COURT OF APPEALS

DECISION

DATED AND FILED

May 23, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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.
No. 2021AP1241-CR

3

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 
No. 2021AP1241-CR

4

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 
No. 2021AP1241-CR

5

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 
No. 2021AP1241-CR

6

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.
No. 2021AP1241-CR

7

¶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).
No. 2021AP1241-CR

8

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 
No. 2021AP1241-CR

9

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.”
No. 2021AP1241-CR

10

¶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.”
No. 2021AP1241-CR

11

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.
No. 2021AP1241-CR

12

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 
No. 2021AP1241-CR

13

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 
No. 2021AP1241-CR

14

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 
No. 2021AP1241-CR

15

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 
No. 2021AP1241-CR

16

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.
No. 2021AP1241-CR

17

¶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.