed as an 

ineffective assistance of counsel claim. 

¶23 We agree with the State that Jackson forfeited his jury instruction 

claim. Any objections to alleged errors in the proposed jury instructions must be 

made at a jury instruction conference. See WIS. STAT. § 805.13(3) (stating that the 

“[f]ailure to object at the conference constitutes a [forfeiture] of any error in the 

proposed instructions”); State v. McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 

881 N.W.2d 258. 
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¶24 We also agree with the State that this claim should be analyzed as an 

ineffective assistance of counsel claim. Our supreme court has stated that “the 

court of appeals has no power to reach an unobjected-to jury instruction because 

the court of appeals lacks a discretionary power of review.” State v. Trammell, 

2019 WI 59, ¶25, 387 Wis. 2d 156, 928 N.W.2d 564; see also State v. Erickson, 

227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (stating that when counsel does not 

object, “the normal procedure in criminal cases is to address [forfeiture] within the 

rubric of the ineffective assistance of counsel”). 

¶25 To establish ineffective assistance of counsel, a defendant must 

prove both that counsel’s performance was deficient and that the defendant was 

prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 

668, 687 (1984). To prove prejudice, a defendant must show “a reasonable 

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

proceeding would have been different.” Id. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. We need not 

address both prongs of the Strickland test if the defendant does not make a 

sufficient showing on one of the prongs. Id. at 697. 

¶26 When deciding whether a defendant is entitled to an evidentiary 

hearing based on an ineffective assistance of counsel claim, we first independently 

determine “whether the motion on its face alleges sufficient material facts that, if 

true, would entitle the defendant to relief.” State v. Ruffin, 2022 WI 34, ¶27, 401 

Wis. 2d 619, 974 N.W.2d 432. “Whether the record conclusively demonstrates 

that the defendant is entitled to no relief is also a question of law we review 

independently.” State v. Spencer, 2022 WI 56, ¶23, 403 Wis. 2d 86, 976 N.W.2d 

383 (citations omitted). “If the record conclusively demonstrates the defendant is 
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not entitled to relief, the circuit court has the discretion to decide whether to hold a 

hearing, which we review for an erroneous exercise of discretion.” Id.

¶27 Here, the record conclusively demonstrates that Jackson was not 

prejudiced by trial counsel’s failure to object to the inclusion of “transports” in the 

jury instruction. The information, the arguments of the parties, and the evidence 

presented at trial, all focused on whether Jackson had recruited Greta. 

¶28 The information alleged that Jackson “did knowingly attempt to 

recruit a child for the purpose of [a] commercial sex act.” In both the opening and 

closing instructions, the circuit court instructed the jury that Jackson was charged 

with human trafficking in count six of the information based on the allegation that 

Jackson “did knowingly attempt to recruit a child, [Greta].” Likewise, the verdict 

form instructed the jury to determine whether Jackson was guilty or not guilty of 

“Attempted Trafficking of a Child as charged in Count Six of the information.” 

¶29 Moreover, the closing arguments also focused on whether Jackson 

attempted to recruit Greta. In its opening statements, the State asserted that Greta 

“is going to talk to you about how [Jackson] recruited or tried to get her to work 

for him.” Similarly, in closing argument, the State stated several times that the 

charge involving Greta was for “attempting to recruit[.]” The State explained that 

“[t]he charge is not that [Jackson] actually trafficked [Greta]. It is that he 

attempted to recruit her for commercial sex acts, and the testimony supports that.” 

Similarly, the defense argued in opening and closing that there was not any 

evidence that Jackson recruited Greta. 

¶30 In addition, the evidence at trial focused on Jackson’s attempt to 

recruit Greta. Angela testified that Jackson “proposition[ed]” Greta for 

prostitution dates. Subsequently, Greta testified that Jackson wanted her to be part 
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of his team and make money. Greta understood that Jackson was “talking about 

selling [herself.]” Greta testified that she rejected Jackson’s invitation.5 Thus,

given the information, the arguments of the parties, and the evidence at trial, there 

is not a reasonable probability that the jury would have acquitted Jackson had the 

word “transports” been excluded from the jury instruction. See Strickland, 466 

U.S. at 694. 

¶31 Accordingly, we conclude that the record conclusively shows that 

Jackson is not entitled to relief, and the circuit court properly denied his 

postconviction motion without an evidentiary hearing. Spencer, 403 Wis. 2d 86, 

¶23.

III. Newly Discovered Evidence

¶32 At trial, Detective Sarah Blomme testified that she executed a search 

warrant at Jackson’s residence and recovered “about eighteen phones or parts of 

phones.” Detective Blomme testified that, based on her experience working on

sex trafficking investigations, it is common for a trafficker to have multiple cell 

phones. Blomme explained that traffickers use multiple cell phones to avoid being 

tracked and to direct the girls engaging in commercial sex acts. 

¶33 Jackson’s postconviction motion included a report from an 

investigator who interviewed Vernell Bullock after Jackson’s conviction. Bullock 

stated that he had been friends with Jackson for “almost his entire life,” and prior 

 

5

 We note that at trial Greta testified that Jackson and Angela picked her up from her 

mother’s residence and took her to Jackson’s residence. There was no evidence, however, that 

Jackson transported Greta for the purposes of a prostitution date during the day-and-a-half that 

she was at Jackson’s residence. 
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to Jackson’s arrest, visited Jackson at his home a few times per month. Bullock 

stated that Jackson was “infatuated with cell phones and electronics,” he liked to 

buy, sell, and trade cell phones, and he worked on cell phones as a hobby. Bullock 

further said that he saw cell phones, extra parts, and repair kits for phones at 

Jackson’s home, and that people would come to Jackson for repairs and to buy 

used phones. Jackson contends that this information constitutes newly discovered 

evidence. 

¶34 To obtain an evidentiary hearing based on newly discovered 

evidence, a defendant must show 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. McAlister, 2018 WI 34, ¶31, 380 Wis. 2d 684, 911 N.W.2d 77. 

¶35 If a defendant satisfies his burden on all four of these elements, the 

circuit court must then determine “whether a reasonable probability exists that a 

different result would be reached in a trial.” State v. Avery, 2013 WI 13, ¶25, 345 

Wis. 2d 407, 826 N.W.2d 60 (citation omitted). “A reasonable probability of a 

different result exists if there is a reasonable probability that a jury, looking at both 

the old and the new evidence, would have a reasonable doubt as to the defendant’s 

guilt.” Id.

¶36 As the circuit court found, Jackson has failed to demonstrate that 

Bullock’s statement constitutes newly discovered evidence. First, Jackson was 

negligent in discovering the evidence. See McAlister, 380 Wis. 2d 684, ¶31. 

Jackson does not dispute Bullock’s statements that they were longtime friends, 

that Bullock came over to Jackson’s house a few times per month, and that 
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Bullock knew of Jackson’s interest in phones. Jackson does not offer any facts 

explaining why he did not call Bullock or other people familiar with Jackson’s 

phone business to testify at trial. 

¶37 Second, Bullock’s statement was cumulative. Newly discovered 

evidence is cumulative when “it tends to address ‘a fact established by existing 

evidence.’” Id., ¶37 (citation omitted). At trial, Angela testified that Jackson 

bought phones and would get them fixed so he could sell them. Angela later 

testified that some of the phones he would fix and some of the phones “he would 

just leave sit around the house.” In addition, Angela specifically denied that the 

phones had anything to do with prostitution activities. Thus, we conclude that 

Bullock’s statement is merely cumulative to the evidence presented at trial. 

¶38 Therefore, Jackson has not shown by clear and convincing evidence 

that Bullock’s statement constituted newly discovered evidence. Id., ¶31. 

Accordingly, the circuit court properly denied Jackson’s newly discovered 

evidence claim without an evidentiary hearing. 

CONCLUSION

¶39 In sum, we reject Jackson’s argument that the human trafficking 

count involving Angela and the child trafficking count involving Angela are

multiplicitous. We also conclude that Jackson is not entitled to relief based on the 

child trafficking jury instruction, or Bullock’s statement. 

By the Court.—Judgments and orders affirmed.

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

RULE 809.23(1)(b)5.