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Read-in images were “associated” with child porn conviction for surcharge purposes

State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)

Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.

As to the first issue, the charged images and many others were found on a phone that Kuehn conceded was his. But, he said, an acquaintance of his had access to and could have used the phone to download the images. This acquaintance had a prior conviction for sexual assault of a 14-year-old as well. (¶29).

The court of appeals assumes that Kuehn’s proffer of evidence was good enough to meet the Denny legitimate-tendency test. Kuehn additionally argues that Holmes v. South Carolina, 547 U.S. 319, 329-31 (2006) and State v. Wilson, 2015 WI 48, 362 Wis. 2d 193, 864 N.W.2d 52, rendered the evidence admissible despite the strength of the state’s case. But, the court of appeals says says, the fact that the evidence was admissible doesn’t mean the defense was viable. And trial counsel testified at the Machner hearing that he concluded it wasn’t–there was just too much evidence tying Kuehn to the phone, and also other forensic indications that Kuehn had downloaded the porn. The court of appeals says counsel’s assessment was reasonable, and so finds no deficient performance.

The next issue turns on statutory language: Wis. Stat. § 973.042(2) requires a court to impose a $500 surcharge “for each image or each copy of an image associated with the crime” when it sentences someone 18 years old or older for possessing child pornography. So what does “associated with the crime” mean here? The court of appeals thinks it’s got to be broader than just images for which a person’s been convicted; otherwise the legislature would have imposed a per-conviction surcharge. There’s no definition in the statute, but the court concludes the read-ins fall within the category. (¶¶36-38).

Finally, Kuehn says the ES condition that he not have contact with his girlfriend violates his constitutional right to association. See City of Milwaukee v. Burnette, 2001 WI App 258, ¶17, 248 Wis. 2d 820, 637 N.W.2d 447. The court of appeals says the condition is not overbroad. The girlfriend apparently wishes to remain with Kuehn despite the fact that he apparently sought to “sell” her young children to another man; in view of this, per the court the condition is justified by the need to protect the children. (¶57).

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{ 1 comment… add one }
  • Carly C. August 12, 2020, 7:52 am

    This case can also serve as a warning to practitioners preparing to challenge trial counsel’s effectiveness for something outside the confines of the actual plea hearing itself: citing Tollett and Villegas (see briefs), the AG’s office argued first and foremost that the defendant’s plea forfeited his claim that trial counsel was ineffective for failing to file the Denny motion. Yes, you read that right, in the AAG’s opinion, the plea forfeited his IAC claim. This argument has come up in other cases as well, so beware of opponents on the lookout for the opportunity to restrict the scope of appellate review. Thankfully the COA didn’t take the bait here.

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