A jury convicted Stroik of the sexual assault of a then-five-year old girl, “Amy,” the daughter of his girlfriend. Postconviction, Stroik brought a slew of claims for a new trial; the circuit court rejected them all. The court of appeals now holds that trial counsel performed deficiently in not obtaining a report from child protective services detailing an accusation Amy had made about her cousin a few months before she accused Stroik–an accusation about an assault quite similar in its details to the one she would later say Stroik committed. The court also finds a reasonable probability that this evidence would have resulted in an acquittal, and thus grants Stroik a new trial.
But first, the court discusses, at some length, a claim it ultimately rejects: that counsel was ineffective for failing to object to the state’s introduction of evidence and argument about Stroik’s alleged “high sex drive.” Though it notes that it need not decide this issue (because it’s granting a new trial on the one noted above) the court says it’s doing so in order to provide guidance for a potential future trial and also because “he role of character and other acts evidence is a frequently litigated topic, the parties have fully briefed the issue, and this case provides a helpful example of a situation in which the evidence is not relevant for any permissible purpose and is relevant only to prove propensity.” (n.14). The court explains:
During his opening statement and closing argument, the prosecutor made several comments about Stroik’s “sex drive.” By way of example, during his opening statement, the prosecutor asserted that Stroik had a “very high sex drive” and therefore, according to the prosecutor, “the presumption of course is that [he touched Amy] for a sexual purpose.” To give another example, during trial, the prosecutor questioned Laura about aspects of her sex life with Stroik and the frequency with which Stroik wanted to have sexual relations with Laura.
The court views the “sex drive” evidence as “general character evidence” under Wis. Stat. § 904.04(1), though it allows some of it could be viewed as encompassing other acts and thus falling under Wis. Stat. § 904.04(2). This distinction could matter because, as the court points out, character evidence is not subject to the other-acts exception found in Wis. Stat. § 904.04(2)(a). Whichever statute governs, the court says, the evidence was inadmissible, as it was not relevant for any permissible purpose (the first step of the Sullivan test):
When a party seeks to introduce other acts evidence for a nonpropensity purpose, admissibility is determined under the three-pronged test established in Sullivan, 216 Wis. 2d at 789. The proponent of the evidence must demonstrate that: (1) the other acts evidence is offered for a permissible nonpropensity purpose; (2) it is relevant to that purpose; and (3) its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
At trial, the State was required to prove that Stroik touched Amy “for the purpose” of “arousing or gratifying” himself. WIS. STAT. § 948.01(5)(a). Under some circumstances, specific instances of a defendant’s other conduct may be admissible for that purpose…. In Tabor, the defendant was charged with molesting a five-year old boy. Tabor, 191 Wis. 2d at 487. He had previously molested a nine-year-old girl, and the prosecutor argued that evidence of the prior assault was admissible to
prove Tabor’s “intent” and “motive” in the charged case…. On appeal, we affirmed the circuit court’s exercise of discretion, explaining that the prior conduct was not introduced for the impermissible purpose of proving propensity, but was instead for the acceptable purpose of proving intent. Id. at 494-95.
Here, by contrast, the State does not argue that evidence of Stroik’s sexual interest in his age-appropriate girlfriend is directly relevant to whether he would be sexually gratified by touching a child under the circumstances described in WIS. STAT. § 948.01(5)(a). We agree with the argument that trial counsel eventually made in his closing argument—the fact that Stroik was allegedly interested in frequent sex with Laura was not relevant to or probative of whether he would be sexually gratified by a prohibited touching of a five-year-old child. Therefore, unlike in Tabor, the evidence introduced about Stroik’s “sex drive” was not at all relevant to the intent element of the sexual assault crime charged in this case.
But, the court says, trial counsel was not deficient for failing to object to this evidence: instead, he attacked the prosecutor’s argument that it was relevant in closing. To the court of appeals, this, rather than objecting, was a reasonable enough approach to fall within the “wide range of reasonable professional assistance.” (¶50 (citing Strickland)).
Stroik fares better with the ineffectiveness claim based on the failure to investigate the CPS report. The state argues that the report doesn’t “conclusively” show that Amy’s accusation against the cousin was false; it admits of the possible inference that it was a true accusation she recanted under pressure. But, the court says, “conclusiveness” this isn’t the test:
As our supreme court explained in State v. Ringer, 2010 WI 69, ¶30, 326 Wis. 2d 351, 785 N.W.2d 448, evidence of a prior false allegation is admissible if it is “sufficient to support a reasonable person’s finding that the complainant made prior untruthful allegations.” (Emphasis in original.) The question is not whether the circuit court “is convinced by a preponderance of the evidence” that the prior allegations were false, but rather, whether “a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault.” Id., ¶32.
Nor was counsel’s failure to seek the report–though he was “vaguely” aware of the accusation against the cousin–a reasonable strategic decision:
Counsel understood that prior false allegations were admissible pursuant to an exception to the rape shield law, and in any event, this exception is not an unsettled or obscure area of the law. Counsel may have “assumed” that “the [circuit court] wouldn’t let [him] get it in,” but without knowing what the CPS report contained, this assumption is unsupported by any reasonable professional judgment. Trial counsel’s unsupported assumption that evidence of the prior allegation would be inadmissible was therefore not a reasonable strategic decision and is not entitled to any deference.
As for prejudice, the court of appeals has no trouble finding a reasonable likelihood that the CPS evidence would have changed the verdict; it notes the trial was a credibility contest between Amy and Stroik, and that evidence of a prior false accusation would have challenged the presentation of Amy as a “truthful” child. (¶¶65-66).