COURT OF APPEALS

DECISION

DATED AND FILED

March 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 No. 2017AP1303-CR Cir. Ct. No. 2011CF1652

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MAURICE DEANGELO STOKES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for 

Milwaukee County: RICHARD J. SANKOVITZ and JEFFREY A. WAGNER, 

Judges. Affirmed. 

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2017AP1303-CR

2

¶1 PER CURIAM. Maurice Deangelo Stokes appeals from a judgment 

of conviction for first-degree intentional homicide, as a party to a crime and with 

use of a dangerous weapon, and orders of the postconviction court denying 

Stokes’s claims of ineffective assistance of counsel, newly discovered evidence, 

trial court error in admitting other-acts evidence and instructing the jury, and an 

erroneous exercise of discretion by the trial court at the time of sentencing related 

to imposition of a DNA surcharge.

1

 For the reasons set forth below, we affirm.

BACKGROUND

¶2 Terry James Baker was shot and killed on October 29, 2005. Stokes

was subsequently charged for his role in Baker’s death and convicted of firstdegree intentional homicide, as a party to a crime and with use of a dangerous 

weapon.2

¶3 At Stokes’s jury trial, two eyewitnesses to Baker’s death, James 

Turner and Michael Henderson,

3

testified and identified Stokes as one of two 

individuals who were chasing Baker down the street and into an alley, and 

shooting at Baker on October 29, 2005. In addition to describing the shooting, 

Turner further testified that he approached Baker as Baker was lying on the 

ground after the shots were fired, and tried to talk to him. Turner testified that 

 

1

 The Honorable Richard J. Sankovitz presided over the trial and sentencing and entered 

the judgment of conviction. The Honorable Jeffrey A. Wagner entered the orders denying 

Stokes’s postconviction motions.

2

 Stokes’s co-actor, Cyrus Brooks, was determined to be the person who fired the fatal 

shots. Brooks was tried and convicted in a separate proceeding.

3

 In his brief, Stokes refers to witnesses by their initials. We refer to them by their 

names.
No. 2017AP1303-CR

3

Baker did not respond, and he knew at that point that Baker was dead. Turner also 

testified that in the days prior to the shooting, Stokes and his co-actor, Cyrus

Brooks, had approached Turner and warned him that he “better stop hanging 

round” Baker because “[h]e a dead man.” Henderson also described that after he 

saw Baker being chased down the street and heard the shots fired, he went into his 

house to look out the back window that faced the alley “[t]o see what was going 

on.” Henderson testified that he saw people in the yard and Baker was lying 

down. 

¶4 Prior to trial, the State filed a motion in limine and sought to admit 

evidence of an altercation that occurred on October 23, 2005, in which Stokes, 

Brooks, and a third individual were seen shooting at Baker. The trial court granted 

the State’s motion and allowed admission of this evidence for purposes of showing 

motive. Thus, pursuant to the trial court’s ruling, Xavien Bates testified at trial 

about the prior altercation, stating that he was with Baker on October 23, 2005, 

when three individuals started shooting at him and Baker. Bates indicated that he 

knew the three individuals to be Stokes, Brooks, and an individual he identified as 

Randell. The State also presented testimony from police officers about this 

altercation and played surveillance video from a nearby business, showing Baker 

and Bates running.

4

 

¶5 In his defense at trial, Stokes’s mother and sister testified and 

indicated that Stokes was not the shooter. Stokes’s mother described witnessing a 

 

4

 One of the detectives that was called to testify about this October 23, 2005 altercation 

also provided testimony about a third incident. The State objected to this testimony. The trial 

court excluded evidence of this third altercation and also provided a cautionary instruction to the 

jury in which it told the jury to disregard the detective’s testimony about this altercation. 
No. 2017AP1303-CR

4

young man, who was not Stokes, crouching near a dumpster and firing shots. She 

further testified that shortly after the shooting, several people broke into her house, 

causing significant damage to her front door and front porch area. She also 

testified that Stokes lived with her, but he was not home at the time of the 

shooting, and he did not come home in the days after the shooting. However, she 

testified that Bates was arrested at her house. Stokes’s sister testified that she 

went to her mother’s house on the day of the shooting to see what the commotion 

was at her mother’s house, and ended up in an altercation with a member of 

Baker’s family. She testified that she believed that it was Baker’s family and 

friends at her mother’s house that day who were causing damage to her mother’s 

house, and that after the police diffused the situation, she told the police that her 

brother was at her house playing video games at the time of the shooting. 

¶6 The jury found Stokes guilty and the court sentenced him to life in 

prison with eligibility for release to extended supervision after serving twentythree years of his sentence. 

¶7 Stokes has since filed three postconviction motions, all of which 

were denied without a hearing. In the first motion filed on October 13, 2014, 

Stokes alleged that the trial court erroneously admitted evidence of the prior 

shooting that occurred on October 23, 2005, and that his trial counsel was 

ineffective for eliciting testimony from a detective about a third shooting incident. 

Stokes filed his second postconviction motion on November 18, 2016, in which he

argued that the jury was erroneously instructed regarding the October 23rd

incident, he had newly discovered evidence entitling him to a new trial, and the 

trial court considered improper factors at the time of sentencing. Stokes filed his 

third postconviction motion on November 26, 2019, in which he argued that he 
No. 2017AP1303-CR

5

received ineffective assistance of counsel and he had newly discovered evidence. 

Stokes now appeals. 

DISCUSSION

¶8 A defendant is not automatically entitled to an evidentiary hearing 

following a postconviction motion. “A hearing on a postconviction motion is 

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

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

568, 682 N.W.2d 433. “[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,” a trial court 

may deny a postconviction motion without a hearing. See id., ¶9. Whether a 

motion alleges sufficient facts that, if true, would entitle the defendant to an 

evidentiary hearing presents a question of law that we review de novo. See

State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

I. Ineffective Assistance of Counsel

¶9 “Under the Sixth and Fourteenth Amendments to the United States 

Constitution, a criminal defendant is guaranteed the right to effective assistance of 

counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334. 

A defendant must show two elements to establish that his or her counsel’s 

assistance was constitutionally ineffective: (1) counsel’s performance was 

deficient; and (2) the deficient performance resulted in prejudice to the defense. 

Id.

¶10 “To demonstrate deficient performance, the defendant must show 

that his counsel’s representation ‘fell below an objective standard of 
No. 2017AP1303-CR

6

reasonableness’ considering all the circumstances.” State v. Carter, 2010 WI 40, 

¶22, 324 Wis. 2d 640, 782 N.W.2d 695 (citation omitted). Prejudice occurs when 

counsel’s error is of such magnitude that there is a “reasonable probability” that 

but for the error the outcome would have been different. State v. Erickson, 227 

Wis. 2d 758, 769, 596 N.W.2d 749 (1999). “‘A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.’ That requires a 

‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v. 

Pinholster, 563 U.S. 170, 189 (2011) (citations omitted).

¶11 “An ineffective assistance of counsel claim presents a mixed 

question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 

N.W.2d 95. “We will not reverse the circuit court’s findings of fact unless they 

are clearly erroneous.” Id. “We independently review, as a matter of law, 

whether those facts demonstrate ineffective assistance of counsel.” Id.

A. Failure to Investigate and Call Witnesses

¶12 Stokes argues that his trial counsel was ineffective for failing to 

investigate and call Kathleen Trammell, Devon Johnson, and Farice Campbell as 

witnesses.

5

 We disagree, and we conclude that Stokes has failed to demonstrate 

prejudice and, therefore, his claim for ineffective assistance of counsel in this 

regard fails. See State v. Floyd, 2016 WI App 64, ¶22, 371 Wis. 2d 404, 885 

N.W.2d 156 (“If the defendant fails to prove either prong, we need not address 

whether the other prong was satisfied.”).

 

5

 We note that the State does not raise an argument in response to Stokes’s arguments 

about Johnson and Campbell, and Stokes fails to re-visit any argument about Johnson and 

Campbell in his reply brief. 
No. 2017AP1303-CR

7

¶13 Stokes’s argument as to each of the three witnesses is that each told 

the police that he or she saw only one male running away from the scene of the 

shooting. Stokes maintains that Trammell would have testified that she saw one 

individual fleeing into her backyard by jumping over the fence. He contends that 

Johnson and Campbell both similarly witnessed the individual who was fleeing the 

scene of the crime, while possessing a firearm. Further, he states that Johnson and 

Campbell viewed an in-person lineup in which Stokes was a participant and could 

not identify Stokes as the person running away with a firearm.6

¶14 Stokes argues that all three witnesses only saw one individual 

running from the scene of the shooting with a firearm. He then argues that all 

three of these witnesses are important witnesses. As to Trammell, he states that 

she could have assisted him at trial because she “was a neutral eyewitness.” 

Stokes further states that trial counsel was aware of Trammell, he should have 

reached out to her, and he had no strategic reason for not calling her as a witness. 

As to Johnson and Campbell, Stokes states that “[t]here is no question that these 

witnesses were vital to the defense” and there can be no strategic reason for failing 

to call them as witnesses at trial.

¶15 Addressing the prejudice component of ineffective assistance, 

Stokes contends that “[t]he testimony of these witnesses could have influenced the 

jury greatly in deciding this case. Here there are three eye-witnesses who cannot 

 

6

 We note that Stokes omits the fact that when the lineup was completed, Detective 

David Salazar asked Johnson why she marked no for all six of the participants in the lineup. 

Johnson told the detective that she “had not had a long amount of time to view the suspect fleeing 

the scene of the crime and that due to that fact, she did not believe she would be able to recognize 

the suspect.” 
No. 2017AP1303-CR

8

identify Stokes as the individual they saw fleeing the scene. Stokes is clearly 

prejudiced by not having these witnesses testify at trial.”

¶16 However, the potential testimony of Trammell, Johnson, and 

Campbell does not exclude the possibility of Stokes’s involvement with Baker’s 

death, and it is not inconsistent with the evidence introduced at trial that two 

people—Stokes and Brooks—were involved in Baker’s death. Indeed, the

testimony at trial was that Turner was in the backyard with Baker after the shots 

were fired, and Henderson saw Brooks run into the alley and also saw people in 

the area while Baker was on the ground. Thus, the testimony from Trammell, 

Johnson, and Campbell adds nothing to the evidence already introduced at trial 

and is even consistent with the evidence that has already been established. 

Moreover, as the postconviction court noted that none of the three witnesses 

“affirmatively state that [Stokes] and/or Brooks were not the person they saw 

involved in the shooting. The absence of evidence is not evidence.” As such, 

Stokes has failed to demonstrate prejudice because he has not provided anything 

that would undermine our confidence in the outcome and provide a reasonable 

probability that the outcome would have been different, if trial counsel 

investigated and called Trammell as a witness at trial.

7

 See Floyd, 371 Wis. 2d 

404, ¶22.

 

7

 Further, we conclude that Stokes inadequately pled his prejudice claim. We conclude 

that his allegations of the importance of Trammell’s, Johnson’s, and Campbell’s testimony are 

subjective opinions and conclusory and, therefore, he was not entitled to a hearing. See State v. 

Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.
No. 2017AP1303-CR

9

B. Introduction of a Third Altercation

¶17 Stokes also argues that his trial counsel was ineffective for eliciting 

testimony on cross-examination from a police detective about a third altercation. 

At trial, the State called Detective Louis Johnson to testify about a photo array 

conducted with Bates in connection with the October 23rd altercation. During 

cross-examination, Stokes’s trial counsel began questioning Detective Johnson 

about an altercation described in a police report Detective Johnson prepared. 

When it became clear that the incident that trial counsel was questioning Detective

Johnson about was a separate third incident, the prosecutor objected, and the trial 

court stopped this line of questioning. Stokes now argues that trial counsel’s 

performance was deficient because the line of questioning evinced a fundamental 

misunderstanding of the police report, and he was prejudiced because the 

testimony about a third incident made it appear to the jury as if there was a pattern 

of behavior involving shootings with Stokes, Brooks, and Baker. 

¶18 We again reject Stokes’s claim of ineffective assistance of counsel 

and conclude that there is no reasonable probability of a different result. Detective 

Johnson’s testimony on this topic was short and was not developed. The trial 

court also provided a curative instruction following Detective Johnson’s testimony 

and before taking further testimony in which it made clear to the jury that 

Detective Johnson’s testimony about this incident was to be disregarded. The trial 

court instructed the jury as follows:

You heard some testimony about a person whose 

nickname is Runthang and you heard about an incident 

involving Runthang and a weapon that was referred to by 

it’s caliber as a .223. The parties agree that that incident 

describing, or that involved Runthang and the [.]223 was 

not the incident that occurred on October 23rd, 2005. It is a 

separate incident. 
No. 2017AP1303-CR

10

The parties agree they are not going to pursue it any 

further and it wouldn’t be helpful for you to consider it any 

further either. So, we are not going to go any further into 

that and you can disregard the testimony about Runthang 

and the .223. 

We presume that the jury follows instructions. State v. Truax, 151 Wis. 2d 354, 

362, 444 N.W.2d 432 (Ct. App. 1989). Thus, we conclude that Stokes has failed 

to demonstrate prejudice, and as a result, his claim of ineffective assistance of 

counsel fails. See Floyd, 371 Wis. 2d 404, ¶22.

II. Newly Discovered Evidence

¶19 Stokes additionally argues that he is entitled to a new trial as a result 

of newly discovered evidence from three additional witnesses: Corey Toliver, 

Brandon Brumfeld, and Shawnrell Simmons. As Stokes contends, Toliver

revealed evidence that is “directly relevant to the credibility of a purported eyewitness who testified at trial” because Toliver revealed that Turner lied when he 

implicated Stokes in the shooting. Stokes additionally contends that Brumfeld can 

“affirmatively exclude” Stokes from the group of men who were looking for Baker

in the days prior to the shooting, that Stokes and Baker were not angry with each 

other, and Brumfeld was pressured to implicate Stokes. Stokes further contends 

that Simmons would provide testimony that Turner did not actually witness the 

shooting and Simmons was bribed by Baker’s family to testify against Stokes. 

Stokes last argues that the resolution of Bates’s criminal charges that were pending 

at the time of Stokes’s trial is newly discovered evidence entitling Stokes to a new 

trial, or an evidentiary hearing. We disagree, and we conclude that Stokes has not 

presented newly discovered evidence.

¶20 The decision to grant a motion for a new trial based on newly 

discovered evidence is committed to the circuit court’s discretion. State v. Avery, 
No. 2017AP1303-CR

11

2013 WI 13, ¶22, 345 Wis. 2d 407, 826 N.W.2d 60. To be entitled to a new trial 

based on newly discovered evidence “a defendant must prove: ‘(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. Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 

N.W.2d 42 (citation omitted). “If the defendant is able to prove all four of these 

criteria, then it must be determined whether a reasonable probability exists that 

had the jury heard the newly[]discovered evidence, it would have had a reasonable 

doubt as to the defendant’s guilt.” Id.

¶21 “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.” Avery, 345 Wis. 2d 

407, ¶25. “A court reviewing the newly discovered evidence should consider 

whether a jury would find that the evidence ‘had a sufficient impact on other 

evidence presented at trial that a jury would have a reasonable doubt as to the 

defendant’s guilt.’” Id. (citation omitted). “This latter determination is a question 

of law.” See Plude, 310 Wis. 2d 28, ¶33.

¶22 Turning to the affidavits produced from Toliver and Simmons, we 

conclude that they were properly rejected by the postconviction court for two 

reasons. First, the statements provided in the affidavits are inadmissible hearsay 

and amount to a recantation of Turner’s trial testimony that is unsupported by any 

corroborating evidence. See State v. McCallum, 208 Wis. 2d 463, 477-78, 561 

N.W.2d 707 (1997). Second, the affidavits are cumulative of evidence that was 

previously offered at trial because Turner’s credibility as a witness was already 

thoroughly vetted at trial both on direct and cross-examination. See State v. 

McAlister, 2018 WI 34, ¶39, 380 Wis. 2d 684, 911 N.W.2d 77 (“Where the 
No. 2017AP1303-CR

12

credibility of a prosecution witness was tested at trial, evidence that again attacks 

the credibility of that witness is cumulative.”).

¶23 At the trial, Turner was questioned regarding his presence at the 

scene of the shooting death of his friend and his decision to leave before the 

paramedics or the police arrived. He was further questioned about the 

inconsistencies in his statements to police where he testified that he lied in the first 

statement that he gave to the police about his witnessing the shooting because he 

feared for the safety of his family, given that Stokes and Brooks were still in the 

area. Turner then explained that he ultimately went to the police himself and 

provided a statement about what he saw when his family was no longer living in 

that area. The affidavits from Toliver and Simmons would only test the credibility 

of Turner further. “Evidence which merely impeaches the credibility of a witness 

does not warrant a new trial on this ground alone.” Greer v. State, 40 Wis. 2d 72, 

78, 161 N.W.2d 255 (1968).

¶24 Moving to Brumfeld’s affidavit, there is no reasonable probability of 

a different result. At trial, the State presented testimony from Turner and 

Henderson placing Stokes at the scene of the shooting. The defense also presented 

testimony from Stokes’s mother that she saw someone else “kneeling down 

shooting from the dumpster” and testimony from Stokes’s sister that Stokes was at 

her house playing video games around the same time as the shooting. In light of 

the evidence that the jury already heard at trial, there is no reasonable probability 

that the jury would have a reasonable doubt as to Stokes’s guilt if it now heard

Brumfeld’s testimony. At best, Brumfeld’s affidavit establishes that other people,

in addition to Stokes, were looking for Baker and sought to do Baker harm. 

Brumfeld’s affidavit in no way excludes Stokes as a possible suspect, undercuts 
No. 2017AP1303-CR

13

the State’s evidence presented at trial, or adds to the defense already presented at 

trial that was rejected by the jury.

¶25 Last, any new developments in the resolution of Bates’s criminal 

cases that were pending at the time of Stokes’s trial are not newly discovered 

evidence because any such developments would be cumulative. Based on the 

testimony elicited at trial, the jury was already aware that Bates had previously 

been convicted of a crime and was also facing additional criminal charges at the 

time of Stokes’s trial. Indeed, Bates was cross-examined regarding any “credit” 

he might receive for testifying at Stokes’s trial. Any additional information about 

the resolution of Bates’s criminal charges would be cumulative impeachment 

evidence. See McAlister, 380 Wis. 2d 684, ¶39.

¶26 Accordingly, we conclude that Stokes has failed to present newly 

discovered evidence that entitles him to a new trial or an evidentiary hearing.

III. Admission of Other-Acts Evidence

¶27 Stokes further argues that the trial court erroneously admitted 

evidence of the “altercation” on October 23, 2005, between Stokes, Brooks, and 

Baker in which shots were also fired. The State argues that evidence of this 

altercation was properly admitted as other-acts evidence to provide proof of

identity.

8

 We conclude that evidence of the altercation on October 23, 2005, was 

 

8

 The State makes two additional arguments: (1) evidence of the October 23, 2005 

incident was properly admitted as panoramic evidence and (2) even if the evidence was 

erroneously admitted, any error is harmless error. We do not address either argument by the State 

because we conclude that the testimony was properly admitted as other-acts evidence for 

purposes of proving motive and intent. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 

514 (Ct. App. 1989).
No. 2017AP1303-CR

14

properly admitted as other-acts evidence for purposes of proving motive and 

intent.

¶28 WISCONSIN STAT. § 904.04(2)(a) “prohibits the admission of 

evidence of a defendant’s other bad acts to show that the defendant has a 

propensity to commit crimes.” State v. Marinez, 2011 WI 12, ¶18, 331 Wis. 2d 

568, 797 N.W.2d 399. However, other-acts evidence may be admissible in certain 

circumstances, and we review the admissibility of other-acts evidence under a 

three-step test. See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 

(1998). First, we consider whether the other-acts evidence is offered for a 

permissible purpose under § 904.04(2). Sullivan, 216 Wis. 2d at 772. Second, we 

ask whether the evidence is relevant under WIS. STAT. § 904.01. Sullivan, 216 

Wis. 2d at 772. Third, we consider whether, under WIS. STAT. § 904.03, “the 

probative value of the other[-]acts evidence substantially outweigh[s] the danger 

of unfair prejudice, confusion of the issues or misleading the jury, or by 

considerations of undue delay, waste of time or needless presentation of 

cumulative evidence[.]” Sullivan, 216 Wis. 2d at 772-73. 

¶29 “The applicable standard for reviewing a circuit court’s admission of 

other[-]acts evidence is whether the court exercised appropriate discretion.” Id. at 

780. Under this standard, we will sustain the circuit court’s evidentiary ruling if it 

“examined the relevant facts, applied a proper standard of law, used a 

demonstrated rational process, and reached a conclusion that a reasonable judge 

could reach.” State v. Hunt, 2003 WI 81, ¶34, 263 Wis. 2d 1, 666 N.W.2d 771. 

However, “[e]ven if a circuit court fails to set forth the basis for its ruling, we will 

nonetheless independently ‘review the record to determine whether it provides an 

appropriate basis for the circuit court’s decision.’” Marinez, 331 Wis. 2d 568, ¶17 

(citation omitted).
No. 2017AP1303-CR

15

¶30 Turning to the first step, evidence of the October 23rd altercation

was admitted to show proof of motive as evidence of an ongoing dispute between 

Stokes and Brooks and Baker that provided a reason for Stokes to chase and shoot 

at Baker just six days later on October 29, 2005, and also to aid and abet Brooks in 

chasing and shooting at Baker. The prior altercation is also offered to show intent 

because the altercation provides insight into Stokes’s state of mind at the time and 

indicates that, as a result of an ongoing dispute, Stokes’s intention was to kill 

Baker, or aid and abet Brooks in doing so, in furtherance of settling the ongoing

dispute. Thus, we conclude that evidence of this altercation was properly offered 

for the permissible purposes of motive and intent. See WIS. STAT. § 904.04(2) 

(listing motive and intent as permissible purposes).

¶31 In reaching this conclusion, we recognize that the State argues that 

the evidence was properly admitted as other-acts evidence for purposes of proving 

identity. However, while the State argued that this evidence was offered for the 

purpose of showing proof of identity, the trial court originally analyzed this 

evidence for proof of motive, even if the analysis was not conducted as an otheracts analysis. Not only do we review the trial court’s decision for an erroneous 

exercise of discretion in an other-acts evidence analysis, but this court has an 

independent duty to review the record for an appropriate basis to support the trial 

court’s decision to admit this evidence. See Sullivan, 216 Wis. 2d at 781; see also

Marinez, 331 Wis. 2d 568, ¶17. Thus, we conclude that the evidence was offered 

for the permissible purposes of motive and intent, and we turn to the second step 

of the analysis.

¶32 Under the second step, we consider “the two facets of relevance.” 

See Sullivan, 216 Wis. 2d at 772; see also WIS. STAT. § 904.01 (“‘Relevant 

evidence’ means evidence having any tendency to make the existence of any fact 
No. 2017AP1303-CR

16

that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.”). “The first consideration in 

assessing relevance is whether the other[-]acts evidence relates to a fact or 

proposition that is of consequence to the determination of the action.” Sullivan, 

216 Wis. 2d at 772. “The second consideration in assessing relevance is whether 

the evidence has probative value, that is, whether the other[-]acts evidence has a 

tendency to make the consequential fact or proposition more probable or less 

probable than it would be without the evidence.” Id. “[T]he probative value of 

the other[-]acts evidence depends on its nearness in time, place and circumstances 

to the alleged crime.” State v. Barreau, 2002 WI App 198, ¶37, 257 Wis. 2d 203, 

651 N.W.2d 12.

¶33 We conclude that evidence of the October 23rd altercation was 

relevant. In this case, the fact or proposition to be proved as an element of the 

crime was whether Stokes intentionally aided and abetted Brooks in committing 

the crime of first-degree intentional homicide, or the lesser-included offense of

first-degree reckless homicide on which the jury was instructed.

9

 See WIS. STAT.

§§ 940.01(1)(a), 940.02(1), 939.05. The October 23rd altercation, as noted above, 

relates to this proposition because it is evidence of an ongoing dispute indicating

that Stokes and Brooks were motivated to settle the dispute by either intentionally 

killing Baker or recklessly shooting at him. Evidence of the altercation also makes 

 

9

 We further note that the elements of party to a crime liability also included that Stokes 

knew that Brooks was intending or intended to commit the crime of first-degree intentional 

homicide or was intending or intended to commit the crime of first-degree reckless homicide; that 

Brooks caused the death of Baker; that Brooks acted with intent to kill Baker or that Brooks acted 

in a criminally reckless manner; and as to the reckless offense, that Brooks’ conduct showed utter 

disregard for human life. See WIS JI—CRIMINAL 400. Thus, the evidence of the October 23rd

altercation was relevant in proving the motive and intent of not only Stokes, but also the motive 

and intent of Brooks.
No. 2017AP1303-CR

17

this fact or proposition more probable because it points to Brooks as the shooter on 

the night of Baker’s death given that the altercation, which happened in the same 

general area, in the same manner, and just days prior, points to Stokes and Brooks

as the persons who were looking for Baker for purposes of settling an ongoing 

dispute. Accordingly, we conclude that the second step is satisfied, and we turn to 

the third step.

¶34 Under the third step, Stokes argues that the probative value of the 

altercation was substantially outweighed by the danger of unfair prejudice. We do 

not agree. First, we note that Stokes bears the burden on this point and his 

argument is conclusory in nature. See Marinez, 331 Wis. 2d 568, ¶19. Further, 

when we analyze this step, we analyze whether the evidence has a tendency to 

influence the outcome by improper means. See State v. Johnson, 181 Wis. 2d 

470, 493, 510 N.W.2d 811 (Ct. App. 1993). We discern no influence by improper 

means by the admission of evidence of the October 23rd altercation. Moreover, 

the similarities between the October 23rd altercation with the October 29th

shooting gives the October 23rd altercation strong probative value, and the 

strength of this probative value is not substantially outweighed by any danger of 

unfair prejudice. See State v. Gutierrez, 2020 WI 52, ¶¶34-36, 391 Wis. 2d 799, 

943 N.W.2d 870.

¶35 We also note that the trial court provided a cautionary instruction to 

the jury in order that the jury would understand how to use the evidence of the 

altercation on October 23, 2005. The trial court instructed the jury that this 

evidence was presented to demonstrate:

First, that Mr. Stokes was one of the persons 

involved in the later shooting on October 29th, 2005;
No. 2017AP1303-CR

18

Second, that Mr. Brooks intended to kill Mr. Baker 

on October 29th, 2005, and that Mr. Stokes knew that 

Mr. Brooks intended to kill Mr. Baker; and 

Third, that Mr. Stokes had a motive for aiding and 

abetting Mr. Baker’s homicide. If you believe Xavien 

Bates’ testimony, you may conclude that Mr. Stokes was 

one of the persons involved in the later shooting on 

October 29th, 2005, that Mr. Brooks intended to kill 

Mr. Baker, that Mr. Stokes knew Mr. Brooks intended to 

kill Mr. Baker, and that Mr. Stokes had a motive to commit 

the crime with which he is charged, although, you’re not 

required to reach any such conclusion.

The testimony about the shooting on October 23rd, 

2005, was admitted only as it relates to Mr. Stokes’

identity, Mr. Brooks[’] intent, Mr. Stokes[’] knowledge of 

Mr. Brooks’ intent, and Mr. Stokes’ alleged motive. The 

evidence may not be used for any other purpose, and in 

particular, and you may not find Mr. Stokes guilty of the 

charge in this case or the lesser included offense merely 

because you may believe he was guilty of being involved in 

a different shooting. 

“[C]autionary instructions help to limit any unfair prejudice that might otherwise 

result.” Hunt, 263 Wis. 2d 1, ¶72. Thus, we conclude that the probative nature of 

the October 23rd altercation was not substantially outweighed by any danger of 

unfair prejudice, and the evidence of the October 23rd altercation was properly 

admitted as other-acts evidence.

IV. Jury Instruction

¶36 Stokes additionally argues that the trial court’s cautionary instruction 

to the jury regarding the appropriate use of the October 23rd altercation was 

erroneous and the trial court should have instructed the jury using the pattern jury 

instruction WIS JI—CRIMINAL 275. We conclude that Stokes has forfeited any 

argument regarding the trial court’s instruction. As the State highlights, Stokes’s 

trial counsel raised no objection to this instruction and in fact made a strategic 

decision to agree with its use because “it’s better for the jury to understand why 
No. 2017AP1303-CR

19

this evidence has been presented and to reaffirm that Mr. Stokes cannot be found 

guilty ... simply because the jury believes he might have been a participant in an 

earlier incident.” The failure to object to this instruction is fatal to Stokes’s claim,

and therefore, we do not address it further. See WIS. STAT. § 805.13(3) (“Failure 

to object at the conference constitutes a waiver of any error in the proposed 

instructions or verdict.”); see also State v. Trammell, 2019 WI 59, ¶24, 387 

Wis. 2d 156, 928 N.W.2d 564.

10

¶37 Stokes attempts to overcome forfeiture and argues in his reply brief 

that he has raised his argument about the jury instruction in the context of a claim 

of ineffective assistance of counsel. Stokes may have raised this argument in the 

context of ineffective assistance in his postconviction motion, but he has not 

developed that argument in his briefs on appeal. Thus, we consider any argument 

that his trial counsel was ineffective for failing to object to the instruction to be 

abandoned on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 

475, 491, 588 N.W.2d 285 (Ct. App. 1998).

V. Imposition of the DNA Surcharge

¶38 Stokes finally argues that the trial court erroneously exercised its 

discretion at the time of sentencing when it imposed a DNA surcharge for 

purposes of punishing Stokes. As Stokes contends, the DNA surcharge is not 

intended for purposes of punishing the defendant, but rather for purposes of 

 

10

 We note that in State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612, 

our supreme court said that “[a]lthough cases sometimes use the words ‘forfeiture’ and ‘waiver’

interchangeably, the two words embody very different legal concepts. ‘Whereas forfeiture is the 

failure to make the timely assertion of a right, waiver is the intentional relinquishment or 

abandonment of a known right.’” 
No. 2017AP1303-CR

20

reimbursing costs. In response, the State raised an argument that the trial court 

properly exercised its discretion at the time of sentencing based on the law as it 

existed at the time of the offense. Stokes failed to raise any argument in his reply 

brief to refute the argument made by the State. As such, we consider Stokes to 

have conceded this issue, and we do not address it further. See United Coop. v. 

Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 

(stating that the failure to refute a proposition asserted in a response brief may be 

taken as a concession).

CONCLUSION

¶39 In sum, we conclude that Stokes has failed to establish ineffective 

assistance of counsel, either because his trial counsel failed to investigate and call 

Trammell, Johnson, or Campbell as witnesses or because trial counsel elicited 

testimony from Detective Johnson about a third altercation. We also conclude that 

Stokes has failed to provide newly discovered evidence. We additionally conclude 

that the trial court properly admitted evidence of the October 23, 2005 altercation 

as other-acts evidence. Last, we do not address either of Stokes’s arguments that 

the trial court erroneously instructed the jury regarding the appropriate use of the 

October 23, 2005 altercation because he waived that claim by not objecting at 

trial, or that the trial court erroneously imposed a DNA surcharge because he 

conceded the State’s argument. Accordingly, we affirm. 

By the Court.—Judgment and orders affirmed.

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

RULE 809.23(1)(b)5.