COURT OF APPEALS DECISION DATED AND FILED February 23, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Bobby J. Klimek,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Bobby Klimek appeals a judgment
convicting him of repeated sexual assault of a child, Brianne F. He also appeals an order denying his
postconviction motion in which he alleged ineffective assistance of his trial
counsel, Andrew Williams. Klimek argues
that Williams was ineffective in two respects:
(1) he failed to call Cassandra Elbe as a witness to testify that
Brianne had a reputation for untruthfulness; and (2) Williams failed to object
to Brianne’s testimony about earlier sexual relations between her and Klimek in
another county. Klimek describes this
testimony as “other acts evidence” and contends that it would not be admissible
under State v. Sullivan, 216
¶2 To establish ineffective assistance of counsel, Klimek must
show deficient performance and prejudice to the defense. See Strickland v. Washington, 466
Failure
to Call Cassandra
¶3 Klimek established neither deficient performance nor
prejudice from Williams’ failure to call
¶4
¶5 Klimek did not establish prejudice from Williams’ failure to
call
Failure
to Object to Other Crimes Evidence
¶6 Williams’ decision not to object to Brianne’s testimony about
incidents in another county constitutes a reasonable trial strategy. Williams testified that Brianne’s testimony
was inconsistent with earlier statements she made regarding the incidents in
the other county. As a strategic matter,
he wanted to use the inconsistent statements to impeach Brianne’s
credibility. Williams testified that he considered
objecting to the testimony but thought that it was favorable to Klimek to have
Brianne’s inconsistent statements brought to the jury’s attention. Counsel’s strategic choices made with full
knowledge of the facts and law are virtually unchallengeable. Strickland, 466
¶7 Klimek also failed to establish prejudice from Williams’
failure to object to the testimony regarding earlier assaults. Assuming these acts qualified as “other acts
evidence” they were admitted for an acceptable purpose of explaining Klimek’s
and Brianne’s pre-existing and seemingly odd relationship. Testimony about those acts provided
background and context and were not introduced to show propensity. The probative value of this testimony was not
substantially outweighed by the danger of unfair prejudice because it is unlikely
the jury would doubt Brianne’s testimony about the
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).