2022 WI App 11

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2021AP447-CR

Complete Title of Case: 

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

SHANE ALLAN STROIK,

 DEFENDANT-APPELLANT.

Opinion Filed: February 24, 2022

Submitted on Briefs: November 19, 2021

JUDGES: Blanchard, P.J., Graham, and Nashold, JJ.

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Tristan S. Breedlove, assistant state public defender of Madison.

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Loryn L. Limoges, assistant attorney general, and Joshua L. Kaul, 

attorney general.
2022 WI App 11

COURT OF APPEALS

DECISION

DATED AND FILED

February 24, 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. 2021AP447-CR Cir. Ct. No. 2016CF321

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

SHANE ALLAN STROIK,

 DEFENDANT-APPELLANT.

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

Portage County: ROBERT J. SHANNON, Judge. Reversed and cause remanded.

Before Blanchard, P.J., Graham, and Nashold, JJ.

¶1 GRAHAM, J. Shane Stroik appeals a judgment of conviction for 

first-degree sexual assault of “Amy,” who was five years old at the time of the 
No. 2021AP447-CR

2

alleged assault, and an order that denied his postconviction motion for a new trial.1 

Among other things, he argues that his trial counsel provided ineffective assistance 

of counsel when he (1) failed to object to the prosecutor’s statements and 

arguments as well as the witness testimony about Stroik’s “high sex drive” and 

(2) failed to seek out and introduce evidence from which a jury could find that 

Amy made a prior untruthful allegation that she had been sexually assaulted by a

cousin.

¶2 We conclude that the evidence about Stroik’s “sex drive” was 

propensity evidence that was inadmissible under WIS. STAT. § 904.04. Therefore, 

had trial counsel objected to the prosecutor’s statements and arguments and the 

witness testimony on this topic, counsel’s objections should have been sustained. 

However, under the circumstances presented here, Stroik has not met his heavy 

burden to show that counsel’s performance was deficient because counsel 

eventually and adequately addressed the statements, arguments, and evidence 

about Stroik’s “sex drive” during his closing argument.

¶3 Separately, we conclude that Stroik’s trial counsel provided 

ineffective assistance when he failed to seek out and introduce evidence at trial

regarding Amy’s prior allegation against the cousin, which was addressed in a 

report by the county child protective services agency. For reasons we explain 

below, we conclude that counsel’s failure to investigate was deficient because it 

was not based on a reasonable strategic decision. Had counsel conducted a 

 

1

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

pseudonym to protect the identity of the alleged victim, “Amy,” and her mother, who we refer to 

as “Laura.” All references to the Wisconsin Statutes are to the 2019-20 version.
No. 2021AP447-CR

3

reasonable investigation, the evidence would have been admissible at trial and, if 

pursued, there is a reasonable probability that the result of the trial would have 

been different. We therefore reverse the judgment and order, and we remand for a 

new trial.

BACKGROUND

¶4 The alleged assault at issue in this case occurred on or around 

June 10, 2016. At that time, Amy’s parents were separated and going through a

difficult divorce. Amy’s father had sole custody and primary placement. As a 

result, Amy lived with her father and his girlfriend most days.2 Amy’s mother, 

“Laura,” was residing with and in a romantic relationship with Stroik, and Amy 

stayed with Laura and Stroik every other weekend.

The Allegations and Investigation

¶5 Amy’s father originally reported the allegation at issue in this case to 

the family’s social worker in July 2016.3 He reported that, after an incident in 

which Amy urinated on the floor of her aunt’s house, Amy disclosed that Stroik 

had touched her vagina. The father also reported that Amy’s behavior had 

changed; specifically, she had become more defiant within the last month.

 

2

 By the time of the trial, Amy’s father had married the woman who had been his 

girlfriend at the time of the alleged assault. For the sake of simplicity, we refer to her as Amy’s 

father’s girlfriend throughout this opinion.

3

 The social worker was employed by the county department of human services and was 

working with the family due to what Amy’s father referred to at trial, without elaboration, as a 

“no contact order” between Amy’s parents.
No. 2021AP447-CR

4

¶6 These allegations resulted in an investigation by the county child 

protective services (CPS) agency. In the course of the investigation, Amy’s father 

drove her to a child advocacy center approximately one month after the alleged 

assault occurred, and a forensic interviewer conducted a video-recorded forensic 

interview of Amy, who was five years old.

¶7 At the outset of the interview, immediately upon being asked what 

was new, Amy said: “I am going to tell you about Shane [Stroik].” She went on 

to say that, one time when her mother was in the bathroom, Stroik “pull[ed] down 

[her] pants and touche[d] [her] meme.” At that point, Amy pointed to her vagina.

The interviewer clarified that Amy used the term “meme” to refer to her vagina.

¶8 Later in the interview, when asked for additional information about 

how Stroik had touched her “meme,” Amy made the following statements. Amy 

was on the bed watching a movie in the “middle bedroom” when Stroik came into 

the room. Stroik was “laying on the bed,” and he “pulled [her] pants down and 

touched [her] meme.” Before Stroik pulled Amy’s pants down, he told her to 

“turn around” and that he “want[ed] to do something to [her].” Amy said “stop it” 

but Stroik “didn’t stop it.” He said, “no, I’m not stopping.” He also said “don’t 

tell [your] mom.” Stroik touched Amy’s “meme” with one hand, either on the 

“side” or on the “inside” or both, with his hand not moving, and it made her 

“meme” feel “not good.” At some point, Stroik stopped because of “the dog.” At 

one point during the interview, when asked to describe Stroik, Amy indicated that 

he was bald. However, it is undisputed that Stroik was not bald.4

 

4

 It is also undisputed that Amy’s paternal grandfather was bald. This point takes on 

potential significance given facts in the following paragraph of the text.
No. 2021AP447-CR

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¶9 In response to a question by the forensic interviewer, Amy said, “It’s 

not just Shane.” She stated that her paternal grandfather, who she referred to as 

her “papa,” touched her “meme” on multiple occasions when they slept in the 

same bed. Amy stated that he would put “his tongue on [her] meme” and move it 

around, and that he would say, “Don’t tell daddy.” It is undisputed that Amy’s 

grandfather had died several months before the interview, in March 2016.5

¶10 Law enforcement officers interviewed Stroik, Laura, and other 

potential witnesses. During these interviews, which were memorialized in police 

reports, Stroik and Laura both told police that Amy had previously made a 

statement that her paternal cousin had touched her inappropriately. Laura told the 

police that the allegation about the cousin had been investigated, but nothing came 

of it. As discussed in greater detail below, Stroik’s trial counsel was aware that 

there had been a CPS investigation into Amy’s statements about her cousin’s 

conduct. However, trial counsel did not look further into the matter related to the 

cousin and did not attempt to introduce evidence at trial about Amy’s prior 

allegation against her cousin.

 

5

 The State filed a pretrial motion to prevent Stroik from introducing evidence at trial 

about alleged assaults by the grandfather under WIS. STAT. § 972.11(2)(b)3. That statute is 

commonly referred to as Wisconsin’s rape shield law and is discussed in a different context 

below. However, by the time of the trial, the parties stipulated that the entire video of Amy’s 

forensic interview, including her statements about her grandfather, would be played for the jury. 

Neither party challenges this stipulation on appeal.
No. 2021AP447-CR

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The Trial

¶11 Stroik was charged with committing a single sexual assault against 

Amy.6 Following several pretrial hearings and adjournments, the case proceeded 

to a three-day jury trial in 2018. Multiple witnesses testified, including Amy, 

Amy’s aunt, Amy’s father, Amy’s father’s girlfriend, Laura, law enforcement and 

CPS employees who had been involved in the investigation, and Stroik. We do 

not attempt to summarize all the evidence introduced and arguments made at trial; 

we instead summarize only those portions of the trial that are necessary 

background to understand the issues we address below.

¶12 During his opening statement and closing argument, the prosecutor 

made several comments about Stroik’s “sex drive.” By way of example, during 

his opening statement, the prosecutor asserted that Stroik had a “very high sex 

drive” and therefore, according to the prosecutor, “the presumption of course is 

that [he touched Amy] for a sexual purpose.” To give another example, during 

trial, the prosecutor questioned Laura about aspects of her sex life with Stroik and 

the frequency with which Stroik wanted to have sexual relations with Laura. We 

discuss the prosecutor’s statements and arguments and the trial testimony about 

Stroik’s “sex drive”—and trial counsel’s response to the statements, arguments, 

and testimony—at length in the discussion section below.

 

6

 More specifically, Stroik was charged with violating WIS. STAT. § 948.02(1)(e), which 

provides in relevant part: “Whoever has sexual contact ... with a person who has not attained the 

age of 13 years is guilty of a class B felony.” During the course of the State’s investigation, 

another young girl told law enforcement that Stroik had touched her vagina on one occasion, the 

State charged Stroik with a second violation of § 948.02(1)(e), and the charges were joined for 

trial. The jury ultimately acquitted Stroik of the charge related to the second victim. On appeal, 

neither party suggests that the second allegation and acquittal are material to the issues in this 

appeal, and we address the facts related to that charge no further.
No. 2021AP447-CR

7

¶13 Amy’s aunt testified that, on one occasion when she was babysitting 

Amy, Amy urinated on the floor. Amy’s aunt, Amy’s father, and Amy’s father’s

girlfriend all testified about a subsequent conversation they collectively had with 

Amy, during which, upon questioning, Amy said that Stroik had touched her

“meme.”

¶14 Amy’s recorded CPS interview was played for the jury in its 

entirety. After the video was played, Amy, who was seven years old by the time 

of trial, was subject to direct examination by the prosecutor and cross-examination 

by Stroik’s trial counsel, which was followed by another round of direct 

examination and cross-examination.7

¶15 During her testimony, Amy did not appear to have any clear memory 

of the assault. When the prosecutor initially asked Amy if she knew “why we’re 

here today,” she responded, “No.” Amy went on to testify that she remembered 

“going to talk to a lady [that is, the forensic investigator] about something that 

happened with Shane [Stroik],” but that she did not remember anything happening 

between her and Stroik. The direct examination proceeded in pertinent part as 

follows:

[Prosecutor:] But you remember talking to that lady about 

it?

[Amy:] Yes.

[Prosecutor:] Do you remember telling that lady that 

something happened with Shane?

 

7

 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. 2021AP447-CR

8

[Amy:] No.

[Prosecutor:] Do you remember that something happened 

with Shane?

[Amy:] No.

[Prosecutor:] Do you know if Shane ever did anything to 

you that you didn’t like?

[Amy:] No.

[Prosecutor:] No. Do you remember anything like that? 

Do you remember any time that Shane did something you 

didn’t like?

[Amy:] I don’t know.

[Prosecutor:] I’m sorry, can you say that a little bit louder?

[Amy:] I don’t know.

¶16 Later, in response to the prosecutor’s questioning on re-direct, Amy 

testified that she remembered telling “the lady” that Stroik “touched my private.” 

When the prosecutor asked if that was “true,” Amy responded, “Yes.” However, 

during her re-cross-examination, Amy testified that she did not know where “it 

happened” and that it was not in “the play room.”8 She further testified that she 

did not know whether Stroik had “touched” her:

[Trial counsel:] And so you don’t remember anything that 

happened when you said Shane touched you, right?

[Amy:] No.

[Trial counsel:] And you don’t even remember if he did or 

didn’t, do you?

 

8

 Based on other evidence introduced at trial, it is apparent that the “middle bedroom” 

that Amy referred to when talking to the forensic investigator, as referenced above, is the same 

room that Amy testified about as the “play room.”
No. 2021AP447-CR

9

[Amy:] No, I do not.

By contrast, Amy testified unambiguously that her “papa” (that is, her paternal 

grandfather) “did some pretty bad things” to her, and that she remembered those 

things happening.

¶17 When Stroik testified, he denied that he had ever touched Amy for 

sexual gratification. He testified that he generally believed that Amy was a “pretty 

truthful” kid, but that she had not been truthful about the allegations she made 

against him.

¶18 The jury found Stroik guilty of first-degree sexual assault.

The Postconviction Proceedings

¶19 Stroik filed a postconviction motion seeking a new trial on several

grounds. Among other things, he challenged his trial counsel’s handling of the 

prosecutor’s statements and witness testimony about his “high sex drive.”9 

Additionally, he argued that he was entitled to postconviction discovery regarding 

Amy’s alleged prior statements about inappropriate touching by her cousin. To 

this end, Stroik asked the circuit court to conduct an in camera review of a 

confidential CPS report that had been compiled four months before Stroik 

allegedly assaulted Amy and that “likely contains relevant and material evidence, 

 

9

 Stroik’s postconviction motion also alleged that his trial counsel was ineffective for

failing to impeach Amy’s aunt with a prior conviction; that the circuit court erred by failing to 

properly strike testimony that commented on the credibility of witnesses in violation of State v. 

Haseltine, 120 Wis. 2d 92, 97, 352 N.W.2d 673 (Ct. App. 1984); and that he was entitled to a 

new trial in the interest of justice. Although Stroik renews these additional arguments on appeal, 

we do not address them because we determine that Stroik is entitled to a new trial based on 

another ground. Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 

842 N.W.2d 508 (2013) (an appellate court need not address nondispositive issues).
No. 2021AP447-CR

10

specifically [Amy’s] prior untruthful allegation of sexual assault.” We refer to this 

document as the “CPS report” throughout the opinion.

¶20 The circuit court held a Machner hearing, and trial counsel testified

at the hearing.10 The court determined that Stroik was not entitled to relief on his 

claim about the “sex drive” evidence or any of the other claims presented in his 

postconviction motion. We recount pertinent aspects of trial counsel’s testimony 

and the court’s decision as needed below.

¶21 Regarding Stroik’s request for an in camera review of the CPS 

report, the circuit court initially referred the matter to the juvenile court to 

determine whether the CPS report was discoverable.11 The juvenile court 

determined that, if the contents of the CPS report were relevant to the issues at 

Stroik’s trial, the report “would be admissible as an exception” to Wisconsin’s 

rape shield law.12

 

10

 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.

11

 See WIS. STAT. §§ 48.396 and 48.78; State v. Bellows, 218 Wis. 2d 614, 629-30, 582 

N.W.2d 53 (Ct. App. 1998) (providing factors for the juvenile court to consider before releasing 

confidential juvenile records). On appeal, neither party challenges the circuit court’s decision to 

send the matter to the juvenile court for the Bellows determination or the determination made by 

the juvenile court that the CPS report was discoverable in this criminal case.

12

 See WIS. STAT. §972.11(2)(b) (providing a general bar against the admission of “any 

evidence” of a sexual assault complainant’s “prior sexual conduct”); but see § 972.11(2)(b) 

(providing an exception for evidence of prior untruthful allegations of sexual assault by the 

alleged victim). As is the case with any of the statutory exceptions to the rape shield law, 

evidence of prior untruthful allegations is also subject to WIS. STAT. § 971.31(11), which 

provides that the circuit court may not allow the evidence unless it first determines that the 

proffered evidence is “material to a fact at issue in the case and of sufficient probative value to 

outweigh its inflammatory and prejudicial nature before it may be introduced at trial.”
No. 2021AP447-CR

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¶22 The circuit court then conducted an in camera review of the CPS 

report, which was eventually released to the parties and is part of the record in this 

appeal. The report included the following information. It summarized CPS’s 

investigation into “alleged sexual abuse of [Amy], age 5, by her male paternal 

cousin, ... age 9.” The allegation was originally reported to CPS by Amy’s 

mother, Laura, in February 2016. Laura reported that Amy told Laura that Amy’s 

cousin “touched her ‘mimi’ approximately two weeks ago” and that “[Amy] told 

[him] to stop and he would not.” However, when interviewed by a CPS social 

worker, Amy “denied that [her cousin] touched her ‘mimi’ or any other part of her 

body.”13 According to the report, Amy told the social worker “that she did tell her 

mother [that her cousin had touched her], but then indicated she didn’t know why 

she told her mother that.” Following its investigation, CPS determined that the 

allegation would “be entered as unsubstantiated” because Amy told the social 

worker that the statement she made that led to the investigation was inaccurate and 

because CPS was aware of no other evidence to support the original allegation.

¶23 Following its in camera review, the circuit court determined that the 

CPS report “contains relevant information material to the defense relating to ... 

whether [Amy] made a prior untruthful allegation of sexual abuse.” The CPS 

report was released to the parties under seal.

¶24 Stroik filed a supplement to his postconviction motion, which 

addressed the contents of the CPS report. His supplemental motion argued, among 

 

13

 The author of the CPS report transcribed the word that Amy used to describe her 

vagina using different spelling than was used in the transcripts and other documents from Stroik’s 

trial. It is nevertheless apparent that in both situations, Amy was using the same word to describe 

the same body part.
No. 2021AP447-CR

12

other things, that his trial counsel had been ineffective for failing to seek and 

introduce the CPS report during Stroik’s trial.14 The circuit court denied the 

supplemental motion, determining that counsel had not been ineffective because 

counsel pursued a reasonable trial strategy of focusing on the sexual abuse by 

Amy’s grandfather. Stroik appeals.

DISCUSSION

¶25 Stroik raises many arguments on appeal, but we focus our discussion 

on his arguments that trial counsel was ineffective in two respects: first regarding 

the prosecutor’s statements and arguments as well as the witness testimony about 

his “high sex drive”; and second, regarding the CPS report.

¶26 A criminal defendant is guaranteed the right to the assistance of

counsel by the Wisconsin Constitution, see WIS. CONST. art. I, § 7, and the United 

States Constitution, see U.S. CONST. amend. VI. State v. Klessig, 211 Wis. 2d 

194, 201-02, 564 N.W.2d 716 (1997). “‘[T]he right to counsel is the right to the 

effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 668, 686

(1984) (quoted source omitted). 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. Id. at 687.

 

14

 In his supplemental motion, Stroik also argued that the State violated Brady v. 

Maryland, 373 U.S. 83 (1963), when it failed to turn over the CPS report in pretrial discovery. 

Although Stroik renews this argument on appeal, we do not address it further because we 

determine that Stroik is entitled to a new trial based on another ground. Barrows, 352 Wis. 2d 

436, ¶9.
No. 2021AP447-CR

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¶27 When evaluating whether trial counsel’s performance was deficient, 

we “apply[] a heavy measure of deference to counsel’s judgment,” id. at 690-91, 

making “every effort” to “evaluate the [representation] from counsel’s perspective 

at the time” and to “eliminate the distorting effects of hindsight,” id. at 689. 

Counsel enjoys a “strong presumption” that his conduct “falls within the wide 

range of reasonable professional assistance,” id., and counsel’s performance 

“‘need not be perfect, indeed not even very good, to be constitutionally

adequate,’” State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305 

(quoted source omitted). To demonstrate deficient performance, the defendant 

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

reasonableness.” Strickland, 466 U.S. at 688.

¶28 When evaluating whether trial counsel’s performance prejudiced the 

defendant, we consider whether there is a “reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. Such a probability “exists when there is ‘a “substantial,” 

not just “conceivable,” likelihood of a different result.’” State v. Cooper, 2019 WI 

73, ¶29, 387 Wis. 2d 439, 929 N.W.2d 192 (quoted source omitted).

¶29 “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. 2021AP447-CR

14

¶30 We begin by addressing the prosecutor’s statements and arguments 

as well as the witness testimony about Stroik’s “high sex drive.” After concluding 

that the “sex drive” evidence was inadmissible propensity evidence and that trial 

counsel could have successfully moved to prevent its admission, we nevertheless 

conclude that Stroik has not proven that counsel was deficient with respect to that 

evidence. We then address Stroik’s argument that counsel was ineffective for 

failing to seek out the CPS report and introduce evidence at trial regarding Amy’s 

prior allegation about a cousin. We conclude that Stroik is entitled to a new trial 

on that basis.

I. The “Sex Drive” Evidence15

¶31 The topic of the magnitude of Stroik’s “sex drive” came up three 

times during the trial, and we provide additional background about those incidents. 

The first time was during the State’s opening statement. The prosecutor told the 

jury that Stroik “has a very high sex drive. And so, the presumption of course is 

that [the alleged assault] was for a sexual purpose.” Trial counsel did not object to 

the prosecutor’s statement, and he was silent on that topic during his own opening 

statement.

 

15

 Given our conclusion that Stroik is entitled to a new trial on another ground, we could 

decline to address the use of the “sex drive” evidence during his trial. We nevertheless take the 

opportunity to address it here and provide guidance for two reasons. First, the role of character 

and other acts evidence is a frequently litigated topic, the parties have fully briefed the issue, and 

this case provides a helpful example of a situation in which the evidence is not relevant for any 

permissible purpose and is relevant only to prove propensity. Second, we are remanding for a 

new trial, and issues about the admissibility of evidence and argument of this type could arise 

following the remand.
No. 2021AP447-CR

15

¶32 The second time was during the prosecutor’s direct examination of 

Laura, which occurred on the first day of the trial. Laura testified that Stroik was a 

“very sexual person,” that he “always wanted sex,” and that they would have sex 

“daily,” even if Laura did not want to have sex because her kids were around:

[Prosecutor]: ... when you met with [law enforcement], 

they asked you questions about your sex life with Shane 

[Stroik], is that right?

[Laura]: Yes.

[Prosecutor]: Do you remember saying that Shane is a very 

sexual person?

[Laura]: Yes.

[Prosecutor]: Do you remember saying that it was more 

sex than you ever had before?

[Laura]: Yes.

[Prosecutor]: Do you remember saying that’s true?

[Laura]: Yes.

[Prosecutor]: And can you describe for us, what do you 

mean by that?

[Laura]: He always wanted sex.

[Prosecutor]: Okay. So how often would you have sex?

[Laura]: Daily.

[Prosecutor]: And even when your kids were there?

[Laura]: Yes.

[Prosecutor]: Do you remember telling Detective Tracy 

that when your kids were there, you would tell him you 

didn’t want to?

[Laura]: Yes.
No. 2021AP447-CR

16

After that line of questioning, the prosecutor asked Laura about Stroik’s use of 

pornography.

16

 Trial counsel did not object to any of this questioning.

¶33 The third and final time that Stroik’s “high sex drive” was addressed 

at trial was on the third day, during closing arguments. The prosecutor argued that 

Stroik “is described by [Laura], his former girlfriend, as a very sexual person.

They had a lot more sex than she’s ever had before. There’s all this stuff about 

pornography being discussed.” The prosecutor concluded this portion of his 

closing argument by telling the jury: “I don’t know how [the alleged assault of 

Amy] could be for something other than for a sexual purpose.”

¶34 This time, although trial counsel did not object to the prosecutor’s 

argument, he addressed the topic in his own closing argument. Counsel argued:

The State, in the end and in its opening, said that because 

Shane Stroik is highly sexual or watches pornography, he 

somehow molested [Amy].

Ladies and gentlemen, that’s an absolute falsehood. 

That’s an absolute lack of understanding of the issue of 

sexual assault of children....

....

You have to have a sexual attraction to a child to 

commit an act of sexual assault of a child....

... And who was attracted to the child? The person 

that [Amy] had sexual contact by, her papa. The person 

who was described by [Amy] by being bald. The person 

that [Amy] remembered.

 

16

 It appears to be undisputed that the pornography in question did not involve children. 

To be clear, there is no suggestion in any aspect of the record that Stroik has ever possessed or 

viewed child pornography.
No. 2021AP447-CR

17

¶35 With this background in mind, we now consider whether trial 

counsel’s performance was deficient. Stroik argues that his counsel should have 

objected to the prosecutor’s statements and the witness testimony about his 

allegedly “high sex drive” (or, at the very least, counsel should have requested an 

instruction cautioning the jury about how it could and could not consider this 

evidence). Stroik contends that counsel’s failure to do so constituted deficient 

performance. The State’s argument is difficult to discern. Although it makes a 

passing and unsupported assertion that the evidence may have been admissible to

prove “intent,” the State’s primary argument appears to be that the “sex drive” 

evidence and argument was so obviously irrelevant that it could not have 

improperly swayed the jury.

¶36 An attorney’s performance may be deficient if the attorney could 

have prevented the admission of evidence by making a timely objection but failed 

to do so. State v. Domke, 2011 WI 95, ¶46, 337 Wis. 2d 268, 805 N.W.2d 364. 

However, an attorney’s failure to make an objection that would have been 

properly overruled by the court is not deficient performance. See State v. 

Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110. This is 

because attorneys are generally not required to advance losing arguments. State v. 

Cameron, 2016 WI App 54, ¶27, 370 Wis. 2d 661, 885 N.W.2d 611 (“It is not 

deficient performance for counsel not to make a pointless objection.”). Therefore, 

in considering whether trial counsel’s failure to object to the statements, 

arguments, and testimony on this topic was deficient performance, we consider

whether the evidence was admissible under Wisconsin’s rules of evidence.

¶37 Stroik contends that the evidence about his “sex drive” was general 

character evidence, which was inadmissible pursuant to WIS. STAT. § 904.04(1). 

He argues that his interest in having sex with age-appropriate women was not 
No. 2021AP447-CR

18

relevant to the charge that he had sexual contact with a five-year-old child, and 

that the prosecutor was in effect urging the jury to make the unfounded and 

unfairly prejudicial inference that Stroik had a deviant character trait that made it 

more likely that he would sexually assault a child. In its response, the State asserts

that the prosecutor offered the “sex drive” evidence as “other acts” evidence to 

prove intent, and that, during the postconviction proceedings, the circuit court 

determined that it had been admissible for that purpose under § 904.04(2).17

¶38 We begin with a brief explanation of the meaning of the term 

“propensity inference,” and its relationship to the evidentiary rules set forth in 

WIS. STAT. § 904.04. A “propensity inference” is the inference that a person acted 

“‘in conformity with a particular character trait’” on a specific occasion. State v. 

Tabor, 191 Wis. 2d 482, 490, 529 N.W. 2d 915 (Ct. App. 1995) (quoted source 

omitted).

¶39 WISCONSIN STAT. § 904.04 provides rules for how and when 

propensity evidence can be used during a trial. With exceptions that are 

inapplicable here,18 § 904.04(1) (which addresses character evidence generally)19

 

17

 Decisions about the admissibility of other acts evidence are often made pretrial, 

following a motion by the proponent requesting a ruling on its admissibility. Here, the State filed 

a pretrial motion seeking a ruling on the admissibility of different “other acts” evidence, but it did 

not file a pretrial motion seeking a ruling on the “sex drive” evidence. The State’s failure to seek 

a pretrial ruling on the admissibility of this evidence undermines any suggestion that the 

prosecutor considered the “sex drive” evidence to be admissible as other acts evidence.

18

 See, e.g., WIS. STAT. § 904.04(1)(a)-(c) (providing three specific circumstances in 

which general character evidence is admissible to prove propensity, none of which are applicable 

here); see also § 904.04(2)(b)2. (addressing the use of prior convictions for first degree sexual 

assault and first degree sexual assault of a child for purposes of proving propensity during a 

subsequent prosecution for first degree sexual assault or first degree sexual assault of a child); see 

also State v. Dorsey, 2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158 (interpreting WIS. STAT.

§ 904.04(2)(b)1. and 2.).
No. 2021AP447-CR

19

and § 904.04(2) (which addresses other acts evidence)20 both prohibit the 

admission of evidence of a person’s character trait for the purpose of proving that 

person’s propensity to act in conformity with that character trait.

21 An application 

of these rules is that the prosecution cannot introduce evidence of a “deviant 

character trait of the defendant” during a criminal trial and ask the jury to infer 

that the defendant acted in conformity with that character trait on the charged 

occasion. Tabor, 191 Wis. 2d at 492.

¶40 One reason for these rules is the “overstrong tendency [of a jury] to 

believe the defendant guilty of the charge merely because [the defendant] is a 

person likely to do such acts.” Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 

557 (1967). “[A]n invitation to focus on an accused’s character” rather than on 

the accused’s conduct on a specific occasion “magnifies the risk that jurors will 

punish the accused for being a bad person regardless of his or her guilt of the 

crime charged.” State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998).

 

19

 WISCONSIN STAT. § 904.04(1) prohibits the admission of “[e]vidence of a person’s 

character or a trait of the person’s character ... for the purpose of proving that the person acted in 

conformity therewith on a particular occasion,” with three exceptions that are inapplicable here. 

(Emphasis added.)

20

 WISCONSIN STAT. § 904.04(2)(a) provides, in pertinent part: “Except as provided in 

para. (b)2., [which is inapplicable here,] evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show that the person acted in 

conformity therewith.” (Emphasis added.) However, subsec. (2)(a) “does not exclude the 

evidence when offered for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.”

21

 See State v. Payano, 2009 WI 86, ¶55, 320 Wis. 2d 348, 768 N.W.2d 832 (citing 7 

DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 404.101 at 146 (3d 

ed. 2008) for the proposition that WIS. STAT. § 904.04 “governs the admissibility of character

evidence as circumstantial evidence of conduct as well as the admissibility of ‘other acts’ to 

prove something other than character” (emphasis added)).
No. 2021AP447-CR

20

¶41 For reasons we now explain, we conclude that the testimony about 

Stroik’s “sex drive” is best described as general character evidence that was 

inadmissible pursuant to WIS. STAT. § 904.04(1). However, to the extent that it 

could be characterized as evidence of other acts governed by § 904.04(2), it was 

not relevant to prove intent. Whether described as general character evidence or 

other acts evidence, the prosecutor used the evidence for the purpose of asking the 

jury to infer that Stroik had a character trait that would make it more likely that he 

would sexually assault a child, and as such, it was propensity evidence that was 

barred by § 904.04(1) and (2) alike.

¶42 Although our statutes do not define the term “character,” a leading 

Wisconsin treatise explains that the term refers broadly to the “labels we attach to 

other people” to describe their “disposition or generalized propensity to behave in 

a certain manner.” 7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: 

WISCONSIN EVIDENCE § 404.101 at 172, 171 (4th ed. 2017). In this case, the 

prosecutor’s statements and Laura’s testimony about Stroik’s “sex drive” did not 

focus on any specific instances of his past conduct. Instead, while the testimony 

purported to address multiple prior acts, the substance of the testimony and the 

way it was used was directed at the kind of person Stroik is—a “very sexual” 

person who “always wanted sex.” Although the State asserts in passing that the 

“sex drive” evidence could be characterized as “other acts” evidence, its assertion 

is conclusory, and the State does not develop any argument to support that 

characterization. We agree with Stroik that, as it was used here, the “sex drive” 

evidence introduced at trial is best described as general character evidence. This 

determination is significant because, unlike other acts evidence, general character 

evidence is not subject to the greater latitude rule or the exception for proving 

intent. Compare WIS. STAT. § 904.04(1) with § 904.04(2)(a) and (b).
No. 2021AP447-CR

21

¶43 However, even if some portions of the “sex drive” evidence could be 

characterized as other acts evidence, we now explain why it was not admissible 

under WIS. STAT. § 904.04(2).

¶44 As stated above, evidence of other acts may be admissible for a nonpropensity purpose, including proof of motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident. WIS. STAT.

§ 904.04(2)(a). When a party seeks to introduce other acts evidence for a nonpropensity purpose, admissibility is determined under the three-pronged test 

established in Sullivan, 216 Wis. 2d at 789. The proponent of the evidence must 

demonstrate that: (1) the other acts evidence is offered for a permissible nonpropensity purpose; (2) it is relevant to that purpose; and (3) its probative value is 

not substantially outweighed by 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. Id. Additionally, in cases 

involving charges that include child sexual assault, other acts evidence may be 

admitted with “greater latitude.” See Tabor, 191 Wis. 2d at 488; see also 

§ 904.04(2)(b).

¶45 In this case, the State asserts that the prosecutor introduced the “sex 

drive” evidence to prove Stroik’s intent to sexually assault Amy, but the State does 

not develop any argument to support the proposition that the evidence was 

relevant to or probative of that purpose. Nor does the State argue that it was 

offered for or relevant to any other permissible non-propensity purpose under WIS.

STAT. § 904.04(2)(a).

¶46 At trial, the State was required to prove that Stroik touched Amy 

“for the purpose” of “arousing or gratifying” himself. WIS. STAT. § 948.01(5)(a). 
No. 2021AP447-CR

22

Under some circumstances, specific instances of a defendant’s other conduct may 

be admissible for that purpose. The Tabor case provides a helpful illustration of 

such a situation. In Tabor, the defendant was charged with molesting a five-yearold boy. Tabor, 191 Wis. 2d at 487. He had previously molested a nine-year-old 

girl, and the prosecutor argued that evidence of the prior assault was admissible to 

prove Tabor’s “intent” and “motive” in the charged case. Id. The circuit court 

agreed that evidence of the prior assault was relevant for that purpose. Id. at 494. 

It explained that the prosecutor had to prove that Tabor was “motivated by a desire 

for sexual gratification,” and that the evidence of the prior assault is “directly 

pertinent” to that element because “most folks wouldn’t even remotely consider it 

sexually gratifying to have sexual relations with a small child.” Id. On appeal, we 

affirmed the circuit court’s exercise of discretion, explaining that the prior conduct 

was not introduced for the impermissible purpose of proving propensity, but was 

instead for the acceptable purpose of proving intent. Id. at 494-95.

¶47 Here, by contrast, the State does not argue that evidence of Stroik’s 

sexual interest in his age-appropriate girlfriend is directly relevant to whether he 

would be sexually gratified by touching a child under the circumstances described 

in WIS. STAT. § 948.01(5)(a). We agree with the argument that trial counsel 

eventually made in his closing argument—the fact that Stroik was allegedly 

interested in frequent sex with Laura was not relevant to or probative of whether 

he would be sexually gratified by a prohibited touching of a five-year-old child. 

Therefore, unlike in Tabor, the evidence introduced about Stroik’s “sex drive” 

was not at all relevant to the intent element of the sexual assault crime charged in 

this case. Accordingly, even if the testimony about Stroik’s “sex drive” could be 

properly described as evidence of his other acts, it would not have been admissible 

under WIS. STAT. § 904.04(2) to show intent. Nor would it have been admissible 
No. 2021AP447-CR

23

under the greater latitude rule, which pertains to “evidence of any similar act[] by 

the accused.” See § 904.04(2)(b)1.22

¶48 In sum, whether the evidence about Stroik’s “sex drive” is 

considered to be “character evidence generally” or evidence of “other crimes, 

wrongs, or acts,” the prosecutor should not have been allowed to present evidence 

that Stroik was a “sexual” person. The “sex drive” evidence was not relevant for 

any permissible purpose. The only conceivable purpose of introducing it was to 

ask the jury to make a strained inference that, because Stroik was allegedly a very

sexual person who sought sex from his girlfriend on a daily basis, he was the type 

of person who would sexually assault a child. This is the propensity inference that 

is forbidden by WIS. STAT. § 904.04(1) and (2) alike.23 We therefore conclude 

that, had trial counsel objected to the comments that the prosecutor made in his 

opening statement, his questioning of Laura, or his closing argument, the circuit 

court would have—or at least should have—sustained the objections.

¶49 Our analysis of whether trial counsel’s performance was deficient 

does not end with our determination that trial counsel could have successfully 

 

22

 In reaching this conclusion, we respectfully disagree with the determinations made by 

the circuit court judge during the postconviction hearing. In its oral ruling on this issue, the court

said that, although the line between character and other acts evidence can be difficult to 

determine, the evidence about Stroik’s “sex drive” could be considered other acts evidence and 

was admissible under the greater latitude rule because it was relevant and probative of intent.

23

 As the Wisconsin treatise on evidence explains, “[i]t is one thing to be solicitous 

toward the use of such proof [of other acts evidence for permissible purposes]; it is quite another 

to turn a blind eye toward its misuse as bad character/propensity evidence.” 7 BLINKA, supra 

§ 404.402 (4th ed. Supp. 2019); see also State v. Plymesser, 172 Wis. 2d 583, 592, 493 N.W.2d

367 (1992) (other acts evidence will not be admitted under § 904.04(2) “when the only inference 

that can be drawn from that evidence is that ‘because a defendant committed prior act X, he is 

therefore of such a character and disposition to commit present act Y’” (quoted source omitted)).
No. 2021AP447-CR

24

prevented the admission of the “sex drive” evidence. Here, although counsel did 

not object to the statements and evidence on this topic, he did eventually address 

the statements and evidence during his closing argument. And when he finally did 

so, counsel was unequivocal. As stated above, counsel argued that the propensity 

inference that the prosecutor was asking the jury to draw was an “absolute 

falsehood” based on “an absolute lack of understanding of the issue of sexual 

assault of children.” He argued that “[y]ou have to have a sexual attraction to a 

child to commit an act of sexual assault of a child,” and he used the opportunity to 

further his strategy of blaming the alleged assault by Stroik on the grandfather.

¶50 Thus, this is not a case in which counsel allowed inadmissible and 

prejudicial evidence to be admitted during the trial and did nothing to counter it.

As the circuit court explained following the Machner hearing, counsel believed 

that the evidence was irrelevant, and “he argued that to the jury.” With the benefit 

of hindsight, it may have been preferable for counsel to raise this issue when it 

arose on the first day of trial. Nevertheless, a defendant is not entitled to perfect 

representation. Thiel, 264 Wis. 2d 571, ¶19. Consequently, while we are troubled 

by the amount of character evidence that entered into this trial, we conclude that

counsel’s decision to counter the “sex drive” evidence with a targeted, common 

sense, and potentially persuasive argument rather than an objection or request for a 

cautionary instruction was within the “wide range of reasonable professional 

assistance.” Strickland, 466 U.S. at 689. Therefore, we conclude that Stroik has 

not met his burden to show that his counsel’s performance was deficient. See

Strickland, 466 U.S. at 700 (“Failure to make the required showing of either 

deficient performance or sufficient prejudice defeats the ineffectiveness claim.”).
No. 2021AP447-CR

25

II. The CPS Report

¶51 We now address Stroik’s argument that trial counsel was ineffective 

for failing to obtain a CPS report that detailed the investigation into Amy’s prior 

statement that she was sexually assaulted by her paternal cousin.

¶52 We begin by providing additional background about the CPS report. 

As discussed above, Laura reported to CPS that Amy said that a cousin “touched 

her mimi,” that Amy told the cousin to stop, and that he would not stop. However, 

when a CPS social worker interviewed Amy, CPS reported that Amy denied that 

her cousin had touched her. In fact, according to CPS, Amy denied that anyone 

had ever touched her inappropriately. Amy acknowledged to CPS that she told 

Laura that her cousin touched her, and she said she did not know why she had 

made that statement.

¶53 CPS ended its investigation, concluding that the allegation against 

the cousin was “unsubstantiated.” As the author of the CPS report explained, the 

allegation was determined to be unsubstantiated because Amy indicated that her 

initial report to Laura was not true, and CPS was not aware of any other evidence 

to corroborate the report. However, the record contains an alternative explanation 

for Amy’s changed story. According to Laura’s statement to the police following 

Stroik’s arrest, Amy denied the allegations to CPS because “her daddy told her to 

say that [her cousin] didn’t do it.”

¶54 During the Machner hearing, trial counsel was questioned about his 

reasons for not pursuing the CPS report. Counsel testified that he “vaguely” 

recalled from the police report that Amy had reported that her cousin had sexually 

assaulted her. Counsel testified that he “did not recall talk[ing] to anyone about 

whether the allegation ever occurred,” and that he “assumed it didn’t occur, and 
No. 2021AP447-CR

26

basically the [circuit court] wasn’t going to let [him] get it in.” Counsel testified 

that his overall strategy was “focused on other issues,” specifically, the alleged 

sexual assaults by Amy’s paternal grandfather, which “everybody took ... for a 

fact.” Counsel explained that his trial strategy was “to blame” the grandfather for 

the sexual assaults that Amy attributed to Stroik in her video interview.

A. Deficient Performance

¶55 The parties dispute whether trial counsel’s failure to obtain the CPS 

report constituted deficient performance. Stroik argues that trial counsel 

performed deficiently by not obtaining the CPS report in pretrial discovery, and 

that it would have been admissible at trial under WIS. STAT. § 972.11(2)(b)3., 

which, as discussed above, allows the admission of prior false allegations of 

sexual assault by the alleged victim. He contends that the contents of the report 

would have been helpful to his defense. He further contends that, had counsel 

sought out the report and used it at trial, it would have enhanced counsel’s chosen 

trial strategy. The State’s primary argument to the contrary is devoted to its 

assertion that evidence of Amy’s prior allegation would not have been admissible 

at trial.

¶56 For reasons we now explain, we agree with Stroik that, had his trial 

counsel sought out the CPS report in pretrial discovery, it would have eventually 

been released. We further agree that evidence of Amy’s prior allegations against 

her cousin would have been admissible at trial, and that Stroik’s counsel would 

have been able to use the evidence to suggest that the abuse that Amy allegedly 

suffered from her grandfather had resulted in a false allegation against another 

male relative.
No. 2021AP447-CR

27

¶57 The State asserts that “the CPS report does not conclusively 

establish [Amy] lied or made a prior untruthful allegation.” Although this 

assertion is accurate, conclusive proof is not required under WIS. STAT.

§ 972.11(2)(b)3. As our supreme court explained in State v. Ringer, 2010 WI 69, 

¶30, 326 Wis. 2d 351, 785 N.W.2d 448, evidence of a prior false allegation is 

admissible if it is “sufficient to support a reasonable person’s finding that the 

complainant made prior untruthful allegations.” (Emphasis in original.) The 

question is not whether the circuit court “is convinced by a preponderance of the 

evidence” that the prior allegations were false, but rather, whether “a jury, acting 

reasonably, could find that it is more likely than not that the complainant made 

prior untruthful allegations of sexual assault.” Id., ¶32. The evidence may satisfy 

this standard if, for example, the prior allegation “‘is later recanted by the 

complainant’” or there is other evidence from which the jury “could reasonably 

find” that the prior allegations were false. Ringer, 326 Wis. 2d 351, ¶39 (quoted 

source omitted).

¶58 Here, Amy herself made contradictory statements about whether her 

cousin had assaulted her, and she expressly recanted her prior accusation about her 

cousin during her interview with the CPS social worker.24 The State points to 

Laura’s statement to police after Stroik’s arrest and argues that Amy may have had 

a different motivation for recanting—that “her daddy told her to say that [her 

 

24

 In this respect, the unsubstantiated report in this case is unlike the unsubstantiated 

allegations in two cases relied upon by the State. In State v. Leather, No. 2010AP354, 

unpublished slip op. (WI App April 5, 2011), and State v. Jones, No. 2013AP1731, unpublished 

slip op. (WI App July 30, 2014), there was no evidence that the alleged victim later disavowed an 

initial allegation, nor was there any other evidence from which the jury could find that the prior 

allegation was false.
No. 2021AP447-CR

28

cousin] didn’t do it.” But again, the question was not whether the circuit court 

would have been “convinced by a preponderance of the evidence” that Amy’s 

prior allegations were false. Id., ¶32. We conclude that, based on Amy’s 

recantation, “a jury, acting reasonably, could find that it is more likely than not 

that the complainant made prior untruthful allegations of sexual assault.” Id. Our 

conclusion is bolstered by: (1) the post-trial determination by the juvenile court 

that, if relevant, the CPS report would have been admissible under the exception to 

the rape shield law; and (2) the post-trial determination by the circuit court that it 

was relevant evidence of whether Amy had made a prior false allegation.

¶59 Having concluded that the CPS report was admissible, we further 

conclude that, had trial counsel sought out the CPS report, he would have 

determined that its contents were material to Stroik’s defense. Amy’s initial 

statements about alleged assaults by her cousin and by Stroik were quite similar—

in both instances, she reported that her assailant put his hand on her vagina, she 

told the assailant to stop, and the assailant did not stop. Accordingly, the CPS 

report contained evidence that, several months before Amy made her report about 

Stroik, she made a very similar allegation against her cousin that she later denied 

was true.

¶60 The circuit court determined that counsel made a reasonable 

strategic decision to focus the defense “on allegations involving prior abuse by the 

child’s grandfather and not her cousin.” To the extent that the circuit court 

determined that counsel’s failure to seek out the CPS report was not deficient 

because it was based on a strategic choice, that conclusion is clearly erroneous 

because it is not supported by law or fact.
No. 2021AP447-CR

29

¶61 As the State acknowledges, “[s]trategic choices made after less than 

complete investigation are reasonable only to the extent that reasonable 

professional judgment supports the limitations on the investigation.” See

Strickland, 466 U.S. at 691 (“counsel has a duty to make reasonable investigations 

or to make a reasonable decision that makes particular investigations 

unnecessary”); Thiel, 264 Wis. 2d 571, ¶¶46, 50 (concluding that “it was 

objectively unreasonable for [trial] counsel not to pursue further evidence to 

impeach” the alleged victim’s credibility). Here, trial counsel was aware of 

Amy’s statement about her cousin. Counsel understood that prior false allegations 

were admissible pursuant to an exception to the rape shield law, and in any event, 

this exception is not an unsettled or obscure area of the law. Counsel may have 

“assumed” that “the [circuit court] wouldn’t let [him] get it in,” but without 

knowing what the CPS report contained, this assumption is unsupported by any 

reasonable professional judgment. Trial counsel’s unsupported assumption that 

evidence of the prior allegation would be inadmissible was therefore not a 

reasonable strategic decision and is not entitled to any deference.

¶62 We agree with the circuit court’s general assessment that trial 

counsel’s overall defense strategy to “blame” the grandfather was reasonable. 

However, the court’s discussion about that strategy misses the point—as stated 

above, counsel did not have a reasonable basis for foregoing an investigation.25 

 

25

 The circuit court’s discussion of trial counsel’s strategy was general and did not 

purport to come to grips with the advantages of obtaining and potentially using the information 

from the CPS report at trial. The court stated that “[c]ounsel’s strategy at trial was coherently 

explained at the hearing on this motion and was appropriately carried out at trial which is clearly 

born-out by the child-victim’s uncertainty as to her recollection of the abuse.” The court stated 

that, “on the basis of the information which [counsel] possessed concerning the incident involving 

the child-victim’s cousin,” the court could not conclude that counsel’s “decision to focus the 

(continued)
No. 2021AP447-CR

30

And, as it turned out, the CPS report contained information that was not only 

material but also could have significantly enhanced counsel’s chosen strategy. 

Trial counsel wanted the jury to conclude the following. Amy had been sexually 

abused by her grandfather, who she loved. This caused her to become confused 

and to make a false allegation against Stroik. The information from the CPS 

report would have provided a basis for the jury to find that Amy had made a

similar allegation, also false, about a different male relative after allegedly being 

assaulted by her grandfather. Had counsel sought an in camera review of the CPS 

report, it would have been provided to him as it was to appellate counsel, and 

counsel should have immediately appreciated its probative value.

¶63 As such, we conclude that trial counsel did not provide a reasonable 

strategic reason not to seek and introduce evidence of Amy’s allegedly false 

statement regarding her cousin. Accordingly, we conclude that, although 

counsel’s overall strategy was reasonable, his implementation of it was not, and 

that counsel’s omissions constituted deficient performance.

B. Prejudice

¶64 Although Stroik has persuaded us that his trial counsel’s 

performance was deficient, this alone does not entitle him to relief. Strickland, 

466 U.S. at 687. Stroik must also “show that there is 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 

 

defense as he did—on allegations involving prior abuse by the child’s grandfather and not her 

cousin”—was constitutionally deficient “in any way.”
No. 2021AP447-CR

31

undermine confidence in the outcome.” Id. For reasons we now explain, we 

conclude that there is a reasonable probability that, but for counsel’s error, the jury 

would not have found Stroik guilty of sexual assault.

¶65 The circuit court concluded that the outcome of Stroik’s trial was 

“far from certain,” and the record bears this out. Although the State asserts that 

the evidence against Stroik was “overwhelming,” we do not agree with the State’s 

assessment. Our review of the record suggests that the jury could have easily 

found that the State failed to meet its burden to prove the allegations beyond a 

reasonable doubt. There was no physical evidence or witnesses to the alleged 

assault, and Stroik consistently denied the allegations. Amy was quite young 

when the alleged assault occurred, and there was evidence that she may have 

reported the assault after having been asked leading questions by family members 

embroiled in a family dispute following a contentious divorce. By the time of the 

trial, Amy was unable or unwilling to testify to having a memory of the assault. 

Under the circumstances, the verdict would necessarily depend on whom the jury 

found to be most credible—Amy, when she gave her account to the forensic 

investigator shortly after the assault, or Stroik, who consistently denied Amy’s 

report.

¶66 The most compelling evidence of guilt came from the video of 

Amy’s forensic interview, in which she consistently stated that Stroik took off her 

pants and put his hand on her “meme,” she told him to stop, and he said, “No I am 

not going to stop.” The credibility of this account was bolstered by several 

witnesses, who indicated that Amy was a “truthful” kid. Amy’s mother, Laura, 

testified that she was “generally truthful,” and Amy’s father testified that Amy 

was “very” truthful. According to the police officer who interviewed Stroik, he 

said that Amy was “very truthful, and [Stroik] pretty much believes everything 
No. 2021AP447-CR

32

that [Amy] says.” The officer indicated that Stroik “never really changed his 

tune” of the topic of Amy’s truthfulness, even after he knew that Amy had made 

allegations against him. During trial, Stroik himself acknowledged that he thought 

Amy was generally truthful, even though she had not been truthful about the report 

she made about him.

¶67 However, as a result of counsel’s deficient performance, the jury did 

not hear evidence that could have chipped away at these uniform accounts of 

Amy’s truthfulness by showing that, on at least one prior occasion, she may have 

made an untruthful report of sexual assault that was strikingly similar to the report 

she made about Stroik. This evidence could have been particularly significant in 

the face of the otherwise unanimous testimony that Amy was consistently truthful, 

when the verdict in this case turned exclusively on credibility.26

¶68 We now address two arguments to the contrary posed by the State. 

First, the State argues that the CPS report evidence would not have much mattered 

because there was an alternative inference that the jury could have made based on 

the evidence—that Amy’s initial report about her cousin was true, but that she 

later said it was not true “due to familial pressure.” We agree that this is one 

conceivable inference that the jury could draw from the evidence. But even if the 

 

26

 For the sake of completeness, we mention an additional piece of evidence that the 

prosecutor featured during his closing argument. The prosecutor pointed to a statement that 

Stroik made as he was being arrested, which the arresting officer believed to be incriminating. 

Specifically, the officer testified that, as he was about to put Stroik in handcuffs, Stroik asked, 

“What if I did do it? What if I did touch her and all of that?” The officer testified that he took 

this statement to be an admission of guilt, but Stroik testified that he asked this question because 

he was handcuffed and scared and did not know what the consequences of the arrest could or 

would be. On appeal, the State does not argue that this statement, or for that matter any other 

statement by Stroik, is part of what it characterizes as the “overwhelming” evidence of guilt.
No. 2021AP447-CR

33

jury viewed the evidence that way, the evidence still could have undermined the 

otherwise unanimous accounts about Amy’s truthfulness and could have led the 

jury to conclude that Amy was capable of making a false statement about the 

incident with the cousin when encouraged to do so by her father. It is difficult to 

see how an inference that Amy had made a false statement due to familial pressure 

could have hurt Stroik’s defense.

¶69 Second, the State argues that introducing facts suggesting that Amy 

may have endured yet another sexual assault would have increased the jury’s 

sympathy for her. Perhaps so. Yet, we assume that the jury would do as it was 

instructed to do—consider the evidence, and not be swayed by sympathy, 

prejudice, or passion. The State’s argument does not undermine our conclusion 

that the introduction of evidence of Amy’s prior allegation could have caused the 

jury to question the credibility of the statements Amy made during her forensic 

interview.

¶70 To prevail, Stroik need not prove that the outcome definitively 

would have been different—just that there is a reasonable probability of a different 

result but for counsel’s error. See State v. Smith, 207 Wis. 2d 258, 275, 558 

N.W.2d 379 (1997). Under the circumstances, we conclude that he has met his 

burden. Had jurors heard the additional evidence that Amy made a prior 

allegation that she later denied, there is a reasonable probability that the jury 

would have been unable to conclude beyond a reasonable doubt that Stroik was 

guilty of sexual assault.

CONCLUSION

¶71 For the reasons discussed above, we conclude that the defendant is 

entitled to a new trial. We reverse the circuit court’s judgment of conviction and 
No. 2021AP447-CR

34

order, and we remand to the circuit court for further proceedings consistent with 

this opinion.

By the Court.—Judgment and order reversed and cause remanded.