State v. Kyler T. Smith

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 25, 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. 2024AP288-CR Cir. Ct. No. 2020CF171

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KYLER T. SMITH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Ozaukee County: STEVEN M. CAIN, Judge. Affirmed.

Before Neubauer, P.J., Grogan, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. In this appeal from a judgment of conviction for
first-degree sexual assault of a child under the age of 13 and an order denying
No. 2024AP288-CR

postconviction relief, Kyler T. Smith argues that there was insufficient evidence to
support the jury’s guilty verdict. He further asserts that the State withheld
potentially exculpatory evidence from him before trial in violation of Brady v.
Maryland, 373 U.S. 83 (1963). As we explain below, we reject Smith’s
arguments. Accordingly, we affirm.

BACKGROUND

¶2 The parties do not dispute the facts pertinent to this appeal. Smith
was charged with first-degree sexual assault of a child under the age of 13 based
on an allegation that he touched the pubic mound of his then-10-year-old cousin,
Dory.1 The alleged assault occurred in the backseat of a vehicle while Dory’s
mother, Carol, was driving. According to the criminal complaint, Carol had
offered to drive Smith home after Smith showed up at Carol’s home uninvited.
Dory rode along with Carol to help out because Smith reportedly was heavily
intoxicated and stumbling about.

¶3 Prior to trial, the State discovered that Dory was the victim in
another sexual assault case in Sheboygan County, Wisconsin. That case involved
a juvenile offender, rendering the file and its contents confidential. Smith moved
for an adjournment, which the trial court granted. The State then obtained the
criminal complaint and some discovery from that case and provided it to defense
counsel. No evidence from that case was presented at trial.

1
In order to protect her confidentiality, this court refers to the juvenile by a pseudonym.
See WIS. STAT. RULE 809.19(1)(g) (2023-24). Carol is also a pseudonym. All references to the
Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP288-CR

¶4 Both Dory and Carol testified at the jury trial. Carol testified that
Smith unexpectedly came to her home one night in June 2020, and was
“[n]oticeably” drunk. Smith asked Carol for more alcohol, which she denied
having. Carol then offered to drive Smith to the home where he was staying
nearby, and Smith got into the backseat with Dory. As Carol started driving, she
heard some shuffling in the back seat. She turned around to look. Carol then saw
that Dory “was hunched over a little bit, and she was grasping onto [Smith’s] hand
on her stomach. Just holding it.” Carol asked Dory if everything was okay, and
Dory nodded yes in response.

¶5 After dropping Smith off and watching him fall down before
entering the house, Carol and Dory returned home. Carol again asked Dory if she
was okay, and Dory replied “Yes[,]” and retreated to her bedroom. A short time
later, Dory entered Carol’s room “hysterical[,] saying she needed to tell [Carol]
something.” Dory then told Carol that Smith had “touched her on the vagina” in
the car. Carol contacted law enforcement, and Dory later spoke to a forensic
interviewer, which led to the charge here.

¶6 Dory testified at trial as well. She stated that she had hugged Smith
when he arrived at her house on the night in question; Dory said Smith was acting
strangely and smelled like alcohol. Dory also testified that Smith was acting oddly
during the short car ride. She remembered Smith placing her hand on her stomach
and his hand on top of hers. Dory said Smith slowly moved both hands down
closer to her “privates.” Smith guided Dory’s hand over her clothes down to her
underwear line until Dory grabbed Smith’s hand, and held it to keep Smith from
going down further. Dory said that Smith did not touch her vagina, but he came
close to it.

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No. 2024AP288-CR

¶7 At trial, Dory also told the jury that Smith touching her was “kind of
scary” and “[w]eird.” Dory agreed that Carol asked her if she was okay during the
ride when Smith’s hand was still on her stomach and she had nodded
affirmatively. When asked to indicate on a picture of a female body the lowest
spot on her body where Smith had touched her, Dory placed an “X” on the pubic
mound, just above the vagina.

¶8 The jury found Smith guilty as charged, and the trial court sentenced
Smith to seven years of initial confinement and seven years of extended
supervision. Smith filed a postconviction motion. He claimed that the evidence at
trial was insufficient to support his conviction. He further alleged that the State
violated Brady when it failed to produce evidence about Dory’s “prior sexual
assaults.”

¶9 After an evidentiary hearing, the postconviction court denied the
motion. It held that the evidence viewed in the light most favorable to the State
supported the conviction, and that the State did not violate Brady with respect to
its disclosure of a juvenile case from another county involving the same victim.
Smith appeals.

DISCUSSION

¶10 Smith first argues that this court should reverse because there was
insufficient evidence presented at trial to support the jury’s guilty verdict.
However, even if the evidence was sufficient, Smith argues that he is entitled to a
new trial because “the [S]tate’s failure to disclose evidence of [Dory]’s prior
sexual assault allegation constituted a Brady violation.” We disagree as to both
arguments.

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No. 2024AP288-CR

I. Sufficiency of the Evidence

¶11 Smith argues that we should reverse his conviction because there
was not sufficient evidence upon which a reasonable jury could conclude that he
sexually assaulted Dory. He specifically argues that the State failed to present
convincing evidence to prove a required element of the offense—that he touched
Dory’s pubic mound for the purposes of sexual arousal or gratification. We
conclude that there was sufficient evidence to support the jury’s decision.

¶12 “The question of whether the evidence was sufficient to sustain a
verdict of guilt in a criminal prosecution is a question of law, subject to our
de novo review.” State v. Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d
410. “When conducting such a review, we consider the evidence in the light most
favorable to the State and reverse the conviction 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)). Therefore, we “will uphold the
conviction if there is any reasonable hypothesis that supports it.” Smith, 342
Wis. 2d 710, ¶24.

¶13 “In a prosecution for sexual assault, the State must prove as an
element of the crime that the perpetrator had the specific intent to touch the victim
for the purpose of sexual arousal or gratification.” State v. Stephen T., 2002 WI
App 3, ¶13, 250 Wis. 2d 26, 643 N.W.2d 151 (2001). Therefore, the State had to
prove that Smith touched Dory with the intent to become sexually aroused or
gratified. “[T]he State is allowed to prove intent by inference from the
defendant’s conduct and from the general circumstances of the case.” See id., ¶14.

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No. 2024AP288-CR

Smith argues there is no evidence in the record that allowed the jury to draw the
conclusion beyond a reasonable doubt that he was sexually aroused or gratified.

¶14 The State argues it presented evidence from which a reasonable jury
could infer Smith touched Dory’s pubic mound for sexual arousal or gratification.
The State recites the testimony from Dory that Smith, rather than sitting in the
front passenger seat, slid in the back seat next to Dory. Smith then put his hand on
Dory’s hand and on her stomach, squeezed her hand, and slid it down to her pubic
mound. Dory went on, the State notes, to testify that she felt compelled to grab
Smith’s wrist to stop it from moving farther down her body. Dory described the
touching to the jury as “[w]eird” and “scary” as it was happening. The State also
observes Carol’s testimony corroborated that Smith had his hand on Dory’s
stomach while in the car, which caused Carol to ask Dory multiple times if she
was okay. That evidence supports an inference that Smith touched Dory’s pubic
mound over her clothes, and that he did so with the intent to become sexually
aroused or gratified.

¶15 We reject Smith’s argument implying that sexual arousal or
gratification could have been proven only had he used words or gestures reflecting
intent, his hand had touched Dory’s vagina, or he had fought Dory’s grasp
preventing him from touching her lower on her body. Citing two cases factually
similar to the scenario presented here, the State notes that circumstantial evidence
alone was sufficient to establish intent. See State v. Shanks, 2002 WI App 93,
¶26, 253 Wis. 2d 600, 644 N.W.2d 275 (holding that the requisite intent could be
inferred from a grown man placing a finger in a two-year-old’s vagina); State v.
Drusch, 139 Wis. 2d 312, 327–28, 407 N.W.2d 328 (Ct. App. 1987) (requisite
intent could be inferred when an adult man carried young girls with his hand

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No. 2024AP288-CR

between their legs, sometimes squeezed them “in the vaginal area,” and later lied
about that conduct). We agree with the State.

¶16 It is the jury’s job to resolve inconsistencies in testimony and
determine the credibility of witnesses. The jury’s function as factfinders allowed
it to find Dory’s and Carol’s testimony believable and credible. The witnesses
were not required to testify specifically that Smith was aroused or sexually
gratified. The jury was permitted to reject any innocent reasons for touching
Dory. The jury was allowed to consider that Dory said Smith put his hand on the
then-ten-year-old girl’s stomach and pubic mound, and she had to stop it from
going lower while Smith periodically “squeezed”—and draw the reasonable
inference that he had no innocent alternative reason for touching Dory other than
for the purpose of sexual arousal or gratification.

¶17 In sum, we conclude that the State presented sufficient evidence at
trial for the jury to have found, beyond a reasonable doubt, that the State proved
all elements of sexual assault of a child under age 13, including that Smith
intentionally had contact with Dory for the purposes of attaining sexual arousal or
gratification.

II. Alleged Brady Violation

¶18 While this case against Smith was pending, the State became aware
that Dory was the victim in the juvenile sexual assault case in Sheboygan County.
The State immediately informed the defense, which moved for and was granted an
adjournment of the trial that had been scheduled to begin forthwith. The State
subsequently received some materials from the Sheboygan County file, including
the delinquency petition, police reports, and a recording of a forensic interview of
Dory conducted in conjunction with that case a few months prior. Later review of

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No. 2024AP288-CR

the file by Smith’s appellate counsel revealed that the State had not turned over
“transcripts of the juvenile proceedings where [Dory] and her mother testified and
another recorded statement of [Dory].” Smith contends this was a Brady
violation.

¶19 “[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. A defendant therefore has “a due process
right to any favorable evidence ‘material either to guilt or to punishment’ that is in
the State’s possession ..., including any evidence which may impeach one of the
State’s witnesses.” State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922
N.W.2d 468 (citation omitted). Whether a due process violation has occurred
contrary to Brady is an issue that we review independently, but we accept the trial
court’s findings of fact unless clearly erroneous. See Wayerski, 385 Wis. 2d 344,
¶35. Evidence that impeaches or affects the credibility of a witness also “falls
within this general [Brady] rule.” Giglio v. United States, 405 U.S. 150, 154
(1972).

¶20 Smith bears the burden of proving a Brady violation occurred. See
Wayerski, 385 Wis. 2d 344, ¶35. To satisfy his burden, Smith must prove all three
components: “(1) the evidence at issue must be favorable to the accused, either
because it is exculpatory or impeaching; (2) the evidence must have been
suppressed by the State, either willfully or inadvertently; and (3) the evidence
must be material.” See id. His failure to prove any of these components results in
the Brady claim failing. See Wayerski, 385 Wis. 2d 344, ¶62. Because Smith
fails to prove that the State suppressed the evidence he seeks under the second
Brady component, and this conclusion is dispositive to our analysis, we reject

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No. 2024AP288-CR

Smith’s argument that a Brady violation occurred and that he is entitled to a new
trial.

¶21 On appeal, as in his postconviction motion, Smith states that “[t]he
State had an affirmative duty to disclose ALL Brady evidence.” As the State
observes, Smith attempts to align his case with State v. Harris, 2004 WI 64, 272
Wis. 2d 80, 680 N.W.2d 737, in which our supreme court held that the State
violated Brady in failing to disclose potentially exculpatory and material
information that the victim in the sexual assault case against Harris previously had
reported being sexually assaulted by her grandfather. Smith’s entire argument that
we should find a similar Brady violation here consists of one conclusory
statement: “In this case, the [S]tate failed to disclose Brady evidence of [Dory]’s
having been sexually assaulted by [a juvenile] prior to these allegations.”

¶22 Smith fails to explain his argument in terms of the proper legal
standards. He seems to be unclear as to what Brady requires. The question at
hand is whether Smith has shown that the State suppressed favorable, material
evidence that was in its possession by failing to disclose it to the defense. He has
not. Although Smith states otherwise, nothing in Brady or its progeny required
the State to produce everything from the confidential Sheboygan County case.
Smith has not demonstrated that every document and piece of information related
to that case is favorable and material evidence. Smith bears the burden, and he has
not met it with respect to the additional materials that his postconviction counsel
obtained.

CONCLUSION

¶23 We conclude that Smith has failed to show that there was
insufficient evidence to support the jury’s conclusion that he touched Dory’s pubic

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No. 2024AP288-CR

mound for purposes of sexual gratification or arousal. Further, we conclude that
Smith has failed to establish a Brady violation. Therefore, we affirm the judgment
of conviction and the order denying his motion for postconviction relief.

By the Court.—Judgment and order affirmed.

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

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