COURT OF APPEALS

DECISION

DATED AND FILED

November 7, 2019

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. 2018AP980-CR Cir. Ct. No. 2015CF33

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

HARLAND C. H. SWENSON, JR.,

 DEFENDANT-APPELLANT.

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

Monroe County: MARK L. GOODMAN, Judge. Affirmed. 

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2018AP980-CR

2

¶1 PER CURIAM. Harland Swenson appeals a judgment of conviction 

and an order denying his motion for postconviction relief. The issue on appeal is 

whether his trial counsel was ineffective by not objecting to jury instructions that 

Swenson asserts failed to protect his right to a unanimous jury. We conclude that 

the law was not settled on this point, and therefore counsel’s performance was not 

deficient. We affirm.

¶2 After a jury trial, Swenson was convicted of three counts of firstdegree sexual assault of a child under WIS. STAT. § 948.02.1

 He filed a 

postconviction motion alleging that his trial counsel was ineffective. The circuit 

court denied the motion after an evidentiary hearing.

¶3 To establish ineffective assistance of counsel a defendant must show 

that counsel’s performance was deficient and that such performance prejudiced the 

defendant’s defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We 

need not address both components of the analysis if a defendant makes an 

inadequate showing on one. Id. at 697. We affirm the circuit court’s findings of 

fact unless they are clearly erroneous, but the determination of deficient 

performance and prejudice are questions of law that we review without deference 

to the circuit court. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 

(1985).

¶4 We understand Swenson’s argument to be that his trial counsel 

should have objected to the substantive instructions on child sexual assault 

because they allowed for conviction for more than one type of act, and the victim 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2018AP980-CR

3

testified to all of the various acts that were covered by the instructions. Swenson 

argues that this violated his right to jury unanimity because the instructions did not 

require the jury to agree on which specific act Swenson committed in order to 

convict him on any particular count.

¶5 More specifically, Swenson notes that the instruction for count two, 

which alleged sexual contact, defined sexual contact as including both “intentional 

touching of the anus or buttocks” and “intentional penile ejaculation of ejaculate 

or intentional emission of urine or feces” on the victim. Similarly, the instruction 

for count three defined sexual contact as both “intentional touching of the groin, 

vagina, or pubic mound” and “intentional penile ejaculation of ejaculate or 

intentional emission of urine or feces” on the victim. Finally, as to count one, the 

instruction defined sexual intercourse as including both cunnilingus and anal 

intrusion.

¶6 Swenson argues that because the victim testified to all of these acts, 

and all three counts alleged the same six-month time period, the effect of the 

above instructions was that, as to each count, some jurors may have believed only 

that he committed one of the acts listed, while other jurors may have believed only 

that he committed the other act listed. This, he asserts, violated his right to 

unanimity because the instructions did not require the jury to be unanimous about 

which of those acts he committed.

¶7 We conclude that trial counsel’s performance was not deficient 

because the law in this area was unsettled. “When the law is unsettled, the failure 

to raise an issue is objectively reasonable and therefore not deficient 

performance.” State v. Jackson, 2011 WI App 63, ¶10, 333 Wis. 2d 665, 799 

N.W.2d 461. 
No. 2018AP980-CR

4

¶8 Swenson does not point to any case law that clearly answers whether 

jury unanimity is required in this situation. Our supreme court has previously 

held, when reviewing a conviction for first-degree sexual assault (not of a child), 

that unanimity was not required in that case on the various acts of non-consensual 

sexual intercourse that were testified to. State v. Lomagro, 113 Wis. 2d 582, 598, 

335 N.W.2d 583 (1983). The court reached that conclusion because those acts are 

alternative means of committing that crime; the acts are conceptually similar; and 

the two-hour assault was “one continuous, unlawful event.” Id. at 592-94.

¶9 Later, this court reviewed an ineffective assistance claim similar to 

the one made by Swenson in this case, and we ultimately concluded that the law 

was too unsettled to hold counsel’s performance deficient. State v. McMahon, 

186 Wis. 2d 68, 84-85, 519 N.W.2d 621 (Ct. App. 1994). 

¶10 In McMahon, in reviewing a conviction for incestuous sexual 

intercourse, we followed Lomagro to conclude that there were multiple means of 

committing that crime, and they were conceptually similar. Id. at 81-82. As to the 

time span involved, we concluded that, while McMahon’s case might require 

unanimity because it was a longer time span of one and one-half months, rather 

than two hours as in Lomagro, it would also be reasonable to extend the holding in

Lomagro to conclude that unanimity was not required because a series of acts over 

one and one-half months was a continuous event. Id. at 83-84. Accordingly, 

based on those alternative readings of Lomagro that we considered reasonable, we 

concluded that the law was unsettled about whether counsel should have objected 

so as to protect the defendant’s right to unanimity. Id. at 84-85.

¶11 After the above-noted opinions were issued, our supreme court 

adopted a new test for unanimity claims. See State v. Derango, 2000 WI 89, 236
No. 2018AP980-CR

5

Wis. 2d 721, 613 N.W.2d 833. That test begins, as before, with consideration of 

whether the statute creates a single offense with multiple means of commission, or 

multiple offenses. Id., ¶¶14-21. However, rather than considering next whether 

the alternate modes are conceptually similar, courts are now to evaluate “the 

fundamental fairness and rationality of the legislature’s choice to provide for a 

single offense with alternate modes of commission.” Id., ¶22. Neither the State 

nor Swenson has cited cases that apply this unanimity claims test to the statute at 

issue here, WIS. STAT. § 948.02.

¶12 For these reasons, we conclude that the law regarding a potential 

unanimity objection to the instructions in Swenson’s case was too unsettled to 

hold trial counsel’s performance deficient for not requesting a different 

instruction.

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)5.