State v. Kevin D. Welton

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.
August 15, 2024
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. 2022AP1747-CR Cir. Ct. No. 2018CF1563

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEVIN D. WELTON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for Dane
County: SUSAN M. CRAWFORD, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Taylor.

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. Kevin Welton, by counsel, appeals a judgment
convicting him, after a jury trial, of multiple counts of sexual assault of a child.
No. 2022AP1747-CR

Welton also appeals circuit court orders denying his motion for postconviction
discovery and his motion for a new trial based on his allegation that the State
violated Brady v. Maryland, 373 U.S. 83 (1963). We reject Welton’s arguments
and affirm the judgment and orders of the circuit court.

Background

¶2 A jury convicted Welton of one count of first-degree sexual assault
of a child and one count of attempted first-degree sexual assault of the same child,
as well as one count of first-degree sexual assault of a different child. One of the
victims is the child of A.B. who, at the time of Welton’s trial, was a pediatric
physician with a specialty in child abuse and was employed by the University of
Wisconsin School of Medicine and Public Health, which the parties refer to in
their appellate briefs as UW Health Systems.1 A.B. testified at Welton’s jury trial
in October 2019 as a lay witness, in her role as the mother of one of the victims.

¶3 Following his conviction, Welton filed a motion seeking
postconviction discovery of materials related to a workplace investigation of A.B.
that was conducted by her then employer, UW Health Systems. Welton
simultaneously filed a motion for a new trial, arguing that the State committed a
Brady violation by not disclosing the materials referenced in his motion for
postconviction discovery prior to his trial. Welton alleged that those materials
would have shown that A.B. had a “penchant for seeing abuse where others did
not and bullying her colleagues to accept her viewpoint.” The circuit court held

1
Consistent with the policy of protecting victim privacy under WIS. STAT.
RULE 809.86(4) (2021-22), we use the initials “A.B.” that do not correspond to the witness’s
actual name. All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP1747-CR

hearings on the motions and, following the hearings, denied both motions in an
order entered in September 2021. Welton filed a motion for reconsideration,
which the circuit court also denied. Welton appeals.

Discussion

I. Motion for postconviction discovery

¶4 Welton argues that the circuit court erred in denying his motion for
postconviction discovery. In his motion, Welton sought four categories of
materials: (1) materials related to the investigation conducted by A.B.’s then
employer, UW Health Systems, of her workplace behavior, including allegations
of retaliation against or intimidation of colleagues; (2) any material regarding
inaccurate testimony provided by A.B. in other child abuse cases; (3) “[a]ny
material regarding [A.B.] causing others to provide inaccurate testimony, reports,
or opinions in other child abuse cases”; and (4) any materials having to do with the
interaction between A.B. and a former colleague, which the former colleague
testified about in a separate Dane County criminal case. In his appellant’s brief,
Welton refers to the sought-after discovery materials collectively, stating that the
“appeal is, at its heart, about whether the postconviction court should have ordered
the State to turn over records regarding UW Health’s investigation into [A.B].”
Welton argues that this court should remand the case to the circuit court with
directions to grant his request for postconviction discovery. For the reasons
discussed below, we reject Welton’s argument.

¶5 A defendant in a criminal case is not entitled to discovery beyond
that which a prosecutor is statutorily and constitutionally required to disclose.
State v. Harris, 2004 WI 64, ¶16, 272 Wis. 2d 80, 680 N.W.2d 737. Unlike
pretrial discovery, which is governed by WIS. STAT. § 971.23(1), there is no

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No. 2022AP1747-CR

statutory right to postconviction discovery in a criminal proceeding. The
Wisconsin Supreme Court has recognized a limited right to postconviction
discovery rooted in a defendant’s due process right to present a complete defense.
State v. O’Brien, 223 Wis. 2d 303, 320-21, 588 N.W.2d 8 (1999). “[A] defendant
has a right to post[]conviction discovery when the sought-after evidence is
relevant to an issue of consequence.” Id. at 321. Evidence is material, or
consequential, only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.
Id. at 320-21. “Reasonable probability” is defined as a probability sufficient to
undermine our confidence in the outcome of the proceedings. Id. at 321. The
party seeking postconviction discovery has the burden of meeting this standard.
Id. at 320.

¶6 Whether to a grant a motion for postconviction discovery is a matter
committed to the discretion of the circuit court. State v. Kletzien, 2008 WI App
182, ¶8, 314 Wis. 2d 750, 762 N.W.2d 788. “We will uphold a [circuit] court’s
denial of postconviction discovery absent an erroneous exercise of discretion.”
State v. Ziebart, 2003 WI App 258, ¶32, 268 Wis. 2d 468, 673 N.W.2d 369. A
circuit court properly exercises its discretion when it has examined the relevant
facts, applied the proper legal standards, and engaged in a rational decision-
making process. State v. Bentley, 201 Wis. 2d 303, 318, 548 N.W.2d 50 (1996).

¶7 Here, the circuit court reviewed Welton’s motion for postconviction
discovery and the State’s response and heard arguments from the parties’ attorneys
at hearings held over two separate days. The court determined that Welton had
not met the burden for obtaining postconviction discovery, stating: “There is
simply not a sufficient showing by the defense to warrant the action that you are
seeking from the Court today, which is to order some discovery related to [A.B.’s]

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No. 2022AP1747-CR

… records held by the University of Wisconsin Hospital and Clinics. I’m denying
that request.”

¶8 The circuit court’s denial of Welton’s motion for postconviction
discovery is grounded in the relevant facts. The sole attachment to Welton’s
motion was a letter dated July 5, 2019, from A.B.’s department at UW Health
Systems, informing A.B. that she was being placed on administrative leave with
pay due to concerns about workplace behavior. In a supplemental motion, Welton
also referenced several digital press articles that he argued could “prove up his
claim” that A.B. “is a deceitful bully with a long and well-documented history of
pressuring colleagues into making unfounded child abuse accusations.” The
circuit court concluded that none of Welton’s submissions included “any direct
evidence of [A.B.] doing such a thing” and remarked that Welton was “asking the
Court to engage in quite a bit of speculation[.]” The court stated that the type of
allegations against A.B. that were contained in the press reports “would be more
problematic in a case in which [A.B.] was a treating physician for a child victim,
particularly in shaken baby cases which is what the press reports have focused
on.” In contrast, the court noted the fact that A.B. had testified at Welton’s trial
not as an expert in an infant abuse case, but in a civilian capacity, as the mother of
an older child who had made allegations against Welton of sexual assault and
attempted sexual assault. The court stated that “it is pretty far afield from the
evidence that was relevant to [Welton’s] case to have a mini trial into allegations
of [A.B.’s] behavior in the middle of that criminal trial.” The court determined
that the postconviction discovery that Welton was seeking was not material, even
if it substantiated Welton’s assertions.

¶9 We are satisfied that the record shows a rational decision-making
process on the part of the circuit court, involving the consideration of the relevant

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No. 2022AP1747-CR

facts. See id. The circuit court also referenced and applied the applicable legal
standard. See id. The court stated that the “defense has to show materiality, the
reasonable probability of a different outcome” when seeking postconviction
discovery. See O’Brien, 223 Wis. 2d at 321-23. The court ultimately found that
“there is not a reasonable probability of a different outcome demonstrated by the
defense here.” Because the record shows that the circuit court examined the
relevant facts, applied the proper legal standards, and engaged in a rational
decision-making process, see Bentley, 201 Wis. 2d at 318, we conclude that the
court properly exercised its discretion in denying Welton’s request for
postconviction discovery.

II. Motion for a new trial based on an alleged Brady violation

¶10 We next address Welton’s argument that he is entitled to a new trial
because the State violated Brady v. Maryland, 373 U.S. 83 (1963), by not “turning
over” prior to trial the “[A.B.] evidence,” which Welton indicates refers to records
from UW Health Systems pertaining to its workplace investigation of A.B. For
ease of reference, we will refer to those records as A.B.’s workplace records.

¶11 Under the Fourteenth Amendment of the United States Constitution,
“the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,
373 U.S. at 87. A defendant therefore has “a due process right to any favorable
evidence ‘material either to guilt or to punishment’ that is in the State’s
possession…, including any evidence which may impeach one of the State’s
witnesses.” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d
468. Whether a due process violation has occurred contrary to Brady is an issue

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No. 2022AP1747-CR

that we review independently, but we accept the circuit court’s findings of fact
unless clearly erroneous. See id.

¶12 The defendant has the burden of demonstrating a due process
violation under Brady. See Harris, 272 Wis. 2d 80, ¶13. To satisfy the burden, a
defendant must prove all three components: “(1) the evidence at issue must be
favorable to the accused, either because it is exculpatory or impeaching; (2) the
evidence must have been suppressed by the State, either willfully or inadvertently;
and (3) the evidence must be material.” Wayerski, 385 Wis. 2d 344, ¶35. A
defendant’s failure to prove any of these components results in the Brady claim
failing. Id., ¶62.

¶13 Because Welton fails to prove that the State suppressed the evidence
he seeks under the second Brady component, and this conclusion is dispositive to
our analysis, we reject Welton’s argument that a Brady violation occurred and that
he is entitled to a new trial.

¶14 As noted, the second Brady component requires a defendant to prove
that the evidence in question was suppressed by the State. Brady evidence is
considered to be suppressed if it is in the State’s possession and not turned over to
the defense. Id., ¶35. “[I]f the documents are not in the government’s possession,
there can be no ‘state action’ and consequently, no violation of [the] Fourteenth
Amendment.” State v. Lynch, 2016 WI 66, ¶53, 371 Wis. 2d 1, 885 N.W.2d 89
(quoting United States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998)). Welton
argues that the State violated Brady because at least three State entities possessed
information about A.B.’s workplace records: UW Health Systems, the Madison
Police Department (MPD), and the Dane County District Attorney’s Office. For
the reasons set forth below, we reject this argument.

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No. 2022AP1747-CR

¶15 First, Welton’s argument that the State possessed A.B.’s workplace
records appears to be based on the false premise that, because UW Health Systems
and the Dane County District Attorney’s Office are state entities, the Dane County
District Attorney’s office had access to the files of the UW Health Systems.
Welton provides no legal support for this assertion. Although the governing body
of the UW Health Systems, the University of Wisconsin Hospitals and Clinics
Authority, was created by the State legislature, see WIS. STAT. § 233.02, it does
not follow that either health care entity is considered “the State” within the context
of criminal law. In other words, UW Health Systems’ possession of A.B.’s
workplace records does not equate to the State possessing these records for a
criminal prosecution. The State is only charged “with knowledge of material and
information in the possession or control of others who have participated in the
investigation or evaluation of the case and who either regularly report or with
reference to the particular case have reported to the prosecutor’s office.” State v.
DeLao, 2002 WI 49, ¶24, 252 Wis. 2d 289, 643 N.W.2d 480 (citation omitted).
Welton makes no argument that UW Health Systems participated in the
investigation or evaluation of his case or that it regularly reports to the Dane
County D.A.’s office.

¶16 Further, there are statutory barriers that prevented the State from
“possessing” A.B.’s workplace records. UW Health Systems is prohibited from
disclosing

[i]nformation relating to one or more specific employees
that is used … by the employer … for staff management
planning, including performance evaluations, judgments, or
recommendations concerning future salary adjustments or
other wage treatments, management bonus plans,
promotions, job assignments, letters of reference, or other
comments or ratings relating to employees.

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No. 2022AP1747-CR

WIS. STAT. § 19.36(10)(d). Pursuant to WIS. STAT. § 233.13(2), UW Health
Systems “may keep records of ... [d]ismissals, demotions and other disciplinary
actions” closed to the public. Welton makes no argument that the State had an
ability to access, and therefore, possess, these records. His argument fails on this
ground as well.

¶17 Welton also argues that the MPD had access to A.B.’s workplace
records because it allegedly possessed a police report that pertained to a different
case. However, the only support Welton offers for this argument is not a copy of
the police report, but rather a letter from the office of the State Public Defender
(SPD) to UW Health Systems dated September 13, 2019, a copy of which was
included in the appendix to Welton’s motion for reconsideration of the circuit
court’s September 2021 order. The SPD letter references, without any specific
details, a police report in an unnamed matter that allegedly “documents that [A.B.]
was instrumental in having a medical record changed so that the medical record …
would support [A.B.’s] theory of abuse.”

¶18 Even if we assume that the police report referenced in the SPD letter
existed, it is a stretch to assume that the prosecution in Welton’s case had
knowledge of the report’s existence or its contents, or had any obligation to
discover the same. While the prosecution “has a duty to learn of any favorable
evidence known to others acting on the government’s behalf in the case, including
the police,” Kyles v. Whitley, 514 U.S. 419, 437 (1995), “Brady does not require
the government to gather information or conduct an investigation on the
defendant’s behalf.” United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002).
A prosecutor’s duty to obtain information from investigative agencies is not
limitless. DeLao, 252 Wis. 2d 289, ¶24. Welton does not argue that the detective
who wrote the unspecified police report had any participation in the investigation

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No. 2022AP1747-CR

or evaluation of Welton’s criminal case, as required under DeLao, in order to
charge the prosecution with knowledge of material and information in the
possession or control of others. Id. Simply put, Welton fails to persuade the court
that the State possessed, for Brady purposes, the unspecified police report referred
to in the MPD letter.

¶19 Finally, Welton appears to argue that, because the Dane County
District Attorney’s office knew that A.B. was being investigated by UW Health
Systems for possible workplace infractions, it had an obligation to pursue
documents related to this investigation and turn them over to Welton. In support
of this claim, Welton points to a letter the State sent to two defense attorneys in a
different case approximately two months before Welton’s trial, disclosing that UW
Health Systems was conducting an investigation of A.B. The letter stated:

My understanding is that the university is investigating
concerns that [A.B.] does not timely complete work and
also complaints about her behavior with internal and
external colleagues, but nothing that would rise to the level
of criminal or harassing behavior.… I have asked
[University of Wisconsin-Madison’s Office of Legal
Affairs and the Department of Pediatrics] to alert me if they
become aware of any issues related to dishonesty or
incorrect medical diagnoses.

Sometime prior to Welton’s trial, the prosecuting attorney in Welton’s case
provided this letter to Welton’s trial attorney.

¶20 Based on the above, Welton argues that the prosecution’s knowledge
that A.B. was under investigation by UW Health Systems at the time of Welton’s
trial should have resulted in the State obtaining A.B.’s workplace records.
Specifically, Welton argues that the State should have known that A.B.’s
workplace records were “ripe with evidence that would go to her credibility, and
would show” that A.B. was a “deceitful bully, who pressured colleagues into

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No. 2022AP1747-CR

making unfounded child [abuse] accusations.” We construe this argument as
asserting that the State had a constitutional duty to obtain and disclose A.B.’s
workplace records and its failure to do so violated Brady. We reject this argument
for several reasons.

¶21 First, as already discussed, Welton fails to demonstrate that the State
“possessed” these records. Nothing in the letter from the Dane County District
Attorney’s office suggests that the District Attorney’s office or any individual
prosecutor had access to or possession of A.B.’s workplace records.

¶22 Second, Welton fails to legally support his assertion that, because
the State was aware of UW Health System’s investigation into A.B.’s workplace
conduct, it had a legal duty to take efforts to determine whether A.B.’s workplace
records contained material, exculpatory, or impeaching evidence. Unlike civil
proceedings in which “parties may seek to impose upon opponents the duty of
determining whether certain records exist, the criminal discovery provisions do
not impose upon the State an obligation to conduct this type of discovery for the
defense.” State v. Behnke, 203 Wis. 2d 43, 51, 553 N.W.2d 265 (Ct. App. 1996)
overruled on other grounds by State v. Johnson, 2023 WI 39, 407 Wis. 2d 195,
990 N.W.2d 174. As discussed above, UW Health Systems was not involved in
the investigation or evaluation of Welton’s case, nor does it regularly report to the
prosecutor’s office, which is needed to trigger a duty under Brady. DeLao, 252
Wis. 2d 289, ¶24. Welton has therefore not established that the State had a duty to
investigate whether exculpatory or impeaching evidence existed in A.B.’s
workplace records.

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No. 2022AP1747-CR

¶23 In short, because Welton has failed to establish that the State
suppressed the evidence that Welton seeks, he fails to establish that a Brady
violation occurred.

By the Court.—Judgment and orders affirmed.

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

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