### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 22AP14

- CR Cir. Ct. No. 2018CF342 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
D ANIEL J. M C W ILLIAM ,
D EFENDANT - A PPELLANT .

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 W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. In the Jefferson County Circuit Court, Daniel
McWilliam w as charged with, and convicted of, four counts of capturing anNo. 22AP14

- CR

2 intimate representation of a person under the age of eighteen without consent, all
in violation of W IS

. S TAT

. § 942.09(2)(am)1

. and (dr) (2019

- 20). 1 McWilliam
argues on appeal that there was i nsufficient 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. 2 lived with her mo ther 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 W ISCONSIN S TAT

. § 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 expectat ion 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 perso n 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 W IS

. S TAT

. R ULE 809.86, we refer to the victim of these crimes by an initial rather than by name.No. 22AP14

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3 sexual assault of a child; exposing his genitals to a child for the purposes of sexual arousal or gratification with intent to have sexu al 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 a ge of eighteen
without consent. 4 Nonetheless, McWilliam’s acts that formed the bas e s for the convictions not on appeal give context to our discussion

. ¶ 5 At trial, B. testified to the following about incidents with McWilliam
which occur red 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 sm oked 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 underwea r 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 co unts 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 repr esentation without consent.No. 22AP14

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4 ¶ 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 d idn’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. I f 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 wher e [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 i n 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 alsoNo. 22AP14

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5 alleged that the camera was installed because “[m]edicine was being stolen.” B.’s
mother never saw any footage from the camera showing a nyone stealing
medication.

¶ 10 A detective testified at trial that, pursuant to a search warrant and forensic analysis of Mc William’s electronic devices, videos of B. were found on
those devices. Th ose 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 the re 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 repres entation of a person without consent
on the basis that there was insufficient evidence to convict him on those four
counts. The circuit court denied th e motion.

¶ 12 The jury was instructed that the elements of capturing an intimate
repre sentation 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 ofNo. 22AP14

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6 privacy”; and (4) McWilliam “knew or had reason to know that the person who i s depic ted 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.

DISCU SSION

¶ 14 Mc William argu es on appeal that there was insufficient evidence
that he violated W IS

. S TAT

. § 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 sus tain 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 tri er 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

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7 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 hypothes is that supports it.” Id.

¶ 17 The jury decides the credibility of witnesses and the weight given to evidence, and the jury resolve s conflicts in testimony. Poellinger , 153 Wis. 2d at 504, 506. A jury may, “within the bounds of reason,” resolve conflicts in testimony by adopting inference s consistent with guilt. Id. at 506

- 07 (emphasis omitted)

. We must accept those inference s “unless the evidence on which [each] inference is based is incredible as a matter of law.” Id. at 507.

¶ 18 This c ourt has interpreted the phrase “under circumstances in which he or she has a reasonable expectation of privacy” in W IS

. S TAT

. § 942.09(2). State v. Nelson , 2006 WI App 124, ¶21, 294 Wis. 2d 578, 718 N.W.2d 168; State v. Jahnke , 2009 W I App 4, ¶ 14, 316 Wis. 2d 324, 762 N.W.2d 696. In Nelson ,

we concluded that the ordinary meanings of the words “expectati on,” “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 appro priate one under all the circumstances according to an objective standard.” Nelson , 294 Wis. 2d 578, ¶21. In addition, “ t he phrase ‘reaso nable 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

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8 II. Reasonable Expectation of Privacy.

¶ 20 B. testified that she did not know about the camera’s installation at the time she stepped into t he 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 , th e jury could reasonably infer that B. had
a reasonable expectation of privacy and that she w ould not be recorded when she got into the shower on September 11, 2017

. ¶ 21 B. further testified that , based on her dis cover y 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 tr ouble” if she moved the camera from its position in the shower. The description from the detective of the recor ding 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 recording s of her shower s “didn’t always work.” From that , the jury could reasonably infer that B. believed she prevented the recording of her self in the shower. This evidence supports an infe rence 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 t he 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 thatNo. 22AP14

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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 eviden ce , t he jury could reasonably adopt inferen ce s consistent with McWilliam’s guilt. See Poellinger , 153 Wis. 2d at 506

- 07. We must accept the jury’s inference s because the trial
evidence supporting findings of guilt is not incredible as a matter of law. Id. at 507. Accordingly, there was sufficie nt 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 argument s fail for the following

reasons.
¶ 25 Firs t, 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. T his 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 the se circumstances because her mother was aware of the recording s

. Based on that fact, McWilliam contends that a statutory exception to the prohibition of capturing an intimate representation of a person under the age ofNo. 22AP14

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10 eighteen without the person’s consen t applies here. W IS CONSIN S TAT

. § 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 u nder 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 W IS

. S TAT

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

was n ever B.’s parent, guardian, or legal custodian, and th e exception he relies on
is available only to persons with such a status.

¶ 28 In an attempt to fill that large gap, McWilliam assert s that the
defense noted in W IS

. S TAT

. § 942.09(2)(bm)1m. applies to him because B.’s mother “effectively consented to the installation [] and ope ration 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

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11 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 infer red 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, McWill iam 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.” T he 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

. T he jury could quite reason ably conclude that B. had a reasonable expectation of privacy at that time

. Our case law confirms this conclusion. In Nelson , this c ourt 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 log ic applies here. The
assertion that B. might have earlier seen the camera from some vantage point does not preclude McWilliam’s conviction s for secretly recording B. in September
2017 without her consent.No. 22AP14

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12 ¶ 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 prevent ed the recording s in the s hower 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
bathr oom without being recorded, and she reasonably expected not to be recorded.
T hat B. was recorded anyway does not mean that her expectation was unreasonable.

¶ 31 In sum, there was sufficient evidence for the jury to find McWilli am 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 W IS

. S TAT

. R ULE 809.23(1)(b)5

.