Kenneth Risch v. Brian Hayes

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.
February 9, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP489 Cir. Ct. No. 2017CV99

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN EX REL. KENNETH RISCH,

PETITIONER-APPELLANT,

V.

BRIAN HAYES,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Taylor County:
ANN KNOX-BAUER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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).

¶1 PER CURIAM. Kenneth Risch, pro se, appeals from an order
denying a writ of certiorari challenging a Division of Hearings and Appeals
No. 2019AP489

(DHA) decision to revoke Risch’s probation. We conclude the decision was both
reasonable and supported by substantial evidence. We therefore affirm.

BACKGROUND

¶2 Risch was convicted in December 2014 of two offenses involving
the sexual assault of a child and sexual gratification with an animal. The circuit
court withheld sentence and placed Risch on probation. In August 2016, Risch
participated in a routine polygraph examination, during which he admitted to
watching adult and bestiality (women having sex with animals) pornography while
on probation.1 Risch also admitted to going to an adult store to buy pornography
and sex toys. As a condition of his release to probation, Risch had signed rules of
supervision whereby he agreed that he could “not possess nor view any sexually
explicit material—visual, auditory, nor computer-generated—without prior agent
approval.” The rules also required him to avoid all conduct “in violation of
federal or state statute, municipal or county ordinances, tribal law or which is not
in the best interest of the public welfare or [his] rehabilitation.”

¶3 As a result of Risch’s admissions, he was taken into custody and his
home was searched. Several laptop computers and numerous memory cards were

1
The Department of Corrections (DOC) has statutory authority to require sex offenders
to submit to polygraph tests while they are on parole, probation, or extended supervision. WIS.
STAT. § 301.132(2) (2017-18). Because sex offenders are required to take the polygraph test or
face a sanction, including possible revocation, statements made during the tests are generally
considered compelled, consistent with the Fifth Amendment privilege against self-incrimination.
See State v. Spaeth, 2012 WI 95, ¶¶49, 58, 343 Wis. 2d 220, 819 N.W.2d 769. Accordingly, the
government may not use the statements, or evidence derived therefrom, in a criminal prosecution.
Id., ¶36. The same is not true for use in a revocation proceeding. Incriminating testimony may
be compelled and disclosed for purposes relating to correctional programming, care, and
treatment, including revocation. Id., ¶¶49, 52, 58; see also WIS. ADMIN. CODE § DOC 332.17
(July 1998).

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seized, among other things. Risch admitted that one of the storage devices had
images of women having sex with animals. He also admitted to possessing three
internet-capable phones that he had used to access pornographic and bestiality
websites while on Huber release from conditional jail time. Although Risch
admitted this behavior, he had various excuses for why it did not violate his rules
of supervision.

¶4 The DOC decided to revoke Risch’s probation, and it also turned
over his computers and storage devices to the Department of Justice’s Division of
Criminal Investigation for forensic analysis. Although the DOC initiated
revocation proceedings, it offered Risch an alternative to revocation agreement
based on his representation that he did not possess child pornography on any of the
devices. Risch subsequently signed the agreement, in which he admitted that he
violated his conditions of probation and the terms of his Huber agreement. He
also admitted to engaging in a sexual relationship with a female without his
agent’s knowledge or approval, and that all of this conduct violated his rules of
supervision. He was placed in a sex offender treatment program at Racine
Correctional Institute for 90 to 120 days in lieu of revocation. Risch completed
his treatment and was again released on probation.

¶5 Several months later, Risch was taken into custody after the forensic
analysis revealed seventy-three images of naked or partially clothed children on
Risch’s computers. The images included children in bathtubs and close-up images
of diaper rash or other skin problems near infants’ genitals. There were also
images of children that appeared to be between the ages of thirteen and fifteen in
sexual poses, including a male child with an erect penis. The log from Risch’s
laptop media player also showed that videos with titles describing child
pornography had been viewed during Risch’s probationary period. When

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confronted with the forensic results, Risch admitted he had nude images of
children on his laptop, but he claimed that he did “not believe that [he] viewed any
pornographic material of underage people.”

¶6 The DOC opted to revoke Risch’s probation, and an administrative
law judge (ALJ) concluded that the allegations were proven by “the firsthand
testimony” of a detective and Risch’s own statements. The ALJ also found
Risch’s various denials not credible. The ALJ found revocation was necessary
because at the time the alternative to revocation was offered to Risch, the DOC
“was unaware of the child pornography and [Risch] denied possessing any.”
Although Risch’s lack of truthfulness became known during the forensic review,
he had completed his sex offender treatment by that time, and “his issues with
child pornography therefore went unaddressed.” The ALJ concluded that Risch’s
brazen disregard for his rules of supervision and his dishonesty thus made him a
“poor risk on supervision.”

¶7 Risch appealed to the DHA, which sustained the ALJ’s decision,
finding that Risch “was not honest about his possession of the child pornography
prior to his alternative to revocation.” The circuit court affirmed the DHA’s
decision, and Risch now appeals.

DISCUSSION

¶8 We review the DHA’s decision, not the decision of the circuit court.
Kozich v. ETF Bd., 203 Wis. 2d 363, 368-69, 553 N.W.2d 830 (Ct. App. 1996).
Our review of a revocation decision is limited to four questions: (1) whether the
agency stayed within its jurisdiction; (2) whether it acted according to law;
(3) whether its action was arbitrary, oppressive, or unreasonable, representing its
will rather than its judgment; and (4) whether the evidence was such that it might

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reasonably make the order or determination in question. Van Ermen v. DHSS, 84
Wis. 2d 57, 63, 267 N.W.2d 17 (1978). If substantial evidence supports the
agency’s decision, it must be affirmed even if other evidence supports a contrary
conclusion. Id. at 64. Substantial evidence is evidence that is relevant, credible,
probative, and a quantum upon which a reasonable fact finder could base a
decision. Von Arx v. Schwarz, 185 Wis. 2d 645, 655, 517 N.W.2d 540 (Ct. App.
1994).

¶9 The DOC opted to revoke Risch’s probation based on two
allegations:

1. On or about 12/12/14 through 08/31/16, Kenneth Risch
did possess multiple images of naked or partially clothed
children on his HP Laptop. This behavior is in violation …
of the Rules of Supervision signed by him on 12/12/14.

2. On or about 12/12/14 through 08/31/16, Kenneth Risch
did possess and view sexually explicit videos via Windows
Media Player on his HP laptop that had titles describing the
video as containing underage individuals. This behavior is
in violation of … the Rules of Supervision signed by him
on 12/12/14.

¶10 Regarding the first allegation, testimony at Risch’s revocation
hearing confirmed the laptop computers seized from Risch in August 2016
contained seventy-three images of nude children, five of which were considered
child pornography under Wisconsin law. Risch admitted that he had nude images
of children on his laptop, but he claimed at the hearing that he downloaded the
images prior to his probation supervision, and that he viewed the images during
his probation merely so that he could delete them.

¶11 Although the images had indeed been deleted, they were
recoverable, and, thus, still in Risch’s possession on his laptop. Furthermore, a

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fact finder may reasonably infer that a defendant deleted child pornography files to
hide evidence of his or her earlier-knowing possession. See State v. Schuller, 843
N.W.2d 626, 637 (Neb. 2014). Thus, the DHA reasonably concluded that Risch
possessed, and likely viewed—even if briefly—images of nude children on his
laptop during the period of his probation. Violation of a single condition of
supervision is sufficient grounds for revocation. See State ex rel. Cutler v.
Schmidt, 73 Wis. 2d 620, 622, 244 N.W.2d 230 (1976).

¶12 Further, substantial evidence also supported revocation on the
second allegation—that Risch possessed and viewed sexually explicit videos on
his laptop while on probation. The forensic examiner found a January 2016
internet search for “Preteen Sex Fantasy Stories,” along with numerous bestiality
images and videos. The examiner also found evidence that Risch’s Windows
Media Player had been used to view the following videos between January 2015
and August 2016:

“lime wire/saved/bestiality Zoofilia, Bestiality, Animal Sex
Knot Teens with Big Cock Gran Danes Black Dog” [last
viewed on August 16, 2016]

“lime wire/saved/Animal Bestiality Zoofilia – Pretty teen
girl fucking a dog(1)” [last viewed on August 16, 2016]

“lime wire/saved/16mins couple rape 18yr babysitter
16minscouple rape 18yobabysitter 16 mins Underage Lolita
teen forced sex with aunt and uncle fuck blowjob cumshot
lesbian” [last viewed on August 16, 2016]

“lime wire/saved/Man inserts his head in vagina – a must
see! .sex porn hardcore porn pregnant erotic erotrix anal
young teen Lolita ass asian preteen raped girl fuck” [last
viewed on January 10, 2015]

¶13 As the ALJ noted, it was only when confronted with the forensic
results that Risch admitted he had nude images of children on his computer, and

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that he had searched for “Preteen Sex Fantasy Stories.” Risch claimed, however,
that the search was conducted in connection with his criminal case and he did “not
believe that [he] viewed any pornographic material of underage people.” Whether
the videos actually contained child pornography is irrelevant because Risch’s rules
of supervision prohibited the viewing of all sexually explicit material. Moreover,
the DHA properly found Risch was not credible, as the video titles speak for
themselves and it is reasonable to conclude that the videos contained the content
referenced in their titles. The record on appeal reasonably supports the conclusion
that during his probation Risch possessed and viewed sexually explicit videos in
violation of his rules of supervision as alleged.

¶14 Risch also argues that his revocation counsel was ineffective by
failing to object and seek suppression of: (1) his admissions made during the
polygraph examination, as well as evidence derived from those admissions; and
(2) admissions he made during sex offender treatment. The scope of review on
certiorari, however, is strictly limited to reviewing the actions of the
administrative body; the effectiveness of defense counsel during the hearing is not
within the proper scope of review of an administrative action. See State v. Ramey,
121 Wis. 2d 177, 182, 359 N.W.2d 402 (Ct. App. 1984). We therefore lack
jurisdiction to address the ineffective assistance claim on certiorari and shall not
address it further.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18).

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