PER CURIAM.
¶ 1 Ronald Morgan appeals a judgment of conviction, entered upon a jurys verdict, for multiple sex offenses against fifteen-year-old Albert, as well as an order denying him postconviction relief. Morgan seeks a new trial, asserting that his trial attorney was constitutionally ineffective by failing to object to certain testimony from the victims mother and by permitting the prosecution to play a videotaped statement the victim gave a few days after the incident. We conclude Morgan has failed to demonstrate a reasonable probability of a different outcome even if the challenged evidence had been excluded as inadmissible hearsay. Accordingly, we affirm.
BACKGROUND
¶ 2 Morgan was charged with three counts of sexual assault of a child under sixteen years of age, as well as a single count of exposing a childs genitals. Albert was the States primary witness at trial. He testified that he was present with his immediate family at a relatives home for a family gathering in Marathon County on Saturday, August 24, 2013. Albert and his family had planned to sleep overnight in a camper on the relatives property.
¶ 3 Albert and Morgan were both present at the family gathering. Albert, Morgan, and a few other people were hanging out in the garage after the others had gone to bed. Between 12:00 and 12:30 a.m. on August 25, the other individuals present in the garage went to sleep, leaving Albert and Morgan alone. Albert testified that he could smell alcohol on Morgans breath.
¶ 4 Albert testified that, as he and Morgan were speaking, Morgan was seated across from Albert, facing him. Morgan placed his hands on Alberts thighs. Albert felt uncomfortable, but he thought it was some joke and put his hands on Morgans kneecaps. Morgan moved his hands farther up Alberts thighs, until they were partially underneath his shorts. Morgan then asked Albert, Have you thought about it? Albert said he did not know what Morgan meant. Morgan started rubbing his hands on Alberts thighs and said, You know. Albert testified he did not know what Morgan was talking about, and he took his hands off Morgans knees.
¶ 5 Albert further testified that during the ensuing silence, he got a hint that he knew what Morgan was talking about, although Albert could not recall what he said to Morgan in response. Morgan continued to ask whether Albert had ever thought about it, and Albert responded, Thought about sex? Anal sex? Morgan said No, not that, and he asked whether Albert want[ed] to try it, fly by night? Morgan then put his hands farther up Alberts shorts, touching his underwear.
¶ 6 Albert testified he then stood up and Morgan remained sitting. Albert further testified Morgan slid his hands up my shirt and was rubbing my nipples. Morgan then pulled down Alberts shorts and underwear and began fondling Alberts genitals. Morgan kissed Albert while he was fondling him. Albert testified he did not run because he was afraid Morgan would chase him, and he did not scream because he was afraid his family would come out and see what was happening.
¶ 7 Morgan told Albert that he had been watching [him] and that he might wait for [him] until he turned eighteen and graduated from high school. Morgan then performed oral sex on Albert. Morgan stopped when he saw a campers lights turn on. Albert then pulled up his underwear and shorts, and he eventually told Morgan he was going to bed.
¶ 8 Albert testified that when he returned to his familys camper, he did not tell his parents what had just happened with Morgan. His family left the following morning and returned to their home Sunday night. On Monday, August 26, 2013, Albert went to a band camp and had planned to bike home. On his way home, Albert was caught in the rain and ultimately called his mother, Jennifer, to pick him up. However, due to a miscommunication, his mother did not know where he was after camp, and she was furious when she had to pick him up.
¶ 9 Jennifer was still mad at Albert the following morning. Albert testified that, as they drove to a meeting that morning, he told his mother he had something to tell her. He told her partly what had happened with Morgan, and she phoned her husband, Alberts stepfather, who was a police officer. Police collected Alberts clothing and a nurse performed a sexual assault examination, but the authorities were unable to recover any of Morgans DNA or any other physical evidence of the sexual assaults.
¶ 10 At trial, Jennifer recounted her conversation with Albert in the car during which Albert first told her about the sexual assaults. She testified Albert started to cry and was very overwhelmed with emotion, and he told her in detail some of the things that had happened. Jennifer testified that Albert had told her that Morgan put his hands on Alberts thighs and said, Its been a long time since Ive touched or had felt hairy thighs like this. Albert also told Jennifer, Mom, I think this has happened before and Mom, you dont know, but theres worse. Jennifer said she was very sick to [her] stomach as Albert related how Morgan had put his mouth on [Alberts] penis.
¶ 11 Albert was taken to the Child Advocacy Center in Wausau, where he gave a videotaped statement to a forensic interviewer. The recording, which was approximately one hour long, was played for the jury during the forensic interviewers testimony. Alberts statements to the forensic interviewer regarding the incident with Morgan were generally consistent with his trial testimony. There were minor differences, however, including Alberts statement during the interview that Morgan pulled back several times when he had his hands on Alberts thighs, as if Morgan was having reservations about his conduct.
¶ 12 Morgans attorney did not object to Jennifers testimony, nor to the playing of Alberts recorded forensic interview. On the morning of the trials first day, Morgans attorney had filed a handwritten motion in limine to preclude the State from playing the recorded interview. Morgans attorney did not continue his objection after the State represented that it would be calling Albert to testify before his recorded statement was played.
¶ 13 The other evidence at trial included the testimony of the sexual assault nurse who examined Albert. Among other things, she testified as to what Albert told her about the assault. Additionally, a police detective testified regarding an interview he had with Morgan at the Marathon County Sheriffs Department following Alberts interview at the Child Advocacy Center. During the police interview, Morgan stated he had been drinking on the night in question, and he denied being able to remember anything more than touching Alberts legs and joking with him. However, Morgan also repeatedly agreed that Albert was a truthful person and wouldnt make up a story. Morgan further agreed that Albert was a pretty bright kid, he had a really good memory, and he was a standout detail[-]oriented person. Morgan acknowledged that he and Albert had engaged in small talk regarding homosexuality during the family gathering.
¶ 14 There were no defense witnesses, and Morgan elected not to testify. Instead, during its closing argument, the defense emphasized the lack of DNA evidence and the lack of eyewitnesses. The defense did not offer a possible motive for fabrication, but trial counsel did observe that Jennifer was mad at Albert in the days following the assault, and he opined that there were some strange dynamics in their family. The jury returned guilty verdicts on all counts.
¶ 15 Postconviction counsel was appointed for Morgan, and he filed several postconviction motions. As relevant here, Morgan alleged he received constitutionally deficient performance from his trial attorney. Morgan argued Alberts statements to his parents and Alberts videotaped interview were inadmissible and prejudicial hearsay, and his counsel should have objected to them. Morgan alternatively argued that a new trial was warranted in the interest of justice.
¶ 16 Following a Machner hearing, the circuit court denied Morgans motion in an oral ruling. The court first concluded that the statements Albert made during his recorded interview were hearsay and inadmissible under any exception to the hearsay rule. The court also appears to have assumed Alberts statements to his mother were inadmissible hearsay, although the court did not specifically analyze that issue. However, the court determined that, after examining the totality of the evidence, there was no reasonable probability of a different outcome had Morgans trial counsel performed adequately.
¶ 17 The circuit court, in particular, concurred with the opinion of Morgans trial attorney that Albert, a very credible witness, gave compelling testimony at trial. The court noted Morgan did not testify at trial to deny Alberts allegations. It also noted that Morgan, in his recorded interview, never directly denied Alberts allegations and, rather, repeatedly vouched for Alberts truthful character. Finally, the court observed that Alberts allegations of physical contact during the Child Advocacy Center interview aided the defense strategy, which was to emphasize that Morgans DNA was not found on Alberts clothing or body. Morgan now appeals.
DISCUSSION
¶ 18 Morgan raises the same ineffective assistance of counsel claims on appeal. An ineffective assistance of counsel claim presents a mixed question of fact and law. State v. Pico , 2018 WI 66, ¶ 13, --- Wis. 2d ----, 914 N.W.2d 95. The circuit courts findings of fact, which include the circumstances of the case and defense counsels conduct and strategy, will not be reversed unless they are clearly erroneous. Id. We independently review, as a matter of law, whether those facts demonstrate ineffective assistance of counsel. Id.
¶ 19 A defendant must show two things to obtain a new trial based on ineffective assistance of counsel. First, he or she must show that his or her attorney provided deficient representation. State v. Erickson , 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). Second, the defendant must show that the deficiency prejudiced his or her defense. Id. If a defendant fails to make a sufficient showing on one prong, we need not address the other. Pico , --- Wis. 2d ----, ¶ 20.
¶ 20 Here, we conclude Morgan has failed to demonstrate that his attorneys allegedly deficient conduct caused prejudice to his defense. To show prejudice, the defendant must establish a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington , 466 U.S. 668, 694 (1984).
¶ 21 In making the prejudice determination, we must consider the totality of the evidence before the jury. Id. at 695. A verdict only weakly supported by the evidence is more likely to have been affected by errors than one with overwhelming record support. Id. at 696. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court ... must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id.
¶ 22 Morgan primarily takes issue with two evidentiary presentations to the jury. First, he focuses on Jennifers testimony about Alberts description of the sexual assaults. He specifically zeroes in on three pieces of information elicited during Jennifers testimony: (1) that, during the assaults, Morgan said, Its been a long time since Ive touched or had felt hairy thighs like this; (2) that Albert told Jennifer, [M]om, I think this has happened before; and (3) that Albert said, [M]om, you dont know, but theres worse. Second, Morgan challenges the presentation of Alberts videotaped Child Advocacy Center interview to the jury. He argues that, in each instance, the evidence was highly prejudicial inadmissible hearsay to which his attorney should have objected.
¶ 23 We first evaluate the content and probative value of the challenged evidence to determine the degree to which it might have influenced the jurys verdict. Morgan claims Jennifers testimony regarding the three specific statements Albert made were improper and inadmissible other acts evidence. True other acts evidence can be problematic because it invites the jury to focus on the character of the accused, which magnifies the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged. State v. Sullivan , 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998). However, we disagree that the various statements at issue neatly fit within this category of evidence.
¶ 24 All three challenged hearsay statements testified to by Jennifer contained a high degree of ambiguity. One reasonable construction of the statements, taken in their totality, is that Albert was of the opinion that Morgan had committed a previous sexual assault of a child. Even in this worst-case scenario for Morgan, Alberts prefatory I think clearly signaled to the jury that a prior child sexual assault was only Alberts unproven supposition. There are also numerous reasonable interpretations of the statements that are fairly innocuous. In particular, given Morgans statement that it had been a long time since he touched hairy thighs, it is equally plausible that Albert was referring to homosexual conduct generally, as Morgan was married with a wife and children at the time of the offenses. Thus, we disagree with Morgan that the statements necessarily constituted an allegation of prior abuse that confused the issues and led the jury to convict Morgan because it believed he escaped punishment for another crime.
¶ 25 With respect to Alberts videotaped Child Advocacy Center interview, we agree with Morgans assertion that [v]ideotaped statements of children are powerful, persuasive evidence for the State. But a childs live trial testimony can also be powerful, persuasive evidence, especially if it withstands cross-examination. It is undisputed that the statements Albert gave during the interview were generally consistent with his live trial testimony, which was presented prior to the playing of the recording and was subject to cross-examination. Morgan does not challenge Alberts trial testimony in any manner, nor does he challenge the testimony of the nurse that examined Albert regarding what Albert told her about the sexual assaults. Thus, Alberts recorded statements, as well as his statements to his mother about what happened, were merely cumulative of other, properly admitted evidence.
¶ 26 Morgan relies on State v. Peters , 166 Wis. 2d 168, 479 N.W.2d 198 (Ct. App. 1991), to assert that he suffered prejudice as a result of the jury being presented with inadmissible hearsay evidence that bolstered Alberts credibility. In Peters , we reversed a child sexual assault conviction because the jury had heard inadmissible hearsay evidence from the victims classmates that, years after the alleged assaults, the victim had revealed the crimes to them. Id. at 173. The investigating officer had also testified that the victims in-court testimony regarding the sexual assaults was the same as her previous, out-of-court statements to him. Id. In Peters , defense counsel had objected to the foregoing evidence on hearsay grounds. Id. at 174. We concluded there was a reasonable possibility that the defendant was prejudiced by the admission of the hearsay evidence, given the specific nature of the inadmissible testimony, the number of inadmissible statements admitted, the implication that additional uncharged sexual assaults occurred, and the lack of other evidence corroborating the sexual assaults. Id. at 180.
¶ 27 Here, the considerations we found pertinent in Peters do not counsel in favor of a finding of prejudice. The defendant in Peters testified on his own behalf and denied all of the victims allegations. Id. at 173. The lack of corroborating testimony from the victims three classmates would have materially changed the evidence before the jury and may have increased the persuasiveness of the defendants denials of the years-old offenses. The inadmissible hearsay here consisted of a brief recitation from Jennifer about what Albert had told her about the assaults, as well as statements Albert gave just days after the incident had occurred. As previously explained, the victims out-of-court statements generally mirrored his in-person testimony at trial, and they did not include impermissible other acts evidence. While his out-of-court statements were cumulative to evidence properly admitted, we cannot conclude that Morgan has demonstrated the jury was inclined to believe Albert merely because it heard Alberts consistent version of events multiple times. Indeed, it had no other version to compare against Alberts testimony.
¶ 28 In this vein, other matters also inform our determination that there was not a reasonable probability of a different result had Morgans attorney performed effectively. First, although Morgan correctly observes that the case hinged on Alberts credibility, Morgan did not offer any evidence that created a substantial question as to Alberts truthfulness or the credibility of his testimony. Morgan offered no motive for fabrication. Although Morgan did not testify, the statements he made to police during his interview were admitted into evidence. Morgan corroborated significant details of Alberts testimony, including that he was present at the family gathering, had been drinking, made small talk about homosexuality with Albert, stayed up late alone with Albert, and placed his hands on Alberts thighs. During the interview, Morgan did not directly deny that the assaults had occurred, instead expressing his hope that they did not and claiming he could not remember the assaults if they did occur. At one point during the interview, Morgan conceded it was possible that he touched Albert, but he added, I dont remember doing that and oh my God if I did, um....
¶ 29 Second, both Morgans trial counsel and the circuit court recognized that Albert provided compelling testimony regarding the assaults. Significantly, during his police interview, Morgan also repeatedly vouched for the victims credibility, agreeing Albert was a very honest person, a truthful kid, and that he wouldnt make up a story. Given the persuasive nature of the victims testimony combined with Morgans own positive assessments of the victims credibility, we cannot conclude that there is a reasonable probability of a different result had the jury not been exposed to the hearsay evidence.
¶ 30 Third and finally, the defense theory emphasizing the lack of DNA evidence was not necessarily damaged by the jury hearing Alberts version of events multiple times. Regardless of how many times the jury heard Alberts story, the lack of DNA or other physical evidence was unchanged. Moreover, Albert consistently described significant physical contact: Morgan touching Alberts clothing, fondling his genitals and other body parts, kissing him, and engaging in mouth-to-penis contact. The defense theory was not hampered by the jury hearing additional (albeit hearsay) evidence that physical contact occurred. Indeed, Morgans defense strategy may have been aided by the victims repeated assertions that various parts of his body had been touched, yet no physical evidence was presented at trial.
¶ 31 Morgan also asserts he is entitled to a new trial in the interest of justice. We may reverse in the interest of justice if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried. WIS. STAT. § 752.35. Morgan contends a new trial is warranted under both prongs. He argues the real controversy was not fully tried because the jury heard multiple prejudicial hearsay statements that should not have been admitted a trial. Morgan contends the hearsay evidence reinforced Alberts testimony and improperly bolster[ed] his credibility. Morgan argues his conviction was a miscarriage of justice for the same reasons.
¶ 32 We reserve our reversal authority under WIS. STAT. § 752.35 for exceptional causes. See Vollmer v. Luety , 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990). Morgans interest-of-justice arguments are merely a repackaging of his ineffective assistance of counsel claims. Our supreme court has made clear that the Strickland test is the proper test to apply in the context of an ineffective assistance of counsel claim. State v. Mayo , 2007 WI 78, ¶ 60, 301 Wis. 2d 642, 734 N.W.2d 115. In any event, we would reject the merits of Morgans interest-of-justice arguments. For the reasons set forth above, our review of the record demonstrates that the real controversy-i.e., whether Morgan committed the charged crimes-was fully tried. Additionally, we cannot conclude it is probable that justice has miscarried based on the erroneous admission of the challenged evidence.
By the Court. -Judgment and order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
Pursuant to the policy underlying Wis. Stat. Rule 809.86 (2015-16), we use pseudonyms for the victim and certain of his relatives.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
See Wis. Stat. §§ 948.02(2), 948.10(1).
Morgan filed an original and then an amended postconviction motion, as well as a supplemental postconviction motion. Only the supplemental motion is at issue in this appeal.
State v. Machner , 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
By the time of the trial, Albert had turned sixteen years old. His recorded statements were therefore not admissible under Wis. Stat. § 908.08(3)(a)2., which requires that the trial or hearing commence before the childs sixteenth birthday for the recorded statements to be admissible. The circuit court also rejected the States arguments that the recording was admissible as containing Alberts prior consistent or prior inconsistent statements. Finally, the court rejected the States reliance on the rule of completeness set forth in State v. Sharp , 180 Wis. 2d 640, 511 N.W.2d 316 (Ct. App. 1993), as well as its reliance on the residual hearsay exception found in Wis. Stat. §§ 908.08(7) and 908.03(24).
The courts use of the term possibility in State v. Peters , 166 Wis. 2d 168, 479 N.W.2d 198 (Ct. App. 1991), highlights that it was not an ineffective assistance of counsel case, but rather one of direct review of a preserved evidentiary objection in which the State had the burden of establishing harmless error. Id. at 180 (citing the reasonable possibility that the error contributed to the conviction standard from State v. Dyess , 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985) ). For purposes of an ineffective assistance of counsel claim, a mere possibility of a different outcome is insufficient; there must be a substantial, not just conceivable, likelihood of a different result. State v. Starks , 2013 WI 69, ¶ 55, 349 Wis. 2d 274, 833 N.W.2d 146.