2023 WI 54

SUPREME COURT OF WISCONSIN

CASE NO.: 2021AP1732-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Eric J. Debrow,

 Defendant-Appellant.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 404 Wis. 2d 511, 979 N.W.2d 817

(2022 – unpublished)

OPINION FILED: June 23, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: April 17, 2023 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Dane 

JUDGE: John D. Hyland 

JUSTICES:

KAROFSKY, J., delivered the majority opinion of the Court, in

which ZIEGLER, C.J., ANN WALSH BRADLEY, DALLET, and HAGEDORN, 

JJ., joined. ROGGENSACK, J., filed a concurring opinion in which 

REBECCA GRASSL BRADLEY, J., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-respondent-petitioner, there were briefs 

filed by John A. Blimling, assistant attorney general, with whom 

on the briefs was Joshua L. Kaul, attorney general. There was an 

oral argument by John A. Blimling, assistant attorney general. 

For the defendant-appellant, there were briefs filed by 

Megan Lyneis, assistant state public defender. There was an oral 

argument by Megan Lyneis, assistant state public defender. 
2023 WI 54

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2021AP1732-CR

(L.C. No. 2018CF202)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Eric J. Debrow,

 Defendant-Appellant.

FILED

JUN 23, 2023

Samuel A. Christensen

Clerk of Supreme Court

KAROFSKY, J., delivered the majority opinion of the Court, in 

which ZIEGLER, C.J., ANN WALSH BRADLEY, DALLET, and HAGEDORN, 

JJ., joined. ROGGENSACK, J., filed a concurring opinion in which 

REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 JILL J. KAROFSKY, J. Here we are asked to decide 

whether the circuit court1 erroneously exercised its discretion 

when it denied Eric J. Debrow's motion for a mistrial after a 

witness, who was testifying about his suspicion of Debrow, 

 

1 The Honorable John D. Hyland of the Dane County Circuit 

Court presided.
No. 2021AP1732-CR 

2

stated that he "looked on CCAP."2 Debrow believed this testimony 

implicated his prior sexual assault conviction, which the 

circuit court had already ruled inadmissible. The court of 

appeals held that the circuit court erroneously exercised its 

discretion and reversed Debrow's conviction. The State seeks 

review of the court of appeals' decision. We conclude that the 

circuit court did not erroneously exercise its discretion when 

it denied Debrow's request for a mistrial. Therefore, we 

reverse the court of appeals' decision and affirm the judgment 

of conviction.

I. BACKGROUND

¶2 Debrow was charged with second-degree sexual assault 

of a child under the age of 16 as a persistent repeater3 after 

Mary,4 his girlfriend's daughter, reported that Debrow sexually 

assaulted her in January 2018. Later, Debrow was additionally 

charged with first-degree sexual assault of a child under the 

age of 135 for the sexual assault of Nancy, Mary's sister. The 

cases were consolidated for trial.

 

2 CCAP, which stands for Consolidated Court Automation 

Programs, makes certain information about circuit court and 

appellate court cases available to the public.

3 See Wis. Stat. §§ 948.02(2) & 939.62(2m)(2017-18).

4 To protect the privacy and dignity of the victims in this 

case, we refer to them using pseudonyms. Wis. Stat. § 809.86 

(2021-22).

5 See Wis. Stat. § 948.02(1)(e) (2017-18).
No. 2021AP1732-CR 

3

¶3 Prior to trial, Debrow sought to exclude evidence of 

his 2004 child sexual assault conviction on the grounds that its 

probative value was substantially outweighed by the danger of 

unfair prejudice. The State agreed, and the circuit court 

granted Debrow's motion to exclude the evidence.

¶4 At trial, the State first called Mary, who testified 

that Debrow was her mother's boyfriend and lived with the family 

in January 2018. She reported that she awoke early in the 

morning on January 17, 2018 to a person "touching [her] butt and 

thigh," and that she was "100 percent" sure that person was 

Debrow. Mary testified that she screamed, the dogs in the house 

started barking, and Debrow left her room.

¶5 When asked whether she had awoken to Debrow in her 

room before, Mary testified that she had once woken up to Debrow 

sitting on her bed, at which point Debrow told her, "shh, it's 

just a game," and directed her not to tell her mother. Mary 

also testified that she had a conversation with her mother about

what to do if "anything were to happen" in her room in the 

middle of the night, and that "the general consensus was that I 

would scream."

¶6 The State then called its second witness——Isaac, 

Mary's brother. Isaac testified that as he was lying awake in 

bed on January 17th, he saw Debrow enter Mary's bedroom. Five 

to ten minutes later, Isaac heard his sister scream and saw 

Debrow exit the room immediately after. Isaac testified that he 

"had the feeling of something that was going on" and that he 

called the police after he got home from school that same day.
No. 2021AP1732-CR 

4

¶7 During Isaac's redirect examination, the State 

requested a sidebar. During the sidebar, the State sought to 

ask Isaac leading questions about why he thought "something 

strange was going on inside of [Mary's] room." The State 

explained that it wanted to rebut the idea that Isaac was 

"jumping to conclusions based on absolutely nothing." According 

to the State, Isaac knew about Debrow's prior conviction, but he 

would avoid discussing it in accordance with the court's ruling. 

Instead, Isaac would testify as to why he was vigilant about 

Debrow and his sisters. Debrow's counsel expressed concern that 

the proposed line of questioning would elicit inadmissible 

evidence concerning the 2004 conviction and indicated that he 

would move for a mistrial if Isaac gave "the wrong answer." The 

court said it would allow the State to pursue its proposed line 

of questioning "in not a directly leading fashion but in a very 

direct or indirect but not leading manner." The court also 

noted that it would be "on pins and needles as well to jump in" 

if Isaac began to reference the prior conviction.

¶8 Soon after the State's redirect of Isaac resumed, the 

following exchange occurred:

[Prosecutor]: . . . At any point . . . had you learned 

anything or heard anything that led you to be on alert 

that night on January 17th of 2018?

[Isaac]: Yes.

Q And were those based on things your sisters had 

mentioned? 

A No. 
No. 2021AP1732-CR 

5

Q Are those things that you heard from your mom? 

A It's things that I --

Q -- I don't want to get into that --

(Unreportable simultaneous interjections by Counsel.) 

. . . . 

[Defense]: -- Objection, Your Honor. Objection, move 

to strike. Another motion in a minute.

THE COURT: I'll -- I'll move to strike. The question 

was were those things you heard from your mother, and 

if you can just give yes or no . . . . We can't get 

into what they are, because that's hearsay.

[Isaac]: Well, my mom did tell me --

THE COURT: -- all right, that's fine. That's 

all . . . We can't -- we can't put her words into your 

mouth in front of the jury. That's why she's a witness 

if she testifies.

[Prosecutor]: Your Honor, I have no further questions.

The court then addressed the jury and gave the following 

curative instruction: 

THE COURT: . . . And -- and to the extent that -- as 

the State was -- was raising an interjection the 

answer beyond what he gave just now will be -- I'll 

direct the jury to strike anything else that they --

they heard beyond the witness's statement that he 

heard from his mother but not the content of anything.

¶9 After this exchange, the jury was excused, and the 

parties met to discuss Isaac's testimony. Although the court 

reporter was unable to record Isaac's response to the State's 

question about why he was on alert, the parties and the court 

agreed that he said, "I looked on CCAP."

¶10 Debrow moved for a mistrial on the grounds that 

Isaac's statement was inadmissible as it pertained to Debrow's 
No. 2021AP1732-CR 

6

prior sexual assault conviction. More specifically, Debrow 

argued that the jury would assume that Isaac's reference to CCAP 

meant that Isaac had learned about Debrow's criminal record and 

that "it's going to be an easy assumption and leap to the idea 

that -- that what he found on CCAP was a sexual assault." 

Debrow argued that no curative instruction would be adequate to 

remedy the situation because the jury is "not going to unlearn 

what they learned." In response, the State argued that the jury 

may not have heard the reference to CCAP over the interjection 

by the court and the attorneys, that the State had attempted to 

characterize the problem as a hearsay issue to draw the jury's 

attention away from the substance of the statement, and that a 

curative instruction would be "probably the most drastic thing 

that is necessary."

¶11 The circuit court denied the motion for mistrial. 

It explained that the jury may not be familiar with CCAP, saying 

"to them, it might mean nothing," and emphasized that Isaac did 

not say what he found on CCAP. The court continued "if any 

juror is thinking to themselves, well, I know on CCAP you can 

find out about any public court record, then they may be 

presuming criminal, they may be presuming small claims, they may 

be presuming civil, whatever –- divorce, whatever." The circuit 

court concluded that "on this record with that minimal bit of 

information that the jury picked up upon if they were listening 

carefully . . . certainly doesn't say for example, well, I knew 

he had a prior conviction, I knew he had done this before."
No. 2021AP1732-CR 

7

¶12 The circuit court further mentioned that the jury's 

attention was quickly directed to a possible hearsay issue 

rather than the substance of Isaac's statement, saying: "it was 

stopped based upon people pointing out that you can't get into 

hearsay, and not saying you can't say that, you can't say that 

part, but just -- but directing it towards a hearsay that can't 

be brought before the jury." Finally, the circuit court then 

discussed available remedies, saying "we're open to striking, I 

already told them to strike anything, we're open to giving the 

instruction on striking, we're open to curative instructions 

that don't redirect their attention to it two days from now."

¶13 The trial proceeded to its conclusion, and Debrow did 

not renew his motion for mistrial. Debrow requested the 

standard jury instruction regarding stricken testimony at the 

close of trial, which was given, but he did not request any 

additional jury instructions specifically related to Isaac's 

testimony. The jury convicted Debrow of second-degree sexual 

assault of Mary and acquitted him of the charges related to 

Nancy. Consistent with the persistent repeater enhancer, the 

court sentenced Debrow to life imprisonment without the 

possibility of extended supervision. 

¶14 Debrow appealed the circuit court's denial of his 

mistrial motion. In granting Debrow's request for a new trial, 

the court of appeals held that the circuit court's attempt at a 

curative instruction for Isaac's statement regarding CCAP was 

insufficient and therefore that "the circuit court erroneously 

exercised its discretion in denying Debrow's motion for 
No. 2021AP1732-CR 

8

mistrial." State v. Debrow, No. 2021AP1732-CR, unpublished slip 

op., ¶36 (Wis. Ct. App. July 21, 2022). We granted the State's 

petition for review and reverse the court of appeals' decision.

II. ANALYSIS

¶15 When faced with a motion for mistrial, "the circuit 

court must decide, in light of the entire facts and 

circumstances, whether . . . the claimed error is sufficiently 

prejudicial to warrant a mistrial." State v. Ford, 2007 WI 138, 

¶29, 306 Wis. 2d 1, 742 N.W.2d 61. We review a circuit court's 

decision to grant or deny a motion for mistrial for an erroneous 

exercise of discretion. Id. "An erroneous exercise of 

discretion may arise from an error in law or from the failure of 

the circuit court to base its decisions on the facts in the 

record." Id., ¶28 (quoting State v. Raye, 2005 WI 68, ¶16, 281 

Wis. 2d 339, 697 N.W.2d 407). "Discretion is not synonymous 

with decision-making. Rather, the term contemplates a process 

of reasoning." State v. Gallion, 2004 WI 42, ¶3, 270 Wis. 2d 

535, 678 N.W.2d 197 (quoting McCleary v. State, 49 Wis. 2d 263, 

277, 182 N.W.2d 512 (1971)).

¶16 Here, the circuit court did not erroneously exercise 

its discretion when it determined, in light of the facts and 

circumstances of the case, that Isaac's statement regarding CCAP 

was not so prejudicial as to warrant a mistrial. Before the 

circuit court denied Debrow's mistrial motion, it first 

considered arguments and counterarguments from both parties, 

allowing each attorney ample time to make their case outside the 

presence of the jury. The circuit court then considered the 
No. 2021AP1732-CR 

9

possible extent of prejudice to the defendant. In finding the 

error was not sufficiently prejudicial to warrant a mistrial, 

the court highlighted two things. First, it was not reasonable 

to assume that Isaac's statement regarding CCAP would lead a 

juror to infer that Debrow had a prior sexual assault 

conviction. Second, Isaac's statement was mitigated when the 

circuit court immediately struck the testimony and drew the 

jury's attention away from the substance of Isaac's statement 

and towards a hearsay issue.

¶17 The circuit court also considered the various 

alternatives to what it correctly deemed the "most serious of 

remedies," a mistrial. It concluded that striking the testimony 

was appropriate, which it had already done. The circuit court 

also invited the defense to request an appropriate jury 

instruction. However, the defense requested only the standard 

jury instruction regarding stricken testimony at the close of 

trial.

¶18 All of this evinces an appropriate process of 

reasoning. The circuit court considered the facts and 

circumstances in the record, heard arguments from both parties, 

assessed available remedies, and concluded that the error was 

not so prejudicial as to warrant a mistrial. No error of law is 

evident. As such, we conclude that the circuit court properly 

exercised its discretion in denying Debrow's request for 

mistrial.

¶19 The court of appeals reached a different result and

erroneously focused on the sufficiency of the court's curative 
No. 2021AP1732-CR 

10

instruction to "strike anything else that they [the jury] --

they heard beyond the witness's statement that he heard from his 

mother but not the content of anything," rather than whether the 

circuit court erroneously exercised its discretion in denying 

Debrow's mistrial motion. See Debrow, No. 2021AP1732-CR, at ¶36 

(Wis. Ct. App. July 21, 2022) ("The court's attempts to cure the 

prejudicial effect of this testimony were insufficient and did 

not properly instruct the jury to disregard that testimony when 

deliberating."). The question of whether the court erroneously 

exercised its discretion in denying the mistrial is separate 

from the question of whether its instruction actually cured the 

error. Debrow challenged the court's decision to deny a 

mistrial. He did not alternatively challenge the adequacy of 

the court's curative instruction, so that issue is not before us 

today.

III. CONCLUSION

¶20 The circuit court did not erroneously exercise its 

discretion in denying Debrow's mistrial motion. It considered 

the facts and circumstances of the case, heard arguments from 

both sides, considered alternative remedies, and determined that 

the error was not so prejudicial as to warrant a mistrial. 

Accordingly, the court of appeals' decision is reversed. 

By the Court.—The decision of the court of appeals is 

reversed.

 
No. 2021AP1732-CR.pdr

1

¶21 PATIENCE DRAKE ROGGENSACK, J. (concurring). A jury 

convicted Eric J. Debrow of second-degree sexual assault of a 

child under the age of 16 at the conclusion of a three-day 

trial.1 Debrow moved for a mistrial following the second 

witness's testimony, which the circuit court denied. The court 

of appeals reversed and ordered a new trial, concluding that the 

jury instruction given was insufficient to address the prejudice 

caused by the second witness's statement.2 

¶22 I conclude that the circuit court did not erroneously 

exercise its discretion in denying Debrow's mistrial motion when 

reviewed in light of the entire trial, including the sufficiency 

of the jury instruction. Accordingly, I would reverse the court 

of appeals decision and conclude that Debrow is not entitled to 

a new trial. 

¶23 I concur in the result reached by the majority 

opinion, but I do not join the opinion. It lacks a full 

analysis of the entire proceeding, which is necessary in 

addressing the court of appeals' reversal of the circuit court. 

I. BACKGROUND

¶24 On January 17, 2018, officers from the City of Madison 

Police Department responded to Debrow's residence to investigate 

the sexual assault of a child that Debrow reportedly committed 

earlier that day. At the time of his arrest, Debrow resided 

 

1 The Honorable John D. Hyland of the Dane County Circuit 

Court presided.

2 State v. Debrow, No. 2021AP1732-CR, unpublished slip op., 

¶4 (Wis. Ct. App. July 21, 2022).
No. 2021AP1732-CR.pdr

2

with his girlfriend, Kathy,3 and her three children: Isaac, 17; 

Mary, 13; and Nancy, 11. 

¶25 Debrow was charged with second-degree sexual assault 

of a child under the age of 16 based on the report that he had 

touched Mary's buttocks in the early morning. See Wis. Stat. 

§ 948.02(2). Due to a prior 2004 conviction for child sexual 

assault, Debrow also was charged as a persistent repeater 

pursuant to Wis. Stat. § 939.62(2m)(a) and (b), which imposes a 

mandatory sentence of life imprisonment without possibility of 

parole. The State later charged Debrow in a separate case with 

first-degree sexual assault of a child under the age of 13 as a 

persistent repeater contrary to §§ 948.02(1)(e) and 

939.62(2m)(a) and (b) for sexual assault of Nancy. The two 

cases were consolidated for trial.4 Debrow pled not guilty to

all charges.

¶26 The circuit court ruled on a number of motions in 

limine prior to the jury trial. Relevant to our review, the 

court granted Debrow's motion to exclude evidence of his 2004 

conviction of child sexual assault on grounds that the 

 

3 I use pseudonyms for the victims and their family members 

in this case pursuant to Wis. Stat. § 950.04(dr) and § (Rule) 

809.86 (2021-22). For consistency, I use the same pseudonyms 

the parties used before this court. 

All subsequent references to the Wisconsin Statutes are to 

the 2021-22 version unless otherwise indicated.

4 Because Debrow challenges his conviction on charges 

relevant to Mary alone, I do not address the merits or evidence 

related to Debrow's charges related to Nancy. 
No. 2021AP1732-CR.pdr

3

conviction was more prejudicial than probative. The State 

agreed the conviction was "too prejudicial." 

¶27 Trial commenced, and Mary was the first witness. She 

testified that Debrow came into the bedroom she shared with 

Nancy early one morning. Mary disclosed that she woke to Debrow 

massaging or gripping her buttocks over her clothes, and that he 

rubbed her thighs as she slept on her stomach. Mary stated she 

screamed at Debrow to get out "numerous times at the top of 

[her] lungs," and the dogs started barking. After she screamed,

Debrow stopped touching her and left her bedroom. She explained 

she knew Debrow rather than Isaac was the person in her bedroom

because of identifiable physical differences between the two 

men. 

¶28 Mary also testified that on an earlier occasion she 

woke to find Debrow sitting on her bed, and Debrow said, "[S]hh, 

it's just a game . . . you don't have to tell your mom about 

it." She did not tell her mom that Debrow was in her bedroom 

that first time. However, based on conversations with her 

mother, Mary testified that she was instructed to scream "if 

anything were to happen" in her bedroom. The defense crossexamined Mary about interviews she gave as part of the 

investigation, and she admitted that she had told Debrow many 

times that she "did not like him." Mary stated that she did not 

want to be thinking about Debrow touching her. 

¶29 Isaac testified next. Although Isaac knew Debrow had 

been convicted of child sexual assault in 2004, Isaac also was 

aware that he could not testify about Debrow's prior conviction 
No. 2021AP1732-CR.pdr

4

"unless and until" the court allowed the prosecutor to bring it 

up. Isaac testified he lay awake in bed early one morning with 

his bedroom door open, and he saw Debrow enter the girls' room. 

Five to ten minutes later, Isaac heard Mary repeatedly scream 

"get out," the dogs began to bark, and Isaac saw Debrow leave 

his sisters' bedroom. 

¶30 Isaac testified that he called the police later that 

afternoon to report Debrow, even though he did not hear anything 

from the room besides Mary yelling "get out," and his sisters 

did not mention anything to him. Isaac stated he "wanted to 

call the police the whole day when [he] was at school" and that 

he "had the feeling of something that was going on." Isaac said 

that when he got home from school he told his mom and Debrow 

that he was going to call police, and Debrow told him not to 

call the police. Isaac testified that Debrow was like "a father 

figure until all this stuff happened," after which Isaac did not 

like Debrow anymore. Isaac stated he and Debrow had gotten into 

physical altercations on six occasions. 

¶31 During Isaac's re-direct, the State requested a 

sidebar in which it expressed its desire to provide the jury an 

explanation for why Isaac thought "something strange was going 

on inside of [his sisters'] room," and why he later called the 

police; the prosecution wanted to show that Isaac did not 

"jump[] to conclusions based on absolutely nothing." 

¶32 Subsequent to a lengthy sidebar, in which Debrow 

contended the State's proposed inquiry would surely bring out 

"evidence that had already been ruled inadmissible," the court 
No. 2021AP1732-CR.pdr

5

allowed the State to pursue its proposed line of questioning "in 

a very direct or indirect but not leading manner." The court 

noted the State should be cautious, and that it would sustain 

any defense objections because the defense already opposed the 

line of questioning. The court stated it would be on "pins and 

needles [and would] jump in" if Isaac started to testify about 

the 2004 conviction. The defense made its intent clear to move 

for a mistrial if Isaac gave the "wrong answer." 

¶33 After three questions, defense counsel objected: 

[Prosecutor]: . . . At any point . . . had you learned 

anything or heard anything that led you to be on alert 

that night on January 17th of 2018?

[Isaac]: Yes.

Q And were those based on things your sisters had 

mentioned?

A No.

Q Are those things that you heard from your mom?

A It's things that I –-

Q -- I don't want to get into that –-

(Unreportable simultaneous interjections by 

Counsel.)

. . . .

[Defense]: -- Objection, Your Honor. Objection, 

move to strike. Another motion in a minute.

THE COURT: I'll – I'll move to strike. 

. . . .

[Isaac]: Well, my mom did tell me –-

THE COURT: -- all right, that's fine. That's 

all. 
No. 2021AP1732-CR.pdr

6

. . . .

We can't -– we can't put her words into your 

mouth in front of the jury. That's why she's a 

witness if she testifies.

. . . .

[Prosecutor]: Your Honor, I have no further 

questions.

THE COURT: . . . And –- and to the extent that 

–- as the State was –- was raising an interjection the 

answer beyond what he gave just now will be –- I'll 

direct the jury to strike anything else that they –-

they heard beyond the witness's statement that he 

heard from his mother but not the content of anything.

The jury was excused for the day. 

¶34 Outside the presence of the jury, the parties 

discussed what occurred. Although the court reporter did not 

catch what Isaac said, the parties agreed they heard Isaac say 

"I looked on CCAP," which is the Consolidated Court Automation 

Programs. Among other things, CCAP enables the public to access 

some information about circuit court and appellate cases. The 

court stated "the jury couldn't possibly have heard anything 

else." 

¶35 Debrow moved for a mistrial. He argued that the jury 

would assume Isaac found information about a prior sexual 

assault on CCAP, and that the assumption would be so "damaging" 

that "there's no way around it," the jury cannot "unlearn what 

they learned." Debrow asserted striking the statement or a 

curative instruction would be insufficient to remedy Isaac's 

statement. 

¶36 The State argued that it was hard to know "what, if 

any, of that the jury could have heard and made out." 
No. 2021AP1732-CR.pdr

7

Accordingly, the State's position was that the statement did not 

require a mistrial or even a curative instruction; striking the 

statement would sufficiently cure any error. 

¶37 Following a lengthy colloquy in which both parties 

developed their positions, the court acknowledged that mistrial 

is "the most serious of remedies." In initially denying 

Debrow's motion for mistrial, the circuit court placed its 

reasons for denial on the record, which I discuss below. The 

court stated that, upon Debrow's request, it was "open to giving 

the instruction on striking" and "open to curative instructions 

that don't redirect [the jury's] attention to it two days from 

now." 

¶38 The trial proceeded for two more days, during which 

Nancy, Kathy, two officers, and two detectives testified for the 

State. Nancy testified that on January 17, 2018, her sister 

woke her up because she screamed "get out," and Nancy saw a 

"shadow go outside the room and the door closed." Nancy 

identified the shadow as Debrow because of physical differences 

between Debrow and Isaac. 

¶39 Kathy testified she had a "ground rule" that the boys 

and girls were not allowed in each others' bedrooms, and Kathy 

instructed the girls to be loud enough to "wake all of Madison 

up" if something were to happen. The State read and published 

to the jury text messages between Kathy and Debrow. The State 

also played a recorded phone call Debrow made to Kathy from 

jail. In both the text messages and the phone call, Kathy 

confronted Debrow about a pornographic video he had watched, the 
No. 2021AP1732-CR.pdr

8

graphic title of which implied a stepfather sexually abusing a 

stepdaughter while his wife was asleep.

¶40 An officer testified he informed Debrow of probable 

cause to charge him with second-degree sexual assault of a child 

as he arrested Debrow. Debrow asked the officer why it "had to 

be second-degree . . . and not just fourth degree sexual 

assault," which the officer clarified for the jury is a 

misdemeanor involving nonconsensual sexual contact between 

adults. 

¶41 A detective testified that she knew Mary from 

occasions prior to Debrow's arrest, and that she responded to 

the apartment on January 17, 2018. The detective stated that 

once Mary recognized her, Mary "put[] her head in [the 

detective's] chest and cried for about a minute-and-a-half." 

Another detective testified that the girls each had a Safe 

Harbor interview.5 

¶42 Debrow did not testify, and the defense did not call 

any witnesses. Debrow did not renew his motion for mistrial at 

the circuit court; however, he appealed contending that the 

circuit court erroneously exercised its discretion in denying 

his motion for mistrial. The defense also did not challenge or 

request a specially drafted jury instruction related to Isaac's 

testimony. The jury convicted Debrow of second-degree sexual 

 

5 Safe Harbor is a child advocacy center that provides for 

the forensic interviewing of children who are victims of sexual 

and physical abuse. Safe Harbor forensic interviews are videorecorded for court use, though children are still required to 

testify.
No. 2021AP1732-CR.pdr

9

assault of Mary, but acquitted him for the charges related to 

Nancy. Consistent with the persistent repeater enhancer, the 

court sentenced Debrow to life imprisonment without the 

possibility of parole. 

¶43 Relevant to our review, the court of appeals concluded 

Isaac's statement, "I looked on CCAP," was unfairly prejudicial 

to Debrow, and that the court's instruction relevant to Isaac's 

testimony was insufficient. It therefore concluded that "the 

circuit court erroneously exercised its discretion in denying 

Debrow's motion for a mistrial."6 The court of appeals granted 

Debrow a new trial. The State petitioned us for review. 

II. DISCUSSION

A. Standard of Review

¶44 "A motion for mistrial is committed to the sound 

discretion of the circuit court." State v. Ford, 2007 WI 138, 

¶28, 306 Wis. 2d 1, 742 N.W.2d 61. In ruling on a motion for 

mistrial, a circuit court determines "in light of the whole 

proceeding, whether the claimed error was sufficiently 

prejudicial" to deprive the defendant of a fair trial. State v. 

Ross, 2003 WI App 27, ¶47, 260 Wis. 2d 291, 659 N.W.2d 122; 

State v. Sigarroa, 2004 WI App 16, ¶24, 269 Wis. 2d 234, 674 

N.W.2d 894. See also Ford, 306 Wis. 2d 1, ¶29; State v. Doss, 

2008 WI 93, ¶¶69-71, 312 Wis. 2d 570, 754 N.W.2d 150. "An 

erroneous exercise of discretion may arise from an error in law 

or from the failure of the circuit court to base its decisions 

 

6 State v. Debrow, No. 2021AP1732-CR, ¶36.
No. 2021AP1732-CR.pdr

10

on the facts in the record." State v. Raye, 2005 WI 68, ¶16, 

281 Wis. 2d 339, 697 N.W.2d 407. 

B. Debrow's Motion for Mistrial

¶45 The Constitution does not guarantee an error-free 

trial, United States v. Hasting, 461 U.S. 499, 508-09 (1983), 

and not all errors warrant a mistrial. In order to preserve 

review of a claimed evidentiary error, the disadvantaged party 

must make a contemporaneous objection and move for a mistrial. 

State v. Guzman, 2001 WI App 54, ¶25, 241 Wis. 2d 310, 624 

N.W.717. When improper evidence comes before the jury, the 

circuit court decides whether a curative instruction is 

necessary as part of the exercise of its discretion in ruling on 

a mistrial motion. Sigarroa, 269 Wis. 2d 234, ¶¶24-26. "[T]he 

law prefers less drastic alternatives [than mistrials], if 

available and practical." State v. Adams, 221 Wis. 2d 1, 17, 

584 N.W.2d 695 (Ct. App. 1998).

¶46 Accordingly, I review whether the circuit court 

erroneously exercised its discretion in determining that Isaac's 

statement fell short of the high prejudicial bar to warrant a 

mistrial.7 Sigarroa, 269 Wis. 2d 234, ¶27. As part of this 

review, I examine the sufficiency of the jury instructions 

relative to the objected-to testimony. Hardison v. State, 61 

Wis. 2d 262, 273, 212 N.W.2d 103 (1973). 

 

7 Neither party argues that Isaac's statement rises to 

structural error; therefore, automatic reversal is not 

appropriate. State v. Ford, 2007 WI 138, ¶42, 306 Wis. 2d 1, 

742 N.W.2d (quoting Neder v. United States, 527 U.S. 1, 8 

(1999)).
No. 2021AP1732-CR.pdr

11

¶47 We previously have explained that sound discretion 

includes "acting in a deliberate manner taking sufficient time" 

to respond to a request, giving both parties a "full 

opportunity" to argue their positions, and "considering 

alternatives such as a curative instruction or sanctioning 

counsel." State v. Seefeldt, 2003 WI 47, ¶36, 261 Wis. 2d 383, 

661 N.W.2d 822. A court that "reason[s] its way to a rational 

conclusion" while considering the relevant law and facts 

exercises sound discretion. Id. See generally State v. Moeck, 

2005 WI 57, ¶¶43, 72, 280 Wis. 2d 277, 695 N.W.2d 783. The 

question is not whether we would have reasoned identically to 

the circuit court, but rather, whether the court arrived at its 

conclusion "by the consideration of the relevant law, the facts, 

and a process of logical reasoning." Hartung v. Hartung, 102 

Wis. 2d 58, 66, 306 N.W.2d 16 (1981). 

¶48 Directly following Debrow's mistrial motion, both 

parties argued their positions at length outside the presence of 

the jury, with considerable counterargument from both sides. In 

short, both parties had a "full opportunity" to advance their 

arguments, and the court devoted sufficient time to the issue. 

It also weighed "less drastic" alternatives to address the 

"blurted out" and "stopped" statement. The court noted 

striking, which it had done, and a curative instruction were 

available alternatives. 

¶49 The circuit court further reasoned there was no way to 

know whether any of the jurors were familiar with CCAP. A juror 

who was familiar with CCAP may have had familiarity due to small 
No. 2021AP1732-CR.pdr

12

claims, civil, divorce, or other court record, not necessarily a 

criminal conviction. In addition, Isaac's response was 

overridden by directing the jury's attention to hearsay 

concerns. All of those reasons "lessen[ed] the necessity of 

granting" Debrow's mistrial motion. Lastly, the circuit court 

stated it could not grant a mistrial for "that minimal bit of 

information" that the jury may have heard. 

¶50 The court correctly noted that Isaac's interrupted 

testimony did not state anything about a prior criminal 

conviction, let alone a conviction for sexual assault of a 

child. Although Debrow argues the phrase "I looked on CCAP" 

leads to a string of inferences necessarily culminating in the 

most prejudicial assumption, we have said before that "this 

court cannot assume that more specific information of a 

prejudicial nature was involved." Johnson v. State, 75 Wis. 2d

344, 366, 249 N.W.2d 593 (1977). Instead, the focus must remain 

on whether the error was so prejudicial that the only remedy 

capable of addressing it is granting a mistrial. See generally

Lobermeier v. Gen. Tel. Co. of Wis., 119 Wis. 2d 129, 136, 349 

N.W.2d 466 (1984). See also McClinton v. State, 464 S.W.3d 913, 

914 (Ark. 2015) ("Declaring a mistrial is proper only where the 

error is beyond repair and cannot be corrected by any curative 

relief."). Here, the court properly exercised its discretion by 

unpacking the string of potential inferences to conclude Isaac's

comment was capable of remedy by less drastic means.

¶51 The circuit court appropriately, but narrowly, based 

its decision on the record before it. Factually, all we have 
No. 2021AP1732-CR.pdr

13

here is the statement, "I looked on CCAP." The court reporter 

did not capture this statement because of "[u]nreportable 

simultaneous interjections by Counsel." That is a far cry from 

disclosure that in 2004 Debrow was convicted of sexual assault 

of a child.

¶52 However, more analysis is needed because whether the 

circuit court appropriately exercised its discretion when 

denying a motion for mistrial includes assessing whether the 

circuit court gave reasoned consideration to the possibility of 

a curative instruction relative to the claimed error. State v. 

Williams, 2004 WI App 56, ¶31 n.3, 270 Wis. 2d 761, 677 N.W.2d 

691. In Moeck, 280 Wis. 2d 277, we again addressed the 

importance of cures other than mistrial for errors during trial. 

We concluded that "the circuit court did not exercise sound 

discretion in declaring a mistrial when it failed to give 

adequate consideration to the State's ability to refer to the 

defendant's silence and to the effectiveness of a curative jury 

instruction." Id., ¶71. 

¶53 In Debrow's trial, I conclude that review of the 

complained-of statement in the context of the whole proceeding 

confirms that the statement was not so prejudicial as to affect 

the fairness of his trial. One central question with mistrials 

"is to determine under the facts if the error is 

prejudicial . . . in light of the whole proceeding. If the 

evidence presented in a case was extremely weak and the same 

error occurred, it could justifiably be deemed grounds for a 

mistrial." Oseman v. State, 32 Wis. 2d 523, 528-29, 145 N.W.2d 
No. 2021AP1732-CR.pdr

14

766 (1966). See also Ford, 306 Wis. 2d 1, ¶50; Adams, 221 

Wis. 2d at 17. Therefore, I consider the strength of the 

State's evidence against Debrow and the sufficiency of the 

instruction given to the jury that relates to Isaac's testimony. 

¶54 Mary, Isaac, Nancy, and Kathy consistently testified 

that on the morning of January 17, 2018, Mary repeatedly 

screamed "get out," which caused the dogs to bark. Mary, Nancy, 

and Isaac all identified Debrow as in the girls' bedroom when 

that happened, and the sisters both explained how they knew the 

person in their room was Debrow. Testimony from officers and 

detectives who interviewed Mary as part of the investigation 

confirmed that Mary's account of Debrow's actions had been 

consistent.

¶55 The jury heard Mary testify that she woke to find 

Debrow in her room on a prior occasion, but that he told her 

"it's just a game, [so] you don't have to tell your mom." Mary 

did not tell Kathy. Mary and Kathy both testified that Kathy 

had instructed her daughters to scream if anything of concern 

were to happen in their bedroom. Kathy testified that there was 

a "rule" in the home prohibiting the girls and boys from 

entering one another's bedrooms. 

¶56 The jury heard a phone recording in which Debrow told 

Kathy, "I got something in my mind that I need help," and in 

which Kathy confronted Debrow about a pornographic video he had 

watched, the graphic title of which implied a stepfather 

sexually abusing a stepdaughter while his wife was asleep. 

Jurors saw text messages about the same conversations. 
No. 2021AP1732-CR.pdr

15

¶57 An officer testified that Debrow specifically 

questioned the degree of sexual assault for which he was 

arrested——asking why it was second-degree and not fourth. 

¶58 Jurors also heard impeachment evidence. For instance, 

they heard Mary and Isaac state they did not like Debrow. Isaac 

disclosed that he and Debrow had gotten into multiple physical 

altercations, and Kathy testified that she and Debrow got back 

together briefly some weeks after the January 2018 incident, 

although they were not together at the time of trial. 

¶59 The circuit court offered to consider a specially 

drafted curative instruction that Debrow did not request when 

counsel and the court had their instructions conference. The 

court also offered standard Civil Jury Instruction 150, which 

was given and provided: "During the trial, the Court has 

ordered certain testimony to be stricken. Disregard all 

stricken testimony." This instruction directly addressed 

Isaac's testimony which was stricken as soon as it was given. 

¶60 Last, the jury simultaneously convicted Debrow for 

assaulting Mary while it acquitted him of assaulting Nancy. 

Accordingly, when considered in the context of the "whole 

proceeding," it is "quite clear" that whatever prejudice the 

statement "I looked on CCAP" may have caused Debrow, it fell 

short of the high bar to warrant a mistrial. Oseman, 32 Wis. 2d

at 529. "[N]o reasonable jury could have fairly come to any 

other decision." Id. at 530. 

C. Court of Appeals Decision
No. 2021AP1732-CR.pdr

16

¶61 The court of appeals concluded that the jury 

instruction was insufficient to ameliorate Isaac's statement and 

therefore Debrow was entitled to a new trial. See State v.

Debrow, No. 2021AP1732-CR, unpublished slip op., ¶36 

(Wis. Ct. App. July 21, 2022) ("The court's attempts to cure the 

prejudicial effect of this testimony were insufficient and did 

not properly instruct the jury to disregard that testimony when 

deliberating."). Debrow did request standard Civil Jury 

Instruction 150, which was given and focuses on Isaac's 

testimony because his statement was stricken immediately on 

Debrow's objection and motion for a mistrial. I conclude under 

the entire proceedings, Instruction 150 was sufficient.

III. CONCLUSION

¶62 A jury convicted Debrow of second-degree sexual 

assault of a child under the age of 16 following a three-day 

trial. Debrow moved for a mistrial at the conclusion of the 

second witness's testimony, which the circuit court denied. I 

conclude that the circuit court did not erroneously exercise its 

discretion in denying Debrow's mistrial motion when reviewed in 

light of the entire trial, including the sufficiency of the jury 

instruction. Accordingly, I would reverse the court of appeals 

decision and conclude that Debrow is not entitled to a new 

trial. 

¶63 I concur in the result reached by the majority 

opinion, but I do not join the opinion. It lacks a full 

analysis of the entire proceeding, which is necessary in 

addressing the court of appeals reversal of the circuit court.
No. 2021AP1732-CR.pdr

17

¶64 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this concurrence.
No. 2021AP1732-CR.pdr

1