¶1 Tomas Hoyle appeals his judgment of conviction for two counts of second-degree sexual assault and two counts of second-degree sexual assault of a child less than sixteen years of age. He also appeals the order denying his motion for postconviction relief. As relevant to this appeal, Hoyle argues
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that the prosecutor improperly commented on Hoyles exercise of his Fifth Amendment privilege not to testify by stating in closing arguments that the evidence was “uncontroverted,” that the jury “heard no evidence,” and that there was “absolutely no evidence,” disputing the alleged victim Hannahs account of the alleged sexual assault.
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¶2 We resolve this appeal on the narrowest possible ground. See Miesen v. DOT, 226 Wis. 2d 298, 309, 594 N.W.2d 821 (Ct. App. 1999) (court of appeals “should decide cases on the narrowest possible grounds”); 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). We conclude the States repeated argument that the evidence was “uncontroverted” was improper under the circumstances of this case, where the only person who could controvert the alleged victims testimony was Hoyle. The prosecutors “uncontroverted” arguments along with the statements that the jury heard “no evidence disputing [Hannahs] account of that sexual assault” and that “[t]here [was] absolutely no evidence disputing [Hannahs] account of what occurred” thus violated Hoyles Fifth Amendment right not to testify at trial. We therefore reverse and remand for a new trial.
BACKGROUND
¶3 The State charged Hoyle with four sexual assault offenses that occurred in February 2017: two counts of second-degree sexual assault in violation of Wis. Stat. § 940.225(2)(a); and two counts of second-degree sexual assault of a child less than sixteen years of age in violation of Wis. Stat. § 948.02(2). After a two-day trial, the jury found Hoyle guilty on all counts.
¶4 Hannah, then fifteen years old, was the States primary witness at trial, and its case depended almost entirely upon her credibility. Hannah disclosed the assault in March 2017 to a school liaison officer, Joseph Nelson. Nelson interviewed Hannah, and then turned the investigation over to investigator Kari Szotkowski.
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Szotkowski then interviewed Hannah regarding the details of the assault; however, Hannah would not identify the assailant. In May 2017, Hannah identified the assailant to Nelson as Hoyle.
¶5 At trial, Hannah testified that she “had taken some Vicodin and drank some alcohol” throughout the day of the assault. Hannah further testified that on her way to her friends house, Hoyle, the older stepbrother of her former best friend, “drove through and asked if [she] wanted to hang out.” Hannah then accepted a ride from Hoyle.
¶6 Hoyle and Hannah drove toward Chippewa Falls. After driving for some time, Hoyle turned down a dead-end road. Hannah then got out of the car, and when Hoyle instructed Hannah to get back into the car, Hannah climbed into the back passenger seat. According to Hannah, Hoyle then joined her in the back seat and began to sexually assault her. After the assault, Hoyle returned Hannah to her home and he said, “if anyone finds out about this, someone is going to end up dead.”
¶7 Szotkowski was the only other witness for the State. Szotkowski testified that based on the description Hannah provided, she determined that the road where the alleged assault occurred was in Chippewa County. Szotkowski admitted that she did not speak about the incident with Hannahs family members or with the friend whom Hannah was supposed to meet on the day of the assault. Szotkowski also testified that during her interview with Hannah, Hannah made no mention of having anything to drink or being under the influence of drugs at the time of the assault.
¶8 Hoyle exercised his right not to testify, and the defense did not otherwise introduce any evidence. During closing arguments, the prosecutor repeatedly argued, over Hoyles objection, that Hannahs testimony was “uncontroverted.” The prosecutor also stated to the jury that it “heard no evidence disputing [Hannahs] account of that sexual assault” and that “[t]here [was] absolutely no evidence disputing [Hannahs] account of what occurred.”
¶9 After his convictions, Hoyle filed a motion for postconviction relief. Hoyle argued that the State improperly commented on Hoyles right not to testify in its closing argument.
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The circuit court denied Hoyles postconviction motion. Hoyle now appeals.
DISCUSSION
¶10 Whether a prosecutor improperly commented on a defendants exercise of his or her Fifth Amendment right not to testify presents a question of law that is subject to our de novo review. See State v. Cockrell, 2007 WI App 217, ¶14, 306 Wis. 2d 52, 741 N.W.2d 267. The “Fifth Amendment [privilege against self-incrimination] forbids ․ comment by the prosecution on the accuseds silence.” Griffin v. California, 380 U.S. 609, 615 (1965). Such arguments, if not corrected by the court, amount to “a penalty imposed by courts for exercising a constitutional privilege.” Id. at 614.
¶11 Even indirect comments about a defendants silence will violate the privilege, such as when a prosecutor points out a lack of evidence that only a defendant could provide by waiving his or her privilege. See Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972); see also United States v. Cotnam, 88 F.3d 487, 499 (7th Cir. 1996). Accordingly, the analysis “for determining whether remarks are directed to a defendants failure to testify is ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d 824 (Ct. App. 1984) (citation omitted).
¶12 After Johnson, this court set out a three-factor test for determining when a prosecutors argument can be held “to constitute an improper reference to [a] defendants failure to testify.” State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669 (discussing United States v. Robinson, 485 U.S. 25, 34 (1988)). First, “the comment must constitute a reference to [a] defendants failure to testify.” Jaimes, 292 Wis. 2d 656, ¶21. Second, “the comment must propose that the failure to testify demonstrates guilt.” Id. Third, “the comment must not be a fair response to a defense argument.” Id.
¶13 Regarding the first factor, the prosecutor here told the jury that Hannahs testimony was “uncontroverted.” Importantly, the prosecutor went on to note that the jury heard “no evidence disputing [Hannahs] account of that sexual assault” and that “[t]here [was] absolutely no evidence disputing [Hannahs] account of what occurred.” Hoyle argues that the prosecutor “quite clearly, and repeatedly” invited the jury to draw a negative inference from the lack of any evidence controverting Hannahs testimony. Under the trial record in this case, Hoyle contends that the only witnesses to the alleged assault were Hannah and Hoyle. Accordingly, the only person who could controvert Hannahs testimony was Hoyle. Thus, Hoyle asserts “the only way for a jury to accept the prosecutors invitation to draw a negative inference from the lack of evidence controverting [Hannah]’s account was to draw a negative inference from Hoyle exercising his right not to give such evidence through testimony.” Hoyle argues that this approach, at least under the facts of this case, violated his right against self-incrimination.
¶14 At the postconviction hearing, the State relied on Bies to defend both its use of the term “uncontroverted” and its statements that the jury “heard no evidence,” and that there was “absolutely no evidence” disputing Hannahs account of the alleged sexual assault. In Bies, the defendant was convicted of first-degree murder and armed robbery and was sentenced to an indeterminate term of fifteen years’ imprisonment for the armed robbery to run concurrently with a mandatory term of life imprisonment for first-degree murder. Bies, 53 Wis. 2d at 323. The charges stemmed from the murder and robbery of the victim after Bies and his accomplice, Flann, had been drinking at several bars. Id. Flann pleaded guilty to third-degree murder and robbery, and he was the States chief witness at Bies’ trial. Id. at 324. During closing argument, the prosecutor observed that certain evidence was uncontroverted. Id. at 325. Bies, who chose not to take the stand in his own defense, asserted that the term “uncontroverted” was a comment on his failure to testify. Id.
¶15 Like in Bies, the State here argues “ ‘uncontroverted’ simply means that ‘no evidence has been introduced to show the innocence of the defendant,’ which is proper grist for the prosecutorial mill.” See id. In addition, the State argues that the use of the word “uncontroverted” in this case “does not fit the outline of objectionable argument set out in Johnson.” The State contends Johnson reiterated Bies’ admonition that “[q]uestions about the absence of facts in the record need not be taken as comment on defendants failure to testify.” See Johnson, 121 Wis. 2d at 246. The State also argues that Johnson said prosecutorial argument is impermissible only if it is “manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” See id.
¶16 The States reliance on Bies is misplaced. As an initial matter, Bies is not as affirming of the use of the word “uncontroverted” as the State argues. Our supreme court explained that the States use of the term “uncontroverted” in Bies was not violative of the defendants Fifth Amendment rights because the prosecutor did not use the term “uncontroverted” with respect to any aspect of the case that the defendant actually disputed.
[T]he defendants strategy was not to deny the occurrence of the acts surrounding the murder and robbery, but rather to show that his intoxication negated the necessary intent. Since the district attorneys comments referred to evidence of the acts rather than to evidence of intoxication, we conclude that the argument was a proper comment on the testimony.
Bies, 53 Wis. 2d at 325-26. Unlike in Bies, Hoyle did dispute whether the charged “acts” occurred—i.e., the facts germane to Hoyles guilt were fully disputed. In fact, Hoyle expressly argued at trial that the State failed to meet its burden of proving that a sexual assault occurred.
¶17 Under these circumstances, the prosecutors repeated arguments that the evidence regarding the charged assault was “uncontroverted”—especially with his telling the jury that it had “heard no evidence,” and that there was “absolutely no evidence” stating otherwise—crossed the line of impermissibly leading the jury to infer that Hoyles silence was evidence of his guilt. Hoyle argues, and we agree, that the particular comments made by the prosecutor met the test outlined in Jaimes because, given the nature of the alleged victims allegations and the dearth of other facts presented at trial, “the only person who could controvert [Hannahs] testimony was Hoyle.”
¶18 Furthermore, as the Seventh Circuit has observed: “It appears obvious that using the word ‘uncontroverted’ in referring to government evidence ․ where it is highly unlikely that anyone beyond the non-testifying defendant could contradict the evidence, is just as improper as using the words ‘uncontradicted,’ ‘undenied,’ ‘unrebutted,’ ‘undisputed,’ and ‘unchallenged’ in the same situation.” Cotnam, 88 F.3d at 499 (collecting cases); Freeman v. Lane, 962 F.2d 1252, 1254, 1259-61 (7th Cir. 1992) (prosecutors use of “unrebutted,” “uncontradicted,” and “no evidence” to summarize States case during closing argument amounted to Fifth Amendment violation when defendant was the only one who could refute allegations). We agree with this stated rationale. As such, the prosecutors particular comments in this case necessarily constituted a reference to Hoyles failure to testify and therefore met the first factor laid out in Jaimes.
¶19 The second factor in Jaimes is whether the comment on the failure to testify “propose[d] that the failure to testify demonstrates guilt.” Jaimes, 292 Wis. 2d 656, ¶21. This factor is met here because the prosecutor specifically argued that the lack of evidence disputing Hannahs testimony—which again, under the facts in this case, could only have come from Hoyle—was what demonstrated Hoyles guilt. The last factor in Jaimes is that the defenses argument did not invite the prosecutors comment. See id. The State does not raise any argument on this factor, instead contending it “does not come into play.”
¶20 For the foregoing reasons, we conclude that the States repeated use of the term “uncontroverted”—a key matter which Hoyle plainly disputed—in a factual context where no one but Hoyle could contradict the only evidence of guilt presented at trial, was improper and violated his Fifth Amendment right not to testify at trial. This is particularly true where, as here, in addition to using the term “uncontroverted,” the State followed up by expressly arguing to the jury that it had “heard no evidence disputing [Hannahs] account of that sexual assault,” and that there was “absolutely no evidence disputing [Hannahs] account of what occurred.” We therefore reverse the circuit courts judgment and order and remand for a new trial.
By the Court.—Judgment and order reversed and cause remanded for further proceedings.
Not recommended for publication in the official reports.
FOOTNOTES
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. Hoyle also argues on appeal that: (1) he is entitled to a new trial based on newly discovered evidence that Hannah never went to counseling; (2) the circuit court erred in denying his postconviction motion for discovery of Hannahs counseling records; and (3) the court erred in denying his postconviction motion alleging a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963).
2
. This matter involves the alleged victim of a crime. Pursuant to Wis. Stat. Rule 809.86(4) (2019-20), we use a pseudonym instead of the alleged victims name. All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated.
3
. Hannah knew Szotkowski as “Kari Anderson.” Szotkowski testified that “Anderson” was her former surname. To reduce confusion, we will refer to her as Szotkowski.
4
. Hoyle also filed his postconviction motion on other grounds. He argued that he was entitled to a new trial based on newly discovered evidence—specifically that Hannah never went to counseling—that bore on Hannahs demeanor and credibility. He also argued he was entitled to a new trial based on an alleged Brady violation regarding Hannahs initial disclosure of the alleged incident. Lastly, he asked for postconviction discovery of Hannahs counseling records, child protective services records, and various police reports.
GILL, J.