COURT OF APPEALS

DECISION

DATED AND FILED

July 21, 2020

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. 2019AP590-CR Cir. Ct. No. 2016CF515

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JASON ALLEN DONAHUE,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Marathon County: 

MICHAEL K. MORAN, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, 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). 

¶1 PER CURIAM. Jason Donahue appeals from a judgment, entered 

upon his no-contest plea, convicting him of first-degree sexual assault of a child 
No. 2019AP590-CR

2

under the age of thirteen. Donahue argues the circuit court erred by denying his 

motion to suppress incriminating statements he made to police during a custodial 

interrogation for two reasons: (1) he did not knowingly, intelligently and 

voluntarily waive his Miranda1rights prior to giving his statements; and (2) even 

assuming he validly waived his Miranda rights, his statements were involuntary. 

We reject his arguments and affirm. 

BACKGROUND

¶2 In June 2016, the City of Wausau Police Department received a 

report that Donahue had sexually assaulted a five-year-old boy. The victim 

reported that Donahue put his “wiener” in the victim’s mouth and “orange pee 

pee” came out. The assault was alleged to have occurred the previous winter, in a 

home where Donahue previously lived with the boy and the boy’s family.2

¶3 On June 15, 2016, police arrested Donahue at his place of 

employment. They then transported him to the police station, where detectives 

Jennifer Holz and Nathan Pauls conducted a custodial interrogation.3

¶4 At the outset of the interrogation, Holz explained to Donahue that he 

“obviously” was “not free to leave.” Donahue acknowledged that he understood, 

 

1

 See Miranda v. Arizona, 384 U.S. 436 (1966).

2

 Specifically, Donahue, who is a registered sex offender, lived with the boy, the boy’s 

father, and the boy’s father’s girlfriend—who is Donahue’s sister—from June 2015 to 

February 2016. Donahue’s sister was the victim in his prior sexual offenses, one of which 

occurred between 1999 and 2000 (when Donahue was fourteen years old) and one of which 

occurred in 2004. 

3

 The entirety of this interrogation was video recorded. The circuit court viewed the 

recording, which appears in the appellate record, before deciding Donahue’s suppression motion. 

We have also viewed the recording. 
No. 2019AP590-CR

3

and Holz then read him the Miranda warnings. After doing so, Holz asked 

Donahue if he understood his rights, and Donahue responded, “Yes, I do.” After 

Holz said, “What’s that?” Donahue again replied, “Yes.”

¶5 Holz next asked Donahue if he would be willing to answer 

questions. He initially responded, “No.” Holz then said, “What’s that, no?” and 

Donahue immediately changed his response to “yes.” Donahue then signed a 

Miranda waiver form. 

¶6 Holz began her questioning by informing Donahue she knew he was 

on “the registry.” She told him that she knew he had “always been very honest 

and forthcoming,” and that she hoped that would be “the case here.” She then 

asked Donahue to tell her what happened to the victim.

¶7 Donahue responded by telling the detectives he did not know what 

had happened to the victim and he denied assaulting him. For approximately ten

minutes, Holz and Donahue then discussed various topics, including: Donahue’s 

own childhood trauma (that is, sexual abuse of Donahue by his father); Donahue’s 

participation in therapy after sexually assaulting his sister; and the feelings of guilt 

that Holz told Donahue his sister felt for allowing Donahue to be alone with the 

victim. Throughout this discussion, Donahue continued to deny assaulting the 

victim and gave narrative responses to the questions asked of him.

¶8 Donahue then asked the detectives if they would prefer he “fake that 

I did it ... when in reality I never did it.” Holz replied that they just “want[ed] the 

truth so that [the victim] can heal. That’s all. We certainly are not asking you 

to ... to lie.” Donahue then shifted from outright denying that he assaulted the 

victim to stating he could not remember whether he did so. For approximately 

fifteen minutes, he continued to maintain he could not remember anything 
No. 2019AP590-CR

4

happening, although he stated he had a “feeling that it, it probably happened.” 

Holz eventually inquired whether Donahue had been diagnosed with a “memory 

disorder,” and Donahue responded that he had not.

¶9 Donahue also suggested to the detectives that he would like to 

continue counseling. At this, Holz informed Donahue that he would have to get 

counseling at jail and that it would be “better” for him to admit to what happened 

so that he could “go in front of a judge and say yes I need help.” Pauls

subsequently asked Donahue what he thought would “look better” to a 

prosecutor: admitting what happened or claiming that he did not remember.

¶10 Donahue then asked he be given a few minutes to try and remember

what happened. After sitting quietly for just over three minutes, Donahue stated 

he remembered “putting the tip of my penis in his mouth.” In the face of 

numerous follow-up questions concerning whether Donahue also ejaculated or 

urinated in the boy’s mouth, Donahue continued to deny that any such conduct 

occurred. He also continued to deny committing any other sexual assaults

throughout the remainder of the interrogation, which concluded just over one hour

after it began.

¶11 The State subsequently charged Donahue with first-degree sexual 

assault of a child under the age of twelve, contrary to WIS. STAT. § 948.02(1)(b) 

(2017-18).4 Donahue moved to suppress the statements he made during the 

interrogation, arguing he did not validly waive his Miranda rights and his 

statements were involuntary.

 

4

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

noted. 
No. 2019AP590-CR

5

¶12 Donahue did not testify at the suppression hearing. He did, 

however, call Dr. Steven Benson, a forensic psychologist who had performed a 

forensic evaluation on Donahue. Based on his evaluation,5 Benson testified he

diagnosed Donahue with “schizoaffective disorder” and “mild intellectual 

disability.” Regarding the latter diagnosis, Benson testified that Donahue had an 

intelligent quotient (IQ) score of 80. Given Donahue’s cognitive capacity, Benson 

stated Donahue would have “major issues with seeing how things fit together” 

and, therefore, may have lacked a full understanding of the implication of his 

Miranda waiver. Further, Benson testified that Donahue was “submissive and for 

virtually his entire life he has been taught to submit to authority whether just or 

not.”

¶13 The circuit court denied Donahue’s motion in an oral decision. The 

court determined that “considering the totality of the circumstances ... [Donahue] 

understood his constitutional rights and made a knowing, intelligent, voluntary 

waiver of those rights which satisfies the Miranda requirements for the rights 

being given.” 

¶14 Regarding the voluntariness of Donahue’s statements, the circuit 

court concluded that the record contained no evidence of coercive police activity. 

The court based this conclusion on the following findings:

The detectives did not brandish their firearms at any time 

during their interview. They did not touch the defendant or 

 

5

 Benson prepared a report based on his evaluation of Donahue, which was submitted 

into evidence. As relevant to this appeal, that report indicated that Donahue had been enrolled in 

special education courses beginning in middle school, and until he graduated from high school in 

2004. The report characterized Donahue’s work history as “sporadic,” although it noted that he 

had worked continuously during the eighteen months prior to his arrest at “Great Lakes Cheese as 

a transporter.”
No. 2019AP590-CR

6

use physical force with him. They did not threaten him, did 

not yell or scream at him, and the interview lasted a little 

over an hour, I think, a minute and––or an hour and one 

minute. Handcuffs were removed and they indicated they 

used interrogation techniques according to their training

and the evidence. 

¶15 The circuit court then noted that it need not weigh the conduct of 

detectives Pauls and Holz against the personal characteristics of Donahue, because

“coercive police activity is necessary to predicate [a] finding that a confession is 

not voluntary.” Nonetheless, the court decided to “address [Donahue’s] personal 

characteristics, because really the heart of what the defense is arguing here is that 

[Donahue’s] personal characteristics are part and parcel of why this [interrogation] 

is coercive activity.” The court then noted:

At the time of the interview the defendant was 30 years old, 

graduated from high school, had a job, volunteered for 

additional responsibilities at his place of employment. He 

advanced to different positions in his occupation, had 

expressed a desire to learn development skills, lived with a 

roommate, paid his rent on time, had interacted with law 

enforcement before [the interrogation], which is important 

when we look at characteristics, and during his interview he 

occasionally asked questions of the detectives. He asked 

clarifying questions if he did not understand something, 

and at one point stated he understood what Detective Pauls 

was saying. He further indicated that he had counseling 

before and wished to continue counseling in the future.

 ....

I cannot, based upon [Dr. Benson’s] testimony, deny that

the defendant has some impairment based upon the testing. 

But I cannot find from the record and my viewing of the 

video that the impairment created a situation that renders 

this statement involuntary.

The court further observed that Donahue’s continued denials of either ejaculating 

or urinating into the victim’s mouth demonstrated that Donahue was not “merely 
No. 2019AP590-CR

7

just mimick[ing] back or parrot[ing] back exactly what the detectives were 

asking.” 

¶16 Donahue moved for reconsideration, and the circuit court affirmed 

its prior decision. Donahue subsequently pled no contest to an amended charge of 

first-degree sexual assault of a child under the age of thirteen, contrary to WIS.

STAT. § 948.02(1)(e). Donahue now appeals, challenging the denial of his 

suppression motion. See WIS. STAT. § 971.31(10). Additional facts are included 

below. 

STANDARD OF REVIEW

¶17 Our review of a circuit court’s denial of a motion to suppress 

presents a mixed question of fact and law. State v. Casarez, 2008 WI App 166, 

¶9, 314 Wis. 2d 661, 762 N.W.2d 385. We uphold the circuit court’s findings of 

historical fact unless they are clearly erroneous, but the application of the law to 

those facts is a question of law that we review independently. Id.

DISCUSSION

I. Waiver

¶18 Donahue first argues the circuit court erred by concluding that he 

validly waived his Miranda rights. When the State seeks to admit into evidence 

an accused’s custodial statement, both the United States and Wisconsin 

constitutional protections against compelled self-incrimination require the State to 

show that the accused was adequately informed of his or her Miranda rights and 

validly waived those rights. State v. Santiago, 206 Wis. 2d 3, 18, 556 N.W.2d 

687 (1996). In order to be valid, a Miranda waiver must be knowing, voluntary 

and intelligent. State v. Ward, 2009 WI 60, ¶30, 318 Wis. 2d 301, 767 N.W.2d 
No. 2019AP590-CR

8

236. A waiver is knowing, voluntary and intelligent where it is the product of a 

free and deliberate choice and has been made with a full awareness of both the 

nature of the right being abandoned and the consequences of the decision to 

abandon it. Id. 

¶19 The State establishes a prima facie showing of a valid Miranda 

waiver by demonstrating law enforcement informed a defendant of all the rights 

and admonitions required by Miranda, and the defendant indicated that he or she 

understood those rights and was willing to make a statement. See State v. Lee, 

175 Wis. 2d 348, 360, 499 N.W.2d 250 (Ct. App. 1993). Once this prima facie 

case has been established, a court may conclude a defendant’s waiver was 

nevertheless invalid only if the defendant presents “countervailing evidence” to 

show that he or she did not, in fact, knowingly, intelligently, and voluntarily waive 

his or her Miranda rights. See id. at 360-61. “It is only when the evidence in the 

case shows that the defendant could not comprehend even the most basic concepts 

underlying the Miranda warnings that the courts have found an unintelligent 

waiver.” Collins v. Gaetz, 612 F.3d 574, 588 (7th Cir. 2010).

¶20 We conclude the State made a prima facie showing that Donahue 

validly waived his Miranda rights and that Donahue failed to present 

countervailing evidence to rebut that showing. Concerning the State’s prima facie 

showing of a valid waiver, the circuit court found that after Holz read Donahue his 

Miranda warnings, Donahue twice indicated he understood his rights, and 

Donahue then agreed to make a statement. 

¶21 Donahue does not argue the circuit court’s factual findings in this 

regard were clearly erroneous. Instead, he argues that although the court’s 

findings “may satisfy the prima facie proof requirements for many suspects, ... 
No. 2019AP590-CR

9

this proof is insufficient when dealing with suspects who have cognitive and 

mental limitations.” In support of this contention, Donahue relies primarily on

Schultz v. State, 82 Wis. 2d 737, 264 N.W.2d 245 (1978).

6

¶22 Donahue’s reliance on Schultz is unavailing. In that case, our 

supreme court explicitly stated the defendant’s “outward appearance” at the time 

he waived his Miranda warnings was what determined whether the State had 

made a prima facie showing of a valid Miranda waiver. See id. at 748. Thus, 

because the defendant in that case “appeared to be coherent, alert and intelligent,” 

when law enforcement read him his Miranda rights, the court concluded the State 

established a prima facie case of a valid Miranda waiver. Id. 

¶23 Here, the circuit court found in its original decision denying 

Donahue’s suppression motion that there was “no evidence that the detectives had 

an inkling” that Donahue suffered from cognitive limitations at any point during 

the interrogation. The court reiterated this finding when it denied Donahue’s

motion for reconsideration, stating, “I don't see [any cognitive] limitations 

manifesting themselves in the video.” Consequently, we conclude Schultz 

supports, rather than undermines, the court’s determination that the State 

established a prima facie showing that Donahue validly waived his Miranda 

rights. 

 

6

 The only other case Donahue cites in support of his argument that the personal 

characteristics of a defendant may affect the level of proof necessary for the State to make a 

prima facie showing of a valid Miranda waiver is State v. Moore, 2015 WI 54, 363 Wis. 2d 376, 

864 N.W.2d 827. Donahue’s reliance on Moore is inapposite; the Moore court did not consider 

the validity of the defendant’s Miranda waiver. See generally, id. Instead, the Moore court 

considered whether the defendant understood his Miranda rights in the context of determining 

whether the statements made by the defendant during his custodial interrogation were voluntary. 

Id., ¶65. We discuss Moore in that light later in this opinion. 
No. 2019AP590-CR

10

¶24 Donahue next asserts that, “even if the State did make a prima facie 

showing of a valid Miranda waiver,” he “presented an overwhelming body of 

countervailing evidence through Dr. Benson” that established his waiver was, in 

fact, invalid. In support of his assertion, Donahue merely summarizes the 

testimony Benson gave at the suppression hearing regarding Donahue’s limited 

cognitive capacity. Donahue argues that testimony shows he lacked a “full 

awareness” of his rights and the consequences of waiving them.

¶25 We are not persuaded. By focusing solely on Benson’s testimony

regarding his cognitive capacity, Donahue implicitly invites us to adopt a 

categorical rule that individuals with certain intellectual limitations are unable, as 

a matter of law, to validly waive their Miranda rights. But Donahue cites no legal 

authority supporting such a rigid rule, and he ignores binding precedent directing 

us to consider the totality of the circumstances when determining the validity of a 

Miranda waiver. See State v. Hambly, 2008 WI 10, ¶91, 307 Wis. 2d 98, 745 

N.W.2d 48. That standard applies even when a defendant “casts [her- or] himself 

as limited in intelligence and sophistication.” Id. 

¶26 In this case, the totality of the circumstances demonstrates that 

Donahue’s Miranda waiver was valid. The circuit court found that Donahue’s 

“response to the explanation of why [Holz] had to read him his rights ... illustrates 

his understanding of what’s happening” and, therefore, that Donahue “understood 

each right and was willing to waive them and answer questions.” A defendant’s 

coherent responses to law enforcement’s explanation of his or her Miranda rights 

supports a conclusion that his or her waiver of those rights was valid. State v. 

Beaver, 181 Wis. 2d 959, 967, 512 N.W.2d 254 (Ct. App. 1994).
No. 2019AP590-CR

11

¶27 Further, the circuit court also found that Donahue had been 

“questioned by law enforcement” prior to his June 15, 2016 interrogation, and 

therefore had a “basis for understanding the process.” A defendant’s prior 

experience with law enforcement—and familiarity with Miranda warnings—is a 

proper factor for a court to consider when determining whether a valid Miranda 

waiver occurred. See State v. Hampton, 2010 WI App 169, ¶33, 330 Wis. 2d 531, 

793 N.W.2d 901.

¶28 Donahue contends that the State presented no “explicit evidence that 

Mr. Donahue made any sort of a Miranda waiver as part [of his] prior police 

contact.” Thus, he appears to argue that the circuit court’s finding that he had a 

“basis for understanding the process” was clearly erroneous. In so arguing, 

Donahue ignores our standard of review. To explain, by faulting the State for not 

introducing “explicit evidence” of whether he was advised of his Miranda rights 

during his prior contacts with police, he fails to recognize that a circuit court’s 

factual findings are not clearly erroneous if the findings are supported by any 

credible evidence in the record, or any reasonable inferences from that evidence. 

See Insurance Co. of N. Am. v. DEC Int’l, Inc., 220 Wis. 2d 840, 845, 586 

N.W.2d 691 (Ct. App. 1998). We conclude the court could reasonably infer that 

Donahue’s prior questioning by law enforcement involved him being advised of 

his Miranda rights. 

II. Voluntariness of statements

¶29 Donahue next argues that even if he validly waived his Miranda 

rights, the statements he made during his interrogation were involuntary. When a 

defendant challenges the voluntariness of the statements he or she made to law 

enforcement, the State bears the burden of showing by a preponderance of the 
No. 2019AP590-CR

12

evidence that the statements were voluntary. See State v. Moore, 2015 WI 54, 

¶55, 363 Wis. 2d 376, 864 N.W.2d 827. We evaluate voluntariness in light of all 

the circumstances surrounding the interrogation and balance the defendant’s 

personal characteristics against the actions of law enforcement. See id., ¶56. 

Because a defendant’s personal characteristics alone cannot form the basis for 

finding that his or her statements were made involuntarily, however, we “cannot 

properly label a statement involuntary unless there is ‘some affirmative evidence 

of improper police practices deliberately used to procure a confession.’” State v. 

Dobbs, 2020 WI 64, ¶72, __ Wis. 2d __, __ N.W.2d __ (citing Moore, 363 

Wis. 2d 376, ¶56). 

¶30 We conclude that Donahue’s failure to establish that detectives Holz 

and Pauls engaged in any improper practices is fatal to his claim that his 

statements were involuntary. See Dobbs, __ Wis. 2d __, ¶73. Donahue makes 

much of the fact that the detectives “both testified to a litany of tactics and tools 

they used during the interrogation.” Namely, he points to the fact that the 

detectives: (1) positioned themselves with “no barrier” between themselves and 

Donahue; (2) repeatedly demanded he tell them the truth; (3) referenced 

Donahue’s prior record; (4) “create[d] empathy for the alleged child victim”; 

(5) told Donahue the alleged child victim needed help; (6) informed Donahue they 

had experience investigating child sexual assaults; (7) “deflect[ed] blame”; 

(8) offered explanations for “how the offense might be an accident”; 

(9) “introduce[d] facts provided by the victim”; (10) “appeal[ed] to [Donahue’s] 

morality”; and (11) “encourage[d] a confession so [Donahue could] move on, and 

on and on.”

¶31 Even accepting Donahue’s premise that the detectives engaged in all 

of the conduct he describes during his interrogation, we reject Donahue’s assertion 
No. 2019AP590-CR

13

that this conduct is evidence of improper police practices. We do so for two 

reasons. First, Donahue fails to cite any controlling law holding these tactics—at 

least to the extent they are employed either individually or collectively in an 

interrogation of an “average” defendant—are improper. Moreover, our case law 

supports the contrary conclusion. See Moore, 363 Wis. 2d 376, ¶64 (noting that 

although “tactics such as minimizing, suggesting that [the victim’s] death may 

have been an accident, and telling [the defendant] that other witnesses were saying 

he shot [the victim]” may have influenced the defendant, “they are tactics that 

courts commonly accept”).

¶32 Second, Donahue suggests that even if the tactics detectives Holz 

and Pauls used would not be improper when employed against an “average” 

defendant, they were improper when used during his interrogation due to his 

cognitive limitations. In support, he analogizes the detectives’ conduct to that 

used by police in State v. Hoppe, 2003 WI 43, 261 Wis. 2d 294, 661 N.W.2d 407. 

We are not persuaded.

¶33 In Hoppe, our supreme court held that a defendant’s “open and 

obvious” impairments7rendered otherwise permissible interrogation techniques 

coercive. See id., ¶¶51, 59. Here, in contrast, the circuit court found that Donahue 

did not display any impairment during his interrogation. That finding is not 

clearly erroneous.

 

7

 These impairments, which were caused by the defendant’s chronic alcoholism, 

included hallucinations, slurred speech, short-term memory problems, and an inability to stay 

awake. See State v. Hoppe, 2003 WI 43, ¶48, 261 Wis. 2d 294, 661 N.W.2d 407. 
No. 2019AP590-CR

14

¶34 Because Donahue did not display any impairment during his 

interrogation, we conclude that our supreme court’s decision in Moore, rather than 

Hoppe, controls. In Moore, after reading a fifteen-year-old suspect8 his Miranda 

rights, police interrogated him for approximately five and one-half hours, over an 

eleven-hour period, until he gave a confession. Moore, 363 Wis. 2d 376, ¶62. 

Like Donahue, that juvenile suspect had a “below-average intellect.”9 Id., ¶61. 

¶35 Against that backdrop, the Moore court did not view the use of 

interrogation techniques courts “commonly accept” as improper. Id., ¶64. Given 

that determination, we cannot conclude that the detectives here, by conducting a 

much shorter interrogation of an adult suspect with an IQ similar to the suspect in 

Moore—and without employing any impermissible interrogation techniques—

engaged in improper conduct. Therefore, based upon the lack of proof of any 

improper police practices, we conclude Donahue’s statements were voluntary.10 

See Dobbs, __ Wis. 2d __, ¶74.

 

8

 We note that courts “more carefully ... scrutinize” police conduct during interrogations 

of juveniles (like the defendant in Moore) than during interrogations of adults (like Donahue). 

See Moore, 363 Wis. 2d 376, ¶57.

9

 One evaluation of the defendant in Moore placed his IQ score between 71 and 84, and 

another placed his IQ score between 69 and 79. See Moore, 363 Wis. 2d 376, ¶124 n.9 

(Abrahamson, C.J., dissenting).

10

 The State raises an argument that even if the circuit court erred by failing to suppress 

Donahue’s confession, Donahue is still not entitled to plea withdrawal because he cannot show 

that the court’s decision caused him to enter his plea. We need not, and do not, address this 

argument. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 

(court of appeals need not address all issues raised by the parties if one is dispositive).
No. 2019AP590-CR

15

By the Court.—Judgment affirmed. 

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

RULE 809.23(1)(b)5.