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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
May 2, 2000
                                                                                                                                                         A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                         petition  to  review  an  adverse  decision  by  the
                                                                                       Cornelia G. Clark
                                                                                                                                                         Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                                       Clerk, Court of Appeals
                                                                                                                                                         RULE 809.62.
                                                                                       of Wisconsin
No.                                                                                    98-2857-CR
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
                                                                                       DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
GUSTAVO HINOJOSA,
DEFENDANT-APPELLANT,
JAVIER SALGADO,
DEFENDANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Milwaukee County:   JEFFREY A. KREMERS, Judge.   Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1                                                                                     PER CURIAM.    Gustavo Hinojosa appeals from a judgment entered
after a jury found him guilty of second-degree sexual assault of a child.   See WIS.




No. 98-2857-CR
STAT. § 948.02(2) (1997-98).1   He also appeals from an order denying his motion
for postconviction relief.   He argues:  (1) that the trial court erred in excluding
evidence of the victim’s previous sexual conduct that, he alleges, provided an
alternate explanation of the source of the injuries to her vaginal and anal areas; (2)
that he received ineffective assistance of trial counsel;  (3) that trial counsel’s
alleged errors constitute plain error; and (4) that he is entitled to a new trial in the
interest of justice because the real controversy has not been fully tried.   We affirm.
BACKGROUND
¶2                                                                                         On December 29, 1996, fifteen-year-old Angela T. went to a party at
                                                                                           Hinojosa’s house.   Angela testified that, at the party, she met Javier Salgado and
Hinojosa,  and  that  they  were  referred  to  as                                         “Ricky,”  and                                                                         “Ricky’s  dad,”
respectively.
¶3                                                                                         Angela had been drinking before she went to the party, and she
continued to drink at the party.   She became so drunk that she passed out and was
taken into Hinojosa’s bedroom and placed on his bed.   Angela testified that she
awoke to find herself naked, with Salgado on top of her having vaginal intercourse
with her.    She testified that she then passed out again, and later awoke when
Hinojosa was on top of her.   She testified that Hinojosa had both vaginal and anal
intercourse with her.    Angela testified that she continued to slip in and out of
consciousness throughout the night, and that she was later placed in the shower,
fully-clothed, and doused with water.
1  All references to the Wisconsin Statutes are to the 1997-98 version.
2




No. 98-2857-CR
¶4                                                                                       The two girls who took Angela to the party, Sarah V. and Laura B.,
then placed Angela in the car and drove back to Sarah’s house.   They left Angela
asleep in the car and went into the house to go to sleep.   When Angela awoke, she
was wet and cold, so she went and knocked on Sarah’s bedroom window until
Sarah let her in the house.   She then went to sleep, and when she later awoke she
felt pain in her vaginal and anal areas.   Angela asked Laura and Sarah what had
happened to her, and they told her that she had had sex with Ricky and his dad.
¶5                                                                                       Laura later drove Angela to Angela’s friend’s house, where Angela
began to cry and then called the police.   An ambulance came and took Angela to
the hospital, where she was examined by a nurse and questioned by the police.
¶6                                                                                       The nurse who examined Angela testified that Angela had bruises all
over her body, that she had a split lip, and that one of her eyebrows had been
shaved off.   She further testified that Angela could not sit normally because of her
rectal pain.   The nurse testified that Angela had tears to her vaginal and anal areas
that indicated penetration, and that the tears were less than two days old.   She
testified that Angela’s injuries were of a type that would generally heal within two
or three days.   The nurse further testified that she observed redness in Angela’s
vaginal area and her anal canal.   The nurse also took cervical, vaginal and anal
swabs from Angela, and recovered a pubic hair from Angela’s cervix.
¶7                                                                                       After the nurse examined Angela, Officer Karen Domagalski drove
Angela around so she could identify the house where she was sexually assaulted.
Officer Domagalski testified that Angela identified Hinojosa’s house, and that she
also  identified  Hinojosa  when  he  came  out  of  the  house.    The  police  later
recovered Angela’s sweatshirt from Hinojosa’s bedroom.
3




No. 98-2857-CR
¶8                                                                                      The  police  performed  enzyme  tests  on  the  cervical  and  vaginal
swabs and on the underwear that Angela was wearing after the sexual assaults, and
found semen on all three.   They performed a DNA analysis of the semen from the
vaginal swab and determined that the sample was consistent with Hinojosa’s DNA
sample.    The DNA expert from the crime lab testified that, based on an FBI
population database, one in 5,900 Hispanic persons would have DNA consistent
with the DNA from the vaginal swab.
¶9                                                                                      A jury convicted Hinojosa of second-degree sexual assault, and the
trial  court  entered  judgment  accordingly.                                           Thereafter,  Hinojosa  filed  a
postconviction motion raising the issues he argues on appeal.   After a hearing, the
trial court denied the motion.
DISCUSSION
A.  Evidence of Angela’s prior sexual conduct.
¶10    Hinojosa argues that the trial court erred in excluding evidence that
Angela had had sexual intercourse two weeks before she went to the party at
Hinojosa’s  house.    He  argues  that  the  evidence  was  relevant  and  admissible
because it would have provided an alternate explanation of the  source of the
injuries to Angela’s vaginal and anal areas.2
2  WISCONSIN STAT. § 972.11(2)(b) provides, in relevant part:
(b) If the defendant is accused of a crime under s. 940.225,
948.02,                                                                                 948.025,                                                                 948.05,   948.06  or   948.095,  any  evidence
concerning the complaining witness’s prior sexual conduct or
opinions of the witness’s prior sexual conduct and reputation as
to  prior  sexual  conduct  shall  not  be  admitted  into  evidence
during the course of the hearing or trial, nor shall any reference
to such conduct be made in the presence of the jury, except the
following, subject to s. 971.31 (11):
(continued)
4




No. 98-2857-CR
¶11    Trial courts are granted broad discretion in determining whether to
admit or exclude proffered evidence.   See State v. Larsen, 165 Wis. 2d 316, 319-
320, 477 N.W.2d 87, 88 (Ct. App. 1991).   Our review is limited to determining
whether the trial court erroneously exercised this discretion.   See id., 165 Wis. 2d
at 320 n.1, 477 N.W.2d at 89 n.1.   We will not overturn a trial court’s evidentiary
ruling unless there was no reasonable basis for it.   See State v. McConnohie, 113
Wis. 2d 362, 370, 334 N.W.2d 903, 907 (1983).
¶12    The trial court concluded that the proffered evidence of Angela’s
prior  sexual  conduct  was  not  relevant  because,  according  to  the  undisputed
testimony of the nurse who examined Angela, Angela’s injuries were no more
than two or three days old.   We agree.   Indeed, the nurse testified that injuries like
those that Angela had suffered usually heal within two or three days, and that
Angela’s injuries were less than two days old.    Evidence that Angela had had
sexual  intercourse  two  weeks  before  the  party  at  Hinojosa’s  would  not  have
provided an explanation for Angela’s injuries.   The trial court did not erroneously
exercise its discretion in excluding the proffered evidence.
B.  Ineffective assistance of counsel.
¶13    Hinojosa also argues that he received ineffective assistance of trial
counsel.   Specifically, he asserts that trial counsel was ineffective because: (1) he
did not assert a hearsay objection when an expert who did not perform the enzyme
or DNA tests testified regarding the results of those tests; (2) he allegedly failed to
….
2. Evidence of specific instances of sexual conduct showing the
source or origin of semen, pregnancy or disease, for use in
determining the degree of sexual assault or the extent of injury
suffered.
5




No. 98-2857-CR
sufficiently cross-examine the expert regarding the reliability of the results of the
DNA analysis; (3) he did not have independent tests performed on the evidence
and did not have an independent expert review the results of the tests performed at
the crime lab; (4) he did not assert a hearsay objection when Laura testified that, at
the party, she heard that Angela had had sex with an older guy; (5) he did not
object when Officer Domagalski testified that Angela  told her enough details
about the sexual assault to substantiate the offense; (6) he did not object to various
portions of the prosecutor’s closing argument; and (7) he did not file a pretrial
motion seeking admission of evidence of Angela’s prior sexual conduct.3
¶14    To  prevail  on  a  claim  of  ineffective  assistance  of  counsel,  a
defendant  bears  the  burden  to  establish  both  that  counsel’s  performance  was
deficient and that the deficient performance was prejudicial.   See Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Sanchez, 201 Wis. 2d 219, 232-
236, 548 N.W.2d 69, 74-76 (1996).   To prove deficient performance, a defendant
must identify specific acts or omissions of counsel that were “outside the wide
range of professionally competent assistance.”   Strickland, 466 U.S. at 690.   A
defendant has not been denied effective assistance of counsel merely because he or
she did not receive “the best counsel that might have tried the case, nor the best
defense that might have been presented.                                                             ‘Counsel need not be perfect, indeed not
even  very  good,  to  be  constitutionally  adequate.’”    State  v.  Williquette,                 180
3  The  bulk  of  Hinojosa’s  appellate  brief  is  a  rambling  account  of  the  trial  and
postconviction proceedings without cogent argument or citation to legal authorities in support of
the asserted claims of error.   We have, nonetheless, attempted to identify the main issues that
Hinojosa has raised, and we address only those issues.   See Libertarian Party v. State, 199
Wis. 2d 790, 801, 546 N.W.2d 424, 430 (1996) (appellate court need not address issues that “lack
sufficient merit to warrant individual attention”); State v. Waste Management, Inc., 81 Wis. 2d
555, 564, 261 N.W.2d 147, 151 (1978) (“An appellate court is not a performing bear, required to
dance to each and every tune played on an appeal.”).
6




No. 98-2857-CR
Wis. 2d 589, 605, 510 N.W.2d 708, 713 (Ct. App. 1993), aff’d, 190 Wis. 2d 677,
526 N.W.2d 144 (1995).   Counsel’s performance is to be evaluated from counsel’s
perspective at the time of the challenged conduct.   See Strickland, 466 U.S. at
690.   Counsel is strongly presumed to have rendered effective assistance and to
have  made  all significant decisions in the  exercise  of  reasonable  professional
judgment.   See id.
¶15    To show prejudice, the defendant must demonstrate “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the  proceeding  would  have  been  different.     A  reasonable  probability  is  a
probability sufficient to undermine confidence in the outcome.”   Id., 466 U.S. at
694.
¶16    Ineffective assistance of counsel claims present mixed questions of
law and fact.   See State v. Pitsch, 124 Wis. 2d 628, 633-634, 369 N.W.2d 711,
714 (1985).   A trial court’s factual findings must be upheld unless they are clearly
erroneous.   See State v. Harvey,  139 Wis.  2d 353,  376,  407 N.W.2d 235,  245
(1987).    Whether counsel’s performance was deficient and, if so, whether the
deficient performance prejudiced the defendant are questions of law, which we
review de novo.  See Pitsch, 124 Wis. 2d at 634, 369 N.W.2d at 715.
1.   Expert testimony.
¶17    At  trial,  Ronald  Witucki  testified  about  the  tests  performed  on
Angela’s  underwear  and  the  swabs  that  the  nurse  had  taken  at  the  hospital.
Although he did not personally perform any of the tests, he explained both how
the tests were generally performed and what the results were for the evidence
submitted in Angela’s case.   Hinojosa argues that his counsel was ineffective in
failing to object to Witucki’s testimony.
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No. 98-2857-CR
¶18    Hinojosa has not established, however, that he was prejudiced by
counsel’s failure to object to Witucki’s testimony.   See Strickland, 466 U.S. at
694.   Indeed, had counsel objected to Witucki’s testimony, the State could have
obtained a continuance and presented the testimony of the persons who performed
the tests, thereby eliminating counsel’s argument that Witucki’s testimony was
unreliable because he did not perform the tests and did not know if they were
performed properly.   Significantly, Hinojosa provides no indication that he could
have established that the tests were not properly performed if the persons who
performed the tests had testified.   See State v. Flynn, 190 Wis. 2d 31, 48, 527
N.W.2d 343, 349-350 (Ct. App. 1994) (to establish prejudice, “[a] defendant who
alleges  a  failure  to  investigate  on  the  part  of  his  counsel  must  allege  with
specificity what the investigation would have revealed and how it would have
altered the outcome of the trial”).   We therefore reject Hinojosa’s argument that
trial counsel was ineffective in failing to object to Witucki’s testimony.
2.   Cross-examination.
¶19    Hinojosa also argues that trial counsel was ineffective because he
allegedly failed to sufficiently cross-examine Witucki about the reliability of the
DNA analysis.   Among other things, he asserts that trial counsel  “neglected to
elicit the fact that DNA typing can only exclude a suspect and that “‘inclusion’ is
just a probability number,” and also “neglected to challenge the terms ‘consistent’
or ‘match.’”
¶20    Contrary to Hinojosa’s assertions, however, the record reveals that
there was extensive testimony that DNA typing yields a probability determination
of the likelihood that the sample came from a given person.   Indeed, as noted,
Witucki testified that one in 5,900 Hispanic persons would have a DNA pattern
8




No. 98-2857-CR
consistent  with  Hinojosa’s  DNA  pattern.    Hinojosa’s  trial  counsel  repeatedly
questioned  Witucki  on  this  probability  calculation.    Further,  Hinojosa’s  trial
counsel questioned Witucki as to whether “match” was “too strong a word to use
for the similarities in the D.N.A. between the two samples?”   Witucki responded
that the word “match” meant that the “patterns were consistent with each other.”
Hinojosa’s trial counsel then elicited testimony from Witucki that it is possible for
DNA samples to have consistent patterns although they have originated from two
different people.   Hinojosa’s assertion that he received ineffective assistance of
counsel because his trial counsel did not adequately cross-examine Witucki is
without merit.
3.   Independent tests/independent expert.
¶21    Hinojosa argues that trial counsel was ineffective because he failed
to have independent tests performed on the evidence collected from Angela, and
he failed to have an independent expert review the results of the tests performed at
the crime lab.   Hinojosa fails, however, to establish that further testing would have
resulted in exculpatory evidence, or that the opinion of an independent expert
would have changed the outcome of his trial.4   See id. (to establish prejudice, “[a]
defendant who alleges a failure to investigate on the part of his counsel must
allege with specificity what the investigation would have revealed and how it
would  have  altered  the  outcome  of  the  trial”).     Hinojosa  offers  only  his
postconviction expert’s opinion that the probability of finding another person with
a  DNA  sample  consistent with  Hinojosa’s  would be  closer  to one  in several
4  As the trial court aptly noted at the postconviction hearing, Hinojosa’s argument about
the potential results of additional DNA testing is “purely speculative.   This is not a situation
where the defense has gone out and had any samples tested on its own and is coming in saying,
… look at what it shows, this should have been done at the time of trial.”
9




No. 98-2857-CR
hundred, rather than one in 5,900.5   There is no reasonable probability that this
testimony would have changed the result of the trial.
¶22    There  was  compelling  physical  evidence  in  support  of  Angela’s
claim that she was sexually assaulted.   The evidence further established that the
sexual assault occurred in Hinojosa’s bed, during a party at his house, at which
Hinojosa admits he was present, and that the DNA of the sperm sample from
Angela’s  vaginal  swab  was  consistent  with  Hinojosa’s  DNA.    Under  these
circumstances, the asserted difference in the probability of the DNA match does
not render the result of Hinojosa’s trial unreliable.   Hinojosa has failed to establish
that he was prejudiced by trial counsel’s alleged deficiency.   See Strickland, 466
U.S. at 694.
4.   Laura’s testimony.
¶23    Hinojosa argues that trial counsel was ineffective in failing to object
when Laura testified that, at the party, she heard that Angela had had sex with an
older guy.   He asserts that the testimony was inadmissible hearsay, and that it was
prejudicial because the other evidence indicated that he was the only older person
at the party.
¶24    The record reveals, however, that Laura’s testimony was cumulative
to  other  testimony,  and  was  consistent  with  Hinojosa’s  theory  of  defense.
5  Hinojosa’s expert opined that Witucki’s testimony that the probability of a match was
one in 5,900 was based upon errors in the testing and calculation process, and that accurate
calculations “would result in far less compelling evidence.”   Hinojosa’s expert did not give a
specific probability, other than his assertion that eliminating one alleged error in the calculation
process “would by itself probably change the statistical ratio in the one to several hundred range.”
Thus, we limit our analysis to the numbers offered by Hinojosa’s expert.   Further analysis would
be based on pure speculation.
10




No. 98-2857-CR
Significantly,  when  cross-examining  Angela,  prior  to  Laura’s  testimony,
Hinojosa’s counsel elicited from Angela that she had discussed with Laura and
Sarah what happened at the party, and that they had told her that “Ricky and his
father” had had sex with her.   He further elicited that Angela had told the police
that  “a younger man” and  “an older man” had had sex with her at the party.
Thereafter, trial counsel attempted to establish that Angela was unable to identify
her assailants because she was unconscious during most of the party, and that she
identified Hinojosa as one of the assailants based only upon unreliable rumors she
had heard from others.    Laura’s testimony was consistent with trial counsel’s
reasonable, although ultimately unsuccessful, theory of defense.   See Strickland,
466  U.S.  at                                                                           690  (counsel’s  performance  is  to  be  evaluated  from  counsel’s
perspective at the time of the challenged conduct).   We therefore conclude that
Hinojosa’s counsel was not ineffective in failing to object to Laura’s testimony.
5.   Officer Domagalski’s testimony.
¶25    Hinojosa argues that trial counsel was ineffective in failing to object
when Officer Domagalski testified that Angela gave her enough detail about the
sexual assault to substantiate the offense.   He asserts that the testimony was an
impermissible  comment  on  Angela’s  credibility.    See  State  v.  Haseltine,  120
Wis. 2d 92, 96, 352 N.W.2d 673, 676 (Ct. App. 1984) (“No witness, expert or
otherwise,  should  be  permitted  to  give  an  opinion  that  another  mentally and
physically competent witness is telling the truth.”).
¶26    Hinojosa’s trial counsel asked Officer Domagalski, during  cross-
examination,                                                                            “You  indicated  that  Angela                                          [T.]  gave  you  a  rather  detailed
description of this sexual assault?”   Officer Domagalski answered, “She gave me
enough details to substantiate the offense.”   This testimony clearly referred to the
11




No. 98-2857-CR
level of detail Angela used in describing the sexual assault.   It was not a statement
of Officer Domagalski’s personal belief in the truth of Angela’s account of the
offense.                                                                                 We  therefore  reject  Hinojosa’s  argument  that  trial  counsel  was
ineffective in failing to object to this testimony.
6.   Closing argument.
¶27    Hinojosa argues that trial counsel was ineffective in failing to object
to several portions of the prosecutor’s closing argument.   Specifically, Hinojosa
asserts:
[D]efense  counsel  erred  in  failing  to  object  to  the
prosecution’s closing  [when]:  (1) the prosecutor told the
jury  that  the  victim  testified                                                       ‘with  credibility’;                                                     (2)  the
prosecutor  vouched  for  the  victim  stating  that  she  was
‘honest about that’; (3) the prosecutor inferentially told the
jury that Mr. Hinojosa’s defense had failed because it had
not   explained   certain   aspects   of   the   defense   and
accordingly  asked  the  jury  to  speculate  about  certain
evidence; and, (4) the prosecutor[] state[d], contrary to the
testimony at trial that the DNA samples that were not tested
were too small to be tested.
Brief of Defendant-Appellant at 28 (record references omitted).
¶28    First, the record reveals that the prosecutor’s comments on Angela’s
credibility  were  neither  improper  nor  unfairly  prejudicial  to  Hinojosa.    The
Wisconsin  Supreme  Court                                                                “has  rejected  the  strict  rule  against  a  prosecutor
expressing an opinion based on the evidence.”   State v. Cydzik, 60 Wis. 2d 683,
694,  211 N.W.2d  421,  428  (1973).                                                     “In Wisconsin, a prosecutor or a defense
counsel may comment on the evidence, detail the evidence, argue from it to a
conclusion and state that the evidence convinces him and should convince the
jurors.”    Embry v. State,  46 Wis.  2d  151,  160,  174 N.W.2d  521,  526  (1970).
“However, when such an opinion is expressed it must be clear that it is based
12




No. 98-2857-CR
solely upon the evidence in the case.”   Id.                                                   “The line between permissible and
impermissible  argument  is  thus  drawn  where  the  prosecutor  goes  beyond
reasoning from the evidence  … and instead suggests that the jury arrive at a
verdict  by considering  factors  other  than  the  evidence.”    State  v.  Draize,           88
Wis. 2d 445, 454, 276 N.W.2d 784, 789 (1979).
¶29    After discussing the evidence that corroborated Angela’s account of
the sexual assaults and the circumstances under which Angela disclosed the sexual
assaults,  the  prosecutor  argued  to  the  jury  that  Angela  had                           “testified  with
credibility.”   Later, the prosecutor again urged the jury to find Angela’s testimony
credible, arguing, “She tells the truth, that she can’t remember when she can’t.”
These comments both properly urged the jury to find Angela credible based upon
the evidence.6
¶30    Second, the record reveals that the prosecutor’s evaluation of the
strength of the defense did not improperly shift the burden of proof to the defense.
The  prosecutor  merely  pointed  out  that  the  testimony  of  the  State’s  expert
witnesses was undisputed, and that the defense had not provided expert testimony
to support its contradictory theory.
¶31    Third, the prosecutor’s statement that the anal swab was “too small
of a sample to be tested for DNA,” was a reasonable inference from the testimony
of the crime lab witness, Witucki.   Witucki testified that because DNA typing is a
“very expensive and labor intensive test procedure,” the crime lab normally tests
6  Indeed, the prosecutor clarified during rebuttal closing argument that “it doesn’t matter
and I hope you don’t take into consideration what I believe or what they [opposing counsel]
believe, because the only thing that matters is what you believe, based on her  [Angela’s]
testimony.”
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No. 98-2857-CR
only  “the  best two  possible  candidates.”    The  prosecutor  then  asked  Witucki
whether the sample from the anal swab was sufficient for testing, and Witucki
responded that there were “only trace amounts of semen” on the anal swab.   This
testimony supports a reasonable inference that the crime lab decided not to test the
sample from the anal swab because it was too small.
¶32    Finally,  Hinojosa  has  failed  to  establish  that  he  was  unfairly
prejudiced by any of the foregoing statements; none undermined the reliability of
the trial.   We therefore reject Hinojosa’s argument that his counsel was ineffective
in failing to object during the prosecutor’s closing argument.   See Strickland, 466
U.S. at 694.
7.   Pretrial motion.
¶33    Hinojosa argues that trial counsel was ineffective in failing to file a
pretrial motion seeking the admission of evidence that Angela had had sexual
intercourse two weeks before the party at his house.7    As noted, the proffered
testimony was not admissible.    Hinojosa was thus not prejudiced by counsel’s
failure to file the motion.
C.  Plain error.
¶34    Hinojosa asserts that each of the foregoing alleged errors constitutes
plain  error.    If  an  error  constitutes  plain  error  and  affects  the  defendant’s
7  WISCONSIN STAT. § 971.31(11) provides:
(11) In actions under s. 940.225, 948.02, 948.025 or 948.095,
evidence  which  is  admissible  under  s.                                                  972.11   (2)  must  be
determined by the court upon pretrial motion to be material to a
fact at issue in the case and of sufficient probative value to
outweigh its inflammatory and prejudicial nature before it may
be introduced at trial.
14




No. 98-2857-CR
substantial rights, the defendant’s failure to object does not preclude our review of
that error.   See State v. Street, 202 Wis. 2d 533, 552, 551 N.W.2d 830, 839 (Ct.
App.  1996).    In order to constitute plain error, an error must be obvious and
substantial, and so fundamental that a new trial or other relief must be granted.
See id.                                                                                   “‘The plain-error rule is reserved for cases in which it is likely that the
error denied the defendant a basic constitutional right.’”   Id. (citation omitted).
We have already rejected Hinojosa’s arguments with respect to each of the alleged
errors.                                                                                   Hinojosa’s  assertions  of  plain  error  merely  reiterate  his  previous
arguments.   They are without merit.
D.  New trial in the interest of justice.
¶35    Finally, Hinojosa asserts that he is entitled to a new trial in the
interests of justice.   He asserts that the issue of whether he was properly identified
as Angela’s assailant was not fully tried because of trial counsel’s alleged errors
with respect to the DNA evidence.
¶36    WISCONSIN STAT. § 752.35 provides:
In an appeal to the court of appeals, if it appears from the
record that the real controversy has not been fully tried, or
that it is probable that justice has for any reason miscarried,
the court may reverse the judgment or order appealed from,
regardless  of  whether  the  proper  motion  or  objection
appears in the record and may direct the entry of the proper
judgment or remit the case to the trial court for entry of the
proper judgment or for a new trial, and direct the making of
such amendments in the pleadings and the adoption of such
procedure in that court, not inconsistent with statutes or
rules, as are necessary to accomplish the ends of justice.
If we conclude that the real controversy has not been fully tried, we may grant a
request for a new trial based upon that conclusion alone, see State v. Betterley,
191 Wis. 2d 406, 424-425, 529 N.W.2d 216, 223 (1995); if we conclude that it is
15




No. 98-2857-CR
probable that justice has miscarried, however, we must also determine that there is
a substantial probability that that a new trial would produce a different result, see
State v. Martinez, 210 Wis. 2d 397, 403, 563 N.W.2d 922, 925 (Ct. App. 1997).
¶37    As noted, Hinojosa has failed to establish that the DNA testimony
was unreliable or that further DNA testing would have yielded a different result.
We therefore reject Hinojosa’s assertion that he is entitled to a new trial in the
interest of justice.
By the Court.—Judgment and order affirmed.
                                                                                        This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                               (b)5.
16

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