COURT OF APPEALS

DECISION

DATED AND FILED

January 11, 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. 2021AP1347-CR Cir. Ct. No. 2017CF614

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

CHRISTY ROSE TUCHEL,

 DEFENDANT-APPELLANT.

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

Sheboygan County: L. EDWARD STENGEL, Judge. Affirmed. 

Before Gundrum, P.J., Grogan and Lazar, 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. 2021AP1347-CR

2

¶1 PER CURIAM. Christy Rose Tuchel appeals a judgment of 

conviction entered on jury verdicts finding her guilty of causing mental harm to a 

child contrary to WIS. STAT. § 948.04 (2019-20),

1 mistreatment of animals causing 

death as a party to a crime contrary to WIS. STAT. § 951.02, and twenty-four 

counts of failing to provide sufficient food or water for animals in her care as a 

party to a crime contrary to WIS. STAT. § 951.13. She also appeals an order 

denying her postconviction motion. She raises a plethora of challenges to her 

convictions, asserting: (1) the presiding judge should have been statutorily 

disqualified; (2) law enforcement violated her due process rights by destroying 

apparently exculpatory evidence; (3) her prosecutions under § 951.13 were 

unconstitutional; (4) a forensic interview of a minor was improperly admitted at 

trial; (5) various instances of ineffective assistance of trial counsel; and (6) she is 

entitled to a new trial in the interest of justice. We reject her arguments and 

affirm. 

BACKGROUND

¶2 Tuchel was the owner of “Kinship Companions LLC,” a dogbreeding business that was at one point permitted to keep as many as 75 adult 

dogs. In early 2015, the Town of Wilson Board of Supervisors decided not to 

renew Tuchel’s conditional use permit. Tuchel thereafter kept dozens of dogs on 

the property, but according to her postconviction affidavit, she was unable to sell 

them. 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted. Though the crimes referenced herein took place in 2017, the relevant statutes have not 

changed. We therefore cite to the most recent version. 
No. 2021AP1347-CR

3

¶3 Between 2015 and 2017, several inspections were initiated by law 

enforcement based on complaints about the treatment of the animals in Tuchel’s 

care. No enforcement action was apparently taken as a result of these inspections, 

though Tuchel acknowledged that “areas for improvement were discussed.” After 

Tuchel became physically unable to take care of the dogs, her then-fiancé, 

Anthony Keyport, along with Tuchel’s children, including B.M. and J.M., helped 

her.2 

¶4 At trial, J.M. testified that when he was thirteen or fourteen years 

old, he almost exclusively began taking care of the dogs. He testified that though 

his siblings helped at times, he was doing work “that no one should have to go 

through.” Freezers that once housed raw meat for the dogs became storage 

containers for dogs that died in their care. J.M. testified Tuchel, Keyport, and

B.M. taught him to stuff the dead dogs in two empty dog food bags before 

throwing them in a freezer. J.M. estimated he placed between twelve and forty 

deceased dogs in freezers. J.M. continued that “[t]here were so many dogs in 

there that we had to stack stuff on top of them to keep the doors closed.” He 

testified that Tuchel told him that if he did not dispose of the dogs in this fashion, 

she would go to jail, the dogs would be taken away, and “[her] life will be over.” 

¶5 J.M. testified that for a time, the family had pallets of food delivered 

for the dogs. After he took over as the primary caregiver, the deliveries stopped 

and J.M. had to get food from Wal-Mart. According to J.M., a flood in early 2016 

“is what started the hell.” After that time, the dogs would sometimes not be fed 

 

2

 Consistent with the policy underlying WIS. STAT. RULE 809.86, we refer to the victim 

and his siblings using initials. Additionally, we note that J.M. was still a minor at the time of 

trial.
No. 2021AP1347-CR

4

for days, and Tuchel and B.M. instructed him to ration what little food was 

available. J.M. testified many of the dogs were thin and had visible hip and rib 

bones, and when he would pet them he could feel their spines. 

¶6 J.M. testified that several dogs in their care died of malnourishment. 

He provided the names of some of the dogs that died, including “Razor,” “Blade,” 

and “Shamus.” J.M. testified that the dogs were so thin he could carry four of 

them like luggage. When asked why he would have to carry them like that, J.M. 

explained that he would pull an “all nighter” before inspections and hide the most 

sickly dogs in the garage; at one point, as many as seventeen animals were housed 

there. When a dog died, he would place the corpse in a freezer, all of which he 

testified stopped working after the flood. He testified the smell was “the worst 

possible smell you can imagine.” 

¶7 In late June 2017, police executed a search warrant after J.M. 

informed them about conditions at the kennel. The search revealed thirty-six dogs, 

which were examined briefly before being removed the following day for more 

thorough examinations. There was only a small pile of food present and virtually 

no water. Many dogs had unhealthy body scores (a measure of their nourishment), 

and the veterinarian present surmised that the dogs in better condition were likely 

the more dominant dogs and were eating the others’ food. 

¶8 Tuchel was charged with causing mental harm to a child, 

mistreatment of animals causing death as party to a crime, and thirty-six counts of 

misdemeanor failing to provide sufficient food and water to animals in her care as 

party to a crime—one count for each of the live animals discovered during the 

search. Following a trial, a jury returned guilty verdicts on all but twelve of the 

misdemeanor counts. Tuchel filed a postconviction motion in which she alleged, 
No. 2021AP1347-CR

5

among other things, ineffective assistance of trial counsel. That motion was 

denied following a Machner hearing.3 Tuchel now appeals.

DISCUSSION

I. Judicial Disqualification

¶9 Citing WIS. STAT. § 757.19(2)(g), Tuchel argues the circuit court 

judge was required to recuse himself from the proceedings. Tuchel’s argument is 

predicated upon the fact that the judge was previously married to a person 

interested in the case, Nancy DesJardins. DesJardins was not a party or witness to 

the case, but was a town board supervisor at the time Tuchel’s permit was 

revoked. There was evidence of considerable hostility between DesJardins and 

Tuchel, both historically and at the time of trial, which DesJardins attended in the 

front seating row.

¶10 WISCONSIN STAT. § 757.19(2)(g) “requires disqualification when a 

judge determines that he or she cannot, or that it appears that he or she cannot, act 

impartially in a case.” State v. Harrell, 199 Wis. 2d 654, 663, 546 N.W.2d 115 

(1996). Appellate review of this subjective determination is limited to 

ascertaining, as a matter of law, whether the judge made a determination whether 

he or she should be disqualified. Id. at 663-64. 

¶11 Here, the judge clearly made the requisite determination, noting that 

he and DesJardins were divorced in 1988 and had no contact whatsoever about the 

 

3

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2021AP1347-CR

6

facts or circumstances of the case.4 To the extent Tuchel attempts to raise a due 

process claim by citing to Caperton v. A.T. Massey Coal Co., 556 U.S. 868 

(2009), we reject any such claim as both undeveloped, see State v. Pettit, 171 

Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992), and unsupported by the facts 

of record.5

II. Destruction of Evidence

¶12 Tuchel also contends she suffered a due process violation as a result 

of the State’s destruction of the two freezers containing the remains of dozens of 

deceased dogs. Tuchel contends the freezers and their contents were “apparently 

exculpatory” because the dogs’ remains could have been sent for forensic testing 

regarding the causes of death and because the dog food bags in which the corpses 

were stuffed may have had expiration dates on them that would have aided in 

ascertaining which specific dog was in it.6 Tuchel also argues the dog corpses 

 

4

 This determination was made during postconviction proceedings, and on appeal Tuchel 

argues her trial counsel was constitutionally ineffective for failing to previously raise the issue. 

Based upon the circuit court’s determination, we conclude there is no possibility of prejudice 

arising from trial counsel’s failure to earlier raise the issue. 

5

 The same is true of Tuchel’s reference to S.C.R. 60.04(1) (2019). 

6

 Tuchel fails to adequately develop arguments surrounding the apparent exculpatory 

value of the food bags and a small quantity of dog food that was not weighed. The significance 

of the dates on the food bags is not readily apparent. Tuchel’s assertion that the expiration dates 

might have helped the defense identify specific dogs in the bags is purely speculative; she 

provides no evidentiary basis for her trial counsel’s assertion that it was “possible” the bags could 

have aided in determining when the dogs had died or were placed in the freezers. Regarding the 

dog food, Tuchel fails to articulate why it would have been necessary for police to document the 

specific weight of the food in light of their ability to roughly estimate the amount of food present; 

for example, Roeseler testified that there was a “small amount, probably a quarter of a ... 50-

pound bag of Ol’ Roy.” Tuchel does not, for example, contend that Roeseler materially 

understated the amount of food recovered.
No. 2021AP1347-CR

7

were necessary because she wanted to “preserve” them to be tested in some way 

related to a chemical spill that occurred in 2014. 

¶13 To establish that the State violated her due process rights by 

destroying apparently exculpatory evidence, Tuchel must demonstrate: (1) that 

the evidence destroyed possessed an exculpatory value that was apparent to those 

who had custody of the evidence before its destruction; and (2) that the evidence 

was of such a nature that the defendant was unable to obtain comparable evidence 

by other reasonably available means. State v. Munford, 2010 WI App 168, ¶21, 

330 Wis. 2d 575, 794 N.W.2d 264. When the facts are undisputed, whether the 

State failed to preserve evidence in violation of due process is a question of law 

that this court reviews de novo. See State v. Luedtke, 2015 WI 42, ¶37, 362 

Wis. 2d 1, 863 N.W.2d 592.

¶14 Tuchel has failed to make the requisite showing. The destruction of 

the freezers themselves was not constitutionally problematic. At trial, Sheriff 

Corey Roeseler, who was in charge of the search of the premises, testified that 

during the investigation he learned that a flood had damaged the freezers and they 

were not functioning. He testified that “as a safety matter, there was no way I was 

going to plug them in or have anyone else attempt to plug the freezers in to see if 

they worked.” Even if the freezers could have been safely made operational, the 

dog corpses were in such a severe state of decomposition—Roeseler referred to 

them as a “liquid sludge”—that he regarded the freezers as being contaminated 

with a “possible biohazard material.” Tuchel fails to explain why the police 

should have regarded the freezers as having apparent exculpatory value.

¶15 As for the dog remains, Roeseler testified that he began the search 

hoping to preserve one or more of the dog corpses for analysis. He acknowledged 
No. 2021AP1347-CR

8

he was not an expert and testified he was relying on “the Humane Society 

veterinarian, Dr. Heenan, to guide [him] as to whether or not there was any 

evidentiary value in any of those deceased and decaying animals.” Heenan, in 

turn, testified the dog corpses were far too decomposed to ascertain a cause of 

death.7 In particular, the organs were liquefied, the musculature was so degraded 

that only bones could be examined, and there was no possibility of confirming 

infectious disease. 

¶16 At best, Tuchel has established only that the freezers and the dog 

remains were potentially exculpatory.8 But the destruction of evidence that is only 

potentially exculpatory must be paired with a showing that law enforcement acted 

in bad faith by failing to preserve it. Luedtke, 362 Wis. 2d 1, ¶39. Tuchel makes 

no argument in this regard. We therefore conclude Tuchel’s due process rights 

were not violated by the destruction of the freezers or their contents.

 

7

 Tuchel argues “that the deceased dogs in the freezers were exculpatory because 

Dr. Heenan testified she knew the evidence of freezer contents could have been sent to a forensic 

pathologist for post-morbidity testing.” This is a considerable overstatement of Heenan’s 

testimony. Heenan was asked about the corpse of only one dog, which she testified was “the 

absolute best case out of the entire two chest freezers.” She stated that, though flattened, the 

dog’s skeleton appeared to be intact and could possibly have been sent to a veterinary pathologist 

for advanced testing, but the level of compression rendered it beyond her skill level to determine 

a cause of death. Heenan’s testimony in this regard hardly establishes that the skeleton had 

apparent exculpatory value. Additionally, given the state of the deceased dogs, Tuchel’s claim 

that she was attempting to “preserve” key evidence regarding a 2014 chemical spill is specious, at 

best. Tuchel’s assertion that the decomposing dogs could have substantiated her belief that they 

died as a result of the chemical spill is pure conjecture. 

8

 This is true despite Tuchel’s claim that the freezer cords could have been fingerprinted 

in an effort to determine whether J.M. deliberately unplugged them. Other than pure conjecture, 

she provides no reason why police might have believed the freezer cords would have had 

apparent exculpatory value. Even Tuchel cannot say for certain whether the cords would have 

contained J.M.’s fingerprints, making the cords only potentially exculpatory. 
No. 2021AP1347-CR

9

III. Constitutionality of WIS. STAT. § 951.13

¶17 Tuchel argues her convictions under WIS. STAT. § 951.13 are invalid 

because the statute is unconstitutionally overbroad and vague as applied to her. 

The constitutionality of a statute is a question of law that we review de novo. 

State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. In an asapplied challenge, we “assess the merits of the challenge by considering the facts 

of the particular case in front of us,” determining whether the individual has 

demonstrated a violation of his or her constitutional rights. Id., ¶13. 

¶18 Both overbreadth and vagueness doctrines analyze the adequacy of 

the statutory language establishing the proscribed conduct. A statute is overbroad 

when its language, given its normal meaning, is so sweeping that its sanctions may 

be applied to constitutionally protected conduct for which regulation is not 

permitted. Brandmiller v. Arreola, 199 Wis. 2d 528, 546, 544 N.W.2d 894 

(1996). A statute is void for vagueness if it “does not provide ‘fair notice’ of the 

prohibited conduct and also provide an objective standard for enforcement of 

violations.” State v. Ruesch, 214 Wis. 2d 548, 561, 571 N.W.2d 898 (Ct. App. 

1997). In both cases, Tuchel bears the burden of demonstrating that the statute is 

unconstitutional beyond a reasonable doubt. See id. at 556. 

¶19 Tuchel fails to demonstrate that WIS. STAT. § 951.13 is either 

overbroad or vague. She does not differentiate between the two analyses; rather, 

she essentially argues that the evidence establishes her innocence because, in her 

view, she gave enough food and water to keep the animals healthy as required by
No. 2021AP1347-CR

10

WIS. STAT. § 951.13.

9

 She faults the legislature for not more specifically 

describing what “good health” consists of, asserting that it should have set 

standards for health based on urinalysis and blood testing. Moreover, she argues 

the dogs did not require emergency medical care given that they were not removed 

until the day after the start of the search, and she faults the prosecutor for 

introducing “irrelevant” evidence to inflame the jury, including evidence of the 

dogs’ matted hair, ear infections, and tartar buildup on teeth, as well as evidence 

that the dogs were fed low-quality food.10 

¶20 At the end of the day, Tuchel’s constitutional claims appear designed

more to castigate the State for its evidentiary presentation than to demonstrate the 

illegality of her prosecution. Tuchel fails to identify any constitutionally protected 

conduct upon which WIS. STAT. § 951.13(1) intrudes. We therefore deem her 

overbreadth challenge undeveloped. See Pettit, 171 Wis. 2d at 646. Indeed, 

Tuchel all but abandons her overbreadth claim in her reply brief. 

¶21 As for vagueness, the test does not ask whether the legislature could 

have more specifically defined the prohibited conduct. See State v. Hurd, 135 

Wis. 2d 266, 272, 400 N.W.2d 42 (Ct. App. 1986) (observing that a statute “need 

 

9

 WISCONSIN STAT. § 951.13(1) directs that the food provided to animals in a person’s 

care must be “sufficient to maintain all animals in good health.” Subsection (2) directs that 

potable water must be accessible to animals at all times or else it shall be “provided daily and in 

sufficient quantity for the health of the animal.”

To the extent Tuchel intends by her constitutional claims to challenge the sufficiency of 

the evidence supporting her convictions under WIS. STAT. § 951.13, we deem any such argument 

undeveloped. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

10

 Though Tuchel’s arguments in this regard are misdirected for the reasons set forth 

below, we note that some of the evidentiary matters Tuchel relies on are plainly relevant to 

whether the dogs were in good health as a result of Tuchel’s provision (or lack thereof) of food 

and water. 
No. 2021AP1347-CR

11

not define with absolute clarity and precision what is and what is not unlawful 

conduct.”). The statute here adequately informs people wishing to obey the law 

that their conduct comes near a proscribed area when their intentional or negligent 

failure to provide food and water to an animal in their care imperils the animal’s 

health. See State v. Nelson, 2006 WI App 124, ¶36, 294 Wis. 2d 578, 718 N.W.2d 

168. Regarding enforcement, contrary to Tuchel’s claim, the term “health” is 

sufficient given the proscribed conduct (i.e., failure to provide sufficient food and 

water) to permit an objective determination of guilt without requiring a trier of fact 

to supply its own standards of culpability rather than those set out in the statute. 

See id., ¶37. 

¶22 Finally, though apparently not anchored to her overbreadth or 

vagueness claims, Tuchel argues the prosecutor misled the jury by “add[ing] up 

the dead dogs in the freezers and unsubstantiated claims of dead dogs buried in 

fields to arrive at 36 dogs” to support charges under WIS. STAT. § 951.13. Tuchel 

ignores that the freezer evidence was relevant because she was not merely charged 

with failing to provide food and water, but also with causing harm to a child and 

mistreatment of an animal causing death. And she also fails to recognize that the 

mistreatment contemplated under § 951.13 does not depend on whether (or why)

animals were immediately removed from her care upon execution of the search 

warrant. 

¶23 The State’s theory was that J.M.’s testimony established that Tuchel 

was a conspirator involved in the chronic mistreatment of the animals at the 

kennel. In discussing the evidence, the prosecutor argued at closing:

You’re not feeding the animals on a regular basis and what 

they need, they’re going to die. 
No. 2021AP1347-CR

12

 They had multiple deaths. Freezers of 31 dogs plus 

because you couldn’t tell how many more were there and at 

least four to six occasions of burying one to 16 dogs in the 

ground.

The prosecutor argued that Tuchel must have been aware of the conditions at the 

kennel because, among other things, she directed which dogs would be hidden 

when inspections occurred. The prosecutor continued this line of argument by 

noting that “now we’re left with the final counts, [t]he 36 living dogs,” which were 

not supplied with adequate food or water. And when discussing the concept of 

“good health,” the prosecutor noted that however that term was defined, it did not 

include being dead, being too sickly to bear scrutiny in an inspection, and being 

designated as malnourished by a veterinarian. 

¶24 To the extent the prosecutor’s comments could be construed as 

suggesting that the dead dogs in the freezers supported the WIS. STAT. § 951.13 

charges, Tuchel has not established a basis for relief. The jury was properly 

instructed that the arguments of counsel do not constitute evidence. In any event, 

the prosecutor, at the conclusion of the State’s argument, identified by name the 

dogs were alleged to have been malnourished.

11

 The verdict forms, too, used these 

names. And, in what can only be construed as an acknowledgment of the 

weakness of the State’s case as to certain animals, the jury ultimately acquitted 

Tuchel of some of the malnourishment charges. In short, Tuchel has not 

demonstrated error despite her efforts to back-door challenges to the admissibility 

of evidence through her constitutional claims. 

 

11

 Tuchel argues the State inflamed the jury by giving the dogs “[c]ute made-up dog 

names” rather than identifying the dogs by an alphabet letter or a number. Tuchel cites no law in 

support of this argument and we deem it undeveloped. See Pettit, 171 Wis. 2d at 646.
No. 2021AP1347-CR

13

IV. Admissibility of R.M.’s Forensic Interview

¶25 Next, Tuchel argues the State improperly impeached R.M., Tuchel’s 

daughter, with a recording of a forensic interview connected to a CHIPS 

proceeding. The State concedes that, if the interview recording was a record of the 

CHIPS court, the State would have been required to petition the court exercising 

juvenile jurisdiction for an order releasing the interview recording under WIS.

STAT. § 48.396 and State v. Bellows, 218 Wis. 2d 614, 582 N.W.2d 53 (Ct. App. 

1998). 

¶26 The State, however, notes that the circuit court rejected Tuchel’s 

argument that the interview recording constituted a CHIPS record. The court 

concluded the recording was not subject to Bellows because the interview was 

conducted to obtain information for both a criminal investigation and in 

connection to the CHIPS matter. Moreover, the court concluded that any error in 

the admission of the interview recording was harmless. See WIS. STAT.

§ 805.18(2). 

¶27 As the State points out, Tuchel wholly fails to engage with the 

circuit court’s analysis. Her argument that the State failed to obtain permission 

from the juvenile court to use R.M.’s interview recording merely assumes that 

such permission was necessary, ignoring the circuit court’s rationale to the 

contrary. She does not address in any fashion the court’s harmless error 

conclusion. And finally, her reply brief contains no response even after the State 

pointed out these deficiencies. For these reasons, we deem Tuchel’s argument 

regarding the admissibility of R.M.’s interview recording both undeveloped, see 

Pettit, 171 Wis. 2d at 646, and forfeited, see Charolais Breeding Ranches, Ltd. v. 

FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).
No. 2021AP1347-CR

14

V. Ineffective Assistance of Trial Counsel

¶28 Tuchel additionally raises a multitude of ineffective assistance of 

counsel claims.12 The Sixth Amendment guarantees a defendant the effective 

assistance of counsel. State v. Savage, 2020 WI 93, ¶27, 395 Wis. 2d 1, 951 

N.W.2d 838. To prevail on an ineffective assistance claim, the defendant must 

show both that counsel’s performance was deficient and that the deficient 

performance prejudiced the defendant. Id.; see also Strickland v. Washington, 

466 U.S. 668, 687 (1984). We review an ineffective assistance of counsel claim 

using a mixed standard of review. Id., ¶25. The circuit court’s factual findings, 

including those regarding trial counsel’s conduct and strategy, will not be 

overturned unless they are clearly erroneous, but we review de novo whether 

counsel’s conduct constitutes constitutionally ineffective assistance. Id. If the 

defendant fails to establish either prong, we need not address the other. Id.

¶29 To demonstrate deficient performance, the defendant must show that 

his or her attorney made errors so serious that he or she was not functioning as the 

“counsel” guaranteed by the Sixth Amendment. Id., ¶28. We presume that 

counsel’s conduct fell within the wide range of reasonable professional assistance, 

and we will grant relief only upon a showing that counsel’s performance was 

objectively unreasonable under the circumstances. Id. Prejudice is demonstrated 

by showing a reasonable probability that, but for counsel’s unprofessional 

conduct, the result of the proceeding would have been different. Id., ¶32.

 

12

 We have previously addressed certain aspects of two of Tuchel’s ineffective assistance 

of counsel claims—that her trial counsel failed to seek judicial disqualification and failed to 

explain that Tuchel was preserving dead dogs in the freezers in the hopes to have them tested for 

any effects from the 2014 chemical spill. For the reasons set forth previously, see infra, ¶¶9-11, 

15 n.7, we conclude these ineffective assistance claims fail.
No. 2021AP1347-CR

15

A. Conflict of Interest

¶30 Tuchel argues her trial counsel was constitutionally deficient 

because he engaged in the joint representation of Tuchel and B.M.13 To establish 

a Sixth Amendment violation based on a conflict of interest, “a defendant who did 

not raise an objection at trial must demonstrate by clear and convincing evidence 

that his or her counsel had an actual conflict of interest and that the actual conflict 

of interest adversely affected his or her lawyer’s performance.” State v. Street, 

202 Wis. 2d 533, 542, 551 N.W.2d 830 (Ct. App. 1996). 

¶31 Tuchel has failed to demonstrate an actual conflict of interest, which 

is “competing loyalty that adversely affected [the client’s] interests.” State v. 

Medina, 2006 WI App 76, ¶31, 292 Wis. 2d 453, 713 N.W.2d 172. She offers 

only the conclusory assertion that trial counsel should have called B.M. to testify 

at Tuchel’s trial “in ways that could have incriminated” B.M. Yet Tuchel was 

charged as a party to a crime on nearly all the counts.14 Tuchel has not shown by 

clear and convincing evidence that implicating B.M. would not have harmed her 

own defense. In fact, she offers nothing to suggest there was a meritorious basis 

to implicate B.M. in a way that was exculpatory as to Tuchel. 

¶32 Also problematic for Tuchel is that she signed a waiver of any 

conflict arising from the joint representation. “It is uncontested that a defendant 

may waive an actual or serious potential conflict of interest claim involving his or 

her attorney.” State v. Cobbs, 221 Wis. 2d 101, 105, 584 N.W.2d 709 (Ct. App. 

 

13

 Tuchel’s and B.M.’s trials were severed. 

14

 Tuchel was initially charged with causing mental harm to a child as a party to a crime. 

That count was amended at trial by removing the party-to-a-crime theory of liability. 
No. 2021AP1347-CR

16

1998); see also State v. Demmerly, 2006 WI App 181, ¶15, 296 Wis. 2d 153, 722 

N.W.2d 585. Tuchel complains that she was presented with a “one-page boiler 

plate waiver with no description of the specific conflict of interest issues of 

representing two defendants facing the same 38 charges.” Yet even now, Tuchel 

fails to articulate what specific conflict issues might have existed that should have 

been discussed. And the circuit court agreed with the State’s assertion that Tuchel 

was not credible in her assertions that she could not recall trial counsel discussing 

the conflict waiver or having her sign the document. 

B. Failure to Present Exculpatory Evidence

¶33 Tuchel next argues her trial counsel should have presented two types 

of exculpatory evidence. First, she argues that her trial counsel performed 

deficiently by failing to present evidence regarding J.M.’s assault on B.M., which 

she contends was necessary for the jury to understand “J.M., his personal motives, 

and [the] credibility of his testimony.” Second, she argues her trial counsel failed 

to present exculpatory evidence that the dogs were in good health during an 

inspection in April 2017. 

¶34 Tuchel has not established ineffective assistance of counsel as to 

either type of evidence. The trial record contains both J.M.’s and R.M.’s detailed 

testimony about the altercation between J.M. and B.M. that ultimately led J.M. to 

make his report to authorities. The record also contains trial counsel’s crossexamination of Roeseler, during which questioning he acknowledged that during 

an April 3, 2017 inspection twenty-five dogs were observed in “okay” condition.15 

 

15

 As the State notes, this testimony probably did not aid much in Tuchel’s defense; law 

enforcement’s observation of only twenty-five dogs in April 2017 somewhat corroborated J.M.’s 

assertion that they hid underfed and unhealthy dogs prior to inspection. 
No. 2021AP1347-CR

17

Because the evidence was actually presented at trial, there is no basis to conclude 

trial counsel performed deficiently. 

C. Failure to Object to J.M.’s Testimony Regarding “Razor” 

¶35 Tuchel asserts her trial counsel should have objected to J.M.’s 

testimony that “Razor” died of malnourishment because his testimony was “not 

objectively believable.” We declare evidence patently or inherently incredible 

only if it “conflicts with the laws of nature or with fully established or conceded 

facts,” and then only in connection with a review of the sufficiency of the 

evidence to support a conviction. See State v. Below, 2011 WI App 64, ¶3, 333 

Wis. 2d 690, 799 N.W.2d 95. Tuchel, in a remarkably brief argument, makes a 

remarkable ask: that we not only declare J.M.’s testimony inherently incredible, 

but that we declare Tuchel’s trial counsel was constitutionally ineffective for 

failing to seek to exclude his testimony. 

¶36 We see no reason in this case to depart from the typical rule of law 

that the trier of fact is the sole arbiter of witness credibility and alone is charged 

with the duty of weighing the evidence. Id., ¶4. To demonstrate that J.M. was 

“not objectively believable” regarding the dogs that died of malnourishment, 

Tuchel asserts he “could not distinguish a ‘boy’ dog from a ‘girl’ dog.” This is an 

exaggeration of J.M.’s testimony. J.M. did not say he was incapable of 

distinguishing male and female dogs; he testified he could not recall whether his 

favorite dog “Angel” was a “he” or a “she.” R.M. testified that they had no dog 

named “Razor,” but Tuchel provides no reason to believe R.M.’s testimony was 

inherently any more credible than J.M.’s. 

¶37 Tuchel also complains that J.M. was not an expert and was incapable 

of determining the cause of death of a dog. She cites absolutely no law that 
No. 2021AP1347-CR

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requires expert testimony to support a conviction under WIS. STAT. § 951.02, nor 

does she develop an argument that her trial counsel was constitutionally 

ineffective relating to the evidence supporting this charge. See Pettit, 171 Wis. 2d 

at 646. Moreover, we are highly skeptical of the premise of Tuchel’s argument—

that a lay person in J.M.’s circumstances as caregiver could not opine that a dog he 

had not adequately fed and watered had died of malnourishment. 

D. Failure to File a Schiffra-Green Motion Seeking J.M.’s Records

¶38 Tuchel contends her trial counsel should have sought out J.M.’s 

medical records. Tuchel claims these records might have provided fodder for 

cross-examination at trial, or else demonstrated that the State could not prove 

mental harm to J.M. To obtain in camera review of a victim’s medical records, the 

defendant must show a “reasonable likelihood” that the records will be necessary 

to a determination of guilt or innocence. State v. Green, 2002 WI 68, ¶32, 253 

Wis. 2d 356, 646 N.W.2d 298. 

¶39 Here, Tuchel’s claim fails on both performance and prejudice 

prongs. She does not address trial counsel’s stated reasons for not pursuing the 

records; counsel testified the records had virtually no strategic value in light of the 

chosen defense, which was that a jury “who lived in a county that has a vibrant 

agricultural farm presence” would not view the idea of a child working on a 

farm—including disposing of deceased animals—as causing mental harm. 

Moreover, while we recognize that prejudice is a difficult area of inquiry as it 

relates to the potential contents of medical records, Tuchel has not even hinted that 

there is a reasonable probability of a different outcome even if the records 

contained no indication of mental harm to J.M.
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E. Other Assertions of Ineffective Assistance of Counsel 

¶40 Tuchel makes several other assertions, including that her trial 

counsel was constitutionally ineffective for failing to seek to “disqualify” Heenan 

and the Sheboygan County District Attorney’s Office for conflicts of interest, for 

failing to seek to exclude from trial the photos of the deceased dogs in the freezers, 

and for failing to object to the State’s closing argument that not all the dogs in the 

freezer had died of “natural cause[s].” We deem Tuchel’s cursory arguments on 

these issues insufficiently developed and lacking in facial merit based on the 

arguments she does present. See Pettit, 171 Wis. 2d at 646. We will not further 

address them.

VI. New Trial In the Interest of Justice

¶41 Finally, as Tuchel clarifies in her reply brief, she argues for an 

interest-of-justice reversal based upon all of the preceding issues. As an initial 

matter, we note Tuchel relies on WIS. STAT. § 805.15(1), which is the interest-ofjustice standard applicable to circuit courts. Her arguments, however, appear 

directed to this court’s power of discretionary reversal under WIS. STAT. § 752.35. 

This is not merely a semantic difference; whereas we review circuit court 

determinations under § 805.15(1) using the highly discretionary erroneousexercise-of-discretion standard, Priske v. General Motors Corp., 89 Wis. 2d 642, 

662-63, 279 N.W.2d 227 (1979), we may exercise our discretionary reversal 

authority whenever it appears from the record that the real controversy has not 

been fully tried or where it is probable that justice has for any reason miscarried, 

see § 752.35.

¶42 Even construing Tuchel’s arguments as directed to our independent 

power of discretionary reversal, we perceive no basis to exercise that authority 
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here. We use our discretionary reversal power sparingly and only in the most 

exceptional cases. State v. Klapps, 2021 WI App 5, ¶31, 395 Wis. 2d 743, 954 

N.W.2d 38. Having rejected all of Tuchel’s arguments, we conclude this is not 

such a case. 

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)5.