CourtListener 10808147

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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.
March 12, 2026
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. 2025AP2020-CR Cir. Ct. No. 2015CF184

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

MICHAEL W. IONETZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Jefferson County: BENNET J. BRANTMEIER and ROBERT F. DEHRING, JR.,
Judges. Affirmed.

Before Graham, P.J., Kloppenburg, and Taylor, 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. 2025AP2020-CR

¶1 PER CURIAM. Michael Ionetz appeals a judgment convicting him
of 14 counts of possession of child pornography and an order denying his motion
for postconviction relief. On appeal, Ionetz argues that the circuit court
erroneously exercised its discretion when it admitted other-acts evidence of the
total number of images and videos depicting child sexual exploitation, including
the charged images, that were found in a forensic examination of the unallocated
space on his computer’s hard drive. We reject Ionetz’s argument and affirm.1

BACKGROUND

¶2 The State charged Ionetz with 14 counts of possession of child
pornography, as a repeater, contrary to WIS. STAT. §§ 948.12(1m), (3) and
939.62(1)(c) (2023-24).2 The charges stemmed from an investigation that was
initiated after an agent with the Wisconsin Division of Criminal Investigation
(DCI) downloaded files containing child pornography from a peer-to-peer sharing
network. The agent determined that the files came from an IP address that was
registered to Ionetz. DCI agents obtained a search warrant for Ionetz’s residence
where they seized, among other things, his computer’s hard drive.

¶3 DCI agents did not find child pornography when they previewed the
hard drive at Ionetz’s residence. However, during a later forensic examination of

1
This case was filed in 2015, and the evidentiary decision at issue in this appeal was
made in 2016 by the Honorable Randy R. Koschnick. After lengthy pretrial proceedings in which
the parties stipulated to continuances to allow Ionetz to retain an expert witness, the case was
subsequently assigned to the Honorable Bennett J. Brantmeier, who presided over the trial, and to
the Honorable Robert F. Dehring, who presided over the postconviction proceedings.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2025AP2020-CR

a replica of the hard drive, a DCI examiner discovered the 14 images that served
as the basis for the charges in this case.

¶4 These 14 images were part of a larger set of images and videos of
suspected child sexual exploitation, all of which were found on the unallocated
space on the hard drive. As we understand it, the term “allocated space” refers to
space on a hard drive on which files are stored and can be accessed by users, and
the term “unallocated space” refers to space on a hard drive on which files that
were deleted from the allocated space are stored. Importantly here, a deleted file
that was once saved on a hard drive’s allocated space will remain on the
unallocated space until the file is written over by new data. Although files on
unallocated space cannot be readily accessed or viewed by a user, these files can
sometimes be recovered through the process of forensic examination.

¶5 During the pretrial proceedings, the State filed a motion asking the
circuit court to allow it to admit other-acts evidence pursuant to the three-part test
from State v. Sullivan, 216 Wis. 2d 768, 771-73, 576 N.W.2d 30 (1998).
Specifically, the State sought to admit evidence that DCI found 2,353 images (in
addition to the 14 charged images) and 16 videos of child sexual exploitation on
the unallocated space on the hard drive. At a hearing on the motion, the State
clarified that it was not asking the court to allow the jury to view any of the
additional images or videos; it was just asking the court to allow the witnesses to
reference the number of additional images and videos in their testimony. The
State argued that this evidence was admissible for purposes of “context for the
alleged offenses” and also to prove Ionetz’s “knowledge and absence of mistake or
accident … regarding the child pornography found on his computer hard drive.”

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No. 2025AP2020-CR

The State proposed that the court give a cautionary instruction to the jury about
how to consider the other-acts evidence.3

¶6 During the hearing, Ionetz raised questions about the accuracy of the
State’s representations about the total number of files containing child sexual
exploitation material that were found on the hard drive. After a lengthy
discussion, the State proposed to amend its request by reducing the total number of
files. The State then filed an amended motion in which it sought to admit
evidence that 256 images and 16 videos containing child sexual exploitation
material were found on the hard drive.4

¶7 At a continued hearing, Ionetz did not challenge that the State’s
asserted purposes for offering the evidence were permissible purposes, nor that the
evidence was relevant for those purposes. See Sullivan, 216 Wis. 2d at 772,
783-87 (describing the first two parts of the Sullivan test). However, Ionetz asked
the circuit court to deny the motion on the ground that the probative value of the
evidence was outweighed by the danger of unfair prejudice. See id. at 772-73, 789
(describing the third part of the test).

¶8 The circuit court granted the motion. It found that the evidence was
offered for a permissible purpose. It also found that “the presence of these
[additional] images” on the hard drive was “relevant primarily to whether [Ionetz]

3
The State also filed an other-acts motion with respect to evidence that the DCI agent
downloaded three files containing child pornography from Ionetz’s IP address. That motion was
granted and is not at issue in this appeal.
4
The State’s motion represented that the 256 images were in addition to the 14 charged
files, but later trial testimony clarified that the 256 images included the 14 charged images.
Additionally, the State’s motion represented that there were 16 video files, but later testimony
clarified that there were actually 17 video files on the hard drive.

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No. 2025AP2020-CR

had knowledge” that the charged images were on his hard drive, and also “to a
lesser extent … as to whether there’s any type of mistake or accident with the
items being on the [hard drive] in question,” and also to “context.” The court
acknowledged that there “may be some unfair prejudice given the nature of [the]
images and videos,” but it determined that the “danger of unfair prejudice is
relatively minor,” and that the “substantial probativeness outweighs [that] danger.”
The court confirmed that the State could present the evidence in its case in chief,
and it offered to “give a cautionary instruction upon request so that the jury is
properly instructed [regarding] how they are to use and consider this evidence of
other crimes, wrongs, or acts.”

¶9 The case eventually proceeded to a two-day jury trial. During the
State’s case in chief, the total number of images and video was mentioned on two
separate occasions: once in the prosecutor’s opening statement, and then several
times during the testimony of the digital forensic examiner who conducted the
examination in which the files were found.

¶10 Specifically, during his opening statement, the prosecutor informed
the jury that agents did not find any child pornography on the hard drive when
they previewed it at Ionetz’s residence. However, the prosecutor continued, when
the “hard drive was further examined [through forensic examination],
256 images[] and 15 videos containing child pornography were found on the …
hard drive.”5 The prosecutor also told the jury that the “examination revealed that
specific searches for child pornography had been made from [Ionetz’s] computer.”

5
The prosecutor apparently misspoke or was misinformed about the facts; later
testimony confirmed that the examiner found 17 video files.

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No. 2025AP2020-CR

¶11 Then, when called as a witness by the prosecutor, the forensic
examiner testified that he made a replica of the hard drive using forensic software,
he confirmed that it was an exact replica, and he then analyzed the data on the
replica. The examiner further testified as follows:

Q. … During your analysis of [Ionetz’s] hard drive, the
hard drive we’ve been talking about, did you locate any
images or videos that contained children engaged in
sexually explicit conduct?

A. I located 256 picture files, and 17 video files that I
believed possibly contained contraband material.

Q. What do you mean by contraband material?

A. Child exploit material.

Q. Would that be consistent with children engaged in
sexually explicit conduct?

A. Yes.

The examiner testified that he put the 256 images and 17 videos into a report and
provided them to an agent for review, and that the 14 charged images were “part
of the 256 images that [he] referenced earlier [in his testimony] that [he] found”
during his examination. The examiner also confirmed that he assisted with
preparing trial exhibits of the 14 charged images, and that the images depicted in
the exhibits were “14 of the 256 images that [he] referenced earlier in [his]
testimony [that] contained children engaged in sexually explicit conduct.”

¶12 The examiner also provided testimony about how files are stored on
hard drives, and how deleted files can be recovered through forensic examination
until they are overwritten by new data. The examiner testified that he found the
14 charged files on unallocated space of Ionetz’s hard drive, but that the files
would have been on allocated space and accessible to a user before they were
deleted. And the examiner testified that his analysis revealed that Ionetz had

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No. 2025AP2020-CR

installed peer-to-peer file sharing programs on his computer, that Ionetz entered
search terms associated with child pornography when using those programs, and
that Ionetz had opened and then later deleted files on his computer bearing names
associated with child pornography.

¶13 After the State rested its case in chief, Ionetz testified for the
defense. He denied having possessed child pornography and denied taking any
action that would have caused child pornography to be on the unallocated space on
his hard drive. He testified that when he purchased his computer it was used and
refurbished, and that he did not know who owned it before he purchased it. Ionetz
also presented the testimony from a forensics expert retained by the defense.

¶14 During closing argument, the prosecutor referred to the total number
of image and video files, and he asserted that the evidence demonstrated Ionetz’s
knowledge and lack of mistake. Specifically, the prosecutor argued:

The evidence establishes that [Ionetz] had
256 images and 17 videos containing child pornography on
unallocated space on his hard drive.

Those 256 images and 17 videos including the
14 images [c]harged in Counts 1 through 14 were found in
unallocated space.

But at one point in time, they were in allocated
space on [Ionetz’s] hard drive.

And when those images and videos were in
allocated space, they were accessible to [Ionetz].

What all this means is that [Ionetz] actively
searched for child pornography.

He downloaded child pornography onto his
computer.

That downloaded child pornography was initially in
allocated space in his computer.

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No. 2025AP2020-CR

And he, on several occasions, actively accessed the
folders with names referencing child pornography.

….

He knew that he had child pornography on his
computer.

And he had the ability to … access the child
pornography that was in fact on his computer.

And we know he knew that the child pornography
was on his computer; not just because he searched for it,
but because he deleted it.

¶15 In his closing argument, Ionetz’s counsel attempted to cast doubt on
the accuracy of the forensic examination, and whether the evidence on the hard
drive might have been “contaminated” at some point during the investigation.
Counsel also suggested that the State failed to prove that the files were not already
on the unallocated space on the hard drive at the time Ionetz purchased it.

¶16 In the course of instructing the jury on the elements of the offense,
the circuit court also provided instructions on how to consider the other-acts
evidence. Specifically, the court instructed the jury as follows:

Evidence has been presented regarding other
conduct of [Ionetz] for which [Ionetz] is not on trial.

Specifically, evidence has been presented that
242 additional images and 17 videos were also located in
unallocated space on the hard drive seized from [Ionetz’s]
apartment.

If you find that this conduct did occur, you should
consider it only on issues of [Ionetz’s] knowledge, the
absence of mistake or accident, and to provide context or
background information.

You may not consider this evidence to conclude that
[Ionetz] has a certain character or a certain character trait
and that [Ionetz] acted in conformity with that trait or
character with respect to the offense charged in this case.

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No. 2025AP2020-CR

The evidence was received on the issue of
knowledge, that is, whether [Ionetz] was aware of facts that
are required to make criminal the offense charged.

The evidence was also received on the issue of
absence of mistake or accident, that is, whether [Ionetz]
acted with a state of mind required for the offense charged.

….

You may consider this evidence only for the
purposes I have described, giving it the weight you
determine it deserves. It is not to be used to conclude
[Ionetz] is a bad person or for that reason is guilty of the
offense charged.

¶17 The jury found Ionetz guilty on all 14 counts.

¶18 Ionetz filed a postconviction motion, in which he challenged the
circuit court’s decision to admit the other-acts evidence regarding the total number
of files, and he also raised other issues that he does not renew on appeal. The
circuit court denied the motion, and Ionetz appeals.

DISCUSSION

¶19 “[E]vidence of other crimes, wrongs, or acts is [generally] not
admissible to prove the character of a person in order to show that the person acted
in conformity therewith.” WIS. STAT. § 904.04(2). In the context of a criminal
trial, the reason for this rule is that such evidence has the potential to lead the jury
to believe the defendant is guilty for reasons other than the strength of the
evidence supporting the charged offense. See Sullivan, 216 Wis. 2d at 783. That
is, other-acts evidence can cause confusion of the ultimate issue and may lead a
jury to find a defendant guilty, not because the jury is persuaded by the evidence
of this crime, but rather because the jury believes that the defendant is a person
likely to commit such acts or that the defendant has escaped punishment in the
past. See Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967).

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No. 2025AP2020-CR

¶20 In Sullivan, our supreme court set out the analytical framework that
governs the admission of other-acts evidence. See Sullivan, 216 Wis. 2d 768.
First, a court must determine whether the evidence is offered for a permissible
non-propensity purpose under WIS. STAT. § 904.04(2). Id. at 772. Permissible
purposes include “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” § 904.04(2). Second, if
the evidence is offered for a permissible purpose, it must be relevant for that
purpose under WIS. STAT. § 904.01. Sullivan, 216 Wis. 2d at 772. Finally, if the
evidence is relevant, the probative value of the evidence must substantially
outweigh the danger of unfair prejudice, confusion of the issues, undue delay,
waste of time or needless presentation of cumulative evidence. Id. at 772-73.

¶21 Although Sullivan provides the general framework for admitting
other-acts evidence, the “greater latitude rule,” which allows for more liberal
admission of other-acts evidence, applies to each step of the analysis in certain
cases, including those that involve child sexual assault. State v. Davidson, 2000
WI 91, ¶51, 236 Wis. 2d 537, 613 N.W.2d 606. It is undisputed that the greater
latitude rule also applies in prosecutions for possession of child pornography. See
WIS. STAT. §§ 904.04(2)(b)1.; 939.615(b), 948.12.

¶22 On appeal, we review a circuit court’s decision to admit other-acts
evidence for an erroneous exercise of discretion. State v. McGowan, 2006 WI
App 80, ¶15, 291 Wis. 2d 212, 715 N.W.2d 631. We will uphold the circuit
court’s admission of other-acts evidence if the court reached a reasonable
conclusion after reviewing the relevant facts, applying the proper standard of law,
and using a rational process. Id. And if the court failed to set forth its reasoning,
we will independently examine the record and determine if it provides a basis for
the court’s exercise of discretion. Sullivan, 216 Wis. 2d at 781.

10
No. 2025AP2020-CR

¶23 Here, for each of the 14 counts, the State was required to prove that
Ionetz “knowingly possessed” the image; that the image “showed a child engaged
in sexually explicit conduct”; that Ionetz “knew or reasonably should have
known” that the image “contained depictions of a person engaged in sexually
explicit conduct”; and that Ionetz “knew or reasonably should have known that the
person” depicted in the image “was under the age of 18 years.” See WIS JI—
CRIMINAL 2146A. The State explained that it was seeking to admit the total
number of files found on the hard drive, including the 14 charged files, to help
prove, among other things, Ionetz’s knowledge and lack of mistake.

¶24 Ionetz acknowledges that these are permissible purposes. He further
acknowledges that the existence of the additional files on the hard drive’s
unallocated space was relevant for these purposes—more specifically, that the
existence of additional files made it more likely that Ionetz knowingly
downloaded the charged files to his computer, and that the charged files did not
end up on the hard drive by mistake. Accordingly, Ionetz does not take issue with
the circuit court’s exercise of discretion with respect to the first two prongs of the
Sullivan test. Ionetz’s argument is about the court’s exercise of discretion with
respect to the third factor—that the court erred when it determined that the
probative value of the total number of files was not substantially outweighed by
the danger of unfair prejudice.

¶25 We start with probative value. Ionetz argues that the central
question here is “how badly needed is the other act[s] evidence,” State v. Payano,
2009 WI 86, ¶81, 320 Wis. 2d 348, 768 N.W.2d 832 (citation omitted), and that
here, the State did not need the evidence that badly. While the existence of
additional files was at least somewhat probative of his knowledge and lack of
mistake, Ionetz argues that the evidence was not “highly probative” and the State

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No. 2025AP2020-CR

did not “badly need” it because the State was already charging Ionetz with
possessing 14 files containing child pornography. At some point, Ionetz argues,
“the number of uncharged files containing child pornography becomes needlessly
cumulative.” In other words, Ionetz argues, “the State accomplished its purpose”
of proving knowledge and lack of mistake with the 14 charged images, and “[t]he
fact that there were 256 images instead of 14[] did not make it significantly more
likely” that Ionetz knew about the child pornography on his hard drive and that it
did not get there by accident.

¶26 Turning to the danger of unfair prejudice, evidence is unfairly
prejudicial when it has the tendency to influence the outcome by improper means,
or “appeals to the jury’s sympathies, arouses its sense of horror, provokes its
instinct to punish, or otherwise causes a jury to base its decision on something
other than the established propositions in the case.” Davidson, 236 Wis. 2d 537,
¶73 (citation omitted). Here, Ionetz argues, the fact that there were so many
uncharged files on his hard drive was unfairly prejudicial due to the “highly
inflammatory” nature of child pornography. Ionetz notes that jurors were required
to view the 14 charged images at trial, which was “undoubtably upsetting,” and he
contends that learning about the existence of additional uncharged images and
videos was “likely to arouse their sense of horror and provoke their instinct to
punish.”

¶27 The argument that Ionetz makes about probative value—that the
State did not “badly need” to introduce the total number of files to demonstrate
knowledge and lack of mistake given the number of charged images—has some
appeal, and perhaps a different court might have been persuaded to exercise its
discretion in another way. However, we will not reverse an exercise of discretion
merely because a different court could reasonably have exercised its discretion

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No. 2025AP2020-CR

differently. See State v. Morgan, 195 Wis. 2d 388, 416, 536 N.W.2d 425 (1995)
(“[a] [circuit] court possesses great discretion in determining whether to admit or
exclude evidence,” and “[w]e will reverse such a determination only if the [circuit]
court erroneously exercises its discretion”). Here, under the circumstances, we
cannot say that the circuit court erroneously exercised its discretion by admitting
the evidence for at least the following reasons.

¶28 First, our supreme court has stated that, with respect to balancing
probative value against the danger of unfair prejudice in this context, “[c]lose
cases should be resolved in favor of admission.” State v. Marinez, 2011 WI 12,
¶41, 331 Wis. 2d 568, 797 N.W.2d 399 (citing Daniel D. Blinka, Wisconsin
Practice Series: Wisconsin Evidence § 403.1 at 139 (3d ed. 2008)). That is, “the
bias … is squarely on the side of admissibility” because “the [other-acts] statute
provides for exclusion only if the evidence’s probative value is substantially
outweighed by the danger of unfair prejudice.” Id. This may be particularly true
in light of the greater latitude rule, which undisputedly applies to this case.

¶29 Second, as Ionetz acknowledges, the circuit court did not err in
determining that the total number of files containing child pornography on the
hard drive was at least somewhat probative of Ionetz’s knowledge and lack of
mistake. And contrary to Ionetz’s argument, jurors could perceive a meaningful
difference between 14 and 256. That is, some jurors might have a reasonable
doubt about Ionetz’s knowledge when told that there were 14 images on the hard
drive, and might believe that the files could have found their way onto Ionetz’s
hard drive by mistake. Accurate information about the existence of hundreds of
additional images on Ionetz’s hard drive might eliminate that doubt.

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No. 2025AP2020-CR

¶30 Third, under the circumstances, we are not persuaded that the circuit
court was required to find that evidence of the total number of files created a
danger of unfair prejudice. It is true that being required to view child pornography
during a trial is likely to be upsetting to jurors. Yet, as Ionetz recognizes, it was
necessary for jurors to view each of the 14 charged images in order to reach a
consensus on the elements of the offense. Ionetz does not explain how being
informed about the total number of files—that there were 256 images and
17 videos, rather than just 14 images—would instill a sense of horror or desire to
punish beyond what the jurors would have experienced upon having to view the
14 charged images. That is, Ionetz does not explain how the other-acts evidence
could have persuaded jurors to disregard the jury instructions, which they are
presumed to properly apply, or to find him guilty based on something other than
“the established propositions of the case.” Sullivan, 216 Wis. 2d at 789-90.6

¶31 For all these reasons, we conclude that the circuit court did not
erroneously exercise its discretion when it admitted other-acts evidence of the total
number of images and videos, including the charged images, that were found in a
forensic examination of the unallocated space on Ionetz’s hard drive.

By the Court.—Judgment and order affirmed.

6
The State also argues that the danger of unfair prejudice was mitigated by the circuit
court’s thorough curative instruction. State v. Dorsey, 2018 WI 10, ¶55, 379 Wis. 2d 386, 906
N.W.2d 158. Ionetz argues that the instruction, which was given after the close of evidence,
came too late to mitigate the danger, but this argument does not move the needle for two reasons.
First, as discussed, we have concluded that the circuit court could have reasonably determined
that there was not a significant danger of unfair prejudice, and we would have reached the same
conclusion even if no curative instruction had been given. Second, Ionetz could have asked for
an earlier instruction if counsel believed it necessary to mitigate the danger of unfair prejudice,
but his trial counsel did not do so.

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No. 2025AP2020-CR

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