COURT OF APPEALS

DECISION

DATED AND FILED

June 16, 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. 2020AP1280 Cir. Ct. No. 2015CF454

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DANIEL J. MICK,

 DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Portage County: 

THOMAS B. EAGON, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Graham, 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. 2020AP1280

2

¶1 PER CURIAM. Daniel Mick appeals the circuit court’s denial of 

his pro se WIS. STAT. § 974.06 (2019-20)1 postconviction motion, the order 

denying his motion for reconsideration, and the order denying the supplemental 

§ 974.06 motion he filed with the assistance of retained postconviction counsel. 

We conclude that the court properly denied the motions without holding an 

evidentiary hearing. Therefore, we affirm.

BACKGROUND

¶2 Daniel Mick was convicted, following a jury trial, of one count of 

first degree sexual assault of a child and two counts of intentionally causing a 

child to listen to and view sexually explicit content.2 The child, who we refer to as 

“Joan,”3 was six years old at the time of the conduct at issue in this case. We set 

forth additional background about the charges and the trial as needed below.

¶3 Through appellate counsel, Mick directly appealed his judgment of 

conviction in this court without first filing a postconviction motion pursuant to

WIS. STAT. § 974.02. See State v. Daniel J. Mick, No. 2017AP1642-CR, 

unpublished slip op. (WI App June 14, 2018). In his direct appeal, Mick argued

that the circuit court erred by granting the State’s motion in limine to exclude his

expert witness from testifying at trial and, further, that the exclusion of that 

testimony violated his constitutional right to present a defense. Id., ¶13. Mick 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version.

2

 It is undisputed that the sexually explicit content in question did not involve images of 

children. To be clear, there is no suggestion in the record that Mick has ever possessed or viewed 

child pornography.

3

 Pursuant to the policy underlying WIS. STAT. RULE 809.86, we use a pseudonym to 

protect the identity of the victim, “Joan,” as well as her mother, who we refer to as “Cindy.”
No. 2020AP1280

3

also asked us to exercise our power of discretionary reversal and order a new trial 

in the interest of justice under WIS. STAT. § 752.35. Id., ¶36. We issued an 

opinion in June 2018, which rejected Mick’s arguments and affirmed his judgment 

of conviction. See generally id.

¶4 In September 2019, Mick filed a 75-page pro se motion for 

postconviction relief pursuant to WIS. STAT. § 974.06. Among other things, 

Mick’s pro se motion argued that his trial and appellate counsel had been 

ineffective and that his due process rights had been violated.

¶5 The State moved for summary dismissal of the pro se motion,

arguing that the ineffective assistance of counsel claims were procedurally barred

because Mick failed to assert those claims in a WIS. STAT. § 974.02 motion prior 

to his direct appeal. See WIS. STAT. § 974.06(4); State v. Escalona-Naranjo, 185 

Wis. 2d 168, 517 N.W.2d 157 (1994) (interpreting the procedural bar in 

§ 974.06(4)). In the alternative, the State argued that Mick was not entitled to an 

evidentiary hearing because the motion did not allege sufficient facts to entitle him 

to relief. See State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. 

In an order dated April 29, 2020, the circuit court denied the motion without 

holding a Machner hearing.

4 Mick filed a motion for reconsideration, and the 

circuit court denied that motion.

¶6 Mick then retained new appellate counsel, who filed a notice of 

appeal from both orders on July 28, 2020. The same day, retained counsel filed a 

 

4

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). A Machner

hearing is “[t]he evidentiary hearing to evaluate counsel’s effectiveness, which includes counsel’s 

testimony to explain his or her handling of the case.” State v. Balliette, 2011 WI 79, ¶31, 336 

Wis. 2d 358, 805 N.W.2d 334.
No. 2020AP1280

4

“supplemental” WIS. STAT. § 974.06 motion and a motion for reconsideration of 

the circuit court’s April 29, 2020 decision.5 Collectively, the supplemental motion 

and motion for reconsideration elaborated on the arguments that Mick presented in 

his pro se motion regarding ineffective assistance of counsel, argued that counsel 

was ineffective in other ways not articulated in Mick’s pro se motion, and raised a 

new argument about newly discovered evidence.

¶7 The State moved for summary dismissal of the motions based on

Mick’s failure to raise the new issues in his direct appeal and his pro se WIS.

STAT. § 974.06 motion, and because Mick failed to show that the circuit court 

made any manifest error of law or fact justifying reconsideration of its decision on 

the issues Mick had previously raised. The State also argued that Mick was not 

entitled to a new trial based on newly discovered evidence.

¶8 The circuit court denied the supplemental motion and motion for 

reconsideration without holding a Machner hearing. Mick filed an additional 

notice of appeal from that order.

DISCUSSION

¶9 We begin our discussion with a threshold issue raised by the State 

regarding our jurisdiction over this appeal. After rejecting the State’s 

jurisdictional argument, we consider whether the issues raised in Mick’s pro se 

 

5

 The State takes issue with Mick referring to his motion as a “supplemental” motion, 

rather than as a “second” motion, because, at the time the supplemental motion was filed, Mick’s 

pro se motion had already been denied by the circuit court and could no longer be supplemented. 

See State v. Evans, 2004 WI 84, ¶9, 273 Wis. 2d 192, 682 N.W.2d 784, abrogated on other 

grounds by State ex rel. Coleman v. McCaughtry, 2006 WI 49, 290 Wis. 2d 352, 714 N.W.2d 

900. The State’s point about nomenclature is well taken, but this opinion nevertheless refers to 

Mick’s motion using the name under which it was filed.
No. 2020AP1280

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WIS. STAT. § 974.06 motion and his supplemental § 974.06 motion relating to 

ineffective assistance of counsel are procedurally barred. We assume without 

deciding that the issues raised in the pro se motion are not barred; however, we 

conclude that the issues raised for the first time in the supplemental motion are 

barred and we address them no further. We then consider and reject the 

ineffective assistance of counsel claims raised in Mick’s pro se motion. Finally, 

we conclude that Mick is not entitled to a new trial based on newly discovered 

evidence.

I. Jurisdiction

¶10 Appeals of WIS. STAT. § 974.06 proceedings are governed by the 

procedures for civil appeals, see § 974.06(6) and WIS. STAT. RULE 809.30(2)(L), 

and a timely notice of appeal is a jurisdictional prerequisite, see WIS. STAT.

RULE 809.10(1)(e). The pertinent timelines are set forth in WIS. STAT.

§ 808.04(1). Under § 808.04(1), a notice of appeal must be filed within 90 days of 

the entry of a final judgment or order, except that the deadline is shortened to 45 

days “if written notice of the entry of a final judgment or order is given within 21 

days of the final judgment or order as provided in [WIS. STAT. §] 806.05(5).”

¶11 The State asserts that the 45-day deadline applies to Mick’s appeal 

of the April 29, 2020 order denying his pro se motion. It goes on to assert that 

Mick received the April 29, 2020 order in written form, shortening the appeal 

deadline to 45 days, and that Mick’s notice of appeal, which was filed 90 days 

after entry of the order, was untimely.

¶12 The State’s assertions are incorrect. To be sure, Mick received the 

written order that denied his pro se motion, but that is not the same thing as 

written “notice of entry” of that order, as that term is used in WIS. STAT.
No. 2020AP1280

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§§ 808.04(1) and 806.05. Notice of entry refers to a separate written document, 

other than the order, which is served by a party after a final order is entered, and

which contains the date of entry of that final order. See § 806.05(3); Soquet v. 

Soquet, 117 Wis. 2d 553, 557, 345 N.W.2d 401 (1984). Here, the State does not 

point to any notice of entry that it served on Mick; therefore, the deadline to 

appeal was not shortened to 45 days. Mick’s appeal, which was filed on the 90th 

day, was timely, and we have jurisdiction over this appeal.

II. Escalona-Naranjo Procedural Bar

¶13 We now turn to the claims of ineffective assistance of counsel that 

Mick raised in his pro se WIS. STAT. § 974.06 motion6and in his supplemental 

§ 974.06 motion.

7

 A threshold question is whether these claims are procedurally 

barred under § 974.06(4) and Escalona-Naranjo because Mick did not raise them

in a WIS. STAT. § 974.02 motion prior to his direct appeal.

¶14 WISCONSIN STAT. § 974.06(4) provides that “[a]ll grounds for relief 

available to a person under this section must be raised in his or her original, 

supplemental or amended motion.” Further, “[a]ny ground finally adjudicated or 

not so raised, or knowingly, voluntarily and intelligently waived ... in any other 

 

6

 The issues Mick raised in the pro se motion and renews on appeal are whether trial 

counsel’s performance was deficient in three general areas: (1) for failing to adequately impeach 

Joan’s mother; (2) for failing to introduce an alternative explanation for the source of Joan’s 

sexual knowledge; and (3) for failing to object to certain evidence, including alleged Haseltine

violations. See State v. Haseltine, 120 Wis. 2d 92, 97, 352 N.W.2d 673 (Ct. App. 1984).

7

 The additional ineffective-assistance-based issues that Mick raised for the first time in 

the supplemental motion and renews on appeal are whether trial counsel was ineffective for not 

impeaching Cindy with a statement she made to police about the timing of Joan being in 

counseling; for not objecting to Cindy’s testimony that she could tell when Mick was lying; for 

not attempting to exclude portions of the forensic interview; and for not attempting to exclude 

Cindy’s testimony that Mick was “abusive.”
No. 2020AP1280

7

proceeding the person has taken to secure relief may not be the basis for a 

subsequent motion, unless the court finds” that the defendant had a “sufficient 

reason” for not asserting or inadequately raising the ground “in the original, 

supplemental or amended motion.” Id.

¶15 In Escalona-Naranjo, our supreme court determined that a 

defendant who could have but did not challenge his attorney’s effectiveness 

through a WIS. STAT. § 974.02 motion prior to his direct appeal must show a 

“sufficient reason” for that failure when asserting the ground in a later WIS. STAT.

§ 974.06 motion. Escalona-Naranjo, 185 Wis. 2d at 181-82, 184; see also State 

v. Lo, 2003 WI 107, ¶44 & n.11, 264 Wis. 2d 1, 665 N.W.2d 756 (“claims that 

could have been raised on direct appeal ... are barred from being raised in a 

subsequent § 974.06 postconviction motion absent a showing of a sufficient 

reason” they were not previously raised); State v. Romero-Georgana, 2014 WI 83, 

¶35, 360 Wis. 2d 522, 849 N.W.2d 668.

¶16 Here, like the defendant in Escalona-Naranjo, Mick had an 

opportunity to raise claims about the ineffective assistance of trial counsel in a 

postconviction motion under WIS. STAT. § 974.02 prior to his direct appeal, but he

did not do so. Therefore, like the defendant in Escalona-Naranjo, Mick must

establish a “sufficient reason” for not raising his claims in a § 974.02 motion.

¶17 Mick alleges that he chose to forgo filing a WIS. STAT. § 974.02 

motion in favor of pursuing a direct appeal based on his appellate counsel’s 

erroneous legal advice. This allegation is supported by affidavits that Mick and 

his sister filed along with the pro se motion. Specifically, they aver that appellate 

counsel told them that Mick could file a § 974.02 motion challenging the 

effectiveness of his counsel or a direct appeal, but not both, that Mick would have 
No. 2020AP1280

8

to choose, and that it would be better to forego a § 974.02 motion and instead

pursue a direct appeal. Mick argues, and we agree, that such advice misstates the 

law—Wisconsin Statutes allow a defendant to pursue a § 974.02 motion followed 

by a direct appeal. See § 974.02(1); WIS. STAT. § 809.30(2).

¶18 We assume without deciding that Mick’s reliance on counsel’s 

erroneous advice is a sufficient reason for not raising the ineffective assistance 

claims in his pro se WIS. STAT. § 974.06 motion.

8

It follows that the issues raised 

in his pro se motion are not procedurally barred, and we address them on the 

merits in this following section of this opinion.

¶19 However, the same cannot be said of the additional ineffectiveassistance-based issues that Mick raised for the first time in the supplemental

motion he filed with the assistance of retained postconviction counsel.9 Again, we 

assume without deciding that appellate counsel’s erroneous legal advice was a

sufficient reason for not raising these additional issues in a WIS. STAT. § 974.02 

motion prior to his direct appeal. However, at the time he filed his supplemental 

motion, the circuit court had already decided his pro se WIS. STAT. § 974.06 

motion, which did not raise these additional issues. Therefore, Mick must also 

plead a “sufficient reason” for not raising these new issues in his pro se motion.

 

8

 In their appellate briefing, the parties dispute whether Mick must also prove that the 

issues he raised in his pro se motion are “clearly stronger” than the issues his appellate counsel 

raised on direct appeal. See State v. Romero-Georgana, 2014 WI 83, ¶4, 360 Wis. 2d 522, 849 

N.W.2d 668. An appellate court need not decide every non-dispositive issue raised by the parties. 

Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 

(2013). For purposes of this appeal, we assume without deciding that, if Mick must make this 

showing, he has done so.

9

 The parties appear to agree that Mick’s newly-discovered-evidence-based claim is not 

procedurally barred. We address that claim in the final section of this opinion.
No. 2020AP1280

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¶20 As best as we understand Mick’s argument, he contends that he did 

not raise these issues in his pro se motion because he is not a trained lawyer and 

“lacked knowledge regarding the factual or legal basis for some of the claims.”

To the extent that Mick is relying on an asserted lack of knowledge of “the factual 

or legal basis” for “some” of the new claims, this assertion is conclusory and 

undeveloped. See Allen, 274 Wis. 2d 568, ¶9. Additionally, the “vast majority” 

of WIS. STAT. § 974.06 motions are filed by pro se litigants, State ex rel. Wren v. 

Richardson, 2019 WI 110, ¶27 n.21, 389 Wis. 2d 516, 936 N.W.2d 587, and 

Wisconsin courts have not recognized pro se status alone as a “sufficient reason” 

for not raising a claim. Therefore, as to the issues that were first raised in Mick’s 

supplemental motion, he has not alleged a sufficient reason to overcome the 

procedural bar, and we address those issues no further.

III. Ineffective Assistance of Counsel Claims Raised in Mick’s 

Pro Se WIS. STAT. § 974.06 Motion

¶21 To prevail on a claim of ineffective assistance of counsel, a 

defendant has the burden to prove that trial counsel’s performance was deficient 

and, also, that the deficiency prejudiced the defendant. Strickland v. Washington, 

466 U.S. 668, 687 (1984).

10

 To demonstrate deficient performance, the defendant 

must show that his counsel’s representation “fell below an objective standard of 

reasonableness.” Id. at 688. To demonstrate prejudice, the defendant must show 

that there is a “reasonable probability that, but for counsel’s unprofessional errors, 

 

10

 “Whether counsel’s actions constitute ineffective assistance presents a mixed question 

of law and fact.” State v. Tourville, 2016 WI 17, ¶16, 367 Wis. 2d 285, 876 N.W.2d 735. We 

uphold the circuit court’s factual findings “‘concerning circumstances of the case and counsel’s 

conduct and strategy’” unless those findings are clearly erroneous. State v. Silva, 2003 WI App 

191, ¶16, 266 Wis. 2d 906, 670 N.W.2d 385 (quoted source omitted). Whether counsel’s 

performance was deficient and prejudicial are both questions of law that we review de novo. 

State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985).
No. 2020AP1280

10

the result of the proceeding would have been different.” Id. at 694. If the factual 

allegations in a defendant’s motion are sufficient to entitle the defendant to relief, 

then the circuit court must hold a Machner hearing to test the allegations. Allen, 

274 Wis. 2d 568, ¶9. However, a court may deny a motion without a hearing if

the motion fails to allege sufficient facts to raise a question of fact, if the motion 

presents conclusory allegations or subjective opinion, or if the record conclusively 

demonstrates that the defendant is not entitled to relief. Id.

¶22 As mentioned, Mick alleged in his pro se motion that his trial 

counsel’s performance was deficient in three general areas: (1) for failing to 

adequately impeach Joan’s mother; (2) for failing to introduce an alternative 

explanation for the source of Joan’s sexual knowledge; and (3) for failing to object 

to alleged Haseltine violations. Before addressing these claims, it is helpful to 

provide additional background about the allegations in the complaint and the

evidence and arguments presented at trial. After providing that additional 

background, we analyze the three issues Mick raised in his pro se motion, 

rejecting each in turn.

A. Trial Evidence

¶23 The criminal complaint alleged that, in August 2015, Mick showed 

pornography to and sexually assaulted six-year-old Joan for purposes of sexual 

gratification. Joan’s mother, Cindy, was married to Mick and is the mother of 

Mick’s son. Mick and Cindy’s marital relationship had soured in 2015, and they

were on the verge of a divorce and a custody battle over their son. Cindy first 

reported the allegations that Mick had sexually abused Joan on November 19, 

2015, the same day Cindy learned that Mick was seeking a harassment injunction

against her and had filed for divorce.
No. 2020AP1280

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¶24 The allegations in the criminal complaint were based on a videorecorded statement that Joan gave to a forensic interviewer in November 2015,

approximately three months after the events in question.

11 Joan discussed two 

incidents in her recorded statement, which was played to the jury at trial. The first 

incident occurred at the family’s home. On that occasion, Mick showed Joan

images on his phone about “how to make babies” and masturbated while Joan

watched. The second incident occurred in the family’s van. On that occasion, 

Mick took Joan out for ice cream and they drove to a park where Mick “was 

looking at the bad stuff on his phone” and put his penis in Joan’s mouth. In 

discussing these incidents, Joan displayed a knowledge about sexual topics 

including ejaculation and the function of a clitoris that would not be possessed by

most six-year-olds.

¶25 Notably, the forensic interview was the only direct evidence of 

Mick’s guilt presented at trial—Joan, who was seven years old by the time of the 

trial, testified that she did not recall anything about the incidents she had described 

in her forensic interview.

¶26 Throughout the trial, the defense theory was that Cindy had invented 

the allegations as a means to punish Mick and to improve her position in the 

impending custody battle, and that her influence over Joan led Joan to repeat those 

allegations.

 

11

 See WIS. STAT. § 908.08 (providing a process by which, after notice and a hearing in 

which the circuit court makes certain findings of fact, the testimony of a child who is available to 

testify may be presented by audiovisual recording, provided that the child will be immediately 

available for cross-examination).
No. 2020AP1280

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¶27 During opening statements, Mick’s trial counsel urged the jury to put 

the allegations “in context with what was really going on at the time”—

specifically, that Cindy first reported the allegations in the middle of a contentious 

divorce and impending child custody battle, following a heated text message 

exchange on November 18, 2015. During that text exchange, Cindy told Mick that 

she was building a case against him about his use of pornography, and that Mick 

was going to lose custody of their son when that issue played out in court. As trial 

counsel explained, Mick obtained a temporary restraining order and sought a 

harassment injunction against Cindy on November 19, 2015, and, in response to a 

police officer informing her about the court order, Cindy first accused Mick of 

molesting Joan. Counsel emphasized that the jury should “listen to where these 

stories sprang from,” and that they all “started with [Cindy] in the middle of a 

divorce.” Counsel stated: “The timing of this is crucial, that when [police] call 

[Cindy] about her harassing behavior, [Mick] is now accused for the first time ever 

of child molestation, of sexually assaulting [Joan].”

¶28 Trial counsel continued with this theme during the evidentiary 

portion of the trial, eliciting evidence in an attempt to impeach Cindy’s credibility 

and suggest her motive to encourage Joan to make false allegations. This included

evidence about the timing of Cindy’s report. Counsel presented police officer 

testimony and documentary evidence showing that Cindy first reported that Mick 

molested Joan during her initial telephone conversation with a police officer, in 

direct response to the officer informing Cindy of Mick’s request for a harassment 

injunction. In contrast, when Cindy testified, she denied that she had been aware 

of Joan’s allegations against Mick at the time of her initial conversation with the 

officer. Instead, Cindy testified that, during that first call, she told the officer that 

Mick had a “porn addiction.” Cindy maintained that Joan did not disclose Mick’s 
No. 2020AP1280

13

conduct until after that first call, and that Joan’s disclosure occurred in direct 

response to Joan overhearing Cindy tell the officer about Mick’s use of 

pornography. Counsel asserted that this conflicting evidence tended to suggest

that Cindy was not being truthful, and that she was attempting to hide something

about how and when the allegations against Mick emerged.

¶29 Trial counsel vigorously cross-examined Cindy. During the crossexamination, Cindy acknowledged that, the night before the allegations came out, 

she and Mick had a text exchange about custody issues. She acknowledged that 

the text exchange “went bad at some point and turned into an argument,” and that 

Cindy said “something ... like” “have fun trying to win [the custody case].” She 

acknowledged that she had used Mick’s password to break into his email and 

online accounts, and that she told him she found things in those accounts that she 

would use against him in court.12 Trial counsel asked Cindy about a particularly 

threatening text message in which Cindy told Mick: “You haven’t seen me yet, 

Bitch. You want to play dirty, I’ll get FILTHY on you.” Cindy testified that she 

did not remember making that statement, but also did not deny that she had. 

Cindy acknowledged that officers served her with a restraining order as a result of

her November 18 text exchange with Mick, but that she “didn’t have to go [to 

court to defend against entry of an injunction] because [Mick] was in jail at the 

time.”

 

12

 As counsel started to ask Cindy about certain details of the text exchange, the State 

objected, and the circuit court took up the objection outside the presence of the jury. Trial 

counsel explained that the details of Cindy’s threats were relevant to show that she was motivated 

to make up allegations against Mick. The court allowed counsel to question Cindy about her 

threats to build a case against Mick, but it stated that it would not allow a “mini-trial” about 

“collateral issues” regarding particular steps Cindy took to build that case. Mick has not argued

that the court’s evidentiary decision was an erroneous exercise of discretion.
No. 2020AP1280

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¶30 Trial counsel also elicited testimony from multiple witnesses that 

children can be impressionable and are susceptible to outside influences, and that 

the investigators would not want a child to have conversations with an adult that 

could lead, mislead, or taint the child’s statement. To that end, the social worker 

who worked with the family testified that she advised Cindy not to talk to Joan

about the incidents. However, during trial counsel’s cross-examination of the 

social worker, she acknowledged that she did not give this advice to Cindy until 

several days after Cindy reported the allegations. Additionally, during his crossexamination of the forensic interviewer, trial counsel pointed to a number of times 

during the interview in which Joan repeated something Cindy told her. 

Additionally, counsel got the forensic interviewer to acknowledge that her job was 

not to “challenge or question” information provided by a child during a forensic 

interview and, further, that she did not ask Joan whether Cindy told Joan to say 

anything during the interview. The forensic interviewer testified that parents are 

not allowed in the observation room because their presence can affect a child. 

However, on cross-examination, the forensic interviewer acknowledged that Joan

knew that adults were watching the interview take place on closed circuit

television, and that the forensic interviewer did not tell Joan that Cindy was not in 

the observation room.

¶31 Mick also testified at trial. Among other things, he testified about 

his text exchange with Cindy on November 18, 2015. According to Mick, they 

had been texting back and forth about the placement of their son, and the exchange

“quickly escalated to a broad range of things,” including “threats from her, 

harassments, threatening me that she was going to take me to court.” Mick

testified that Cindy threatened that Mick’s ex-wife’s mother, who works for a 

district attorney, had been “using her detective to build a case against [Mick]. 
No. 2020AP1280

15

Basically, saying that [Mick] would not be able to see [their son] again, or that it 

would be at [Cindy’s] terms.”

¶32 Mick also testified about his use of pornography. He acknowledged 

that he watched pornography a lot, and that he and Cindy argued about that subject

during their marriage. Mick also acknowledged that there was one instance in 

which Cindy caught him viewing pornography on his phone while Joan was in the 

same room watching television. However, Mick testified that, on that occasion, he

thought that Joan had fallen asleep and, in any event, Joan did not see what was on 

his phone. Mick testified that, apart from that one incident, there were no other 

occasions in which he viewed pornographic images while he was in the same 

room or in a vehicle with Joan or any other child. He categorically denied 

assaulting Joan.

¶33 In his closing argument, trial counsel repeated the themes he had 

developed during trial—Cindy’s role in bringing the allegations to light, the timing 

of Cindy’s report in relation to her threat that she was building a case against Mick

and the filing of the restraining order and injunction, and the evidence counsel had 

elicited suggesting that Cindy was not being truthful about the timing and 

circumstances under which Joan disclosed the information. He also emphasized 

the testimony the jury heard about children being impressionable and susceptible 

to influence, and the fact that Cindy had six days between her report and the 

forensic interview in which to influence Joan’s statement. Counsel argued that the 

role of the forensic interview was to collect information from the child, not to 

investigate whether that information is true, and that there were plenty of reasons 

to “wonder about” the veracity of Joan’s video statement.
No. 2020AP1280

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¶34 The jury found Mick guilty of one count of first degree sexual 

assault of a child and two counts of intentionally causing a child to listen to and 

view sexually explicit content.

B. Alleged Failure to Adequately Impeach Cindy

¶35 In his pro se motion, Mick argues that trial counsel was ineffective 

for failing to use available evidence to impeach Cindy’s credibility. As 

summarized in his opening appellate brief, Mick argued that trial counsel should 

have impeached Cindy with “various facts, including the text messages from 

[November 18, 2015] establishing [Cindy’s] motive to lie and undermining the 

timeline of [Joan’s] alleged disclosures of abuse.”

¶36 However, as shown above, trial counsel extensively impeached

Cindy’s credibility at trial, and the November 18 text message exchange was a 

significant focus of counsel’s questioning and argument. As also shown above, 

counsel repeatedly questioned Cindy’s motive. He also demonstrated that Cindy’s 

testimony about Joan’s spontaneous disclosure of the allegations after she 

overheard Cindy talking to a police officer about Mick’s use of pornography was 

contradicted by the disinterested officer’s testimony and police report. At best, 

Mick’s pro se motion argues that counsel should have done more of what he was 

already doing, and that, had counsel done more of the same, the jury would have 

reached a different verdict. We disagree for reasons we now explain.

¶37 There is just one specific topic that Mick’s pro se motion contends 

trial counsel could have cross-examined Cindy about but failed to do so. That 

topic is Cindy’s assertion, during the November 18 text message exchange, that 
No. 2020AP1280

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“[Joan] is in counseling. She’s admitting lots of stuff. The therapist will also be

in court.”13 For reasons we now explain, we conclude that the circuit court 

properly denied Mick’s motion without holding a Machner hearing on trial

counsel’s failure to cross-examine Cindy about her text message regarding Joan’s 

therapist.

¶38 We first observe that counsel could have had an objectively 

reasonable strategic reason for not addressing this topic in cross-examination.

14

 It 

is apparent that counsel’s strategy was to persuade the jury that Cindy made up the 

allegation on November 19, in response to learning about the harassment 

injunction. Any assertion that Joan said something to a therapist before 

November 19 that could be used against Mick in court might have undermined 

that strategy. See State v. Kimbrough, 2001 WI App 138, ¶¶31-35, 246 Wis. 2d

648, 630 N.W.2d 752 (even if trial counsel lacked a strategic reason at the time,

counsel’s performance was not deficient if it was one that an attorney could

reasonably have taken after considering the question in light of the information

available to counsel).

 

13

 In his supplemental motion, Mick argues that this assertion was yet another lie by 

Cindy. Mick contends that, in her audio-recorded interview with the police, Cindy “admitted” 

that Joan had not yet been in counseling on November 18, 2015, when Cindy said that Joan’s 

non-existent therapist would testify against Mick. As discussed above, the new arguments Mick 

advances in his supplemental motion are procedurally barred.

14

 Choices made by counsel are not constitutionally deficient if they were the result of a 

strategic decision rationally based on the law and facts. See State v. Hunt, 2014 WI 102, ¶55, 

360 Wis. 2d 576, 851 N.W.2d 434. Although the circuit court did not hold a Machner hearing 

and we do not have the benefit of trial counsel’s testimony, deficiency is evaluated on an 

objective basis. See State v. Kimbrough, 2001 WI App 138, ¶¶31-35, 246 Wis. 2d 648, 630

N.W.2d 752.
No. 2020AP1280

18

¶39 Nor has Mick shown that the omission prejudiced his defense. The 

jury was repeatedly told that Cindy was threatening to build a case against Mick, 

and Mick does not explain how one additional question focused on that same end 

would lead to a reasonable probability that the jury would have acquitted him. 

Based on our independent review of the evidence, it is far more likely that the jury 

may have believed that Cindy had a motive to hurt Mick and had not been honest 

about the timing and circumstances of Joan’s disclosure, but that the jury also 

believed that Joan’s underlying statements about Mick’s conduct were true.

¶40 Additionally, to the extent that Mick’s pro se motion can be read to 

argue that counsel should have introduced a copy of the text message exchange as 

an exhibit, we conclude that the circuit court properly denied the motion without a 

Machner hearing. Again, counsel could have had an objectively reasonable 

strategic reason for not seeking to introduce an exhibit of the text exchange. Even 

if the circuit court would have allowed it into evidence, see supra n.12, the 

exchange contained unfiltered and salacious allegations about Mick and 

demeaning language and insults from Mick that could have been very damaging in 

the eyes of the jury. Counsel could have reasonably thought it best to cherry pick 

the most helpful statements from the text exchange, rather than publishing it all—

the good, the bad, and the ugly—for the jury to read. Kimbrough, 246 Wis. 2d

648, ¶¶31-35. And again, Mick has not proven prejudice—the jury heard the 

statements in the text exchange that were the most helpful to Mick’s defense from 

counsel’s questioning, and also from Mick’s direct examination. We conclude 

that there is no reasonable probability that the jury, having seen an exhibit with the 

full text exchange, would have determined that Mick was not guilty and acquitted 

him.
No. 2020AP1280

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C. Failure to Introduce Alleged Evidence of Potential 

Alternative Sources of Joan’s Sexual Knowledge

¶41 Mick also argued in his pro se motion that trial counsel was 

ineffective for failing to present evidence about alternative potential sources for 

Joan’s sexual knowledge. During the trial, counsel clearly and repeatedly 

insinuated that Cindy was the source of Joan’s sexual knowledge. In his motion, 

Mick described two alternative potential sources: (1) a prior allegation of 

misconduct by Joan’s father, including an allegation that he exposed himself to 

Joan and slept naked with her; and (2) Joan’s exposure to a sex toy business 

owned by Joan’s grandmother.

¶42 Mick suggests that if counsel had been able to present admissible 

evidence of an alternative source of such knowledge, it may have been helpful to 

Mick’s defense. This is because Joan’s recorded statement demonstrated that Joan

had extensive sexual knowledge, which she communicated using language and 

terms that appeared to be age-appropriate. Among other things, Joan repeatedly 

described Mick “shaking” his “private part” with his hand until he “squeezed” the 

“white stuff” out. She described Mick using toilet paper to make sure the “white 

stuff” did not “spill.” She stated that, when he put his private part in her mouth, 

the “white stuff came into [her] mouth” and tasted “super duper salty.” She 

further described how Mick told her to take her pants off and viewed her pubic

area, and that Mick said that the “white dots” he observed were “hairs about to 

grow.” Finally, she described Mick telling her about a “thingy” on her pubic area 

that you can rub to “make[] you cool and hot” and “awesome.”

¶43 The circuit court properly denied Mick’s motion without a Machner

hearing on trial counsel’s failure to present these potential alternative sources of 

Joan’s sexual knowledge. As for Mick’s argument about the prior allegations 
No. 2020AP1280

20

against Joan’s father, there are significant barriers to introducing such evidence, 

including WIS. STAT. § 972.11(2)(b),15 and Mick has not developed any argument 

showing that there was any such evidence that would have been admissible at trial. 

Turning to Mick’s argument about Joan’s exposure to her grandmother’s sex toy 

business, Mick again fails to develop any argument that evidence on this topic

would be admissible. Nor does he show that counsel’s omission prejudiced his 

defense. At best, the affidavits by Mick and his sister indicated that Joan’s 

grandmother used the words “cool,” “hot,” and “awesome” to describe products 

she sold, but they provide no non-speculative link accounting for Joan’s other 

sexual knowledge, especially her graphic description of ejaculate and 

ejaculation.16

D. Failure to Object to Alleged Haseltine Violations

¶44 A Haseltine violation occurs when a witness usurps the function of 

the jury by opining that another witness is telling the truth. State v. Haseltine, 120 

 

15

 WISCONSIN STAT. §972.11(2)(b), commonly referred to as the “rape shield statute,” 

provides that, with certain exceptions, “any evidence concerning the complaining witness’s prior 

sexual conduct ... shall not be admitted into evidence” during a prosecution for certain crimes 

including sexual assault of a child. See also State v. Pulizzano, 155 Wis. 2d 633, 651-52, 456 

N.W.2d 325 (1990) (providing that, under certain circumstances, a defendant may have a 

constitutional right to present such evidence, despite the rape shield statute, if a defendant makes 

an offer of proof satisfying a five-factor test).

16

 Along similar lines, Mick’s pro se motion also argued that Joan was “developmentally 

delayed,” making her an easy target for manipulation, and that counsel should have introduced 

evidence of Joan’s intellectual and developmental deficits at trial. We reject this argument for 

two reasons. First, Mick contends that he raised this issue with trial counsel, but that counsel 

declined to pursue this issue because it would look “bad” for the defense to attack Joan’s intellect 

at trial. That was a reasonable strategic decision, and we will not second guess it on appeal. 

Second, trial counsel obtained categorical admissions from social workers and the forensic 

interviewer that, as a general matter, children are susceptible to influence. Therefore, counsel 

was able to achieve the same end without the risk of alienating the jury by pointing out Joan’s 

deficits. Mick fails to meet his burden to show a reasonable probability of a different result had 

counsel specifically raised Joan’s intellectual and developmental deficits at trial.
No. 2020AP1280

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Wis. 2d 92, 97, 352 N.W.2d 673 (Ct. App. 1984). In his pro se motion, Mick 

argued that the direct examination and cross-examination of the forensic 

interviewer elicited two Haseltine violations.

¶45 The first alleged Haseltine violation occurred when, in response to 

the prosecutor’s questioning, the forensic interviewer stated that a forensic 

interview will be scheduled only if there is “credible information that a child has 

been put at risk.”17 Mick does not develop any argument showing that this 

constitutes an opinion that Joan was telling the truth, and we reject it on that basis.

¶46 The second alleged Haseltine violation occurred when trial counsel 

was attempting to get the forensic interviewer to identify the difference between 

information that is “credible” and information that is “reliable.” In response to 

this questioning, she stated: “I use the term credible when, if—in this case, 

whether this child was providing her statement, she was providing her information 

in a free, narrative form.... To me, her testimony of her interview, the information 

she provided, I view that as credible.”

¶47 We begin by observing that the circuit court determined that counsel 

had an objectively reasonable strategic reason for asking the questions that elicited 

these responses. Here, it is evident that counsel was attempting to show that the 

purpose of the forensic interview was to collect information from Joan, not to test 

the veracity of her statement. That is, counsel emphasized that none of the 

forensic interviewer’s questions were aimed at questioning the accuracy of Joan’s 

 

17

 Mick’s pro se motion also refers to testimony from the social worker that Joan’s report 

was sufficient to schedule a forensic interview, but his appellate briefing does not identify that 

testimony, much less develop an argument about it on appeal. We discuss the social worker’s 

testimony no further.
No. 2020AP1280

22

statement, nor did the forensic interviewer ask questions to determine whether 

Joan’s statement had been influenced by Cindy or anyone else. Although counsel 

may not have gotten all of the answers he hoped for, that does not make his 

performance deficient.

¶48 We turn to whether trial counsel was ineffective for not objecting

and moving to strike the forensic interviewer’s response to his questioning. In 

addressing this issue, we assume without deciding that counsel could have 

objected to testimony that he himself elicited and, further, that the court would 

have stricken the forensic interviewer’s testimony. Even so, Mick fails to 

persuade us that he was prejudiced by any mistake.

18 During his closing 

arguments, trial counsel argued that the accuracy of Joan’s recorded statement was 

in question because investigators assumed that Cindy’s report was true, and 

neither the forensic interviewer nor any other member of the police considered 

whether Joan’s statement might have been coached by Cindy. We do not see any

reasonable probability that the jury would have credited this defense theory had 

the court stricken the testimony in question.

IV. Newly Discovered Evidence

¶49 Finally, Mick contends that he is entitled to a new trial based on

newly discovered evidence. To prevail, Mick must prove the following four 

factors, commonly referred to as the Plude factors, by clear and convincing 

evidence: (1) the evidence was discovered after conviction; (2) the defendant was 

 

18

 Mick points out that a court should consider the cumulative prejudicial effect of all 

deficiencies. See State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305. This is an 

accurate statement of the law. However, as this is the sole issue for which we assume deficient 

performance, there is nothing to cumulate in this case.
No. 2020AP1280

23

not negligent in seeking the evidence; (3) the evidence is material to an issue in 

the case; and (4) the evidence is not cumulative. State v. Plude, 2008 WI 58, ¶32, 

310 Wis. 2d 28, 750 N.W.2d 42. If the defendant meets his burden of proof 

regarding the Plude factors, the court considers whether “‘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.’” State v. Edmunds, 2008 WI App 

33, ¶22, 308 Wis. 2d 374, 746 N.W.2d 590 (quoted source omitted).

¶50 The new evidence in question is Mick’s Google search history from 

April 2015, four months before the conduct at issue in this case. This search 

history shows that, in April 2015, Mick asked Google, “what do I do if my 

daughter seen me masterbaiting?” and “can I lock the data on my cell phone?”19

Mick contends that he had completely forgotten about an incident in April 2015

that lead to these search queries until he reviewed this search history. He now 

recalls that he was in his bedroom masturbating and watching pornography on his 

phone, and Joan walked into the room. Mick contends that he was very 

embarrassed about what happened, and that he wanted to take steps to ensure that 

it would never happen again. According to Mick, his search history is objective

evidence corroborating that Mick did not intentionally show sexually explicit 

content to Joan, and that he would not have been sexually gratified by doing so.

¶51 We conclude that Mick is not entitled to a new trial based on the

search history evidence. For purposes of this opinion, we assume without 

 

19

 In total, Mick points to five search queries from that April date, asked in the following 

sequence: “what do i do if my daughter seen me masterbaiting?”; “my daughter seen me 

masterbaiting?”; “my daughter caught me masterbaiting?”; “what do i do if my daughter seen me 

masterbaiting?”; and “can i lock the data on my cell phone?”
No. 2020AP1280

24

deciding that Mick can satisfy the four Plude factors (although we note that this is 

no small assumption in Mick’s favor). We conclude that the circuit court properly 

denied the motion because there is not a reasonable probability of a different result

had Mick’s search history been presented to the jury.20

¶52 Initially, we observe that the new evidence is contrary to the 

unequivocal testimony Mick gave at trial. As mentioned above, Mick testified that 

there was one incident in which he looked at pornography when Joan was in the 

same room, but Mick insisted that he thought Joan was sleeping. Trial counsel 

then asked Mick: “Have there been any other times that you have had adult 

images or anything of that nature on your phone or computer or anything else 

where [Joan] would have been in the room?” Mick responded: “Absolutely not. 

No.” Indeed, had Mick’s search history been available to the prosecutor during 

 

20

 The applicable standard of review of the reasonable probability determination for 

newly discovered evidence has been characterized in different ways in the case law. Some cases 

state that the determination is a question of law we review de novo. See, e.g., State v. Plude, 

2008 WI 58, ¶33, 310 Wis. 2d 28, 750 N.W.2d 42. Other cases indicate that we review this 

determination for an erroneous exercise of discretion by the circuit court. See State v. Avery, 

2013 WI 13, ¶32, 345 Wis. 2d 407, 826 N.W.2d 60 (“When weighing the new evidence against 

the evidence presented at trial, we cannot say that the circuit court erroneously exercised its 

discretion when it concluded that the photogrammetry evidence would not create a reasonable 

doubt in the minds of the jury.” (emphasis omitted)); State v. Edmunds, 2008 WI App 33, ¶16, 

308 Wis. 2d 374, 746 N.W.2d 590 (appearing to apply a discretionary standard of review to the 

circuit court’s determination that “there was not a reasonable probability a new result would be 

reached with a new trial”).

This apparent inconsistency in the case law is not limited to the cases we cite. Almost 

twenty-five years ago, in a concurrence in State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 

(1997), then-Chief Justice Abrahamson wrote: “The cases reveal that although the supreme court 

repeats the erroneous exercise of discretion standard of review, it often appears to have reviewed 

the trial courts’ decisions independently, determining anew whether there exists a reasonable 

probability of a different result.” See id. at 485 n.5 (Abrahamson, C.J., concurring).

Here, the parties do not address the apparent inconsistency in the case law, and we have 

not undertaken an exhaustive review of the relevant cases. Rather, we will apply the de novo 

standard, which could only benefit Mick.
No. 2020AP1280

25

the trial, one imagines that he would have jumped at the opportunity to use this 

evidence to impeach Mick’s unequivocal trial testimony.

¶53 Presumably, had Mick been aware of the objective evidence proving 

that the testimony he gave at trial was inaccurate, Mick’s trial testimony would 

have been different. Even so, we do not see the evidence of Mick’s April 2015 

search history and his explanation of what happened on that occasion as highly 

probative of Mick’s mental state four months later. Even assuming that Mick was 

embarrassed when Joan unexpectedly entered his bedroom and saw him 

masturbating in April 2015, that does not speak to his intentions in August 2015. 

The newly discovered evidence would not have provided the jury with any reason 

to discount Joan’s statements in her forensic interview, which the jury clearly 

believed. We conclude that, had the search history evidence been presented to the 

jury, there is not a reasonable probability that it would have helped his case.

CONCLUSION

¶54 For all these reasons, we conclude that Mick is not entitled to a new 

trial based on a theory of ineffective assistance of counsel or newly discovered 

evidence.

By the Court.—Orders affirmed.

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

809.23(1)(b)5.