of a decision of the Court of Appeals. (L.C. No. 2013CF270)
the defendant-appellant-petitioner, there were briefs filed
and an oral argument by Hannah Schieber Jurrs, assistant
state public defender.
the plaintiff-respondent, there was a brief filed by Donald
V. Latorraca, assistant attorney general, with whom on the
brief were Brad D. Schimel, attorney general, and Maura F.J.
Whelan, assistant attorney general. There was an oral
argument by Donald V. Latorraca.
ANNETTE KINGSLAND ZIEGLER, J.
This is a review of an unpublished decision of the court of
appeals, State v. Breitzman, No. 2015AP1610-CR,
unpublished slip op., (Wis. Ct. App. Aug. 16, 2016), which
affirmed the Milwaukee County circuit
court's denial of Ginger Breitzman's
("Breitzman") postconviction motion challenging her
convictions for child neglect under Wis.Stat. §
948.21(1) (2013-14) and disorderly conduct under Wis.Stat.
In a criminal action by the State, Breitzman was charged
with, and convicted of, five crimes relating to her negative
interactions, confrontations, abuse, and neglect of her son,
J.K., during the time period ranging from November 2011
through December 2012: (1) Physical Abuse of a Child
(Intentional Causation of Bodily Harm) under Wis.Stat. §
948.03(2)(b); (2) Physical Abuse of a Child (Intentional
Causation of Bodily Harm) under § 948.03(2)(b); (3)
Child Neglect (Bodily Harm) under Wis.Stat. § 921.21(1)
(b); (4) Child Neglect (Misdemeanor) under Wis.Stat. §
948.21 (1) (a); and (5) Disorderly Conduct under Wis.Stat.
In the circuit court, Breitzman filed a postconviction motion
under Wis.Stat. § 809.30(2) (h) seeking judgments of
acquittal for counts three, four, and five. For all three,
she argued that there was insufficient evidence to support a
conviction. Additionally, she argued that defense counsel at
trial had been ineffective because he failed to move for
dismissal of count five for disorderly conduct on free speech
grounds, pursued a defense theory of reasonable parental
discipline in opening remarks that was inconsistent with
Breitzman's plan to deny striking J.K., and failed to
object to testimony regarding other-acts evidence. Following
a Machnerhearing, the circuit court granted the
motion for judgment of acquittal as to count three and denied
the motion as to counts four and five, concluding that there
was sufficient evidence to sustain the convictions on counts
four and five and that counsel had not been ineffective at
In the court of appeals, Breitzman challenged the circuit
court's denial of her postconviction motion as to counts
four and five, again challenging the sufficiency of the
evidence and asserting that defense counsel at trial had been
ineffective. The court of appeals affirmed the circuit court.
On petition to this court, Breitzman seeks review of the
denial of her ineffective assistance of counsel claim. In
this regard, we note that Breitzman's claim does not
raise a facial or as-applied challenge to the disorderly
conduct statute, Wis.Stat. § 947.01. A facial challenge
would argue that "profane conduct, " as listed in
§ 947.01(1), is not actionable as a crime because
profanity is protected speech. An as-applied challenge would
argue that Breitzman's profane conduct in this case was
not actionable as a crime because it was protected speech.
Breitzman argues neither. Breitzman only argues that her
trial counsel rendered ineffective assistance.Thus, while this
case touches on an interesting issue of free speech law, we
reserve full analysis of what constitutes profane speech and
whether profane speech is otherwise protected as free speech
for another day and confine our analysis here to the
ineffective assistance of counsel issue presented, briefed,
and argued by the parties.
The ineffective assistance of counsel issue raised requires
consideration of whether counsel was ineffective for any of
the following reasons: (1) failing to move to dismiss the
disorderly conduct charge on the basis that it violated
Breitzman's constitutional right to free speech; (2)
failing to present opening remarks consistent with
Breitzman's anticipated testimony; and (3) failing to
object to testimony regarding other uncharged conduct.
As to the first, we conclude that trial counsel's failure
to move to dismiss the disorderly conduct charge on the basis
that it violated Breitzman's constitutional right to free
speech was not deficient performance, and thus not
ineffective assistance of counsel, because whether profane
conduct that tends to cause or provoke a disturbance is
protected as free speech is unsettled law.
As to the second, we conclude that trial counsel's theory
of reasonable parental discipline, as presented in opening
remarks, was not deficient performance, and thus not
ineffective assistance of counsel, because it reflected trial
counsel's reasonable expectations, which were rationally
based on discussions with Breitzman, and it was part of a
reasonable trial strategy.
As to the third, we conclude that trial counsel's failure
to object to testimony regarding uncharged conduct was not
deficient performance, and thus not ineffective assistance of
counsel, because declining to object was part of a reasonable
Because we conclude that trial counsel's performance was
not deficient, we need not address whether, in the context of
ineffective assistance of counsel, there was prejudice to
Breitzman, and we decline to do so.
Thus, we affirm the decision of the court of appeals.
FACTUAL AND PROCEDURAL BACKGROUND
To give proper perspective on the narrow issues we address
here, it is important to outline the charges, allegations,
and evidence presented to the jury, as well as the theory of
defense and strategy of trial counsel.
The State charged Breitzman with the following five counts:
(1) Physical Abuse of a Child (Intentional Causation of
Bodily Harm) under Wis.Stat. § 948.03(2) (b), as to
striking J.K. in the face, resulting in a bloody nose, for
J.K.'s failure to wash the floor; (2) Physical Abuse of a
Child (Intentional Causation of Bodily Harm) under §
948.03(2) (b), as to striking J.K. in the face, resulting in
a bruise, for J.K.'s failure to prepare a meal; (3) Child
Neglect (Bodily Harm) under Wis.Stat. § 948.21(1) (b),
as to Breitzman's failing to seek medical care for J.K.
when he was sick for a week with vomiting and diarrhea; (4)
Child Neglect (Misdemeanor) under § 948.21(1)(a), as to
Breitzman's locking J.K. out of the house during the
winter; and (5) Disorderly Conduct under Wis.Stat. §
947.01(1), as to Breitzman's engaging in "profane
conduct, under circumstances in which such conduct tended to
cause a disturbance." Breitzman entered pleas of not guilty
and the case was set for a jury trial. At trial, the
State's primary witness was J.K., Breitzman's son.
As to the first charge, for physical abuse, J.K. testified
that he had been sweeping the floor while also trying to keep
an eye on his three-year-old little sister. Breitzman wanted
him to hurry up sweeping the floor, but his sister was
running around the house and throwing things on the floor, in
J.K.'s words, "being a three year old." Then,
when Breitzman came into the room and saw that he was not
sweeping "right or fast enough, " she grabbed the
broom and struck him on the side of his head with her fist
(she could not reach his face because he had raised his hands
defensively when she grabbed the broom), telling him he never
did anything right and calling him a "piece of
shit" and the "dog of the house."
As to the second charge, also for physical abuse, J.K.
testified that he could not recall the precise date on which
Breitzman struck him, but he remembered clearly the bloody
nose that resulted because it lasted three minutes and he had
to go find something to stem the flow. He said that Breitzman
had seemed angry with him when she came into his room and
then struck him in the face when he would not get out of bed,
calling him a "fuck face" and a "retard."
When she left, he remembers crying and that he did not know
what he'd done wrong.
As to count three, for child neglect, J.K. testified that, on
or about November 18, 2012, he became very ill. He had been
vomiting almost every hour and had diarrhea, both of which
appeared to have blood in them. When he told Breitzman this,
she said she would get him a Gatorade at the end of the week
if he was still sick. He testified that he was sick like this
for six-to-seven days, but when he asked Breitzman if he
could go to the doctor, she refused. This prompted him to
call friends and post on Facebook seeking help.
As to count four, also for child neglect, J.K. testified
that, in the winter of 2011-2012, he could not get into the
house when he got home from school because his mother had
locked the doors. The weather that morning had been warmer,
so he had not taken a coat with him to school; the weather
grew cooler over the course of the day, however, and it was
cold when he returned home at about 3:30 p.m. Finding the
house locked, he testified that he knocked on the front and
back doors and rang the doorbell for about three minutes to
no avail. J.K. said he could tell that Breitzman was home
because her car was in the driveway, but she did not come to
the door so he crawled under the grill cover on the porch for
shelter. He continued to ring the doorbell every fifteen
minutes, but spent approximately four hours outside, huddling
under the grill cover to keep from freezing.
As to the fifth charge, for disorderly conduct, J.K.
testified that, when he got home from school on December 4,
2012, he put a bag of popcorn in the microwave, but ended up
burning it and having to throw it away. When Breitzman got
home about a half hour later, he was on the phone with his
best friend, D.M., and, when he heard Breitzman come through
the door, he hid his phone in his pocket because he was
afraid she would be mad. He testified that, when she smelled
the burned popcorn and saw the bag in the trash can, she
sought him out and told him he always messed things up,
calling him a "fuck face, " "retard, "
and a "piece of shit." He defended himself by
saying that he had not done it on purpose, but Breitzman
persisted saying she "[didn't] give a fuck." He
then asked Breitzman to stop calling him names, which she
responded to by threatening to kick him out of the house.
Later that night he called D.M. back crying and needing
someone to talk to.
Over the course of J.K.'s testimony, he further testified
that it was a daily occurrence to be called
"retard" and "fuck face." He also
testified that he had not had glasses or treatment for his
lazy eye since second grade and had not been to the dentist
since he was five; that there was a lock on the refrigerator
at home and he could not get lunch at school because
Breitzman would not complete the paperwork for free lunches;
and that Breitzman struck J.K. once when they were in the car
because he disagreed with her about who had taught him a song
when he was younger. The latter came up during trial
Q You just have a problem with frequent nosebleeds?
A From what it appears. But this was after the incident when
she hit me in the car and my nose was bleeding on me.
Q By the way, was she driving the car at the time?
A Yes, sir.
Q And where were you located?
A I was in the passenger's seat.
Q And so it was her attempt to slap you, she was hitting you
with the back of her hand at that time?
A She hit me with the back of her hand.
Q She couldn't have hit you with the palm of her hand
because there wasn't quite a way to do that, right, so
she actually had to go this way?
A Yes, sir.
The State also introduced evidence to corroborate J.K.'s
testimony: J.K.'s best friend, D.M., testified that over
the course of about six months, J.K. went from "always
happy and nice" to "more stressed out and tired and
just more sad." Specifically, when J.K. called him back
on the night of December 4, 2012, he said that J.K. seemed
"beat down" and that he had "never heard
[J.K.] cry before." D.M. also testified that J.K. had a
bruise for about a week at the time of the second allegation
of abuse; J.K.'s girlfriend, A.G., also verified this.
J.K.'s neighbor also testified. She said she had sent
over Gatorade and crackers in response to J.K.'s Facebook
post about being ill-she had had some on hand because her
daughter had been sick with the flu. She was also the one
J.K. called looking for a place to stay when Breitzman kicked
him out on December 4, 2012.
Additionally, the State called J.K.'s high school
counselor and the West Allis detective who investigated
J.K.'s claims. The counselor testified that J.K. met with
him on November 29, 2012, and told him about what had been
going on at home, that he was tired of being called
"retarded" and a "[f]uck face" and being
"smacked in the head" by his mother. J.K. then met
with a detective from the West Allis Police Department on
December 11, 2012. In investigating J.K.'s claims, the
detective interviewed Breitzman. The detective testified that
Breitzman admitted that she called J.K. names, slapped and
backhanded J.K., and did not allow J.K. to have a key to the
Breitzman's general defense to these allegations and
charges was that J.K. was lying and that he was a rebellious
and irresponsible teenager. She attributed this behavior to
the fact that his father had rejected him and that J.K. had a
new girlfriend. Specifically, as to counts one and two,
Breitzman denied striking J.K., and said that the bruise had
been the result of him dropping a dumbbell on his face. As to
count three, Breitzman testified that J.K. was not sick for a
week, that she told him there were crackers and Gatorade
available, and that the redness in his vomit and diarrhea was
fruit punch Gatorade, not blood. As to count four, Breitzman
confirmed that she knew what time J.K. got home from school,
that she had locked the doors to the house, that she did not
let J.K. have a key, and that she chose to take a nap at that
time; but she defended her actions by pointing out that there
were any number of businesses close by where J.K. could have
gone to wait. As to count five, Breitzman said that her
conduct was justified because J.K. had scorched the microwave
when he burned the popcorn and he "was belligerent with
Breitzman further testified that she did call J.K.
"retarded, " a "piece of shit, " and a
"fuck face, " but not regularly; that she did not
get J.K. glasses because she did not have insurance and
because he would not wear them when he did have them; that
J.K. did not have lunch because he could not remember to
bring home the form and did not make his own lunch, and that
J.K. always had the code to the lock on the refrigerator,
which was just in place to make him think before eating; and
that she did strike J.K. in the uncharged incident in the
car. Breitzman also testified that she would generally
discipline J.K. by grounding him or by taking away phone
and/or video game privileges, but would resort to physical
violence if she thought he was lying to her, talking back,
being belligerent, or if he did not check in when he was out.
She testified that she never struck him just to hurt him. In
short, Breitzman's defense was that J.K. could not be
believed, and that, as a single parent, she "did what
[she] thought [she] had to do."
At trial, the testimony was bookended by attorneys'
arguments. As pertains to the ineffective assistance of
counsel issue presented here, Breitzman's trial counsel
argued in his opening remarks as follows:
[W]hat's really at the base of this is the question of
the instructions that the Court gives you, have any of these
been met or not? You will also be getting later on an
instruction which is very important to this case, and it is
going to be very important when you get to the defense case,
and that is the question of reasonable parental discipline
privilege, it's a jury instruction, number 950, 950,
that's very important because this is eventually what
this comes down to. . . .
Was she intentionally trying to inflict pain beyond the right
of a parent to inflict pain and, yes, read chapter or read
Jury Instruction 950 when you get it, it actually refers to a
parent's right to inflict, that means cause pain, and we
know you can cause pain a million ways. You can slap someone
if they are disrespectful to you. You can smack someone hard
on the back of their butt. You can hit them on the side of
their head. . . . You are going to have a couple of days of
evidence to consider as to whether my client is a criminal or
just a struggling parent, and I believe the evidence will
show that she is not a criminal . . . .
general practice, the circuit court instructed the jury that
attorney arguments are not evidence:
Remarks of the attorneys are not evidence. If the remarks
suggested facts not in evidence, disregard the suggestion.
Consider carefully closing arguments of the attorneys but
their arguments and conclusions and opinions are not
On May 23, 2014, the jury convicted Breitzman of all five
counts. After the verdict, the circuit court entered the
judgments of conviction.
On February 6, 2015, Breitzman filed a postconviction motion,
seeking judgments of acquittal for counts three, four, and
five. For all three, she argued that there was insufficient
evidence to support a conviction. Additionally, she argued
that defense counsel at trial had been ineffective because he
failed to move for dismissal of count five for disorderly
conduct on free speech grounds, pursued a defense theory of
reasonable parental discipline in opening remarks that was
inconsistent with Breitzman's plan to deny striking J.K.,
and failed to object to testimony regarding other-acts
evidence. On May 29, 2015, the circuit court held a
Machner hearing on the motion, at which both trial
counsel and Breitzman testified.
As to his failure to challenge the disorderly conduct charge
on free speech grounds, trial counsel testified that he had
contemplated moving to dismiss count five for disorderly
conduct on free speech grounds, but decided not to because it
was "too shallow and there wasn't enough guts to
As to his assertion of the reasonable parental discipline
theory of defense, Breitzman's trial counsel testified as
Q Prior to the commencement of the actual jury trial, you
asked for the Court to include within the opening statements
the reasonable discipline defense; isn't that true?
A ... yes.
Q Why did you ask for that?
A Because it was the only major defense position I believed
we could take, regardless of all the charges, because jurors
. . . [are] really trying to decide which side is telling the
truth in the end . . . and the major morality of this case
was whether he had a struggling mother doing the best she
could or whether we had a mother engaged in abuse ....
That's why I included the recommendation originally, and
the client saw the wisdom of it. . . .
As to his failure to object to other-acts evidence,
Breitzman's trial counsel further testified as follows:
Q Was there a reason why you did not file a motion in limine
pretrial to preclude any reference to these other allegations
of her bad behavior?
A The heart of her defense was that she had a rebellious
child. She was a single mom with very limited economic
resources. She had another child she had to take care of. She
had had a very difficult set of circumstances she was dealing
with. She had loved her son and had had a good relationship
with him until a point in time, a year or two before where he
suddenly became rebellious, which she ...