00-3194 State v. Myers

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Michael Myers appeals an order denying his postconviction motion in which he sought relief from a judgment convicting him of sexually assaulting his son and exposing the child to harmful material. He argues that his trial counsel was ineffective for two reasons: (1) he should have stipulated to the element “for the purpose of sexual gratification” in order to bar other acts evidence designed to show his motive or intent; and (2) he should have compelled the State to narrow the time frame for these crimes from the eleven-month span recited in the complaint to enable Myers to present an alibi defense. The trial court concluded that Myers was not prejudiced by his counsel’s failure to stipulate to motive or intent because the other act would have been admitted for other purposes. The court refused to allow a postconviction hearing on the challenge to the complaint. We conclude that Myers was not prejudiced by his counsel’s failure to stipulate to the “for the purpose of sexual gratification” element because the testimony that was allowed by virtue of the failure to stipulate was not sufficiently prejudicial to undermine our confidence in the verdict.

We also conclude that the record on appeal does not establish that the trial court improperly exercised its discretion when it refused to hold a postconviction hearing on trial counsel’s failure to challenge the complaint.

This opinion will not be published.

Dist III, Des Jardins, J., Per Curiam

Attorneys:

For Appellant: Christopher A. Mutschler, Fond du Lac

For Respondent: Gregory M. Weber, Madison; Vincent R. Biskupic, Appleton