State v. David John Kilgore

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.
May 23, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1241-CR Cir. Ct. No. 2017CF1595

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAVID JOHN KILGORE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: JOHN ZAKOWSKI, Judge. Reversed and cause remanded for
further proceedings.

Before Stark, P.J., Hruz and Gill, 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. 2021AP1241-CR

¶1 PER CURIAM. David Kilgore appeals a judgment of conviction
for two counts of first-degree sexual assault and an order denying his
postconviction motion for a new trial. Kilgore contends that his trial attorney was
constitutionally ineffective by failing to introduce surveillance video footage at
trial. According to Kilgore, the footage would have impeached the alleged
victim’s credibility and discredited her testimony that Kilgore sexually assaulted
her.

¶2 We agree with Kilgore that his trial attorney performed deficiently
by failing to introduce the surveillance video footage and that counsel’s deficient
performance prejudiced Kilgore’s defense. We therefore reverse Kilgore’s
judgment of conviction and the order denying his postconviction motion, and we
remand for a new trial.

BACKGROUND

¶3 At about 12:30 a.m. on October 25, 2017, police were dispatched to
a Green Bay motel following a report of a disturbance. The complainant reported
that a male and female were in a particular motel room and that the male, who was
intoxicated, was refusing to leave. When officers arrived at the scene, the male
was identified as Kilgore, and the female was identified as Rhonda.1 An officer
ordered Kilgore to leave the premises, and although Kilgore initially left, he
returned shortly thereafter stating that he had left his coat in the motel room. An
officer again ordered Kilgore to leave the premises, and when Kilgore refused to

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use a
pseudonym when referring to the alleged victim in this case. All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.

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do so, he was arrested for disorderly conduct and transported to the Brown County
Jail. Later that morning, at about 2:30, Rhonda contacted the police and reported
that Kilgore had sexually assaulted her in the motel room.

¶4 The State charged Kilgore with two counts of first-degree sexual
assault and one count of second-degree recklessly endangering safety by use of a
dangerous weapon. The case proceeded to a jury trial.

¶5 At trial, Rhonda testified that on the night in question, she went to a
gas station near the motel where she was staying. At the gas station she
encountered Kilgore, whom she had never previously met. Rhonda testified that
she left the gas station alone, but she saw Kilgore while she was walking back to
the motel, and he asked her for a cigarette. Rhonda agreed to give Kilgore a
cigarette and went to get one from her room, which was on the second floor of the
motel.

¶6 Rhonda testified that as she entered her motel room, she felt a
“nudge,” and Kilgore came into the room behind her. Rhonda then sat on one of
the beds in the room, took a drink, and gave Kilgore a cigarette. Kilgore sat on the
other bed and “just started talking[,] and then it just got really weird.” Kilgore
started saying things that were sexual in nature and then “grabbed [Rhonda] and
threw [her] up against the bed.” He got on top of Rhonda, grabbed her neck, and
pulled her hair. Rhonda testified that Kilgore had some kind of weapon, like a box
cutter or a razor, which he used to cut her neck, stomach, and face. Rhonda
further testified that she told Kilgore to stop and tried to push him off of her, but
she was unable to do so.

¶7 According to Rhonda, Kilgore took off her shirt, bra, pants, and
underwear and “stuck his penis in” her vagina. After that, Kilgore got up, told

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Rhonda to “suck his dick,” put his penis in her mouth, and ejaculated. Rhonda
testified that she then grabbed her phone and cigarettes and told Kilgore that she
needed to use the bathroom. From the bathroom, she called a friend, who called
the motel clerk. Motel employees then came to the room, but Rhonda testified that
she did not tell them what had happened because she was afraid. Rhonda further
testified that when the police later arrived, Kilgore told her to “shut [her] mouth”
and was “very hostile” with the officers.

¶8 Rhonda testified that an officer took her to her friend’s house, and
she ultimately told her friend and his father what had happened. They encouraged
her to go to the hospital and to call the police, which she did. During Rhonda’s
testimony, the State introduced photographs showing linear red marks on
Rhonda’s face, neck, chest, and stomach.

¶9 On cross-examination, Kilgore’s trial attorney questioned Rhonda
about the beginning of her interaction with Kilgore, and the following exchange
occurred:

Q You allowed him into the hotel room?

A Did you hear me? I felt a push and then he walked
in the room.

Q Okay. And at that point you let him stay in the
[m]otel room?

A I guess, yes.

Q And then you two visited for a period of time?

A No. Like I said, I was sitting on the bed. I took a
drink and that’s when everything occurred.

Later on during her cross-examination, when defense counsel suggested that
Rhonda and Kilgore had been “drinking together that evening,” Rhonda

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No. 2021AP1241-CR

replied: “Like I said, I had the drink and he could have had and grabbed a drink,
and it was not that evening. It was—I don’t know how long it was. It was only a
matter of time for me to go in the room and grab the cigarette.”

¶10 During his cross-examination of Rhonda, Kilgore’s trial counsel also
highlighted a number of inconsistencies between Rhonda’s trial testimony and her
previous statements about the assaults. For instance, counsel stressed that Rhonda
had told emergency department personnel that she and Kilgore went back to the
motel room together and that Kilgore pushed her against a wall, rather than onto a
bed. Counsel further questioned Rhonda about statements she made at the hospital
that: Kilgore had scratched her with his fingernail, rather than cutting her with a
razor or box cutter; Kilgore did not ejaculate; and Kilgore did not use any foreign
objects during the assaults. Counsel also questioned Rhonda about her alcohol
consumption that night, including the number and strength of the drinks she had
consumed.

¶11 Following Rhonda’s testimony, the jury heard testimony from one of
the motel employees who came to Rhonda’s motel room. The employee testified
that when she arrived at Rhonda’s room, Rhonda looked “afraid and scared” and
had a “fresh marking on her cheek.” The jury also heard a nurse’s testimony that
Rhonda was “[a]nxious, tearful, trembling, [and] agitated” while at the hospital.
In addition, the jury learned that Rhonda’s DNA was found on a penile swab taken
from Kilgore.

¶12 Kilgore did not testify in his own defense or present any evidence at
trial. The defense’s trial strategy was to emphasize the inconsistencies in
Rhonda’s statements about the alleged assaults and to argue that Kilgore and
Rhonda were drinking in her motel room on the night in question and had a

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No. 2021AP1241-CR

consensual sexual encounter. During discovery, the State provided the defense
with surveillance video footage showing the exterior of the motel where Rhonda
was staying. The video shows Kilgore and Rhonda on a second-floor balcony
outside of Rhonda’s motel room at various times on the night in question.2 The
defense did not introduce any portion of the video into evidence at trial.

¶13 The jury found Kilgore guilty of both of the first-degree sexual
assault charges but not guilty of the second-degree recklessly endangering safety
charge. Kilgore filed a postconviction motion for a new trial, arguing that his trial
attorney was constitutionally ineffective by failing to introduce the surveillance
video footage at trial. Kilgore asserted that the video showed that he and Rhonda
“spent over two hours at the [m]otel, with periods inside the room alternated with
time outside smoking cigarettes.” Kilgore therefore argued that the video would
have impeached Rhonda’s trial testimony that Kilgore “pushed his way into her
room and assaulted her soon after, and that they did not visit for any period of
time.” (Emphasis omitted.) According to Kilgore, “[h]ad the jury seen this video,
it would have been clear that [Rhonda] had lied under oath … about significant
facts,” which would have tarnished her credibility and “very likely” given rise to a
reasonable doubt “regarding her story of sexual assault.”

2
The surveillance video is somewhat blurry and does not include audio. Nonetheless,
the circuit court found that the individuals depicted in the video are “likely the defendant and the
victim” because the video shows “the officers engaging the defendant near the end of the video
consistent with their testimony.” On appeal, the State “adheres … to the circuit court’s factual
finding that the two blurry figures in the video” are “likely” Kilgore and Rhonda. As discussed
below, we conclude that the only reasonable inference from the surveillance video is that the two
individuals depicted in the video are Kilgore and Rhonda.

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No. 2021AP1241-CR

¶14 The circuit court held a Machner3 hearing over the course of two
days. On the first day of the hearing, Kilgore’s postconviction attorney played the
surveillance video for the court and provided her impressions as to what the video
showed. On the second day of the hearing, the court heard testimony from
Kilgore’s trial attorney.

¶15 Trial counsel testified that he reviewed the surveillance video prior
to trial and made an “intentional strategic” decision not to play the video because
he did not think it “was going to have much of an impression … on the jury.”
Counsel explained that he did not believe the individuals in the video were
identifiable as Kilgore and Rhonda, and even if they were, that would not have
changed his opinion about whether to play the video at trial. Counsel noted that
the video did not show the inside of the motel room where the assaults allegedly
occurred. Counsel further testified that even if the video did show an
“inconsistency” in Rhonda’s trial testimony, his approach in sexual assault cases is
to be “sensitive” about highlighting inconsistencies in a victim’s testimony to
avoid engendering undue sympathy for the victim among the jurors. In addition,
counsel noted that if he had played the video at trial, Rhonda could have simply
denied that she was one of the individuals shown in the video.

¶16 The circuit court denied Kilgore’s postconviction motion,
concluding that his trial attorney’s failure to play the surveillance video at trial did
not meet the legal standard for ineffective assistance. The court concluded that
trial counsel did not perform deficiently because counsel made a “strategic
decision” not to play the video at trial and exhibited “a level of professional

3
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP1241-CR

competence providing [Kilgore] with a fair trial.” The court further concluded
that counsel’s failure to play the video was not prejudicial because “[w]hat
transpired outside the [motel] room” had “limited value” in showing whether a
sexual assault had occurred, and there was other evidence at trial “showing [that] a
sexual assault took place consistent with [Rhonda’s] testimony.” The court
reasoned that the evidence presented at trial was “more than sufficient … for the
jury to find the State had proven its case beyond a reasonable doubt.”

¶17 Kilgore now appeals, arguing that the circuit court erred by rejecting
his ineffective assistance claim.

DISCUSSION

¶18 Whether an attorney rendered ineffective assistance is a mixed
question of fact and law. State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d
466, 634 N.W.2d 325. We will uphold the circuit court’s findings of fact unless
they are clearly erroneous. Id. However, whether the defendant’s proof is
sufficient to establish ineffective assistance is a question of law that we review
independently. Id.

¶19 To prevail on an ineffective assistance claim, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). For
the reasons explained below, we conclude that Kilgore has established both
deficient performance and prejudice.

I. Deficient performance

¶20 To prove deficient performance, a defendant must point to specific
acts or omissions by counsel that are “outside the wide range of professionally

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No. 2021AP1241-CR

competent assistance.” Id. at 690. When assessing an ineffective assistance
claim, we must “judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Id.
“[C]ounsel is strongly presumed to have rendered adequate assistance.” Id.
Strategic choices made after a thorough investigation of the law and facts are
“virtually unchallengeable” on appeal. Id. However, “we cannot ratify a lawyer’s
decision merely by labeling it … ‘a matter of choice and of trial strategy.’” State
v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161 (1983). Instead, an attorney’s
choice of strategy must be “objectively reasonable.” See State v. Mull, 2023 WI
26, ¶35, 406 Wis. 2d 491, 987 N.W.2d 707.

¶21 Here, trial counsel testified during the Machner hearing that he
made a strategic choice not to introduce the surveillance video at trial, and the
circuit court credited counsel’s testimony on that point. We conclude, however,
that counsel’s strategic decision not to introduce the surveillance video was
objectively unreasonable under the circumstances.

¶22 At trial, Rhonda testified that Kilgore—a man she had just met at a
gas station—followed her back to her motel room, pushed his way into her room,
began talking to her about sex, and then almost immediately sexually assaulted
her. On cross-examination, Rhonda expressly denied that she and Kilgore
“visited” for a time in her motel room before the assaults, stating instead, “I was
sitting on the bed. I took a drink and that’s when everything occurred.” Rhonda
also denied that she and Kilgore were “drinking together that evening” before the
alleged assaults, stating, “It was only a matter of time for me to go in the room and
grab the cigarette.”

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No. 2021AP1241-CR

¶23 The surveillance video directly contradicts Rhonda’s testimony
about the events leading up to the alleged assaults. The video shows Rhonda
arriving at the motel alone and standing outside on the second-floor balcony
before moving out of the camera’s view in the direction of her motel room.4
Approximately eighteen minutes later, Rhonda and Kilgore enter the camera’s
view from the direction of Rhonda’s motel room.5 They stand on the second-floor
balcony smoking cigarettes together for about six minutes before moving off
camera in the direction of Rhonda’s room.

¶24 Rhonda returns to the balcony about fourteen minutes later, and
Kilgore joins her shortly thereafter. They both remain on the balcony for about
two minutes before leaving again in the direction of Rhonda’s motel room.
Approximately twenty-one minutes later, Rhonda comes out onto the balcony
again and smokes a cigarette, before moving out of the camera’s view in the
direction of her room. About twenty-six minutes later, the video shows Rhonda
and Kilgore leaving the motel together.

¶25 Rhonda and Kilgore return to the motel after about five minutes.
They can be seen holding hands as they approach the motel. They proceed to the
second-floor balcony and then move out of the camera’s view in the direction of

4
Kilgore asserts, and the State does not dispute, that the door to Rhonda’s motel room is
just off camera.

The surveillance video does not show Rhonda checking into the motel. It merely shows
her walking into the motel parking lot, climbing the stairs to the second floor balcony, standing
on the balcony, and then proceeding out of the camera’s view in the direction of her motel room.
Presumably, Rhonda had checked into the motel at some earlier point.
5
The video does not show Kilgore arriving at the motel before this point. As a result,
Kilgore asserts that “[a]t the beginning of the video, [he] is apparently in the room alone.”

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No. 2021AP1241-CR

Rhonda’s room. Over the next half hour, the video shows Rhonda returning to the
balcony alone on four separate occasions. About thirty minutes after the fourth
time that Rhonda leaves the camera’s view, two other individuals—apparently
motel employees—can be seen climbing the stairs to the second-floor balcony,
approaching the door of Rhonda’s room, and leaving again after about two
minutes.6

¶26 About eight minutes later, a police officer arrives on the scene, and
Kilgore and Rhonda come into the camera’s view on the second-floor balcony
from the direction of Rhonda’s motel room. Kilgore can be seen walking in front
of Rhonda toward the stairs. As Kilgore approaches the stairs, Rhonda is holding
his arm, and he pulls his arm away from her.

¶27 In all, the surveillance video shows that Rhonda and Kilgore spent a
significant amount of time together at the motel on the night in question. Of
particular note, the video shows them spending time on the balcony together on
two separate occasions. At another point, they can be seen leaving the motel
together and then returning about five minutes later while holding hands. The
video therefore critically undermines Rhonda’s trial testimony about the
circumstances leading up to the alleged assaults—i.e., that she met Kilgore for the
first time at a gas station, that he followed her to her motel, and that he pushed his
way into her room and sexually assaulted her almost immediately thereafter. We

6
In Rhonda’s written statement to police, she stated that when the motel employees
came to her room, one of them had a baseball bat. At trial, one of the motel employees similarly
testified that the other employee brought a baseball bat to Rhonda’s room. The surveillance video
shows that one of the two individuals who approached Rhonda’s room at the relevant time was
carrying a baseball bat, which appears to confirm that these individuals were the motel
employees.

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No. 2021AP1241-CR

agree with Kilgore that, under these circumstances, trial counsel’s decision not to
introduce the video at trial was objectively unreasonable and therefore constituted
deficient performance.

¶28 During the Machner hearing, Kilgore’s trial attorney provided
several reasons for his decision not to introduce the video at trial. First, counsel
asserted that he did not believe the individuals in the video were identifiable as
Kilgore and Rhonda. That belief was unreasonable. At the end of the video, an
officer can been seen approaching and speaking with the two individuals shown in
the video. The State does not dispute that the officer in the video is the first
officer who arrived at the motel and made contact with Kilgore and Rhonda.
Consequently, the only reasonable inference is that the two individuals speaking to
the officer in the video are Kilgore and Rhonda and that the same individuals who
can be seen earlier in the video are also Kilgore and Rhonda.

¶29 Kilgore’s trial attorney also noted that the surveillance video does
not show the inside of the motel room where the assaults allegedly occurred. Be
that as it may, the video is clearly and materially inconsistent with Rhonda’s
testimony about the events preceding the alleged assaults. We agree with Kilgore
that any reasonable defense attorney would have seized the opportunity to
highlight this significant inconsistency in order to suggest to the jury that
Rhonda’s account of the alleged assaults was not credible.

¶30 Kilgore’s trial attorney further asserted that he chose not to introduce
the surveillance video at trial because pointing out inconsistencies in a victim’s
testimony in a sexual assault case can engender sympathy for the victim among
the jurors. Counsel explained that in sexual assault cases, the State may argue that
such inconsistencies are simply due to lapses in the victim’s memory caused by

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No. 2021AP1241-CR

the trauma the victim has sustained. The State similarly asserts on appeal that the
“overarching theme” of Rhonda’s testimony was “fear” and that any
inconsistencies between the video and Rhonda’s testimony “would have been
easily explained by the trauma that she had endured.”

¶31 As Kilgore aptly notes, however, the differences between the video
and Rhonda’s testimony cannot be attributed to mere lapses in memory. As
discussed above, Rhonda testified to a version of events that differs significantly
from what the surveillance video shows. Furthermore, the surveillance video
would have undermined any argument that Rhonda was afraid of Kilgore, as it
shows that she was with him for an extended period of time on the night in
question, which included smoking with him on the motel balcony, leaving the
motel with him, and later returning to the motel with him while holding his hand.

¶32 Moreover, we agree with Kilgore that although a defense attorney
“does not want to be seen as being unreasonably aggressive with a victim of
sexual assault … that does not excuse forgoing an opportunity to prove a
significant fabrication that would call into question whether the person is really a
victim at all.” We also note that Kilgore’s trial attorney aggressively
cross-examined Rhonda regarding other inconsistencies between her trial
testimony and her previous statements about the alleged assaults. Counsel’s
failure to introduce the video to further impeach Rhonda’s credibility was thus
inconsistent with his overall trial strategy.

¶33 For these reasons, we conclude that trial counsel’s strategic choice
not to introduce the surveillance video at trial was objectively unreasonable.
Counsel’s decision in that regard fell outside “the wide range of professionally

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No. 2021AP1241-CR

competent assistance,” see Strickland, 466 U.S. at 690, and Kilgore has therefore
met his burden to prove deficient performance.

II. Prejudice

¶34 Because we conclude that Kilgore’s trial attorney performed
deficiently, we now consider whether that deficiency prejudiced Kilgore’s
defense. To demonstrate prejudice, a defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.

¶35 The prejudice analysis for an ineffective assistance claim is distinct
from a sufficiency-of-the-evidence test. State v. Sholar, 2018 WI 53, ¶44, 381
Wis. 2d 560, 912 N.W.2d 89. “[I]n sufficiency challenges, convictions are upheld
when the record shows a bare modicum of evidence from which a reasonable jury
could find guilt.” Id., ¶45. In contrast, to prove prejudice in an ineffective
assistance case, a defendant need only establish a reasonable probability that the
jury would have had a reasonable doubt as to the defendant’s guilt. Id. In other
words, to establish prejudice, a defendant need not prove that the outcome “more
likely than not” would have been different absent trial counsel’s error. Id., ¶44.

¶36 Here, we conclude Kilgore has met his burden to show that his trial
attorney’s failure to introduce the surveillance video was prejudicial. The defense
called no witnesses at trial. Thus, the impeachment of Rhonda’s credibility was
critical to Kilgore’s defense. As discussed above, the video contradicts Rhonda’s
trial testimony in a significant respect by showing that Rhonda spent an extended
amount of time with Kilgore at the motel prior to the alleged assaults. We agree
with Kilgore that “[t]he fact that [Rhonda] so greatly mischaracterized the evening

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No. 2021AP1241-CR

and left out substantial portions of it in her story[] significantly diminishes her
credibility as to all events of the evening—including, and most importantly, her
story of sexual assault.” Consequently, had the video been shown at trial, it would
have critically damaged Rhonda’s credibility, giving rise to a reasonable
probability that the jury would not have believed her testimony that Kilgore
sexually assaulted her. Furthermore, if the video had been played at trial, it would
have undermined the State’s claim that Rhonda was fearful of Kilgore by showing
that she spent a significant amount of time with him on the night in question, left
the motel with him, and later returned to the motel while holding his hand. On this
record, trial counsel’s failure to play the video at trial undermines our confidence
in the outcome of the proceeding.

¶37 The State argues that trial counsel’s failure to play the video was not
prejudicial because “the totality of the credible evidence before the jury” shows
that there is no reasonable probability of a different result had the video been
played at trial. First, the State notes that it introduced evidence showing that
Rhonda’s DNA was found on a penile swab taken from Kilgore. According to the
State, this evidence corroborated Rhonda’s testimony that Kilgore sexually
assaulted her. However, Kilgore’s defense at trial was not to argue that he never
had sexual intercourse with Rhonda. Instead, Kilgore argued that he and Rhonda
had consensual sex. While the DNA evidence supports the notion that sexual
intercourse occurred, it does not corroborate Rhonda’s claim that such intercourse
was nonconsensual.

¶38 The State also emphasizes that the jury “saw pictures of Rhonda’s
injuries,” which were “consistent with her testimony.” While cross-examining
Rhonda, however, Kilgore’s trial attorney emphasized that Rhonda had told
hospital personnel that Kilgore may have scratched her with his fingernail, rather

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No. 2021AP1241-CR

than cutting her with a box cutter or razor. Given that line of questioning, had the
jury seen the surveillance video, it may have concluded that the “injuries” depicted
in the photographs were scratch marks made by Kilgore’s fingernails during a
consensual sexual encounter with Rhonda, rather than evidence of a sexual assault.

¶39 The State next asserts that the jury heard evidence that Kilgore was
“hostile and combative” when the police arrived at the motel and “would not listen
to their directions until being warned with a [T]aser.” The State contends that the
jury could consider this evidence “as consciousness of guilt.” Notably, however,
Rhonda did not accuse Kilgore of sexual assault at any point while the police were
at the motel. Rather, officers responded to the motel following a report of a
disturbance and asked Kilgore to leave the premises. While Kilgore initially
complied with that request, he returned to the motel shortly thereafter. Instead of
interpreting this behavior as showing consciousness of guilt, the jury could have
reasonably inferred that if Kilgore had sexually assaulted Rhonda, he would not
have returned to the motel and would have instead taken the opportunity to leave
the premises, rather than prolonging his contact with the police.

¶40 The State also notes that multiple witnesses testified that Rhonda
was “visibly upset, anxious, and scared” after the alleged assaults occurred. While
that is true, the jury was not given the opportunity to weigh the testimony of those
witnesses against the events shown in the surveillance video, which differ
significantly from Rhonda’s trial testimony. Under these circumstances, the
likelihood that the jury would have reached a different result had the video been
played at trial is significant enough to undermine our confidence in the outcome of
Kilgore’s trial.

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¶41 Finally, the State asserts that the surveillance video would have been
merely cumulative because Kilgore’s trial attorney impeached Rhonda’s
credibility in other ways. We disagree. As discussed above, the surveillance
video directly contradicts Rhonda’s testimony about the events preceding the
alleged assaults. In particular, the video shows that Rhonda’s testimony about
being sexually assaulted by a man she had just met who followed her back to her
motel and pushed his way into her room was not accurate. While the video does
not prove that Kilgore did not sexually assault Rhonda, it critically undermines
important aspects of Rhonda’s trial testimony. Trial counsel’s cross-examination
of Rhonda did not address the discrepancies between her trial testimony and the
events shown in the video. On this record, Kilgore has met his burden to show a
reasonable probability—that is, a probability sufficient to undermine our
confidence in the outcome—that the result of his trial would have been different
absent trial counsel’s error in failing to play the surveillance video.

CONCLUSION

¶42 For the reasons explained above, we conclude Kilgore has
established both that his trial attorney performed deficiently by failing to play the
surveillance video at trial and that counsel’s error prejudiced Kilgore’s defense.
We therefore reverse Kilgore’s judgment of conviction and the order denying his
postconviction motion, and we remand for a new trial.

By the Court.—Judgment and order reversed and cause remanded
for further proceedings.

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

17