State v. Catherine E. Edwards

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.
March 6, 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. 2023AP1042-CR Cir. Ct. No. 2020CF40

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CATHERINE E. EDWARDS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Portage County: PATRICIA A. BAKER, Judge. Affirmed.

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

¶1 KLOPPENBURG, P.J. Catherine Edwards appeals the judgment
convicting her, following a jury trial, of two counts of possession of child
pornography, as well as the circuit court’s order denying her motions for
postconviction relief. Edwards’ primary arguments on appeal concern the
No. 2023AP1042-CR

definition of “lewd exhibition of intimate parts” that applied to the possession of
child pornography counts. Specifically, Edwards argues that the evidence was
insufficient to convict her under the common law definition of “lewd exhibition of
intimate parts” in effect at the time of the offenses. Edwards also argues that her
trial counsel was ineffective for failing to object to a jury instruction that defined
“lewd exhibition of intimate parts” under the current statute because the jury
instruction defined that phrase more broadly than the common law definition in
effect at the time of the offenses, thereby making it easier for the State to prove
that Edwards was guilty of the offenses. Separately, Edwards argues that she is
entitled to a new trial because the prosecutor improperly commented on the
evidence in his rebuttal argument so as to invite the jury to find her guilty “based
on improper considerations.”

¶2 We conclude that the evidence was sufficient to convict Edwards
under the common law definition of “lewd exhibition of intimate parts” in effect at
the time of the offenses. We also conclude that Edwards’ trial counsel was not
ineffective for failing to object to the jury instruction that defined “lewd exhibition
of intimate parts” under the current statute, because there is no material difference
pertinent to the images at issue here between the common law definition in effect
at the time of the offenses and the statutory definition reflected in the jury
instruction. In other words, under both the prior common law definition and the
current statutory definition as reflected in the jury instruction, an image depicts
“lewd exhibition of intimate parts” if it displays a person’s intimate parts and if the
person is posed as a sex object or there is an unnatural or unusual focus on the
intimate parts. We further conclude that Edwards fails to show that the circuit
court erroneously exercised its discretion in denying her motion for a mistrial

2
No. 2023AP1042-CR

based on its determination that the prosecutor did not improperly comment on the
evidence in his rebuttal argument. Accordingly, we affirm.

BACKGROUND

¶3 In January 2020, the State charged Edwards with one count of sexual
assault of a child under 16 as a party to the crime and two counts of possession of
child pornography, based on events that occurred between October 2018 and April
2019.1

¶4 At trial, the State presented the following evidence pertinent to this
appeal. Detective Kevin Flick investigated a cyber tip from the National Center
for Missing and Exploited Children regarding sexually explicit materials being
sent over Facebook Messenger by a 14-year-old girl, A.B., to Edwards’ boyfriend,
Nicholas Kvatek.2 Pursuant to this investigation, Flick obtained a search warrant
for Kvatek’s residence, where the 40-year-old Kvatek lived with the 40-year-old
Edwards. When police executed the search warrant, they arrested Kvatek, and

1
Edwards does not challenge her conviction on the sexual assault count. We reference
facts pertinent to that count only to the extent the facts are relevant to Edwards’ arguments
regarding the possession of child pornography counts.

The possession of child pornography counts were charged under WIS. STAT.
§ 948.12(1m) (2023-24), which prohibits possessing or accessing “in any way with intent to view
any … photograph … or other recording of a child engaged in sexually explicit conduct.”
Pertinent here, under WIS. STAT. § 948.01(7)(e), “sexually explicit conduct” includes “[l]ewd
exhibition of intimate parts.”

All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted, because the relevant statutes in effect at the time of Edwards’ offenses have not changed,
with one exception. As we discuss in detail below, the definition of “lewd exhibition of intimate
parts” in WIS. STAT. § 948.01(1t) did not exist at the time of Edwards’ offenses.
2
To protect the dignity and privacy of the victim, we refer to her as A.B., using initials
that do not correspond to her real name. See WIS. STAT. RULES 809.19(1)(g) and 809.86.

3
No. 2023AP1042-CR

Flick spoke with Edwards. Police also seized two cell phones, one belonging to
Kvatek and the other belonging to Edwards.

¶5 On Kvatek’s phone, Flick discovered, among other images of child
pornography, a 52-second video recording of two adults, later identified by Flick
and A.B. as Kvatek and Edwards, sexually assaulting A.B. with a purple dildo.
Flick testified that a purple dildo matching the one used in the video recording of
the sexual assault was found in Kvatek and Edwards’ bedroom during the
execution of the search warrant.

¶6 On Edwards’ phone, Flick discovered two photographs of A.B. that
showed A.B. standing in Kvatek and Edwards’ living room, “completely naked
and holding a paintbrush.” In one photograph, A.B.’s breasts were visible, and in
the other photograph, both her breasts and buttocks were visible. A still shot from
the video recording and both photographs were admitted into evidence. A.B.
testified that she did not remember who took the photographs of her and that she
was not posing for the photographs but actually painting the living room.

¶7 At the close of the State’s case, Edwards moved to dismiss the two
child pornography counts on the ground that “no jury could find that those pictures
that are portrayed … in any way meet the statutory definition of a lewd exhibition
of intimate parts.” The circuit court denied the motion.

¶8 Edwards testified for the defense. She denied having sex with A.B.,
taking photographs showing A.B. naked, or knowing that the two photographs
forming the basis of the child pornography counts were on her phone. Edwards
also denied owning or being aware of the purple dildo used in the video recording
and found in Kvatek’s and her bedroom.

4
No. 2023AP1042-CR

¶9 The defense rested after Edwards’ testimony, and the circuit court
held a jury instruction conference outside the presence of the jury. Edwards’ trial
counsel did not object to the instruction applicable to the two counts of possession
of child pornography.

¶10 Edwards’ trial counsel renewed his motion to dismiss the two counts
of possession of child pornography on the ground that no reasonable jury could
find that the two photographs “fit the definition of sexually explicit behavior.”
The circuit court again denied the motion.

¶11 The circuit court instructed the jury on the two counts of possession
of child pornography, in pertinent part, as follows:

Possession of child pornography as defined at 948.12, sub
(1m), of the criminal code of Wisconsin is committed by
one who knowingly possesses or accesses in any way with
intent to view any … photograph … or other recording of a
child engaged in sexually explicit conduct….

….

Elements of the crime….

….

Element No. 2. As to each count, the recording
showed a child engaged in sexually explicit conduct….
Sexually explicit conduct means actual or simulated
masturbation or lewd exhibition of an intimate part.
Intimate part means the breast, buttock, anus, groin,
scrotum, penis, vagina, or pubic mound of a human being.
Lewd exhibition of intimate parts means the display of less
than fully and opaquely covered intimate parts of a person
who is posed as a sex object or in a way that places an
unnatural or unusual focus on the intimate parts.

This instruction’s definition of “lewd exhibition of intimate parts” reflected the
definition in WIS. STAT. § 948.01(1t), which did not become effective until several

5
No. 2023AP1042-CR

months after Edwards’ alleged commission of the offenses. See 2019 Wis. Act 16
(eff. July 12, 2019).

¶12 The parties then made their closing arguments. In the State’s
rebuttal, the prosecutor, in the course of arguing to the jury that it should
disbelieve Edwards’ denial of her involvement in the charged offenses, referred to
Flick’s testimony identifying the purple dildo found in Kvatek and Edwards’
bedroom “as being the dildo that was used in this child pornography – when this
defendant and her boyfriend manufactured this child pornography involving this
child.” Edwards’ trial counsel objected, arguing that this statement was “trying to
imply that something other than [the two photographs] are the basis for the child
pornography [counts].” The circuit court sustained the objection, and the
prosecutor continued, again arguing that Edwards “participated in the manufacture
of child pornography,” specifically referring to the “52-second video [recording]”
as child pornography.

¶13 After the circuit court sent the jury to deliberate, Edwards’ trial
counsel moved for a mistrial based on the rebuttal argument “referring to the [still
shot from the video recording] with the sexual – actual sex involved as being child
pornography when that is not the charge.” Counsel explained, “I think [the State
is] trying to impl[y] that my client, by making that [video recording] or doing that,
is guilty of charges of Counts 2 and 3.” The prosecutor responded that he was
“entitled to comment on the evidence” and “to describe it as child pornography is
simply stating a fact that was put into evidence.” The court denied the motion for
a mistrial, relying on the jury instructions that clarified that each of the possession
of child pornography counts was tied to a specific exhibit consisting of a
photograph, as well as on the jury instruction clarifying that remarks of the
attorneys are not evidence.

6
No. 2023AP1042-CR

¶14 The jury found Edwards guilty on all counts.

¶15 Edwards moved for postconviction relief, arguing that there was
insufficient evidence to convict her on the possession of child pornography counts,
that her trial counsel was ineffective for failing to object to the purportedly
erroneous jury instruction on those counts, and that the State made improper
statements during closing arguments. The circuit court held a hearing on the
motions, at which Edwards’ trial counsel testified that he was not aware at trial
that the definition of “lewd exhibition of intimate parts” used in the jury
instructions had been enacted by statute after the date of Edwards’ offenses, and
that, had he been aware, he would have asked for the definition set forth in case
law to be used “[i]f the definition … made it harder to prove possession of child
pornography.”3 The court denied the postconviction motions.

¶16 This appeal follows.

DISCUSSION

¶17 Edwards makes three arguments on appeal. First, she argues that
there was insufficient evidence to support her convictions for possession of child
pornography under the definition of “lewd exhibition of intimate parts” in effect at
the time of her offenses. In particular, she argues that the definition of “lewd
exhibition of intimate parts” under which the jury deliberated, made effective by
statute in July 2019, was broader than the common law definition in effect as of
the date of her charged conduct, and that the jury would likely not have found her

3
The circuit court heard argument on multiple issues at the hearing; for the purposes of
the ineffective assistance of counsel argument, this hearing served as a Machner hearing. See
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

7
No. 2023AP1042-CR

guilty had it been correctly instructed under the common law definition. Second,
she argues that she should be granted a new trial because her trial counsel was
ineffective for failing to object to the jury instruction defining “lewd exhibition of
intimate parts” under the statute. Third, she argues that she is entitled to a new
trial because the prosecutor improperly commented on the evidence in his rebuttal
argument so as to invite the jury to find her guilty “based on improper
considerations.” For the following reasons, we reject each of her arguments and
affirm her convictions.

I. Sufficiency of the Evidence

¶18 Edwards argues that the evidence introduced at trial was insufficient
to support her convictions for possession of child pornography. Specifically, she
contends that the evidence was insufficient to support the element that the
photographs depicted “lewd exhibition of intimate parts.” We review de novo the
sufficiency of the evidence to sustain a verdict of guilt. State v. Smith, 2012 WI
91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. On our de novo review, “we consider
the evidence in the light most favorable to the State” and the conviction, and we
reverse “only where the evidence ‘is so lacking in probative value and force that
no trier of fact, acting reasonably, could have found guilt beyond a reasonable
doubt.’” Id. (quoting State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752
(1990)).

¶19 We “typically review[] the sufficiency of the evidence to support a
criminal conviction by comparing the evidence with the legal standards set forth in
the jury instructions used at trial, because the instructions given by the circuit
court are typically accurate statements of the law.” State v. McAdory, 2021 WI
App 89, ¶17, 400 Wis. 2d 215, 968 N.W.2d 770. However, when, as here, the

8
No. 2023AP1042-CR

parties dispute whether the jury instruction accurately reflected the law, we
examine the sufficiency of the evidence “by comparison to what the statute
requires.” Cf. State v. Beamon, 2013 WI 47, ¶3, 347 Wis. 2d 559, 830 N.W.2d
681 (examining sufficiency of the evidence as compared to the statutory elements
when the jury instruction added a requirement not included in the statute).

¶20 We agree with the parties that the common law defined what the
statute prohibiting possession of child pornography required the State to prove at
the time of Edwards’ offenses. As we now explain, we conclude that the common
law definition required that the image visibly displays a child’s intimate parts and
that the image is “sexually suggestive,” meaning that the child is posed as a sex
object or there is an unusual or unnatural focus on the child’s intimate parts. We
further conclude that the evidence was sufficient to convict Edwards under the
common law definition.

¶21 As noted above, Edwards was charged with possession of child
pornography, contrary to WIS. STAT. § 948.12(1m). That statute provided at the
time of the charged conduct and continues to provide today:

Whoever possesses, or accesses in any way with the intent
to view, any undeveloped film, photographic negative,
photograph, motion picture, videotape, or other recording
of a child engaged in sexually explicit conduct under all of
the following circumstances may be penalized under
sub. (3):

(a) The person knows that he or she possesses or
has accessed the material.

(b) The person knows, or reasonably should know,
that the material that is possessed or accessed contains
depictions of sexually explicit conduct.

(c) The person knows or reasonably should know
that the child depicted in the material who is engaged in

9
No. 2023AP1042-CR

sexually explicit conduct has not attained the age of 18
years.

Sec. 948.12(1m) (emphasis added). Pertinent here, “sexually explicit conduct” is
defined as “actual or simulated: … Lewd exhibition of intimate parts.” WIS.
STAT. § 948.01(7)(e). This statutory provision was also in place at the time of
Edwards’ offenses and remains in effect.

¶22 At the time of Edwards’ offenses, “lewd exhibition of intimate parts”
was not defined by statute. The parties agree that the definition of “lewd
exhibition of intimate parts” that applied to Edwards’ conduct was the definition
set forth in the common law, most extensively in State v. Petrone, 161 Wis. 2d
530, 468 N.W.2d 676 (1991), overruled in part by State v. Greve, 2004 WI 69,
272 Wis. 2d 444, 681 N.W.2d 479. We now proceed to analyze Petrone and other
cases addressing the topic to identify the elements of that definition, which the
jury had to find the photographs satisfied in order to convict Edwards on the
possession of child pornography counts.

¶23 In Petrone, the defendant was charged with violating a statute that
prohibited photographing or otherwise recording “a child engaged in sexually
explicit conduct.” Petrone, 161 Wis. 2d at 558 (quoting WIS. STAT. § 940.203(2)
(1987-88)). The statute defined “sexually explicit conduct” to include “lewd
exhibition of the genitals or pubic area of any person.” WIS. STAT.
§ 940.203(6)(b)5. (1987-88).4 The phrase “lewd exhibition of [intimate parts]”

4
Edwards concedes that after Petrone was decided, but before the date of the offenses in
this case, the statutes were amended by changing the phrase “lewd exhibition of the genitals or
pubic area” to “lewd exhibition of intimate parts,” and, therefore, that the broader term “intimate
parts” applies to our analysis. We will use the term “intimate parts” throughout the remainder of
our analysis.

10
No. 2023AP1042-CR

was not defined in the statutes, and the circuit court gave the following jury
instruction defining this phrase:

The word “lewd” has a generally well recognized
meaning, connoting sexual suggestiveness.

… Mere nudity does not constitute the type of
exhibition which is prohibited by the statute.

….

Now, examples of sexually suggestive or lewd
photographs of a child would be those in which the child is
depicted or posed in such a way as to depict or suggest a
willingness to engage in sexual activity or a sexually coy
attitude. Whether or not the child intended such a pose is
not the issue, but rather what a reasonable person viewing a
photograph would perceive is being suggested. Now, no
expanded writing or written definition of what constitutes a
lewd exhibition of [intimate parts] would encompass all of
the uncountable variations which such photographs might
take…. Words cannot describe all of the nuances of that
which constitutes lewdness. However, … with a few
general principles in mind, most persons, upon seeing a
photograph which is lewd, would be able to agree that it is
such.

Petrone, 161 Wis. 2d at 559.

¶24 Petrone challenged this instruction as erroneous, arguing that it was
“rambling, open ended, and vague.” Id. Our supreme court rejected this
argument, concluding that “the circuit court accurately apprised the jury of what
‘lewd’ means. The … court told the jurors that mere nudity is not enough—the
pictures must display the child’s [intimate parts]; that the photographs must be
sexually suggestive; and that the jurors may use common sense to determine
whether the photographs were lewd.” Id. at 561-62. The court also gave
additional guidance on the definition of lewd in the context of images of child
pornography:

11
No. 2023AP1042-CR

After examining cases interpreting similar child
pornography laws and the term “lewd,” we conclude that
no one definition has been established for “lewd.” Three
concepts are generally included in defining “lewd” and
sexually explicit. First, the photograph must visibly display
the child’s [intimate parts]. Mere nudity is not enough.
Second, the child is posed as a sex object. The statute
defines the offense as one against the child because using
the child in that way causes harm to the psychological,
emotional and mental health of the child. The photograph
is lewd in its “unnatural” or “unusual” focus on the
juvenile’s [intimate parts], regardless of the child’s
intention to engage in sexual activity or whether the viewer
or photographer is actually aroused. Last, the court may
remind the jurors that they should use these guidelines to
determine the lewdness of a photograph but they may use
common sense to distinguish between a pornographic and
innocent photograph.

Id. at 561.

¶25 We interpret this language to define “lewd exhibition of intimate
parts” as follows. Whether an image depicts “lewd exhibition of intimate parts” is
a common-sense decision for the jury to make. Id. In making that common-sense
determination, the jury must make two findings: (1) that the image visibly
displays the child’s intimate parts, and (2) that the image is sexually suggestive.
Id. As to the second required finding, the jury is to be guided by whether the child
is “posed as a sex object,” which may be shown by an “‘unnatural’ or ‘unusual’
focus” on the child’s intimate parts, or in some other manner. Id. That is, the
“sexually suggestive” finding does not require that the State prove both that the
child is posed as a sex object and that there is an unnatural or unusual focus on the
child’s intimate parts. Rather, showing that there is an unnatural or unusual focus
on the child’s intimate parts is one way of proving that the child is posed as a sex
object. In other words, the State must prove that there is an unnatural or unusual
focus on the child’s intimate parts or that the child is posed as a sex object in some
other manner.

12
No. 2023AP1042-CR

¶26 This interpretation is supported by subsequent cases applying
Petrone and interpreting the definition of “lewd exhibition of intimate parts.” In
State v. Lala, 2009 WI App 137, 321 Wis. 2d 292, 773 N.W.2d 218, this court
explained that “[our] supreme court stated that visible display of the child’s
[intimate parts] and posing the child as a sex object with an unnatural or unusual
focus on the child’s [intimate parts] should inform the common sense
determination by the trier of fact regarding the pornographic nature of the image,”
and that “[t]he determination of what is lewd and therefore ‘sexually explicit
conduct’ within the meaning of WIS. STAT. § 948.12(1m) is a common sense
factual finding to be made by the trier of fact[,] [which] determination is guided by
the general concepts articulated in Petrone.” Lala, 321 Wis. 2d 292, ¶¶13, 20. In
State v. Mercer, 2010 WI App 47, 324 Wis. 2d 506, 782 N.W.2d 125, this court
concluded that “[t]he term ‘lewd’ contemplates that the jury should use common
sense to determine whether the pictures show nudity and are sexually suggestive.”
Mercer, 324 Wis. 2d 506, ¶40 (citing Petrone, 161 Wis. 2d at 561-62).

¶27 This interpretation is also supported by the comments to WIS JI—
CRIMINAL 2146A (2013), the jury instruction in effect prior to the enactment of
the statutory definition of “lewd exhibition of intimate parts.” Comment 8 to that
instruction cites Petrone for its definition of “lewd exhibition of intimate parts,”
explaining that the three concepts “‘generally included in’” the definition provided
by our supreme court in Petrone, are: (1) “‘mere nudity is not enough—the
pictures must display the child’s [intimate parts]’”; (2) “‘the photographs must be
sexually suggestive’”; and (3) “‘the jurors may use common sense to determine
whether the photographs were lewd.’” WIS JI—CRIMINAL 2146A at 6 (2013)
(quoting Petrone, 161 Wis. 2d at 561).

13
No. 2023AP1042-CR

¶28 Edwards argues that, under Petrone, in order for an image to depict
“lewd exhibition of intimate parts,” the image “must have all of the following
characteristics: (1) It must display the child’s intimate part; (2) the child must be
posed as a sex object; [and] (3) there must be an unnatural or unusual focus on the
intimate area.” For the reasons explained above, we reject this argument as
contrary to the language in Petrone. To repeat, Petrone defines an image that
depicts “lewd exhibition of intimate parts” as an image that displays the child’s
intimate parts and is sexually suggestive. Petrone, 161 Wis. 2d at 561. What
Edwards describes as requirement (3) is in fact one way of proving that the child is
posed as a sex object, which may guide the jury’s determination that the image is
“sexually suggestive.” See id. It is not an additional requirement. Said another
way, Petrone requires that the jury, using its common sense, determine whether an
image displays a child’s intimate parts and whether the image is sexually
suggestive, and that, as to the latter determination, the jury be guided by whether
the child is posed as a sex object, which may or may not include an unnatural or
unusual focus on the intimate parts. Id. Edwards’ assertion that Petrone requires
that the jury find both that the child is posed as a sex object and that there is an
unnatural or unusual focus on the intimate parts has no support in the language in
Petrone.

¶29 Having examined the photographs at issue, which show A.B.
standing naked in a living room holding a paintbrush and which visibly display her
breasts and buttocks, we conclude that a reasonable jury could have found, beyond
a reasonable doubt, that the photographs in Exhibits 2 and 3 depicted “lewd
exhibition of intimate parts.” It is undisputed that the photographs displayed
A.B.’s intimate parts. A reasonable jury could have used its common sense to
determine that the photographs were also sexually suggestive, because A.B. was

14
No. 2023AP1042-CR

either shown “in a way that place[d] an unnatural or unusual focus on [her]
intimate parts” or otherwise “posed as a sex object.” See id. Specifically, a
reasonable jury could have found that the image showing A.B. standing naked
painting the wall of a living room, an action that is not ordinarily performed while
naked, with her breasts and buttocks plainly visible, “unnaturally” or “unusually”
drew attention to, or focused on, A.B.’s intimate parts. See id. A reasonable jury
could also have found that A.B. was posed as a sex object in other respects: she
was placed in the center of the frame, with her intimate parts exposed, performing
a mundane task normally performed with clothes on, and her nakedness in this
context may have reasonably signified that she was posed as a sex object.

¶30 Edwards argues that there was no “unnatural or unusual focus” on
A.B.’s intimate parts in the photographs. We reject this argument for the reasons
explained above. Edwards also asserts that “[a]rguably, [A.B.] [was] not posed as
a sex object either. There is nothing to suggest she was even aware the
photographs were being taken.” We reject this assertion about what is “arguable”
for the same reasons explained above, as well as based on Edwards’ apparent
concession that a finding to the contrary is “arguable.” See Smith, 342 Wis. 2d
710, ¶24 (this court considers the evidence “in the light most favorable to the
State” and the conviction). We also reject this argument because whether or not
A.B. herself believed that she was posing is not determinative of whether she was
posed as a sex object. See Petrone, 161 Wis. 2d at 559, 561 (child’s intent is
irrelevant).

¶31 In sum on this issue, we conclude that Edwards has failed to show
that “the evidence ‘is so lacking in probative value and force that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt.’” See
Smith, 342 Wis. 2d 710, ¶24 (quoted source omitted). In other words, we

15
No. 2023AP1042-CR

conclude that there was sufficient evidence to support her convictions on the
possession of child pornography counts under the common law definition of “lewd
display of intimate parts” in effect at the time of her offenses.

II. Erroneous Jury Instruction—Ineffective Assistance of Counsel

¶32 Edwards argues that the jury instruction on the possession of child
pornography counts was erroneous because it reflected the statutory definition of
“lewd exhibition of intimate parts” that became effective after the time of the
offenses, rather than the common law definition set forth in Petrone that was in
effect at the time of the offenses. Specifically, Edwards argues that the statutory
definition reflected in the jury instruction “broadened the definition of the relevant
term as defined in Petrone,” and, therefore, that the jury instruction made it easier
for the State to prove that the photographs depicted “lewd exhibition of intimate
parts.”

¶33 The parties do not dispute that Edwards forfeited her objection to the
use of the jury instruction on the possession of child pornography counts by failing
to object at the jury instruction conference. See WIS. STAT. § 805.13(3) (“Failure
to object at the conference constitutes a waiver of any error in the proposed
instructions or verdict.”); see also State v. Trammell, 2019 WI 59, ¶25, 387
Wis. 2d 156, 928 N.W.2d 564 (“[T]he court of appeals has no power to reach an
unobjected-to jury instruction because the court of appeals lacks a discretionary
power of review.”). Therefore, as both parties acknowledge, we may address
counsel’s forfeiture under the rubric of ineffective assistance of counsel. See State
v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 683 N.W.2d 31 (explaining that,
in the absence of an objection by trial counsel, appellate courts “follow ‘the
normal procedure in criminal cases,’ which ‘is to address waiver [or forfeiture]

16
No. 2023AP1042-CR

within the rubric of the ineffective assistance of counsel’” (quoted source
omitted)).

¶34 “Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant is guaranteed the right to effective assistance of
counsel.” State v. Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334
(citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). “Whether trial
counsel’s performance unconstitutionally deprived the defendant of the right to
counsel is a question of law we review de novo.” State v. Williams, 2015 WI 75,
¶35, 364 Wis. 2d 126, 867 N.W.2d 736. To prevail on an ineffective assistance of
counsel claim, a defendant must show both that trial counsel’s performance was
deficient and that the deficient performance prejudiced the defendant. Balliette,
336 Wis. 2d 358, ¶21. We need not address both the deficient performance and
prejudice components if the defendant “cannot make a sufficient showing on one.”
State v. Tomlinson, 2001 WI App 212, ¶40, 247 Wis. 2d 682, 635 N.W.2d 201.

¶35 In 2019, the legislature amended the definitions statute in the Crimes
Against Children chapter of the Wisconsin Statutes to include a definition of
“lewd exhibition of intimate parts,” namely: “‘Lewd exhibition of intimate parts’
means the display of less than fully and opaquely covered intimate parts of a
person who is posed as a sex object or in a way that places an unnatural or unusual
focus on the intimate parts.” WIS. STAT. § 948.01(1t); see also 2019 Wis. Act 16,
§ 1 (creating WIS. STAT. § 948.01(1t)). While this amendment did not go into
effect until after the dates of Edwards’ possession of the photographs at issue, see
2019 Wis. Act 16 (eff. July 12, 2019), the circuit court used the jury instruction
that reflected this definition, instructing the jury in pertinent part that: “Lewd
exhibition of intimate parts means the display of less than fully and opaquely

17
No. 2023AP1042-CR

covered intimate parts of a person who is posed as a sex object or in a way that
places an unnatural or unusual focus on the intimate parts.”

¶36 To repeat, Edwards argues that trial counsel was ineffective for not
objecting to this jury instruction because it reflected the statutory definition that,
she asserts, is broader than the common law definition that was in effect at the
time of the offenses. Specifically, Edwards argues that, under the statutory
definition, the State was required to prove either that A.B. was posed as a sex
object or that she was posed in a way that placed an unusual or unnatural focus on
her intimate parts. But, Edwards’ argument continues, under the common law
definition, the State was required to prove both that A.B. was posed as a sex object
and that she was photographed in way that placed an unusual or unnatural focus
on her intimate parts. We have rejected Edwards’ interpretation of the common
law definition as imposing both of these requirements. Rather, as we have
explained, under the common law definition set forth in Petrone, the jury, using its
common sense, must determine whether an image displays a child’s intimate parts
and whether the image is sexually suggestive, and that, as to the latter
determination, the jury is to be guided by whether the child is posed as a sex
object, which may or may not include an unnatural or unusual focus on the
intimate parts. Petrone, 161 Wis. 2d at 561.

¶37 In comparison, the statutory definition requires that the jury find that
the image shows “the display of less than fully and opaquely covered intimate
parts of a person who is posed as a sex object or in a way that places an unnatural
or unusual focus on the intimate parts.” WIS. STAT. § 948.01(1t). Both the
statutory and the common law definitions require that the jury find, pertinent to the
sexually suggestive determination, that there is an unnatural or unusual focus on
the child’s intimate parts or that the child is posed as a sex object in some other

18
No. 2023AP1042-CR

manner. The only material difference pertinent to the images at issue here
between the two definitions is the statute’s addition of “less than fully and
opaquely covered” to the requirement in Petrone that the image displays a child’s
intimate parts. Edwards does not argue that this difference is material here.

¶38 For purposes of this appeal, we conclude that the two definitions are
materially the same and, therefore, that the jury instruction in this case, which
reflected the statutory definition, was a correct statement of the law in place at the
time of Edwards’ offenses under the common law definition stated in Petrone, 161
Wis. 2d at 561.

¶39 Because the jury instruction accurately stated the controlling law,
counsel’s failure to object to the jury instruction was not deficient. See State v.
Reynolds, 206 Wis. 2d 356, 369, 557 N.W.2d 821 (Ct. App. 1996) (failing to
make a non-meritorious objection is not deficient performance).

¶40 In sum on this issue, Edwards fails to show that her trial counsel was
ineffective for failing to object to the jury instruction on the possession of child
pornography counts.

III. Improper Closing Argument

¶41 Edwards argues that she is entitled to a new trial because the
prosecutor improperly commented on the evidence during his rebuttal argument.
Specifically, she takes issue with the prosecutor’s statements, more extensively
quoted below, that Edwards “participated in the manufacture of child
pornography” by participating in the sexual assault that was recorded on the video.
Edwards argues that this argument “invited the jury to find [her] guilty of

19
No. 2023AP1042-CR

possessing child pornography because she was alleged to have been in a video
[recording] where the child was sexually assaulted.”

¶42 Generally, a prosecutor “is allowed considerable latitude in closing
arguments,” and the circuit court has discretion to determine the propriety of the
argument. State v. Burns, 2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166.
“We will affirm the court’s ruling unless there has been a misuse of discretion
which is likely to have affected the jury’s verdict.” State v. Neuser, 191 Wis. 2d
131, 136, 528 N.W.2d 49 (Ct. App. 1995).

¶43 “A ‘prosecutor may comment on the evidence, detail the evidence,
argue from it to a conclusion and state that the evidence convinces [the prosecutor]
and should convince the jurors.’” Burns, 332 Wis. 2d 730, ¶48 (quoted source
omitted). “The line between permissible and impermissible argument is drawn
where the prosecutor goes beyond reasoning from the evidence and suggests that
the jury should arrive at a verdict by considering factors other than the evidence.”
Neuser, 191 Wis. 2d at 136. “The constitutional test is whether the prosecutor’s
remarks ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” Id. (quoted source omitted). Whether the prosecutor’s
conduct affected the fairness of the trial is determined by viewing the statements
“in the context of the entire trial.” Id. Additionally, “[w]hen a circuit court gives
a proper cautionary instruction, appellate courts presume that the jury followed
that instruction and acted in accordance with the law.” State v. Gary M.B., 2004
WI 33, ¶33, 270 Wis. 2d 62, 676 N.W.2d 475.

Additional Background

¶44 At the trial, Detective Flick and A.B. testified that Edwards
participated in sexually assaulting A.B., as shown in the 52-second video

20
No. 2023AP1042-CR

recording discovered on Kvatek’s phone. The audio of that video recording and a
still shot taken from the video recording were entered into evidence. Edwards
denied participating in the sexual assault. Separately, the State also entered into
evidence the two photographs forming the basis for the two child pornography
charges, labeled as Exhibits 2 and 3.

¶45 After the parties rested and before counsel gave their closing
arguments, the circuit court instructed the jury, in pertinent part, as follows:

[Edwards] is charged with two separate counts of
possession of child pornography. The second count of the
information alleges that [Edwards] … did … knowingly
possess photographs of a child engaging in sexually explicit
conduct, as depicted in Plaintiff’s Exhibit 2….

The third count of the information charges that
[Edwards] … did … knowingly possess photographs of a
child engaging in sexually explicit conduct, as depicted in
Plaintiff’s Exhibit 3….

The court also instructed the jury that “[r]emarks of the attorneys are not
evidence” and that “[i]f the remarks suggest certain facts not in evidence,
disregard that suggestion.” The court told the jury: “Consider carefully the
closing arguments of the attorneys, but their arguments and conclusions and
opinions are not evidence. Draw your own conclusions from the evidence and
decide upon your verdict according to the evidence under the instructions given to
you by the Court.”

¶46 During closing arguments, Edwards’ trial counsel argued that
“there’s not evidence that proves beyond a reasonable doubt that … Edwards ever
sexually assaulted [A.B].” Counsel also referred to A.B.’s testimony that she had
previously lied about whether she had sex with Edwards to suggest that the jury

21
No. 2023AP1042-CR

should not believe A.B. now.5 In rebuttal, the prosecutor, in listing the
“coincidental things that support [A.B.’s] statement about what had occurred
here,” referred to the dildo found in Kvatek and Edwards’ bedroom as being
identified by Flick as “the dildo that was used in this child pornography – when
this defendant and her boyfriend manufactured this child pornography involving
this child.”

¶47 Edwards’ trial counsel interjected: “I’m going to object to that
because that’s not – that’s trying to imply that something other than Exhibits 2 and
3 are the basis for the child pornography.” After the circuit court sustained the
objection, the prosecutor continued: “Now the defendant … did participate in the
manufacture of child pornography. This child pornography – this 52-second video
[recording] is child pornography. It was recovered from the telephone of …
Kvatek. And this defendant participated in the manufacture of child pornography.
That’s clearly evident by the evidence that’s been presented to you.” The
prosecutor then turned to the possession of child pornography charges, saying,
“Now, these are the photo[graph]s that were on the defendant’s phone…. These
are clearly lewd displays. These photo[graph]s … were taken immediately after
this defendant and her boyfriend had sexually assaulted this child, and they were
taking pictures of it.”

¶48 After the circuit court sent the jury to deliberate, Edwards’ trial
counsel moved for a mistrial based on the prosecutor’s argument “referring to the
[still shot from the video recording] with the sexual – actual sex involved as being

5
A.B. testified that she had denied having sex with Edwards in interviews with police
and a social worker because she “thought that [Edwards] was a good person, and … wanted to
protect her,” but that those denials were lies.

22
No. 2023AP1042-CR

child pornography when that is not the charge.” Counsel argued that the
prosecutor was “trying to impl[y] that [Edwards], by making that [video
recording] or doing that, is guilty of charges of Counts 2 and 3.”

¶49 The circuit court denied the motion, concluding that “the instructions
that have been provided … are exceedingly clear as to how the jury … is to apply
the facts that are in evidence to the specific charges.” Specifically, the court noted
that the instruction as to the possession of child pornography charge in Count 2
expressly said, “as depicted in Plaintiff’s Exhibit 2,” and that the instruction as to
the possession of child pornography charge in Count 3 expressly said, “as depicted
in Plaintiff’s Exhibit 3.” The court stated that the jury instructions were “very
clear about the [possession of] child pornography charges relating to … the two
exhibits, Exhibit 2 and [Exhibit] 3.” The court added that it had instructed the jury
before closing arguments that the remarks of the attorneys were not to be
considered as evidence.

Analysis

¶50 Edwards fails to show that the circuit court erroneously exercised its
discretion by denying Edwards’ motion for a mistrial based on the prosecutor’s
remarks about Edwards’ participation in the manufacturing of child pornography.

¶51 The prosecutor’s remarks did not “suggest[] that the jury should
arrive at a verdict by considering factors other than the evidence.” See Neuser,
191 Wis. 2d at 136. Instead, as the circuit court determined, the prosecutor
reasonably interpreted the evidence—namely, the 52-second video recording and
the testimony that the dildo observed in the video recording was found in Kvatek
and Edwards’ bedroom—to argue that the video recording of the sexual assault of
A.B. was, by its nature, the manufacture of child pornography; that Edwards

23
No. 2023AP1042-CR

participated in the sexual assault shown in that video recording; and that her denial
of that fact should not be believed. In addition, the prosecutor clarified that the
video recording he referred to as child pornography was recovered from Kvatek’s
phone, not Edwards’, so that there was no confusion that Edwards possessed the
video recording. The prosecutor then separately discussed the photographs,
saying, “Now, these were the photographs that were on [Edwards’] phone.” The
prosecutor’s remarks made it clear that only the photographs were found on
Edwards’ phone.

¶52 In addition, we agree with the circuit court that its instructions
expressly connected the possession of child pornography counts to the
photographs only. The court’s instructions on the possession of child pornography
counts expressly referenced “photographs” and identified Exhibit 2 as the basis for
Count 2 and Exhibit 3 as the basis for Count 3. The court also instructed the jury
that it was to “[d]raw [its] own conclusions from the evidence and decide upon
[its] verdict according to the evidence,” and that it was not to consider the closing
arguments as evidence. We presume that the jury acted as instructed. See Gary
M.B., 270 Wis. 2d 62, ¶33.

¶53 In sum on this issue, based on the exhibits and testimony presented
at trial, the prosecutor’s remarks read in context, and the circuit court’s
instructions that statements by the attorneys were not evidence and that each
possession of child pornography count applied to a specific, labeled exhibit
consisting of a photograph, we conclude that the prosecutor’s statements were
permissible and did not affect the fairness of the trial. See Neuser, 191 Wis. 2d at
136 (explaining that whether the prosecutor’s statements “‘so infected the trial
with unfairness as to make the resulting conviction a denial of due process’ … is
determined by viewing the statements in … the context of the entire trial” (quoted

24
No. 2023AP1042-CR

source and citation omitted)). Accordingly, Edwards fails to show that the court
erroneously exercised its discretion in denying her motion for a mistrial.

CONCLUSION

¶54 For the reasons stated above, we affirm.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

25