COURT OF APPEALS

DECISION

DATED AND FILED

February 21, 2023

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. 2021AP1847-CR Cir. Ct. No. 2016CF164

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ROBERT L. BREEDEN,

 DEFENDANT-APPELLANT.

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

County: STEVEN P. ANDERSON and ANGELINE E. WINTON, Judges. 

Affirmed. 

Before Stark, P.J., Hruz and Gill, 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. 2021AP1847-CR

2

¶1 PER CURIAM. Robert Breeden appeals from a judgment 

convicting him of second-degree reckless endangerment, battery, and disorderly 

conduct (each as an act of domestic abuse), and from an order denying his 

postconviction motion.

1 Breeden raises multiple claims of ineffective assistance 

of his trial counsel and one due process claim. In addition to determining that 

Breeden failed to adequately preserve most of his claims, we conclude that 

counsel did not render ineffective assistance. Accordingly, we affirm the 

judgment and order.

BACKGROUND

¶2 The charges in this case were based upon allegations that, over the 

course of an evening, Breeden repeatedly beat his girlfriend, Rachel,2and struck 

her multiple times with the butt of a rifle. Although Breeden and Rachel had been 

involved in a long-term relationship that included past incidents of violence, the 

State did not file a motion in limine seeking to admit other-acts evidence. 

¶3 During the jury trial, Rachel testified that Breeden had been her 

boyfriend for twenty-one years and that things started to get “ugly” about six or 

seven years into the relationship. Rachel said that Breeden had a temper and 

“would go out drinking and come home in the middle of the night and he was just 

all[-]over moody and ... verbal or abusive because he was drunk.” Sometimes, 

 

1

 The Honorable Steven P. Anderson presided over the jury trial and entered the 

judgment of conviction. The Honorable Angeline E. Winton presided over the postconviction 

relief hearing and entered the order denying Breeden’s postconviction motion.

2

 This matter involves the victim of a crime. Pursuant to the policy underlying WIS.

STAT. RULE 809.86(4) (2021-22), we use a pseudonym instead of the victim’s name. All 

references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted. 
No. 2021AP1847-CR

3

Breeden would get “physical” and “punch or slap and kick” her. Rachel sought 

medical attention “[q]uite a few times” after these incidents for a variety of 

injuries, including a popped eardrum; a sliced cornea; knocked-out teeth; broken 

facial bones; and injuries to her ribs, knee, thigh, and ankle. In addition, over 

approximately the past four years, Breeden required Rachel “to be with him all of 

the time” and would not allow her to go out alone. 

¶4 Breeden’s trial counsel eventually raised a relevancy objection to 

what he termed “this history lesson” line of questioning. After the circuit court 

directed the State to “stay away from the specifics” of what the court referred to as 

“almost ... prior bad acts,” the State moved on to question Rachel about the 

incident underlying the charges. 

¶5 Rachel testified that Breeden began berating her while she was 

driving them to a friend’s house, telling her that when they arrived she needed to 

look at the ground and not make eye contact. Breeden then accused Rachel of 

being featured in videos that he was looking at on his phone, called her “a lot of 

dirty names,” and “punch[ed]” and “smack[ed]” her a few times in the face and on 

her arms and shoulders. When they later arrived home, Breeden screwed the patio 

and front doors shut with an electric screwdriver and made sure that all the 

windows were locked, as was his routine. 

¶6 While they were sitting on the couch, Breeden looked at

pornographic websites on his phone, and he accused Rachel of being depicted in 

pictures on them. Rachel denied that she was in any of the pictures, pointing out 

differences in hair color, body shape, and tattoos. Breeden then began punching 

Rachel in the face and on her shoulders while “saying very nasty things.” After 

Rachel moved away from Breeden to a nearby chair and pretended to fall asleep, 
No. 2021AP1847-CR

4

Breeden went to the bathroom and returned with a 12-gauge shotgun, which was 

missing its stock. Breeden continued to accuse Rachel of being in the pictures, 

calling her a “fucking slut” and “whore.” He told her that he had a bullet in the 

shotgun and that when he proved it was her in the pictures, she was “done.” 

Rachel again pretended to fall asleep, hoping that Breeden would pass out. 

¶7 When Rachel “peeked” several hours later, Breeden noticed that she 

was awake. Breeden then pulled Rachel out of the chair, punched her multiple 

times, knocked her to the ground, and kicked her. As Rachel tried to pull herself 

up from the ground, Breeden grabbed one of two 30/30 lever-action rifles that 

were in the house and began to hit Rachel in the head with the stock of the rifle

until the stock broke. At that point, Breeden tried to stab Rachel in the torso with 

a pointed shard on the broken stock. 

¶8 Breeden pulled the trigger of the rifle while it was pointed at Rachel, 

but it did not go off. Rachel fought Breeden for control of the rifle. Breeden fired 

the rifle during the struggle, and the shot went through an open closet door. 

Breeden then got really upset, and Rachel “took a lot of the hits” before Breeden 

finally told Rachel she better get out before he killed her. Rachel was then able to 

unscrew the front door and escape. 

¶9 Rachel fled to her parents’ house. She did not immediately call law 

enforcement, however, because Breeden had threatened to kill Rachel’s entire 

family, and she believed him. A few days later, Rachel’s mother convinced her to 

report the assault. 

¶10 Rusk County Deputy Sheriff Rae Pyfferoen investigated Rachel’s 

complaint. Pyfferoen noted that Rachel was “amped up” and “pretty shaky” 

during the interview. Pyfferoen observed and photographed abrasions and 
No. 2021AP1847-CR

5

bruising to Rachel’s head, arms and torso. Pyfferoen also reviewed a medical 

report documenting fresh contusions to Rachel’s torso, as well as older injuries to 

Rachel’s body. 

¶11 The State asked Pyfferoen whether, in her opinion, the actions 

Rachel reported would constitute criminally reckless conduct. The circuit court 

sustained an objection from Breeden’s trial counsel, Attorney Adrian Longacre, 

before Pyfferoen answered it. However, Pyfferoen testified without objection that 

she administered to Rachel a “lethality assessment” screening questionnaire that 

categorized Rachel as being at “high risk” for becoming a homicide victim. 

¶12 The State also asked Pyfferoen whether she ever had an opportunity 

to speak with Breeden about the case. Pyfferoen stated that she had not because, 

while being transported to jail, Breeden had told another law enforcement officer 

that he would not speak to him without an attorney. The State then asked 

Pyfferoen what it typically means to law enforcement “when someone can’t be 

located after an incident has been reported.” Pyfferoen responded: “After an 

incident has been reported and someone is not willing to speak with you and if 

they don’t want to talk to you, there are reasons that they don’t want to talk to you 

like fear of getting in trouble or—.” At that point, Longacre cut off Pyfferoen 

with an objection, which was sustained. Longacre did not move to strike the 

testimony Pyfferoen had already given. The circuit court later gave a pattern

instruction to the jury to disregard any question that the court did not allow to be 

answered, without the jury guessing at what the answer might have been. See 

WIS JI—CRIMINAL 147 (2000).

¶13 Rusk County Deputy Sheriff Marc Egle testified that he executed a

search warrant at Breeden and Rachel’s residence and recovered a shotgun and a 
No. 2021AP1847-CR

6

30/30 rifle. The shotgun was missing its stock and magazine, and the stock of the 

30/30 rifle was broken. Egle also observed a calendar on the wall of Breeden and 

Rachel’s residence with notations that Rachel “Left at 1154 AM” and “fucking 

Whore” written over the squares for the two days after the incident. Egle testified 

without objection that, in his experience working with firearms, pulling the trigger 

of a firearm, either after pointing it at someone or during a struggle, is reckless. 

¶14 During closing argument, the State reiterated its opening statement 

that domestic violence is all about “power and control,” accompanied by a visual 

aid showing the domestic violence cycle. The State argued that Breeden had 

engaged in a “pattern throughout their relationship” of intimidating, emotionally 

abusing, isolating, recklessly endangering, and falsely imprisoning Rachel. It 

cited Pyfferoen’s testimony that Rachel had been assessed to be at a high risk for 

homicide by domestic violence, based upon objective factors, including the 

reported use of a weapon in this case. The State later commented—in response to 

a defense argument regarding Rachel’s delayed reporting—that defense counsel 

had “not been subjected to 15 years of continual abuse,” implying that Rachel had 

been. 

¶15 In discussing the evidence supporting the reckless endangerment 

charge, the State referred to Breeden hitting Rachel in the car while she was 

driving, hitting her while she was on the couch in their home, and beating her with 

the rifle, and pulling the trigger of a loaded gun while it was pointed at Rachel. 

The State explicitly referred to Egle’s opinion as to what constituted reckless use 

of a firearm, arguing that Breeden’s conduct of hitting Rachel with a weapon was 

reckless whether the weapon discharged or not. The State argued that the 

photographed bruises on Rachel’s back and arms were consistent with defensive 

injuries suffered while on the floor trying to block blows. 
No. 2021AP1847-CR

7

¶16 In addition, after noting that law enforcement officers were unable to 

locate Breeden until several days after the incident, the State commented:

So was he evading law enforcement? People who evade 

law enforcement don’t want to talk about it. And he has 

the right not to want to talk about anything. But guilty 

people will usually not want to talk about it and they will 

avoid that. And leaving is something that you can look at 

for your common sense.

Longacre did not object to any of the State’s comments during closing argument.

¶17 Following his convictions on all three charged counts, Breeden 

moved for a new trial on the reckless endangerment count based upon ineffective 

assistance of his trial counsel. Breeden asserted that Longacre should have raised 

additional objections to the testimony and closing arguments related to past violent 

incidents between Breeden and Rachel, testimony about the lethality assessment, 

Egle’s opinion as to what constituted reckless conduct, and comments by 

Pyfferoen and the State on Breeden’s silence. Breeden further claimed that 

Longacre should have challenged the jury instructions and verdict form on the 

reckless endangerment count as duplicitous. Breeden argued that the cumulative 

effect of counsel’s alleged errors was prejudicial to his defense. 

¶18 The circuit court held an evidentiary hearing at which Longacre 

testified. Breeden’s postconviction attorney, Steven Miller, asked Longacre why 

he did not seek a mistrial or a curative instruction after Pyfferoen testified that 

Breeden would not speak to police until he had a lawyer and that defendants might 

not want to talk due to fear of getting in trouble. Miller also asked why Longacre 

did not object to the State’s reference during closing argument to Breeden’s

silence. Longacre responded that he did not feel Pyfferoen’s testimony was 

prejudicial because it was “just common sense” that someone would not want to 
No. 2021AP1847-CR

8

speak to police without a lawyer. Longacre differentiated that situation from the 

prejudice that would result from a comment on a defendant’s invocation of his 

right not to testify at trial. Longacre could not recall any reason why he did not 

object to the prosecutor’s comment during closing argument that “guilty people 

will usually not want to talk about it.”

¶19 Miller did not ask why Longacre failed to raise an other-acts 

objection when Rachel testified about significant past injuries that Breeden had 

inflicted upon her, or why he waited so long to object to the entire line of 

questioning on relevance grounds. Miller also did not ask Longacre why he failed 

to object to Pyfferoen’s testimony about the lethality assessment or to Egle’s 

opinion about what constituted reckless conduct, or why Longacre did not raise a 

duplicity challenge. Nonetheless, Longacre provided some of his reasoning for 

these omissions on cross-examination. Longacre testified that he felt his eventual

relevance objection was essentially “synonymous” with an other-acts objection

“[i]n this case” and that he was satisfied when the circuit court redirected the 

State’s line of questioning. As a firearms instructor himself, it was “natural[]” to 

Longacre that “[y]ou don’t point a gun at anything you don’t intend to destroy.”

Longacre did not believe that someone required any special knowledge to reach 

that conclusion. In addition, generally speaking, Longacre noted that 

“[s]ometimes it’s not worth arguing and objecting to very minor things.” 

¶20 Finally, when Miller asked Longacre whether he had ever

considered the possibility that the jury would be unable to determine unanimously 

which of Breeden’s alleged acts supported the charge of reckless endangerment, 

Longacre responded that he had not considered that possibility. Longacre did not

see a duplicity problem when the alleged conduct was continuous over the alleged 

time period. 
No. 2021AP1847-CR

9

¶21 The circuit court did not find the reckless endangerment count 

duplicitous, and it deemed the reference to the lethality assessment to be a “minor” 

thing. The court acknowledged that the State had made several errors, including 

failing to file a motion in limine regarding other-acts evidence, eliciting opinion 

testimony as to an issue of ultimate fact, and commenting on Breeden’s silence. 

The court concluded, however, that Breeden’s trial counsel had raised appropriate 

objections throughout the trial and did not perform deficiently by failing to raise

additional objections. The court further concluded that, even taking into account 

the cumulative effect of the State’s errors, additional objections would not have 

produced a different result given the “very detailed” and “very compelling 

testimony by the victim as to the specific incident in this case.” The court denied 

the postconviction motion. 

¶22 Breeden appeals, renewing his claims of ineffective assistance of 

counsel and raising an additional due process claim based upon the State’s 

comment on his silence. 

DISCUSSION

¶23 As a threshold matter, for any issue other than the sufficiency of the 

evidence to be raised as a matter of right on appeal, it must first be preserved in 

the circuit court by a timely objection or by a postconviction motion under WIS.

STAT. RULE 809.30. See WIS. STAT. § 974.02; State v. Hayes, 167 Wis. 2d 423, 

425-26, 481 N.W.2d 699 (Ct. App. 1992). We will independently determine, as a 

question of law, whether a party has properly preserved a claim for appeal. State 

v. Mercado, 2021 WI 2, ¶32, 395 Wis. 2d 296, 953 N.W.2d 337.

¶24 Because forfeiture is a doctrine of judicial administration, we retain 

the authority to address an issue on appeal even if it has not been properly 
No. 2021AP1847-CR

10

preserved. State v. Counihan, 2020 WI 12, ¶27, 390 Wis. 2d 172, 938 N.W.2d

530. For instance, although we do so sparingly, we may employ the plain error 

doctrine to review an “obvious and substantial” error that is “so fundamental” that 

relief is warranted even though no contemporaneous objection was made. State v. 

Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77 (citations omitted). 

It is our general practice, however, to review alleged unobjected-to errors within 

the framework of ineffective assistance of counsel. Counihan, 390 Wis. 2d 172, 

¶28. We will follow that practice here, where Breeden has already raised claims 

of ineffective assistance in the circuit court and obtained an evidentiary hearing on 

those claims. Accordingly, we will not separately address Breeden’s claim, raised 

for the first time on appeal, that comments on his silence during the trial violated 

his due process rights.

¶25 To establish a claim of ineffective assistance of counsel, a defendant 

must prove two elements: (1) deficient performance by counsel; and (2) prejudice 

resulting from that deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381 

Wis. 2d 560, 912 N.W.2d 89. We will not set aside the circuit court’s factual 

findings about what actions counsel took or the reasons for them unless those 

findings are clearly erroneous. State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 

358, 805 N.W.2d 334. However, whether counsel’s conduct violated the 

constitutional standard for effective assistance is ultimately a legal determination 

that this court decides de novo. State v. Swinson, 2003 WI App 45, ¶57, 261 

Wis. 2d 633, 660 N.W.2d 12. We need not address both elements of an ineffective 

assistance claim if the defendant fails to make a sufficient showing on one of 

them. Id., ¶58. 

¶26 In order to demonstrate deficient performance, a defendant must 

overcome a presumption that counsel’s actions fell within a wide range of 
No. 2021AP1847-CR

11

professional conduct. Strickland v. Washington, 466 U.S. 668, 689 (1984). “The 

question is whether an attorney’s representation amounted to incompetence under 

‘prevailing professional norms,’ not whether it deviated from best practices or 

most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citation 

omitted). “A fair assessment of attorney performance requires that every effort be 

made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the conduct from 

counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Reasonable 

strategic choices informed by counsel’s investigation of the law and facts are 

virtually unchallengeable on appeal. Id. at 690. Counsel also does not perform 

deficiently by failing to bring a meritless motion. State v. Sanders, 2018 WI 51, 

¶29, 381 Wis. 2d 522, 912 N.W.2d 16. 

¶27 A defendant proves prejudice by demonstrating there is a reasonable 

probability that, but for his or her counsel’s unprofessional conduct, the result of 

the proceeding would have been different. Strickland, 466 U.S. at 694. The 

“reasonable probability” standard does not require a showing that it is “more likely 

than not” that a jury would have acquitted the defendant. Sholar, 381 Wis. 2d 

560, ¶44 (citation omitted). Still, the “reasonable probability” standard is tied to 

the reviewing court’s confidence in the outcome, and the “likelihood of a different 

result must be substantial, not just conceivable.” Id., ¶45; Harrington, 562 U.S. at 

at 112 (citation omitted). Thus, there is no reasonable probability of a different 

result based on alleged errors in a criminal trial when the conviction was otherwise 

supported by overwhelming evidence. Sholar, 381 Wis. 2d 560, ¶58.

¶28 On appeal, Breeden contends that his trial counsel provided 

ineffective assistance by: (1) failing to timely object to Rachel’s testimony and 

the State’s comments regarding other-acts evidence; (2) failing to object to 
No. 2021AP1847-CR

12

Pyfferoen’s testimony and the State’s comments that Rachel was at “high risk” of 

being killed by Breeden based upon a lethality assessment; (3) failing to object to 

Egle’s opinion, also referred to in closing argument, that Breeden’s alleged

conduct met the legal standard for recklessness; (4) failing to request a curative 

instruction after Pyfferoen testified about Breeden’s postarrest silence or to object 

to the State’s reference to that testimony during closing argument; and (5) failing 

to raise a duplicity challenge to the reckless endangerment charge. Breeden 

further argues that the cumulative effect of the alleged errors was prejudicial to his 

defense. We will address each claim in turn.

I. Other-Acts Evidence

¶29 As a general matter, 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.” WIS. STAT. § 904.04(2)(a). Nonetheless, other-acts 

evidence may be admitted to show motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident that reduces the possibility 

that the charged conduct was innocent. Id. Such evidence still must be relevant 

under WIS. STAT. §§ 904.01 and 904.02, in that it relates to a fact or proposition of 

consequence to the determination of the action. In addition, the evidence’s

probative value must not be substantially outweighed by the danger of unfair 

prejudice or confusion of the issues under WIS. STAT. § 904.03. State v. Sullivan, 

216 Wis. 2d 768, 785-89, 576 N.W.2d 30 (1998). 

¶30 Breeden contends that Longacre should have raised an other-acts 

objection, rather than a relevance objection, to Rachel’s testimony about past 

injuries Breeden inflicted upon her; that Longacre should have objected to 

Rachel’s testimony on such matters sooner; that Longacre should have requested a 
No. 2021AP1847-CR

13

mistrial or a curative instruction for the testimony that Rachel gave before the 

sustained relevance objection; and that Longacre also should have objected to the 

State’s reference during closing argument to the parties’ history of domestic 

violence. Following Breeden’s conviction, the circuit court held an evidentiary 

hearing to address Breeden’s ineffective assistance of counsel claims. During the 

hearing, however, Miller did not directly ask Longacre why he failed to take any 

of these actions.

¶31 Without testimony from trial counsel about “the reasons underlying 

his handling of a case,” this court is unable to evaluate claims of deficient 

performance. State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 

1979). It is the defendant’s responsibility to obtain such testimony. Id. We

conclude that Breeden failed to adequately preserve his claims related to other-acts 

evidence for appellate review.

¶32 Nonetheless, we are not persuaded that Breeden could demonstrate 

prejudice even if he had not forfeited his ineffective assistance claims related to 

other-acts evidence. It is clear from the context of the entire trial that the State 

was offering Rachel’s testimony about Breeden’s long history of abuse against her

to show why Rachel delayed reporting and seeking medical attention in this case.

The evidence was permissible and relevant for that purpose and therefore unlikely 

to have been excluded under a Sullivan analysis.

¶33 It is possible the circuit court might have excluded the evidence 

based upon the State’s failure to file a motion in limine. However, the evidence 

had limited prejudicial effect, given its relatively brief nature—as well as the lack 

of specificity as to when or how any of the prior injuries occurred—in relation to 

Rachel’s extended testimony about the events of the night in question. In addition, 
No. 2021AP1847-CR

14

Rachel’s account about the events at issue was partially corroborated by the 

photographs of her injuries and the recovery of the weapons she had described.

Therefore, we conclude that there is no reasonable probability that a jury would 

have acquitted Breeden in the absence of the other-acts evidence.

II. Lethality Assessment

¶34 Breeden next contends that Longacre should have objected to 

Pyfferoen’s testimony and to the State’s comments that Rachel was at “high risk” 

of becoming a homicide victim based upon the lethality assessment that Pyfferoen 

administered. Once again, however, Breeden failed to preserve this issue by 

failing to ask Longacre why he did not raise those objections.

¶35 Furthermore, assuming that the lethality assessment was 

inadmissible for lack of foundation under WIS. STAT. § 907.02(1), we agree with 

the circuit court that this was a minor matter. It would have been obvious to any 

juror that an abuse victim who had been threatened with a loaded firearm, beaten 

with the stock of a rifle, and subjected to the discharge of the rifle during a 

struggle would face a heightened risk of becoming a homicide victim. Therefore, 

we are not persuaded that Breeden could demonstrate prejudice even if he had not 

forfeited his ineffective assistance claim with respect to the lethality assessment.

III. Opinion on Recklessness

¶36 Breeden next contends that—having already successfully objected to 

the State asking Pyfferoen whether Breeden’s reported conduct was reckless—

Longacre should have objected again both when the State subsequently asked Egle 

his opinion about whether certain conduct was reckless, and when it referred to 

Egle’s opinion during closing argument. We will assume that Egle’s testimony 
No. 2021AP1847-CR

15

constituted an inadmissible opinion as to an ultimate fact, invading the province of 

the jury. See Lievrouw v. Roth, 157 Wis. 2d 332, 351-52, 459 N.W.2d 850 

(Ct. App. 1990) (an expert cannot give an opinion on a legal concept requiring 

definitional instruction).

¶37 We conclude that Longacre’s failure to raise a second objection was 

not deficient, however, because Longacre provided a reasonable explanation for 

why he viewed the testimony as nonprejudicial, and therefore not worth an 

additional objection. Specifically, it was reasonable for Longacre to believe that it 

did not take any special knowledge to reach the “natural” conclusion that pointing 

a loaded weapon at someone and discharging a weapon during a struggle were 

reckless acts. 

IV. Comments on Breeden’s Silence

¶38 Breeden next contends that Longacre should have requested a 

curative instruction or a mistrial after Pyfferoen testified about Breeden’s 

postarrest silence and also should have objected to the State’s additional comment 

linking silence to guilt during closing argument. See generally State v. Brecht, 

143 Wis. 2d 297, 310-11, 421 N.W.2d 96 (1988) (holding testimony regarding a 

defendant’s election to remain silent violates the Fifth Amendment); State v. 

Nielsen, 2001 WI App 192, ¶¶30-31, 247 Wis. 2d 466, 634 N.W.2d 325 (holding

the State may not argue that a defendant’s silence is inconsistent with a claim of 

innocence).

¶39 We note that Breeden has not explained what curative instruction he 

believes should have been given, nor has he addressed the standard for obtaining a 

mistrial. In any event, we are not persuaded that Longacre performed deficiently 

by failing to seek additional relief based upon Pyfferoen’s testimony. The 
No. 2021AP1847-CR

16

testimony at issue was given in response to a line of questions about the efforts 

law enforcement officers had to take to locate Breeden. The main focus of the 

questions was on whether Breeden evinced consciousness of guilt by flight. 

Longacre did object to the testimony. That objection was sustained by the circuit 

court. It was reasonable for counsel to cut off the line of questioning before it 

strayed into whether an inference of guilt also could be drawn from Breeden’s 

silence. It was also reasonable for counsel to assume there had been little 

prejudice from the jury hearing that Breeden requested a lawyer before speaking to 

law enforcement. Moreover, while Breeden did not request a specific curative 

instruction, the court did give a pattern instruction to the jury to disregard any 

question that the court did not allow to be answered, without the jury guessing at 

what the answer might have been. See WIS JI—CRIMINAL 147 (2000).

¶40 The State’s comment during closing argument that “guilty people 

will usually not want to talk about it” is somewhat more troubling. Nonetheless, 

even assuming that this remark constituted an impermissible comment on 

Breeden’s silence, we conclude Breeden was not prejudiced by Longacre’s failure 

to object to the comment.

¶41 Breeden argues that using his right to remain silent against him was 

prejudicial because this case was largely about credibility. However, Breeden 

ignores the physical evidence in this case including the multiple documented 

injuries that Rachel suffered such as bruises on her back and defensive injuries to 

her arms. There is no explanation in the record for how Rachel would have 

obtained those injuries other than by a beating such as the one that she described.

The recovery of the guns, including one with a broken stock, and the notations on 

Breeden’s calendar also supported Rachel’s account. Therefore, this case was not 

merely about credibility. Furthermore, the State’s comment on Breeden’s silence 
No. 2021AP1847-CR

17

during closing argument was again closely intertwined with its permissible 

argument that Breeden evinced consciousness of guilt by evading police. Given 

that the jury could already draw a permissible inference of guilt based upon 

Breeden’s flight, we are not persuaded that the additional suggestion that it could 

draw an inference of guilt based upon his silence had any reasonable probability of 

altering the outcome of the trial.

V. Duplicity

¶42 Finally, Breeden contends that Longacre should have challenged the 

jury instructions and verdict form on duplicity grounds. Once again, Breeden 

failed to preserve this ineffective assistance claim by not asking Longacre why he 

did not raise a duplicity challenge. Furthermore, we are not persuaded that 

Breeden could demonstrate deficient performance even if he had not forfeited the 

issue.

¶43 Duplicity is the joining of two or more separate offenses into a 

single count. State v. Lomagro, 113 Wis. 2d 582, 586, 335 N.W.2d 583 (1983). It 

may occur when there is evidence of more than one act that might establish the 

charged offense, but neither the pleadings, the jury instructions, nor the verdict 

identify which act pertains to the count. However, when an offense is composed 

of a series of continuous acts committed by the same person at substantially the 

same time relating to one continued transaction, the State has discretion whether to 

charge the acts separately or together. State v. Jacobsen, 2014 WI App 13, ¶18, 

352 Wis. 2d 409, 842 N.W.2d 365 (2013).

¶44 Here, Longacre did not perform deficiently by viewing Breeden’s 

alleged acts as continuous. Breeden committed each of the four alleged acts 

underlying the reckless endangerment charge (i.e., beating Rachel in the car, 
No. 2021AP1847-CR

18

beating her on the couch, striking her with the rifle, and pointing and discharging 

the rifle) over the course of the same evening, and all of the acts were motivated 

by Breeden’s same expressed belief that Rachel was depicted in online 

pornography sites. Furthermore, Breeden has not explained how challenging the 

jury instructions or verdict form would have benefitted him, given that the State 

could then have moved to amend the Information to conform to the proof at trial. 

See State v. Malcom, 2001 WI App 291, ¶¶23-30, 249 Wis. 2d 403, 638 N.W.2d 

918. It was not unreasonable for Longacre to avoid exposing Breeden to the 

possibility of added charges.

By the Court.—Judgment and order affirmed.

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

RULE 809.23(1)(b)5.