State v. Jason Sypher

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COURT OF APPEALS
           DECISION                                                 NOTICE
        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.
         September 25, 2025
                                                    A party may file with the Supreme Court a
             Samuel A. Christensen                  petition to review an adverse decision by the
            Clerk of Court of Appeals               Court of Appeals. See WIS. STAT. § 808.10
                                                    and RULE 809.62.




Appeal No.         2023AP1209-CR                                                 Cir. Ct. No. 2018CF319

STATE OF WISCONSIN                                              IN COURT OF APPEALS
                                                                     DISTRICT IV


STATE OF WISCONSIN,

       PLAINTIFF-RESPONDENT,

  V.

JASON SYPHER,

       DEFENDANT-APPELLANT.




                  APPEAL from a judgment and orders of the circuit court for Portage
County: THOMAS B. EAGON and NICHOLAS J. BRAZEAU, JR., Judges.
Affirmed.

                  Before Graham, P.J., Blanchard, and Kloppenburg, JJ.

                  Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
                                                                     No. 2023AP1209-CR




       ¶1     PER CURIAM. Jason Sypher appeals a judgment of conviction, an
order denying his postconviction motion, and two orders denying subsequent
motions for reconsideration. The issues relate to the admissibility of cadaver-dog
evidence, the admissibility of a statement that a witness testified Sypher made to a
former girlfriend, and two claims of ineffective assistance of counsel. We affirm.

       ¶2     After a jury trial, Sypher was convicted of one count of first-degree
intentional homicide.    He filed a postconviction motion that the circuit court
denied without an evidentiary hearing.

       ¶3     On appeal, Sypher argues that the circuit court erred by admitting
evidence at trial about the activities of a cadaver-sniffing dog through the
testimony of the dog’s handler.      Before trial, Sypher moved to exclude that
evidence based, in part, on his argument that this type of evidence is unreliable.

       ¶4     The court held an evidentiary hearing before trial, and the handler
testified on matters such as how the dog was trained and the process that the
handler used with the dog at a scene of interest. After the hearing, Sypher argued
against admission of the evidence mainly on the basis that, at that time, no
Wisconsin case affirmatively allowed such evidence. Sypher also questioned the
reliability of the dog based on its past performance. The court reviewed the
testimony and concluded that the dog’s training was in compliance with reliable
principles and methods, which were followed in this case, and therefore the
evidence would be admitted.

       ¶5     After that circuit court decision, this court published an opinion
affirming the admission of cadaver-dog evidence. State v. Bucki,
2020 WI App
43
,
393 Wis. 2d 434
,
947 N.W.2d 152
. On appeal, Sypher argues that the circuit
court in his case erroneously exercised its discretion by not discussing all of the

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factors that the circuit court in Bucki discussed when it made its evidentiary
ruling. However, Sypher does not point to any case law requiring a court to
discuss all of the same factors as a prerequisite to admissibility. In fact, Bucki
expressly rejects such a requirement:

                       As the Supreme Court noted in Daubert v. Merrell
              Dow Pharmaceuticals, Inc.,
509 U.S. 579, 595
(1993), the
              test under FED. R. EVID. 702 is a “flexible” one. The
              federal advisory committee observed that no attempt had
              been made to codify all the factors that a court might
              consider when determining the admissibility of evidence
              subject to that rule, but its note sets forth numerous factors
              that had previously been deemed relevant. A circuit court
              enjoys the broad latitude to decide how to determine
              reliability, and it may consider some, all, or none of the
              factors identified by Daubert and the federal advisory
              committee to determine whether expert evidence is reliable.
              Seifert v. Balink,
2017 WI 2, ¶64
,
372 Wis. 2d 525
,
888
              N.W.2d 816
(plurality opinion) (citing Kumho Tire Co. v.
              Carmichael,
526 U.S. 137, 142
(1999)).

Bucki,
393 Wis. 2d 434
, ¶52 n.22.

       ¶6     Beyond that, Sypher faults the expert for not discussing potential
alternative reasons that the dog may have alerted in this case. However, that topic
is only a small point within the larger context of the dog’s general reliability, and
Sypher was free to ask questions on that topic during the hearing. In sum on this
issue, Sypher has failed to identify any specific flaw in the circuit court’s analysis
of the evidence at the hearing or in the conclusion the court reached based on that
evidence.

       ¶7     Sypher next argues that the circuit court erred by admitting certain
testimony by a former girlfriend.        The testimony disputed on appeal is her
statement that Sypher, after sexually assaulting her, warned her not to tell anyone,
and that if she did, he said, “I know plenty of places I can bury a body and no one



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                                                                    No. 2023AP1209-CR




will ever find you.” The significance of this testimony is that the victim in this
case was another person who had been in a romantic relationship with Sypher; and
law enforcement had been unable to locate her body.

       ¶8     At certain points in his appellate briefing, Sypher argues that this
testimony was evidence of an “other act,” and he refers to the three-part test for
such evidence under State v. Sullivan,
216 Wis. 2d 768, 772-73
,
576 N.W.2d 30
(1998). However, at other points in his briefing, Sypher questions whether a
person’s earlier statement is an “act” for the purpose of being covered by the
other-acts rule, WIS. STAT. § 904.04(2).

       ¶9     Sypher appears to operate from the premise that it would work in his
favor if we were to conclude that the other-acts rule does not apply to evidence in
the form of a statement, but that proposition would not assist him here. If the
testimony about Sypher’s statement is not subject to the other-acts rule, Sypher
has not suggested any other specific rule that might apply to testimony about his
statement, and which might then be a basis to exclude this evidence. In other
words, if Sypher’s statement is not an “other act,” then its admission is free from
the restrictions imposed by that rule, and is controlled only by the general rules
applicable to all evidence, such as those related to relevancy and unfair prejudice.
This would make it easier to admit the evidence, not harder.

       ¶10    Turning to Sypher’s arguments about the other-acts rule, he argues
that the evidence was admitted for the improper purpose of showing that he had a
certain character and acted in conformity with that character. However, the circuit
court ruled that the evidence was for the proper purposes of motive, intent, and
preparation or plan.   Sypher does not acknowledge this ruling, and does not




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                                                                    No. 2023AP1209-CR




specifically dispute any of those three purposes. He fails to show error on this
point.

         ¶11    On the question of whether the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice, we conclude that the
court did not erroneously exercise its discretion. On this point, the court briefly
stated that the probative value of the evidence was not outweighed by the danger
of unfair prejudice, and that a cautionary instruction would be given. Sypher
argues that the evidence should have been excluded because he did not actually
attempt such a crime against the girlfriend, and because this evidence presented
him as a person capable of committing the horrible crime charged, in the manner
claimed.       However, we do not agree that the danger of unfair prejudice
outweighed the probative value of this evidence, given the specificity of the
testimony and its potentially probative value to the facts of this case. The circuit
court reached a reasonable determination about its admissibility.

         ¶12    Sypher also argues that his trial counsel was constitutionally
ineffective. To establish ineffective assistance of counsel a defendant must show
that counsel’s performance was deficient and that such performance prejudiced his
defense. Strickland v. Washington,
466 U.S. 668, 687
(1984).

         ¶13    The circuit court denied Sypher’s claims without an evidentiary
hearing. Therefore, the question in this court is whether Sypher was entitled to
such a hearing. We first look at whether the facts alleged in the postconviction
motion, if true, would entitle the defendant to relief. State v. Jackson,
2023 WI 3,
¶11
,
405 Wis. 2d 458
,
983 N.W.2d 608
.          Then, if they do, the court must
determine whether the record conclusively demonstrates that the defendant is not
entitled to relief.
Id.
5
                                                                    No. 2023AP1209-CR




       ¶14    In attempting to allege facts that would entitle him to relief, Sypher
must allege objective factual assertions which allow the reviewing court to
meaningfully assess his claim. State v. Bentley,
201 Wis. 2d 303, 313-14
,
548
N.W.2d 50
(1996). This is a question of law that we decide without deference to
the circuit court.
Id. at 310
.

       ¶15    Sypher’s ineffective assistance claims are scattered about his brief,
but we address the two that we are able to identify.

       ¶16    First, Sypher asserts that the circuit court should have held a
postconviction evidentiary hearing regarding an alleged hematoma suffered by the
dog, which his trial counsel did not explore at trial. Sypher fails to explain the
nature or significance of any such hematoma in his appellate briefing, and his
postconviction motion does not fill in the gaps. It states only: “The dog suffered a
hematoma around the time of the investigation in this case, thus rendering his
behavior and indications into question.” This statement does not provide factual
allegations that allow a meaningful assessment of the claim that counsel’s
performance was deficient, or that Sypher was prejudiced.

       ¶17    Second, Sypher argues that his trial counsel provided him with bad
advice regarding his decision not to testify in this case. However, Sypher does not
explain in his appellate brief exactly what that advice was, and an explanation is
also missing from his postconviction motion. His postconviction motion and
accompanying affidavit state that counsel did not “fully discuss” the point with
him, and that Sypher and his counsel discussed it only “briefly” on two occasions.
The motion and affidavit then allege only the specific points that counsel and
Sypher did not discuss, rather than what they did discuss. This fails to provide




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                                                                       No. 2023AP1209-CR




factual allegations that allow a meaningful assessment of whether trial counsel’s
performance was deficient.

      ¶18    For these reasons, we affirm.

             By the Court.—Judgment and orders affirmed.

             This   opinion   will   not       be   published.   See     WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).




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