State v. Carter

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This is a review of an unpublished court of appeals' decision¹Page 648that reversed the Milwaukee County Circuit Court, Judge Patricia D. McMahon presiding, and remanded for further proceedings. On January 27, 2006, Michael J. Carter (Carter) was convicted of one count of first-degree sexual assault of a child under Wis. Stat. §948.02(1) (2005-06).²Judge Mel Flanagan sentenced Carter to 27 years imprisonment, comprised of 12 years in initial confinement and 15 years on extended supervision. On January 25, 2008, Carter filed a post-conviction motion for a new trial on the grounds of ineffective assistance of counsel. Specifically, Carter argued that his trial counsel was ineffective because he failed to introduce evidence that the five-year-old victim was previously sexually assaulted, which would have provided an alternative explanation for her detailed sexual knowledge. On April 17, 2008, Judge McMahon conducted aMachnerhearing³and denied the motion. Carter appealed, and the court of appeals remanded the matter to the circuit court for further proceedings. The State petitioned this court for review, and we accepted. We now reverse the decision of the court of appeals.

¶ 2. The issue before us is whether the court of appeals properly remanded the case to the circuit courtPage 649for further proceedings on Carter's claim that his trial counsel was ineffective.

¶ 3. We conclude that the court of appeals improperly remanded the case to the circuit court for further proceedings. Carter's ineffective assistance of counsel claim fails under the two-part inquiry ofStrickland v. Washington,466 U.S. 668,687(1984). First, his trial counsel's performance was not deficient. His counsel's strategic decision not to introduce evidence that the child victim was previously sexually assaulted was objectively reasonable considering all the circumstances. Second, even assuming that his counsel's performance was deficient, the deficiency did not prejudice Carter's defense. Evidence that the child victim was previously sexually assaulted would have been inadmissible under Wisconsin's rape shield law, Wis. Stat. §972.11(2) (2007-08),⁴and the narrow five-part test articulated inState v. Pulizzano,155 Wis. 2d 633,656-57,456 N.W.2d 325(1990). Accordingly, this court reverses the court of appeals' decision and upholds the judgment of the circuit court denying Carter's post-conviction motion for a new trial. ¶ 4. On August 25, 2005, Carter was charged with one count of first-degree sexual assault of a child. The State alleged that on or between March 1, 2005, and July 31, 2005, Carter forced five-year-old Cassandra L. (Cassandra) to perform oral sex on him. The assault occurred while Carter was living with Cassandra and her mother, Denise. About two weeks after Denise and Cassandra moved to another residence, Cassandra informedPage 650Denise that Carter "touched her down in her private area and wanted her to lick his private area." Denise took Cassandra to urgent care, and they eventually spoke to police.

¶ 5. Cassandra spoke with city of Milwaukee police officer Lucretia Thomas (Officer Thomas). According to Cassandra, one night while her mother was sleeping, she was watching television with Carter when he asked her to "come by him." Carter unbuttoned his shorts and pulled them down a short distance. Cassandra described seeing "a thing sticking out like my kitty." To demonstrate for Officer Thomas, she placed her stuffed pink cat at her vaginal area and angled it upward. Cassandra also described seeing hair the same color as her mother's (brunette). According to Officer Thomas, Cassandra indicated "that she knew what [Carter] wanted her to do" because Cassandra said that she "closed her mouth tight" when he told her to come by him. Carter then pried open Cassandra's mouth and pushed her head down onto his "private part," using his hand to push her head up and down. When he stopped, Cassandra described wiping her mouth and seeing "white stuff hanging from her hand." Cassandra stated that after she washed her hands in the bathroom, she passed Carter in the hallway, and he pretended to zip his mouth and turn a key.

¶ 6. At trial, before any witness was called, Carter's trial counsel, Stephen Sargent (Sargent), informed the circuit court that he would not be presenting any evidence that Cassandra may have been previously sexually assaulted by a third party. As a "strategic decision," he opted not to present the evidence because he thought (1) the prosecutor would object; (2) the evidence was not relevant; and (3) the evidence would build the jury's sympathy for Cassandra.Page 651

¶ 7. The jury convicted Carter of one count of first-degree sexual assault of a child. After he was sentenced, Carter retained new counsel and filed a post-conviction motion for a new trial, claiming that Sargent provided ineffective assistance of counsel. Carter argued that Sargent was ineffective because he failed to introduce evidence that Cassandra was previously sexually assaulted, which would have provided an alternative explanation for her detailed sexual knowledge.

¶ 8. At theMachnerhearing, Carter testified that Cassandra was previously sexually assaulted by her cousin, and it was from that assault that Cassandra derived her detailed sexual knowledge. Carter learned of the alleged sexual assault in the summer of 2004 while he, Denise, and Cassandra were at Carter's grandmother's house. According to Carter, he was in the bathroom when Cassandra stood outside the door and asked Carter if he "wanted her to make juice." Carter came out of the bathroom and told Cassandra that they did not have any juice, to which Cassandra replied that she "can help [Carter] make juice" and pointed towards his crotch. When asked what she meant, Cassandra said, "Like [her cousin]." Carter gathered from Cassandra's explanation that "her and [her cousin] were upstairs in her bedroom, and she basically pulled on his penis to get him to ejaculate."

¶ 9. Carter then testified that on the same day, he relayed the incident to Denise. He testified that when questioned by Denise, Cassandra described playing upstairs with her cousin when he pulled his pants down and told her to pull "on his thing." Carter testified that Cassandra then told Denise that "some stuff came out," and the color was white.Page 652

¶ 10. According to Carter's testimony at the hearing, sometime later Denise told him specifically that a social worker and sheriff came over to the house and spoke to Cassandra alone.⁵

¶ 11. Carter alleged that Cassandra referenced the previous sexual assault in a videotaped interview with city of Milwaukee police officer Christine Koch taken on August 26, 2005, shortly after Carter was charged with sexually assaulting Cassandra.⁶In his post-conviction motion, Carter summarized the relevant portion of the videotape as follows:

In this interview, after telling of events involving Mr. Carter, Officer Koch asked Cassandra if she had seen anyone else's private part. (This starts at about 10:14 a.m. on the clock superimposed on the video.) Cassandra related that she saw [her cousin's] private part. [Her cousin] . . . is older than Cassandra and is like a grown-up. This happened when Cassandra was four years old. This happened in a big place where they went upstairs. [Her cousin] was "making juice." His pants were down.

The State, however, maintained that Cassandra made no such reference:

What we have is a statement by a girl in a videotape that says she saw her cousin's penis and that is all we have in that videotape.

Page 653

She doesn't talk about anything else. She doesn't describe it. She doesn't say anything. All she says she sees her cousin's penis. She doesn't even know whether he's a boy or an adult.

Then there is some incident of playing and some making of drinks and things like that; but there is nothing that says that she touched him, that he touched her, that there was anything that was sexual in nature.

¶ 12. In either case, Carter's trial counsel, Sargent, viewed the videotaped interview and opted not to present evidence at trial of the alleged previous sexual assault. At theMachnerhearing, Sargent recalled that Carter mentioned to him that another person may have "molested" Cassandra, but Carter was not any more specific. After hearing the information, Sargent arranged for an investigator to contact Cassandra through Denise, but Denise declined to speak to the investigator.

¶ 13. According to Sargent,⁷presenting evidence of the previous sexual assault would have been an unwise defense strategy:

[A]s far as who may have sexually assaulted this girl, or when, or where, I did have my investigator attempt to contact the mother of the child. That was not going anywhere, and I made the strategic move we should challenge the mother's credibility through the child rather than other defenses.

¶ 14. Instead of directly attacking Cassandra, Sargent opted instead to challenge her credibility through Denise, by demonstrating that there was aPage 654breakdown in Denise and Carter's relationship, and Denise pressured Cassandra into making the allegations against Carter. In Sargent's view, the videotaped interview depicted a "very sympathetic child," and he did "not wish to build up sympathy for the Jury towards this child and then have to challenge this child's credibility and the mother's credibility within the same trial."

¶ 15. In deciding not to present evidence of the previous sexual assault, Sargent conceded that he never researched whether the evidence would have been admissible. Specifically, Sargent did not reviewState v. Pulizzano, a decision by this court that created a narrow exception to the general inadmissibility of a victim's sexual history.See155 Wis. 2d 633. Pursuant toPulizzano, evidence of a prior sexual assault against a child victim is admissible if the defendant satisfies a five-part test, and the court determines that the defendant's right to present the evidence outweighs the State's interest in excluding it.Id.at 656-57. Concerning his familiarity withPulizzano, Sargent provided the following testimony at the post-conviction hearing:

Q: [Attorney Wasielewski, on behalf of Carter]: Now when you considered whether or not to bring up this prior sexual assault of Cassandra, what was your understanding as to whether it was legally admissible?

A: [Attorney Sargent]: I would have to say I did not look too far whether it was admissible. It was my understanding at some point it may or may not have been.

Q: Did you ever review a case calledState v.Pulizzano?

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A: No, I did not.

Q: Or any subsequent case that quotes thePulizzanotest?

A: Prior to trial, no, I did not.

Q: Did you do any research that led you to any conclusion as to the admissibility of the prior incident?

A: I did not go into researching of that issue.

Q: So you made a strategic decision not to go after it without pursuing the question whether you could pursue the admission of the prior incident; is that a fair statement?

A: No. To be accurate to say I did not believe that issue to be a strong one as strategic — as a trial defense strategy that I — that as far as who may have sexually assaulted this girl, or when, or where, I did have my investigator attempt to contact the mother of the child. That was not going anywhere, and I made the strategic move we should challenge the mother's credibility through the child rather than other defenses.

¶ 16. At the close of theMachnerhearing, the circuit court denied Carter's motion for a new trial, concluding that Carter did not receive ineffective assistance of counsel. First, the circuit court determined that Sargent's decision not to present evidence of the previous sexual assault was a reasonable one. The circuit court declined to criticize Sargent for opting not to present evidence that he deemed irrelevant to his defense strategy and that would have conjured up sympathy for the child victim. Second, Carter failed to establish that his defense was prejudiced by Sargent's decision not to present evidence of the previous sexualPage 656assault. According to the circuit court, the admissibility of the evidence presented a "very uphill battle" underPulizzano.The circuit court also found that Carter's testimony was not credible, especially concerning his statement that the alleged previous sexual assault had been reported to the police.

¶ 17. The court of appeals remanded the case to the circuit court for further proceedings. The court of appeals concluded that Sargent's performance was deficient given his failure to investigate whether the previous sexual assault had occurred and his unfamiliarity withPulizzano.However, the court of appeals stated that until further investigation was completed, neither the court of appeals nor the circuit court could determine whether Carter was prejudiced by Sargent's deficient performance. Accordingly, the court of appeals did not grant Carter a new trial and instead remanded the case to the circuit court for further proceedings.⁸

¶ 18. On review, we conclude that Carter did not receive ineffective assistance of counsel. We therefore reverse the decision of the court of appeals and uphold the judgment of the circuit court denying Carter's post-conviction motion for a new trial.Page 657 ¶ 19. A claim of ineffective assistance of counsel is a mixed question of fact and law.State v. Thiel,2003 WI 111, ¶21,264 Wis. 2d 571,665 N.W.2d 305;State v.Erickson,227 Wis. 2d 758,768,596 N.W.2d 749(1999). We will uphold the circuit court's findings of fact unless they are clearly erroneous.Thiel,264 Wis 2d 571, ¶ 21. "Findings of fact include `the circumstances of the case and the counsel's conduct and strategy'"Id.(quotingState v. Knight,168 Wis. 2d 509,514n. 2,484 N.W.2d 540(1992)). Moreover, this court will not exclude the circuit court's articulated assessments of credibility and demeanor, unless they are clearly erroneous.Thiel,264 Wis. 2d 571, ¶ 23. However, the ultimate determination of whether counsel's assistance was ineffective is a question of law, which we review de novo.Id., ¶ 21. ¶ 20. Both the United States Constitution and the Wisconsin Constitution guarantee criminal defendants the right to counsel.U.S. Const., amend. VI; Wis. Const. art.I, §7.<sup>9</sup>The United States Supreme Court has recognized that" `the right to counsel is the right to thePage 658effective assistance of counsel.'"Strickland,466 U.S. at 686(quotingMcMann v. Richardson,397 U.S. 759,771n. 14 (1970)).¹⁰

¶ 21. Whether a convicted defendant received ineffective assistance of counsel is a two-part inquiry.Strickland,466 U.S. at 687. First, the defendant must prove that counsel's performance was deficient.Id.Second, if counsel's performance was deficient, the defendant must prove that the deficiency prejudiced the defense.Id.In order for Carter to succeed on his claim of ineffective assistance of counsel, he must satisfy both prongs of theStricklandtest.See id.This court concludes that he has satisfied neither. ¶ 22. To demonstrate deficient performance, the defendant must show that his counsel's representation "fell below an objective standard of reasonableness"Page 659considering all the circumstances.Id.at 688. In evaluating the reasonableness of counsel's performance, this court must be "highly deferential."Id.at 689. We must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."Id.Counsel enjoys a "strong presumption" that his conduct "falls within the wide range of reasonable professional assistance."Id.Indeed, counsel's performance need not be perfect, nor even very good, to be constitutionally adequate.Thiel,264 Wis. 2d 571, ¶ 19 (citingState v. Williquette,180 Wis. 2d 589,605,510 N.W.2d 708(1993)).

¶ 23. Strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable.Strickland,466 U.S. at 690-91. "[C]ounsel has a duty to make reasonable investigationsorto make a reasonable decision that makes particular investigations unnecessary."Id.at 691 (emphasis added). In evaluating counsel's decision not to investigate, this court must assess the decision's reasonableness in light of "all the circumstances," "applying a heavy measure of deference to counsel's judgments."Id.

¶ 24. We conclude that Sargent's performance was not deficient because his strategic decision not to present evidence of the previous sexual assault was objectively reasonable considering all the circumstances.¹¹At trial, Sargent informed the circuit court that he had made the strategic decision not to presentPage 660evidence that Cassandra may have been previously sexually assaulted by a third party. He gave three reasons for his decision: (1) "[he] thought the DA would likely object"; (2) "[he did not] see it as relevant"; and (3) "[he thought he would] — if anything, build up sympathy for this young girl." Like the circuit court, we decline to criticize Sargent for opting not to present evidence that he deemed irrelevant to his defense strategy and that would have conjured up the jury's sympathy for Cassandra.

¶ 25. At theMachnerhearing, Sargent clearly articulated the defense strategy he chose: instead of directly attacking Cassandra, he opted instead to challenge her credibility through Denise, by demonstrating that there was a breakdown in Denise and Carter's relationship, and Denise used Cassandra as a tool in that breakup. Sargent's chosen defense strategy was revealed at trial through his opening argument; his cross-examination of Denise and Cassandra; his direct-examination of Carter; and the State's closing argument.

¶ 26. In his opening argument, Sargent represented to the jury that Denise and Carter had an angry relationship, for which Denise and Cassandra harbored hostility towards Carter:

Look at the case. Look at all the witnesses. Look at their testimony. Look at the — the nature of this girl, relationship with her mother, their relationship with Mr. Carter.

Page 661

Now, I think one fallacy in life is that we think that we have to show that kids are manipulative or they think that — you know, they create grand schemes.

It's not one of those cases.

Question of whether or not the atmosphere of this child that was living at — was such that there was a great deal of hostility towards Michael Carter.

There will be. There will be some things you hear about the relationship of Michael Carter and her mother that were bad.

There will be some things you hear about Michael Carter that are not good to hear, that he was involved in some very bad arguments with his girlfriend. There was arguments over money There was arguments over drugs. Okay.

That is not very good to talk about, that's not very positive, but that's the facts that this child was living in.

There will be testimony about the hostility that this girl saw. . . .

. . . .

. . . In the end I'm gonna ask you to return a not guilty verdict, `cuz the evidence will show that there really is — there, really, is no clear evidence that Michael Carter did anything improper towards this girl.

He was a man, he was in a relationship, an adult relationship with a woman, the woman had a child, the —

The adult relationship was a volatile one possibly at times, it was [an] angry relationship, it was not a good relationship.

¶ 27. Denise and Carter's broken relationship was further revealed through Sargent's cross-examination of Denise:Page 662

Q: . . . Towards the spring, into the early summer of 2005, you and Mr. Carter began to have arguments, correct?

A: Yes, sir.

Q: Some of these arguments were — in the — when Cassandra was home?

A: Yes.

Q: Some of these arguments were very loud?

A: Oh, yes.

Q: About money?

A: Yes.

Q: About drug use?

A: Yes.

Q: Michael Carter's drug use?

A: Yes.

Q: They were about a — Michael Carter and a breakup of a relationship, correct?

A: Pardon?

. . . .

Q: Your relationship with Michael Carter was breaking up, correct?

A: Yes.

Q: There's a lot of animosity in that, correct?

A: Correct.

Q: And your daughter had to see a lot of that.

A: Right.

Page 663

¶ 28. During Sargent's cross-examination of Cassandra, Cassandra testified that the arguments between her mother and Carter caused Cassandra to "want[] to get away from" Carter:

Q: And they argued sometimes in front of you.

A: Yes.

Q: And that made you very sad, didn't it?

A: Mm-hmm.

Q: And you wanted to get away from that house, didn't you? And you wanted to get away from Mike, didn't you?

A: Yes.

¶ 29. Sargent's direct-examination of Carter confirmed Denise and Carter's broken relationship:

Q: Now, and in March till August 2005, would — towards the latter part, would you say that you and her mother were having —

. . . Break-up issues, I call it.

You were having disagreements, right?

Yes.

You were arguing about money?

Quite a bit.

And brought up by her mother, that you were arguing about her drug use?

A: Yes. Along with alcohol abuse.

Q: Okay. And you and her mother were — having some pretty loud arguments —

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A: Yes —

Q: — in front —

A: — we were —

Q: — of the child.

During that time — were your — Was your alcohol and drug use affecting the relationship?

A: Yes. Quite a bit.

Q: Was that causing a strain on your relationship?

A: Yes.

¶ 30. Finally, Sargent's chosen defense strategy was made clear when it was attacked by the State in its closing argument:

And the last thing I want to talk to you about is, again, [Cassandra's] testimony.

If there was a reason to get Mr. Carter in trouble that was contrived between the mother and this little girl, would it not have been simpler?

Would it have not just been, he hit me. He hit me in my face. Something a little girl would remember.

But a sexual assault, and a sexual assault with this much detail and graphic detail?

Ask yourself, would a six year old be able to carry that off? She's six. Not a sophisticated liar.

¶ 31. Sargent determined that evidence of a previous sexual assault against Cassandra was irrelevant to his defense strategy of challenging Cassandra's credibility through Denise by demonstrating that there was a breakdown in Denise and Carter's relationship, andPage 665Denise used Cassandra as a tool in that breakup. That determination was a reasonable one. Whether Cassandra was previously sexually assaulted by a third party would not have necessarily assisted the trier of fact in assessing whether Denise's broken relationship with Carter caused her to pressure Cassandra into making allegations against Carter. If Denise pressured Cassandra into making up the allegations, the jury could have believed that Denise was the source of Cassandra's sexual knowledge, regardless of the alleged previous sexual assault.

¶ 32. In addition, it was reasonable for Sargent to conclude that if he presented evidence of the previous sexual assault, the jury would have questioned his chosen defense theory. The jury could have found it even less likely that Denise would put her daughter through a lie about sexual assault allegations, given the fact that Cassandra was already a victim. It was a reasonable trial strategy to not risk causing greater sympathy for Cassandra by introducing her as a victim of sexual assault and then directly attacking her credibility. On balance, when evidence of the previous sexual assault is weighed with the strategy employed, and there is already an alternative source of sexual knowledge, that being Cassandra's mother, the fact that Cassandra was previously sexually assaulted militates against the defense. Furthermore, the jury could have concluded that this child was vulnerable to sexual assault by Carter because she was previously a victim. In the end, the jury had to decide who it believed: the child or Carter. Whether the child was a previous victim of sexual assault would not have necessarily assisted the jury in answering that question.¹²Page 666

¶ 33. Even more reasonable, however, was Sargent's concern that presenting evidence of the previous sexual assault would have built up the jury's sympathy for Cassandra. The jury would have been faced with the unfortunate prospect that five-year-old Cassandra had been sexually assaulted not once, but twice, and both times by men close to her (her cousin and her mothers live-in boyfriend). Moreover, by attempting to demonstrate that Cassandra gained her detailed sexual knowledge, not from Carter, but from a previous sexual assault by her cousin, Sargent would necessarily have been asking the jury to discredit the testimony of a five-year-old victim of sexual assault. It was certainly reasonable that Sargent was more confident asking the jury to discredit the mother, Denise, instead of directly attacking the child victim.

¶ 34. Finally, Carter urges us to adopt the court of appeals' conclusion that Sargent's performance was deficient because he "ma[d]e a strategic determination without full knowledge of the circumstances of the alleged prior assault and its potential admissibility."State v. Carter, No. 2008AP1185-CR, unpublished order (Wis. Ct. App. Mar. 12, 2009). We decline the invitation to override the circuit court's determination regarding the facts, the credibility of the witnesses, and the "very uphill battle" regarding the admissibility of the alleged prior assault underPulizzano.Under the facts of thisPage 667case, counsel's failure to further investigate is not deficient as a matter of law. Strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable.Strickland,466 U.S. at 690-91. "[C]ounsel has a duty to make reasonable investigationsorto make a reasonable decision that makes particular investigations unnecessary."Id.at 691 (emphasis added). It is our responsibility to determine whether Sargent's decision that further investigation was unnecessary was a reasonable one in light of "all the circumstances," bearing in mind that his judgment is entitled to "a heavy measure of deference."See id.at 691. We conclude that Sargent reasonably decided that further investigation of the alleged prior sexual assault and its admissibility was unnecessary. However, to be clear, we do caution that the better practice is for counsel to always research and be familiar with pertinent legal authority. In another case, the failure to do so may constitute deficient performance. Under "all the circumstances" of this case,id., however, we conclude that Sargent's decision not to investigate was reasonable.

¶ 35. After being informed by Carter that another person may have sexually assaulted Cassandra¹³andPage 668after viewing the videotaped interview in which Cassandra told the police that she had seen her cousin's penis, Sargent followed up on the information by arranging for an investigator to contact Cassandra through Denise. Denise, however, would not permit the investigator to speak with Cassandra and never spoke to the investigator herself. Because his investigator's efforts were fruitless and because, in his opinion, thePage 669videotaped interview depicted a "very sympathetic child," Sargent decided that further investigation of the alleged previous sexual assault was unnecessary. Instead, he opted to pursue, what he considered a wiser defense strategy: attacking Denise's credibility. At that point, it was not necessary for Sargent to research whether evidence of the alleged previous sexual assault was admissible. In light of all the circumstances, we cannot conclude that Sargent made an unreasonable decision when he determined that it was unnecessary to further investigate the alleged previous sexual assault and its admissibility.

¶ 36. Our conclusion that Sargent's performance was not deficient is enough to defeat Carter's ineffective assistance of counsel claim.See Strickland,466 U.S. at 700("Failure to make the required -showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.") Nevertheless, we continue our analysis into the second prong of the two-part inquiry and conclude that irrespective of whether Sargent's performance was deficient, Carter's ineffectiveness claim still fails because the deficiency did not prejudice Carter's defense. ¶ 37. To warrant setting aside the defendant's conviction, the defendant must demonstrate that his counsel's deficient performance was prejudicial to his defense.Id.at 691-93 (recognizing that "[t]he purpose of theSixth Amendmentguarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding," and therefore, the defendant must affirmatively prove thatPage 670his counsel's deficient performance actually had an adverse effect on the judgment). It is not sufficient for the defendant to show that his counsel's errors "had some conceivable effect on the outcome of the proceeding."Id.at 693. Rather, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id.at 694.

¶ 38. Even assuming that Sargent's performance was deficient, we conclude that the deficiency did not prejudice Carter's defense because evidence of the previous sexual assault would have been inadmissible. Thus, regardless of whether Sargent attempted to present evidence of the previous sexual assault, the result of the proceeding would have been the same.

1. General Inadmissibility under Wisconsin's Rape Shield Law

¶ 39. Wisconsin's rape shield law, Wis. Stat. §972.11(2),¹⁴generally prohibits a defendant like Carter from introducing evidence concerning the allegedPage 671victim's prior sexual conduct. Our legislature enacted the rape shield law "to counteract outdated beliefs that a complainant's sexual past could shed light on the truthfulness of the sexual assault allegations."State v. Dunlap,2002 WI 19, ¶19,250 Wis. 2d 466,640 N.W.2d 112(citingMichael R.B. v. State,175 Wis. 2d 713,727,499 N.W.2d 641(1993)). The law "protect[s] victims of sexual assault from themselves becoming the focus of scrutiny during trial,"Michael R.B.,175 Wis. 2d at 727, as it is generally recognized that evidence of the victim's prior sexual conduct is "`irrelevant or, if relevant, substantially outweighed by its prejudicial effect,'"State v. Dodson,219 Wis. 2d 65,70,580 N.W.2d 181(1998) (quotingPulizzano,155 Wis. 2d at 644).

¶ 40. Evidence that Cassandra may have had previous sexual contact with her cousin clearly falls under the rape shield law's definition of "sexual conduct."SeeWis. Stat. §972.11(2)(a). Accordingly, unless Carter can demonstrate that such evidence is statutorily or judicially excepted from the rape shield law, the evidence is inadmissible.¹⁵Page 672 ¶ 41. InPulizzano, this court held that while Wisconsin's rape shield law is constitutional on its face, as applied it may unconstitutionally infringe upon a defendant's rights to confrontation and compulsory process.155 Wis. 2d at 647-48. "`In the circumstances of a particular case evidence of a complainant's prior sexual conduct may be so relevant and probative that the defendant's right to present it is constitutionally protected.'"Dodson,219 Wis. 2d at 71(quotingPulizzano,155 Wis. 2d at 647). In particular, this court has recognized that when the complainant is a child, the possibility of the child having a previous sexual experience may be relevant to the defendant's case because it could provide an alternative source for the child's detailed sexual knowledge.Dunlap,250 Wis. 2d 466, ¶ 19 (citingMichael R.B.,175 Wis. 2d at 728).

¶ 42. Accordingly, inPulizzano, we articulated a narrow test that the defendant must satisfy in order "to present otherwise excluded evidence of a child complainant's prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge":

[P]rior to trial the defendant must make an offer of proof showing: (1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant's case; and (5) that the probative value of the evidence outweighs its prejudicial effect. If the defendantPage 673makes that showing, the circuit court must then determine whether the State's interests in excluding the evidence are so compelling that they nonetheless overcome the defendant's right to present it. . . .

Pulizzano,155 Wis. 2d at 656-57.

¶ 43. Despite our acknowledgement that the rape shield law "takes on a slightly different role when the complainant is a child,"Dunlap,250 Wis. 2d 466, ¶ 19, this court cautions that thePulizzanoexception to the rape shield law is intentionally narrow and must be applied accordingly. Even when the complainant is a child, evidence of his or her previous sexual experience can still be "extremely prejudicial" and can "improperly focus attention on the complainant's character and past actions, rather than on the circumstances of the alleged assault."Id.That the complainant happens to be a child* rather than an adult, does not alter the intention behind the rape shield law: "to protect victims of sexual assault from themselves becoming the focus of scrutiny during trial,"Michael R.B.,175 Wis. 2d at 727.

¶ 44. In this case, we conclude that Carter's offer of proof fails the first and second prongs of thePulizzanotest, and therefore, evidence of the alleged previous sexual assault against Cassandra is not admissible as an exception to the rape shield law

a. Did the prior sexual assault "clearly occur"?

¶ 45. Carter's offer of proof fails the first prong of thePulizzanotest because the alleged previous sexual assault against Cassandra did not "clearly occur[]."See155 Wis. 2d at 656. To demonstrate that the previous assault "clearly occurred," Carter's offer of proofPage 674" `should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt.'"Id.at 652 (quotingMilenkovic v. State,86 Wis. 2d 272,284,272 N.W.2d 320(Ct. App. 1978)). The facts as presented do not warrant the conclusion that Cassandra was clearly sexually assaulted by her cousin. As for evidence of the sexual assault, we have only Carter's testimony and a videotaped interview with Cassandra in which she told Officer Koch that she had seen her cousin's penis. Neither Carter's testimony nor the videotaped interview sufficiently demonstrates that the previous sexual assault "clearly occurred."

¶ 46. Carter testified that Cassandra pointed to his crotch and offered to "help [him] make juice," explaining to him that she "made juice" with her cousin by pulling on his penis and getting him to ejaculate. Carter offered no corroborating testimony from Cassandra, Denise, or Cassandra's cousin. Furthermore, while he testified that a social worker and sheriff came over to the house and talked to Cassandra about the incident, Carter introduced no documentation to support his assertion that the incident had ever been reported to the police. The circuit court adjudged Carter not credible, and we uphold that finding because it is not clearly erroneous.See Thiel,264 Wis. 2d 571, ¶ 23. Given Carter's lack of credibility, this court cannot conclude from his testimony that the previous sexual assault "clearly occurred."

¶ 47. In a videotaped interview taken after Carter was charged, Cassandra told Officer Koch that she had seen her cousin's penis. The parties agree on little else. At one point in the interview, Cassandra apparently referenced the making of drinks. According to Carter, she was referring to "making juice" with her cousinPage 675while his pants were down. The State, on the other hand, maintains that Cassandra's statement about making drinks was merely a reference to playing. The State contends that Cassandra's blank statement about seeing her cousin's penis was void of any sexual description: "there is nothing that says that she touched him, that he touched her, that there was anything that was sexual in nature." Because the videotaped interview did not appear in the record before this court, we are left to rely on the parties' competing interpretations. As it was relayed to us, the videotaped interview is too insufficient to support the conclusion that the previous sexual assault "clearly occurred."

¶ 48. Our conclusion that Carter's offer of proof fails the first prong of thePulizzanotest is enough to dispose of Carter's argument that evidence of the previous sexual assault is excepted from the rape shield law.See, e.g.,Dunlap,250 Wis. 2d 466, ¶ 29 (recognizing that this court need not go further in applying thePulizzanotest after one of the five prongs is not satisfied). Nevertheless, we move on to discuss the second prong and further conclude that Carter's offer of proof fails to demonstrate that the previous sexual assault "closely resemble[s]" that of the present case.See Pulizzano,155 Wis. 2d at 656.

b. Did the prior act "closely resemble" this act?

¶ 49. In order to satisfy the second prong of thePulizzanotest, the defendant's offer of proof must show that the prior act "closely resembled" the act that the defendant is accused of committing.Id.This court has refused to broadly interpret "closely resembled."Dunlap,250 Wis. 2d 466, ¶ 23. We have recognized that evidence of prior sexual touching does not sufficientlyPage 676resemble a present allegation of sexual intercourse.Dodson,219 Wis. 2d at 79.¹⁶

¶ 50. InDodson, in analyzing whether a prior act "closely resembled" the act alleged in the underlying case,see Pulizzano,155 Wis. 2d at 656, this court made the distinction between (a) a prior act of sexual touching and a present allegation of sexual intercourse, and (b) a prior act of sexual intercourse and a present allegation of sexual touching.Dodson,219 Wis. 2d at 79. "Although evidence of prior sexual touching does not sufficiently `resemble sexual intercourse,' it does not automatically follow that evidence of prior sexual intercourse does not resemble or involve sexual touching."Id.Indeed, "it is impossible to conceive" of a prior act of sexual intercourse that does not involve sexual contact.Id.Accordingly, inDodson, this court concluded that the defendant satisfied the second prong of thePulizzanotest because the previous act of sexual intercourse commissioned against the victim necessarily involved, and hence "closely resembled," the sexual contact that the defendant was accused of.Id.at 78-79.

¶ 51. InMichael R.B., we analyzed the converse scenario.175 Wis. 2d at 736. The defendant, who was accused of having sexual intercourse with the child victim, made an offer of proof that the victim and herPage 677brother were previously seen touching each other's "private parts" while sitting together in a tire swing.Id.This court concluded that the defendant failed the second prong of thePulizzanotest, stating that it was "an insupportable leap of reasoning to conclude that two or three minutes of undefined sexual touching while sitting in a tire swing so closely resembles sexual intercourse as to satisfy thePulizzanotest."Id.

¶ 52. Here, Carter's offer of proof must fail the second prong of thePulizzanotest because the previous sexual assault against Cassandra does not "closely resemble[]" the act of sexual intercourse that Carter was charged with.See Pulizzano,155 Wis. 2d at 656. Carter was charged with forcing Cassandra to perform oral sex on him, an act of "sexual intercourse."SeeWis. Stat. §948.01(6). Carter's offer of proof consists of testimony that Cassandra had previous sexual contact with her cousin, specifically that Cassandra "pulled on [her cousin's] penis to get him to ejaculate."¹⁷As this court has made clear, a previous act of sexual contact does not sufficiently resemble an act of sexual intercourse for purposes of satisfying the second prong of thePulizzanotest.Dodson,219 Wis. 2d at 79. Similar to our analysis inMichael R.B., it would require "an insupportable leap of reasoning" to conclude that the uncertain sexual touching that took place between Cassandra and her cousin "closely resembles" the act of oral sex that Carter was charged with.See Michael R.B.,Page 678175 Wis. 2d at 736. "[W]e refuse to interpret the second prongofPulizzanoso broadly."Dunlap,250 Wis. 2d 466, ¶ 23.

¶ 53. Because we conclude that Carter's offer of proof fails the first and second prongs of thePulizzanotest, we hold that evidence of the alleged previous sexual assault against Cassandra is not excepted from the rape shield law and is therefore inadmissible. Accordingly, Carter has failed to demonstrate that his defense was prejudiced by his trial counsel's decision not to present the evidence. Regardless of whether Sargent attempted to present evidence of the previous sexual assault, the result of the proceeding would have been the same. ¶ 54. To summarize, we conclude that the court of appeals improperly remanded the case to the circuit court for further proceedings. Carter's ineffective assistance of counsel claim fails under the two-part inquiry ofStrickland v.Washington.First, his trial counsel's performance was not deficient. His counsel's strategic decision not to introduce evidence that the child victim was previously sexually assaulted was objectively reasonable considering all the circumstances. Second, even assuming that his counsel's performance was deficient, the deficiency did not prejudice Carter's defense. Evidence that the child victim was previously sexually assaulted would have been inadmissible under Wisconsin's rape shield law, Wis. Stat. §972.11(2), and the narrow five-part test articulated inState v.Pulizzano.Accordingly, this court reverses the court of appeals' decision and upholds the judgment of the circuit court denying Carter's post-conviction motion for a new trial.By the Court.— The decision of the court of appeals is reversed.Page 679