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Failure to present evidence of alternative sources for child’s sexual knowledge wasn’t ineffective

State v. Bryanntton A. Brown, 2013AP1332-CR, District 1, 6/24/14 (not recommended for publication); case activity

Trial counsel was not ineffective for failing to present certain evidence that the complainant in Brown’s child sexual assault prosecution may have obtained her sexual knowledge from watching TV and movies and talking to her older sister. Nor was trial counsel ineffective for not taking steps to mitigate the impact of a letter Brown purportedly wrote to Carson, a fellow jail inmate, in which Brown admitted the charges. Finally, the circuit court didn’t erroneously exercise its sentencing discretion.

Alternate sources for child’s sexual knowledge

AW alleged Brown engaged in various sexual acts with her, but recanted her allegations before and at trial, saying she learned about the acts she described by watching Family Guy and Dirty Dancing, among other fare. Brown argued trial counsel should have introduced clips of Family Guy from YouTube to bolster AW’s recantation and counter the prosecutor’s argument to the jury that “common sense and your life experience” would tell them those shows didn’t depict some of the acts AW described. The court disagrees, despite the sexually explicit nature of the clips:

¶26      … [W]e see no basis for Brown’s assertions that his trial counsel was ineffective for failing to introduce specific Family Guy episodes into evidence because the clips he relies on are not sufficiently similar to AW’s allegations to lead anyone to believe she obtained her advanced sexual knowledge from the show. The fact that the show may be sexually explicit is not enough. …

Practice note: Brown gave website addresses to four YouTube clips from Family Guy episodes to demonstrate “the type of material” on the show, but he did not describe the content of the clips. (¶¶23-24). Unfortunately, “as of the time of this writing, three of those four videos have been removed from YouTube’s website due to copyright claims by Twentieth Century Fox Film Corporation. It is Brown’s responsibility, as the appellant, to ensure that the record is adequate and sufficiently complete to facilitate appellate review. See Seltrecht v. Bremer, 214 Wis. 2d 110, 125, 571 N.W.2d 686 (Ct. App. 1997).” (¶24). The court’s analysis of the content of the clips is based on the descriptions given by the state in its brief (which are mostly uncontradicted by Brown). (¶24).

Nor was counsel ineffective for failing to present the testimony of Danirees, AW’s sister, as another source of sexual knowledge. Brown’s postconviction affidavit about Danirees’s testimony was not sufficient detailed as to which acts she described and when she described them to AW, nor did it allege Danirees would have given trial counsel that information if he’d talked to her before trial. (¶¶27-28). Moreover, the affidavit mostly reiterated what AW told the jury in her recantation, so the jury already heard (and rejected) the information. (¶29).

Mitigating impact of letter

Trial counsel was not ineffective for failing to: (1) argue to the jury the letter was unreliable because it was not immediately collected from Carson; (2) object to the prosecutor’s mischaracterization of the handwriting expert’s testimony as to whether Carson wrote the letter; and (3) argue that Carson authored the letter and could have altered his handwriting to deceive the handwriting expert. “[T]he other evidence against Brown was so compelling that additional attacks on the Carson letter would have had no reasonable prospect of producing a different verdict, and as such, Brown suffered no prejudice.” (¶30). The other evidence included AW’s initial videotaped statements and her prior consistent statements to other people. (¶¶32-34).

For the same reason, evidence discovered after trial about Carson’s mental health issues doesn’t entitle Brown to a new trial (or postconviction discovery under State v. O’Brien, 223 Wis. 2d 303, 323, 588 N.W.2d 8 (1999)), in the form of an in camera review of Carson’s record by the circuit court). (¶¶37-41).


The circuit court did not erroneously exercise its sentencing discretion, as it adequately explained the sentence it imposed (¶¶45-48); didn’t consider an improper factor (the fact that Brown’s family protected him at the expense of AW, who was Brown’s sister) (¶¶49-50); and didn’t impose a harsh or unconscionable sentence (¶¶51-53).

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