COURT OF APPEALS

DECISION

DATED AND FILED

December 29, 2022

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. 22AP14-CR Cir. Ct. No. 2018CF342

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

DANIEL J. MCWILLIAM,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Jefferson County: 

WILLIAM V. GRUBER, Judge. Affirmed. 

Before Blanchard, P.J., Fitzpatrick, and Nashold, 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 the Jefferson County Circuit Court, Daniel 

McWilliam was charged with, and convicted of, four counts of capturing an 
No. 22AP14-CR

2

intimate representation of a person under the age of eighteen without consent, all 

in violation of WIS. STAT. § 942.09(2)(am)1. and (dr) (2019-20).1 McWilliam 

argues on appeal that there was insufficient evidence to support each of those four 

convictions. We disagree and affirm the judgment of conviction.

BACKGROUND

¶2 The following material facts are gleaned from the trial transcript.

¶3 B.2lived with her mother and her step-father, McWilliam, during all

pertinent times. During that period, B. turned fourteen years old. 

¶4 McWilliam was charged with several crimes which were the subject 

of a jury trial. Each of the following charges against McWilliam concerned B.: 

 

1

 WISCONSIN STAT. § 942.09(2)(am)1. and (dr) state in pertinent part: 

(2)(am) Except as provided in par. (dr), whoever does 

any of the following is guilty of a Class I felony: 

1. Captures an intimate representation without the 

consent of the person depicted under circumstances in which he 

or she has a reasonable expectation of privacy, if the person 

knows or has reason to know that the person who is depicted 

does not consent to the capture of the intimate representation.

....

(dr) Except as provided in par. (bm), a person who 

commits a violation specified under par. (am) is guilty of a Class 

H felony if the person depicted in violation of par. (am) had not, 

at the time of the violation, attained the age of 18 years.

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.

2

 Pursuant to WIS. STAT. RULE 809.86, we refer to the victim of these crimes by an 

initial rather than by name. 
No. 22AP14-CR

3

sexual assault of a child; exposing his genitals to a child for the purposes of sexual 

arousal or gratification with intent to have sexual contact with a child; child 

enticement; and four counts of capturing an intimate representation of a person 

under the age of eighteen without consent.3 This appeal concerns the four counts 

of capturing an intimate representation of a person under the age of eighteen 

without consent.4 Nonetheless, McWilliam’s acts that formed the bases for the 

convictions not on appeal give context to our discussion. 

¶5 At trial, B. testified to the following about incidents with McWilliam 

which occurred during the summer of 2017. McWilliam told her he “needed a 

favor.” McWilliam asked B. “to strip down completely naked, go and lay on his 

... bed, ... and let him eat out [her] pussy.” B. refused. On another occasion, after 

McWilliam found out B. had smoked cigarettes, he attempted to negotiate a “deal” 

with B. McWilliam would not tell B.’s mother about the smoking if B. agreed to 

let him grope her genitals when they “play wrestle[d].” McWilliam also directed 

B. to “strip down to [her] bra and underwear and then stand behind him in the 

shower and scrub his back as he was completely naked.” This happened “two or 

three, maybe more times a week” for roughly a month. On one such occasion, 

McWilliam turned to B. and exposed his penis to her. “[E]very time” B. told her 

mother about the shower incidents, B.’s mother told her “it was something not to 

tell [her] friends.” 

 

3

 McWilliam was also charged with going on a school premises without prior 

notification of his status as a registered sex offender and two counts of felony bail jumping. The 

events that led to those charges are not pertinent to this appeal, and those charges will not be 

mentioned further.

4

 McWilliam does not appeal his conviction on any charges other than those for 

capturing an intimate representation without consent. 
No. 22AP14-CR

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¶6 B. also testified at trial concerning events which led to the four 

counts on appeal. On September 11, 2017, B. was showering and noticed “a lifted 

ceiling tile.” Then, where the tile should have been, B. saw “a white camera” that 

was “pointed directly at [her].” B. testified:

And then I tried my best to cover myself because I 

didn’t even know if it was recording, I didn’t know its 

purpose. And then I got out of the shower the best I could, 

wrapped myself in a towel, and I was shaking because I 

didn’t understand. [But] after the things [McWilliam] had 

already done, it only made sense why it was there. 

¶7 B. told McWilliam and her mother about the camera. McWilliam 

and B.’s mother claimed to B. that the camera was there to determine who was 

purportedly stealing pills from the medicine cabinet in the bathroom. Both 

McWilliam and B.’s mother told B. not to touch the camera. B. was given further 

instruction by McWilliam and her mother about the camera in the shower. B.’s 

hands were to stay completely away from the camera. If B. moved the camera and 

did not move it back to the specific spot where her mother said she wanted the 

camera, B. would “get in trouble.” McWilliam told B. “to leave [the camera] 

alone.” 

¶8 Thereafter, before showering, B. would try to cover the camera with 

a rag or piece of clothing or “move it away from where [she] thought it was 

recording.” B. did not try to cover the camera before using the toilet “[b]ecause 

[she] thought it only pointed either at the shower or at the door.” As further trial 

testimony mentioned, B.’s attempts at preventing the recording in the shower 

“didn’t always work.” 

¶9 B.’s mother testified to the following at trial. According to her, it 

was McWilliam’s idea to put the camera in the bathroom. B.’s mother also 
No. 22AP14-CR

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alleged that the camera was installed because “[m]edicine was being stolen.” B.’s 

mother never saw any footage from the camera showing anyone stealing 

medication. 

¶10 A detective testified at trial that, pursuant to a search warrant and 

forensic analysis of McWilliam’s electronic devices, videos of B. were found on 

those devices. Those videos were shown to the jury. That detective summarized 

for the jury material portions of the videos: 

[B.] goes into the bathroom [on September 11, 2017] and 

undresses and goes in the shower[.] [B.] is playing on a 

phone that is actually in a Ziploc bag so it didn’t get wet 

and is singing and is fully nude.... [D]uring her shower, ... 

[B.] looks up towards the shower head area and you can see 

that she notices the camera and then [there is] complete 

shock over her face.... [B.] backed up, eventually covered 

[the camera] with an item.

And then there was another video of October 15, 

2017 of, again, [B.] going in the shower.... [T]here were 

three clips of the same video[.] ... [In one clip, B. is] 

sitting on the shower floor shaving. And in the next clip 

she’s shaving again and in the next clip, and it’s all time 

stamped to be one incident or one showering incident. And 

then there’s two other videos on that same day where [B.]

goes into the bathroom to use the bathroom, and as she sits 

down you can see her exposed buttocks. 

¶11 After the State rested its case, McWilliam moved to dismiss each of 

the four counts of capturing an intimate representation of a person without consent 

on the basis that there was insufficient evidence to convict him on those four 

counts. The circuit court denied the motion. 

¶12 The jury was instructed that the elements of capturing an intimate 

representation without the consent of the person depicted are that: (1) McWilliam 

“captured an intimate representation”; (2) he did so “without consent”; (3) B. “was 

depicted under circumstances in which she had a reasonable expectation of 
No. 22AP14-CR

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privacy”; and (4) McWilliam “knew or had reason to know that the person who is 

depicted did not consent.”5 

¶13 The jury found McWilliam guilty on all counts. As noted, 

McWilliam appeals the convictions on the four counts of capturing an intimate 

representation of a person under the age of eighteen without consent.

DISCUSSION

¶14 McWilliam argues on appeal that there was insufficient evidence 

that he violated WIS. STAT. § 942.09(2)(am)1. More particularly, McWilliam’s

arguments focus solely on the jury’s determination that B. had a reasonable 

expectation of privacy as she used the shower on September 11, 2017 and 

October 15, 2017, and as she used the toilet on October 15, 2017. 

I. Standard of Review and Governing Principles.

¶15 “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 ... de 

novo review.” State v. Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 

410.

¶16 In determining whether evidence was sufficient to support a 

conviction, this court “consider[s] the evidence in the light most favorable to the 

State and reverse[s] the conviction only where the evidence ‘is so lacking in 

probative value and force that no trier of fact, acting reasonably, could have found 

 

5

 McWilliam did not dispute in the circuit court that B. was a person under the age of 

eighteen at all pertinent times.
No. 22AP14-CR

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guilt beyond a reasonable doubt.’” Id. (quoting State v. Poellinger, 153 Wis. 2d 

493, 507, 451 N.W.2d 752 (1990)). Put another way, “this court will uphold the 

conviction if there is any reasonable hypothesis that supports it.” Id.

¶17 The jury decides the credibility of witnesses and the weight given to 

evidence, and the jury resolves conflicts in testimony. Poellinger, 153 Wis. 2d at 

504, 506. A jury may, “within the bounds of reason,” resolve conflicts in 

testimony by adopting inferences consistent with guilt. Id. at 506-07 (emphasis 

omitted). We must accept those inferences “unless the evidence on which [each] 

inference is based is incredible as a matter of law.” Id. at 507.

¶18 This court has interpreted the phrase “under circumstances in which 

he or she has a reasonable expectation of privacy” in WIS. STAT. § 942.09(2). 

State v. Nelson, 2006 WI App 124, ¶21, 294 Wis. 2d 578, 718 N.W.2d 168; State 

v. Jahnke, 2009 WI App 4, ¶14, 316 Wis. 2d 324, 762 N.W.2d 696. In Nelson, 

we concluded that the ordinary meanings of the words “expectation,” “privacy,” 

and “reasonable” “require[] that the person who is depicted nude is in a 

circumstance in which he or she has an assumption that he or she is secluded from 

the presence or view of others, and that assumption is a reasonable one under all 

the circumstances, meaning that it is an appropriate one under all the 

circumstances according to an objective standard.” Nelson, 294 Wis. 2d 578, ¶21. 

In addition, “the phrase ‘reasonable expectation of privacy’ in 

... § 942.09(2)(am)1. means a reasonable expectation under the circumstances that 

one will not be recorded in the nude.” Jahnke, 316 Wis. 2d 324, ¶14.

¶19 We next discuss evidence adduced in this case regarding B.’s 

reasonable expectation of privacy.
No. 22AP14-CR

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II. Reasonable Expectation of Privacy.

¶20 B. testified that she did not know about the camera’s installation at 

the time she stepped into the shower on September 11, 2017, and B. “froze” when 

she saw the camera. B. immediately took action to cover herself and get away 

from the camera. From that testimony, the jury could reasonably infer that B. had 

a reasonable expectation of privacy and that she would not be recorded when she 

got into the shower on September 11, 2017. 

¶21 B. further testified that, based on her discovery of the camera on 

September 11, 2017, she thereafter tried to protect her privacy when she showered 

by covering the camera or moving it. B. did so in spite of warnings from 

McWilliam and her mother that she must leave the camera alone and she would be 

“in trouble” if she moved the camera from its position in the shower. The 

description from the detective of the recording of B. showering on October 15, 

2017, and the jury’s view of those recordings, shows that B.’s attempts were not 

successful. B.’s testimony was that she was unaware that her attempts at 

preventing the recordings of her showers “didn’t always work.” From that, the 

jury could reasonably infer that B. believed she prevented the recording of herself

in the shower. This evidence supports an inference that B.’s expectation of 

privacy when she showered on October 15, 2017, was reasonable, and she 

reasonably believed that her shower was not recorded.

¶22 B. further testified that she did not attempt to cover the camera 

before using the toilet, including on October 15, 2017, “[b]ecause [she] thought it 

only pointed either at the shower or at the door.” B.’s mother did not tell B. that

the toilet was visible to the camera. From that, the jury could reasonably infer that 
No. 22AP14-CR

9

B. had a reasonable expectation of privacy while using the toilet on October 15, 

2017 and had no reason to think that the toilet was visible to the camera.

¶23 As established by the above-discussed evidence, the jury could 

reasonably adopt inferences consistent with McWilliam’s guilt. See Poellinger, 

153 Wis. 2d at 506-07. We must accept the jury’s inferences because the trial 

evidence supporting findings of guilt is not incredible as a matter of law. Id. at 

507. Accordingly, there was sufficient evidence of McWilliam’s guilt on each of 

the four counts.

¶24 McWilliam advances four arguments challenging the sufficiency of 

the evidence on the appealed counts. The arguments fail for the following 

reasons. 

¶25 First, McWilliam argues that “the evidence ... does not depict a 

circumstance where ... the camera was intentionally operated with the purpose of 

capturing intimate representations of third parties.” McWilliam’s contention 

misses the mark because it is beside the point. This argument does not directly 

address the sole element of the crimes that McWilliam challenges on appeal: the 

reasonableness of B.’s expectation of not being recorded while in the shower and 

while using the toilet. Further, as discussed, the jury had sufficient evidence to 

convict McWilliam of these four charges. McWilliam’s argument does not 

undermine that conclusion in any way.

¶26 Second, McWilliam argues that B.’s expectation of privacy was 

“limited” in these circumstances because her mother was aware of the recordings. 

Based on that fact, McWilliam contends that a statutory exception to the 

prohibition of capturing an intimate representation of a person under the age of 
No. 22AP14-CR

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eighteen without the person’s consent applies here. WISCONSIN STAT.

§ 942.09(2)(bm)1m.a. and b. state:

1m. Notwithstanding par. (am), if the person 

depicted in an intimate representation or reproduction is a 

child, a parent, guardian, or legal custodian of the child 

may do any of the following:

a. Capture and possess the representation or make 

and possess the reproduction depicting the child.

b. Distribute or exhibit a representation captured or 

possessed under subd. 1m. a., or distribute or exhibit a 

reproduction made or possessed under subd. 1m. a.

Sec. 942.09(2)(bm)1m. McWilliam’s argument collapses based on the evidence 

received at trial and our standard of review.6 

¶27 The initial reason this argument fails is that WIS. STAT.

§ 942.09(2)(bm)1m. does not apply to McWilliam. He concedes, correctly, that he 

was never B.’s parent, guardian, or legal custodian, and the exception he relies on

is available only to persons with such a status. 

¶28 In an attempt to fill that large gap, McWilliam asserts that the 

defense noted in WIS. STAT. § 942.09(2)(bm)1m. applies to him because B.’s 

mother “effectively consented to the installation[] and operation of the camera.” 

But, in order for the exception in § 942.09(2)(bm)1m. to apply to McWilliam 

based on B’s mother’s “consent,” the jury would have been required to conclude 

that B.’s mother “capture[d]” the recordings of B. in the bathroom, she

“distributed” those to McWilliam, and he was therefore an innocent recipient of 

the videos. See § 942.09(2)(bm)1m. However, evidence that the jury could have 

 

6

 We assume, without deciding, that McWilliam raised this argument in the circuit court.
No. 22AP14-CR

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reasonably relied on allows a different interpretation of the relevant circumstances

that affirms these convictions. B.’s mother testified that installation of the camera 

was McWilliam’s idea, and the jury could have reasonably inferred from the 

presence of the recordings on McWilliam’s electronic devices that McWilliam 

captured the recordings and that B.’s mother did not capture the recordings. 

Accordingly, based on the evidence before the jury, the jury must have concluded 

that the exception to this crime in § 942.09(2)(bm)1m. does not apply so as to 

limit B.’s reasonable expectation of privacy in these circumstances.

¶29 Third, concerning the September 11, 2017 recording, McWilliam 

argues that the camera was visible above B.’s head and within her reach and, as a 

result, the reasonableness of B.’s expectation that she was not being recorded in 

the shower was “negated by the conspicuous presence of the camera staring down 

at her.” The evidence the jury could have credited showed that, as of 

September 11, 2017, no one had told B. that there was a camera in the ceiling tiles 

above the shower, and B. appeared shocked and confused when she first spotted it. 

The jury could quite reasonably conclude that B. had a reasonable expectation of 

privacy at that time. Our case law confirms this conclusion. In Nelson, this court 

affirmed a conviction even though the camera that secretly recorded the nude 

victims may have been visible from their window. See Nelson, 294 Wis. 2d 578, 

¶10 (The victims “did not learn that they had been videotaped until the mother of 

one woman came to visit later in the summer and noticed what looked like a video 

camera in a window in Nelson’s house.”). The same logic applies here. The 

assertion that B. might have earlier seen the camera from some vantage point does 

not preclude McWilliam’s convictions for secretly recording B. in September 

2017 without her consent.
No. 22AP14-CR

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¶30 Fourth, McWilliam argues that, by the time of the October 15, 2017

recordings, B. did not have a reasonable expectation of privacy in the bathroom 

because the placement of the camera was known to B. However, B.’s testimony 

was that she thought she had prevented the recordings in the shower by placing a 

rag over the camera and moving the camera. B. further testified that she was 

unaware that the toilet was visible to the camera. A jury could reasonably decide 

that B., as of October 15, 2017, thought that she had figured out how to be in the 

bathroom without being recorded, and she reasonably expected not to be recorded. 

That B. was recorded anyway does not mean that her expectation was 

unreasonable.

¶31 In sum, there was sufficient evidence for the jury to find McWilliam 

guilty on each of the four charges of capturing an intimate representation of a 

person under the age of eighteen without her consent. 

CONCLUSION

¶32 For the foregoing reasons, we affirm the judgment of conviction.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.