State v. Breitzman, 2015AP1610-CR

• Citation: 378 Wis.2d 431,2017 WI 100,904 N.W.2d 93
• Decision Date: 01 December 2017
• Docket Number: No. 2015AP1610-CR,2015AP1610-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ginger M. BREITZMAN, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

378 Wis.2d 431

904 N.W.2d 93

2017 WI 100

STATE of Wisconsin, Plaintiff-Respondent,

v.Ginger M. BREITZMAN, Defendant-Appellant-Petitioner.

No. 2015AP1610-CR

Supreme Court of Wisconsin.

Oral Argument: September 20, 2017

Opinion Filed: December 1, 2017

For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Hannah Schieber Jurrs, assistant state public defender.

For 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.

¶1 This is a review of an unpublished decision of the court of appeals, State v. Breitzman, No. 2015AP1610-CR, unpublished slip op., 2016 WL 4275591 (Wis. Ct. App. Aug. 16, 2016), which affirmed the Milwaukee County circuit court's¹ denial of Ginger Breitzman's ("Breitzman") postconviction motion challenging her convictions for child neglect under Wis. Stat. § 948.21(1) (2013-14)² and disorderly conduct under Wis. Stat. § 947.01(1).

¶2 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. § 947.01(1).

¶3 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 Machner ³ hearing, 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 trial.

¶4 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.

¶5 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.⁴ 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.

¶6 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.

¶7 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.

¶8 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.

¶9 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 trial strategy.

¶10 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.

¶11 Thus, we affirm the decision of the court of appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶12 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.

¶13 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."⁵ 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.

¶14 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."

¶15 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.

¶16 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.

¶17 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.

¶18 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...