COURT OF APPEALS

DECISION

DATED AND FILED

July 28, 2020

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. 2018AP2355-CR Cir. Ct. No. 2014CF5317

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

WILLIAM FRANCIS KUEHN,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Milwaukee County: ELLEN R. BROSTROM and JEFFREY A. WAGNER, 

Judges. Affirmed. 

Before Brash, P.J., Fitzpatrick and Donald, JJ.

¶1 FITZPATRICK, J. After guilty pleas, William Kuehn was 

convicted in the Milwaukee County Circuit Court of five counts of possession of 
No. 2018AP2355-CR

2

child pornography pursuant to WIS. STAT. § 948.12(1m) (2013-14).1 Ten counts 

of possession of child pornography were dismissed by the State and read in at the 

time of Kuehn’s sentencing. The trial court sentenced Kuehn to five consecutive 

terms of imprisonment.

2

 In addition, pursuant to WIS. STAT. § 973.042(2), the trial 

court imposed a $500 child pornography surcharge against Kuehn for each of the 

images which formed the bases for the five counts of which he was convicted and

for each of the images which formed the bases for the ten counts which were 

dismissed and read in at sentencing. The trial court also barred Kuehn, during the 

term of his extended supervision, from having any contact with his girlfriend.

¶2 In postconviction motions,3 Kuehn argued that: (1) he should be 

allowed to withdraw his guilty pleas because his trial counsel was constitutionally 

ineffective; (2) the trial court erred in imposing the child pornography surcharge 

for each of the ten images which formed the bases for the read-in counts; and 

(3) the trial court impermissibly infringed on Kuehn’s constitutional right to 

freedom of association by barring contact with Kuehn’s girlfriend during his term 

of extended supervision. The postconviction court denied each of Kuehn’s 

motions. Kuehn appeals and we affirm.

BACKGROUND

¶3 The following material facts are not disputed.

 

1

 All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise 

noted.

2

 Judge Ellen R. Brostrom accepted Kuehn’s guilty pleas and pronounced sentence. We 

will refer to Judge Brostrom as the “trial court.” 

3

 Judge Jeffrey A. Wagner decided Kuehn’s postconviction motions. We will refer to 

Judge Wagner as the “postconviction court.”
No. 2018AP2355-CR

3

¶4 Kuehn was charged, pursuant to WIS. STAT. § 948.12(1m), with 

fifteen counts of possession of child pornography. The criminal complaint alleged 

that images which showed children engaged in sexual activity were located on a 

cell phone owned by Kuehn. After pretrial proceedings, Kuehn pleaded guilty to 

five counts of possession of child pornography, and the State dismissed and read 

in to the record the ten remaining counts of possession of child pornography.

4

 

¶5 At a later sentencing hearing after the preparation of a Presentence 

Investigation Report, the trial court sentenced Kuehn to four years of initial 

confinement and four years of extended supervision on each count, consecutive to 

each other, for a total of twenty years of initial confinement and twenty years of 

extended supervision. The trial court also determined that each of the fifteen 

images which formed the bases for the five counts to which Kuehn pleaded guilty,

and the ten read-in counts, were “associated with the crime.” Based on that 

determination, and pursuant to WIS. STAT. § 973.042(2), the trial court imposed a 

$500 child pornography surcharge for each image, totaling $7500.5 Further, the 

 

4

 At the plea hearing, Kuehn told the trial court the following, among other things: 

THE COURT: Your addendum says that you read the 

Criminal Complaint and Counsel read it to you. Is that correct?

THE DEFENDANT: Yes.

....

THE COURT: And are you pleading guilty to these five 

counts because you are in fact guilty of all five of them?

THE DEFENDANT: Yes.

5

 WISCONSIN STAT. § 973.042(2) states: 

If a court imposes a sentence or places a person on 

probation for a crime under [WIS. STAT. §§] 948.05 or 948.12 

and the person was at least 18 years of age when the crime was 

(continued)
No. 2018AP2355-CR

4

trial court ordered Kuehn to comply with conditions of extended supervision, 

including “that [Kuehn] have no contact with [J.S.].”6

¶6 Before the postconviction court, Kuehn filed three motions relevant 

to this appeal. First, Kuehn sought to withdraw his guilty pleas on ineffective 

assistance of counsel grounds, alleging that his trial counsel was ineffective for not 

pursuing a third-party perpetrator defense so as to argue at trial that a person other 

than Kuehn committed the crimes for which Kuehn was convicted. The 

postconviction court held a Machner7 hearing. At that hearing, Kuehn testified 

that, if his trial counsel had pursued a third-party perpetrator defense, he would not 

have pled guilty to the five counts of possession of child pornography. Rather, 

Kuehn testified that he would have gone to trial on all fifteen counts. Kuehn’s 

trial counsel also testified at that hearing. The postconviction court rejected 

Kuehn’s argument and concluded that trial counsel was not ineffective for failing 

to pursue the third-party perpetrator defense.

¶7 Second, Kuehn requested that the judgment of conviction be 

amended because the images upon which the ten read-in offenses were based were 

not “associated with the crime” as that phrase is used in WIS. STAT. § 973.042(2)

and, as a result, the trial court should not have imposed a child pornography 

 

committed, the court shall impose a child pornography surcharge 

of $500 for each image or each copy of an image associated with 

the crime. The court shall determine the number of images or 

copies of images associated with the crime by a preponderance 

of the evidence and without a jury.

6

 In briefing in this court, J.S. is referred to by Kuehn as his “girlfriend.” J.S. is the 

mother of three children, one of which is Kuehn’s son. In briefing in this court, the parties refer 

to J.S. by initials, and we do the same.

7

 See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
No. 2018AP2355-CR

5

surcharge for those ten images. Again, the postconviction court rejected Kuehn’s 

argument and denied the motion.

¶8 Third, Kuehn requested that the postconviction court remove the 

condition of extended supervision which forbids Kuehn from having contact with 

J.S. during his term of extended supervision. Kuehn asserted that this condition 

impermissibly infringes on his constitutional right to freedom of association. The 

postconviction court denied the motion, concluding that this condition of extended 

supervision was necessary for the rehabilitation of Kuehn and, as such, does not 

violate Kuehn’s constitutional right. 

¶9 Kuehn appeals. We will mention other material facts in the 

following discussion.

DISCUSSION

¶10 We first discuss Kuehn’s request for plea withdrawal based on 

purported ineffective assistance of his trial counsel. We then discuss the 

imposition of the child pornography surcharge for the images on which the ten 

read-in offenses were based. Finally, we consider whether the condition of 

extended supervision which bars Kuehn from contacting J.S. impermissibly 

infringes on Kuehn’s constitutional right to freedom of association.

I. Ineffective Assistance of Counsel.

¶11 Kuehn alleges that, in spite of his guilty pleas, he did not commit the 

five counts of possession of child pornography for which he was convicted. 
No. 2018AP2355-CR

6

Kuehn now claims that an acquaintance of his, W.S., committed these crimes.

8

Kuehn further contends that, if not for his trial counsel’s failure to prepare a thirdparty perpetrator defense implicating W.S., he would not have pled guilty to the 

five counts of possession of child pornography. Rather, Kuehn alleges that he 

would have gone to trial on all fifteen counts of possession of child pornography. 

For these reasons, Kuehn argues that we should allow him to withdraw his guilty 

pleas.

¶12 We begin by discussing the standards governing plea withdrawal and 

ineffective assistance of counsel allegations. We then discuss our standard of 

review of the ineffective assistance of counsel claim.

A. Standards for Plea Withdrawal and Ineffective Assistance of 

Counsel, and Standard of Review. 

¶13 A defendant is entitled to plea withdrawal upon showing, by clear 

and convincing evidence, that “a refusal to allow withdrawal of the plea would 

result in ‘manifest injustice.’” State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 

594, 716 N.W.2d 906 (citation omitted); State v. Taylor, 2013 WI 34, ¶24, 347 

Wis. 2d 30, 829 N.W.2d 482. One method of showing a manifest injustice is by 

establishing that Kuehn was deprived of the effective assistance of trial counsel. 

State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44; see State v. 

Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996). 

¶14 A defendant, such as Kuehn, alleging ineffective assistance of trial 

counsel has the burden of proving both that counsel’s performance was deficient 

 

8

 The State refers to this person as “W.S.,” and we follow that lead.
No. 2018AP2355-CR

7

and that he suffered prejudice as a result of that deficient performance. Strickland 

v. Washington, 466 U.S. 668, 687 (1984).

¶15 To prove deficient performance, the defendant must show that his 

counsel’s representation “fell below an objective standard of reasonableness” 

considering all the circumstances. See id. at 688. A defendant must overcome “a 

strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” State v. Gutierrez, 2020 WI 52, ¶46, 391

Wis. 2d 799, 943 N.W.2d 870 (quoting Strickland, 466 U.S. at 689). This court’s

review is “highly deferential” and we do “not second-guess a reasonable trial 

strategy, [unless] it was based on an irrational trial tactic or based upon caprice 

rather than upon judgment.” State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 

431, 904 N.W.2d 93 (alteration in original and internal quotation marks omitted) 

(quoting State v. Domke, 2011 WI 95, ¶¶36, 49, 337 Wis. 2d 268, 805 N.W.2d 

364). 

¶16 A defendant also must affirmatively prove that the alleged deficient 

performance prejudiced him or her. Strickland, 466 U.S. at 693. To satisfy the 

prejudice prong in the plea withdrawal context, the defendant must allege “that 

there is a reasonable probability that, but for the counsel’s errors, he [or she]

would not have pleaded guilty and would have insisted on going to trial.” Bentley, 

201 Wis. 2d at 312 (citation omitted).

¶17 On appeal, our standard of review is two-fold. This court accepts 

the trial court’s findings of fact unless clearly erroneous; however, we review the 

trial court’s application of constitutional principles to those facts de novo. State v. 

Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987). Therefore, the “legal

conclusions of whether the performance was deficient and prejudicial based on 
No. 2018AP2355-CR

8

[the postconviction] factual findings ... are questions of law independently 

reviewed by this court.” State v. Delgado, 194 Wis. 2d 737, 750, 535 N.W.2d 450 

(Ct. App. 1995).

B. Denny Evidence.

9

¶18 A defendant, such as Kuehn, seeking to admit evidence that a known 

third party, such as W.S., may have committed a crime the defendant is charged 

with committing must satisfy all three prongs of Denny’s “legitimate tendency” 

test. See State v. Wilson, 2015 WI 48, ¶¶51-52, 362 Wis. 2d 193, 864 N.W.2d 52.

First, the “motive” prong asks: “[D]id the alleged third-party perpetrator have a 

plausible reason to commit the crime?” Id., ¶57. Second, the “opportunity” prong 

asks: “[D]oes the evidence create a practical possibility that the third party 

committed the crime?” Id., ¶58. Third, the “direct connection” prong asks: “[I]s 

there evidence that the alleged third-party perpetrator actually committed the 

crime, directly or indirectly?” Id., ¶59. 

¶19 As part of our analysis, we will assume (without deciding) that the 

Denny evidence Kuehn now alleges against W.S. would have been admissible if 

Kuehn had gone to trial on the fifteen possession of child pornography charges 

brought against him. 

¶20 With that background in mind, we now discuss whether trial 

counsel’s performance was deficient.

 

9

 See State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). We use the 

term “Denny evidence” as another term for third-party perpetrator evidence.
No. 2018AP2355-CR

9

C. Trial Counsel’s Performance Was Not Deficient.

¶21 Kuehn alleges that his trial counsel’s performance was deficient

because counsel concluded that a third-party perpetrator defense against W.S. was 

untenable and such a defense would reflect poorly on Kuehn with the trial court. 

We reject Kuehn’s allegation of deficient performance for the following reasons.

1. Holmes and Wilson Are Not Applicable.

¶22 Relying on Holmes v. South Carolina, 547 U.S. 319, 329-31 (2006) 

and Wilson, 362 Wis. 2d 193, ¶69, Kuehn asserts that trial counsel failed to pursue 

introduction of Denny evidence because counsel erroneously believed that such 

evidence was inadmissible based solely on the weakness of the evidence 

implicating W.S. as compared to the strength of the evidence of Kuehn’s guilt. 

The State does not dispute that a defendant’s due process right to a meaningful 

opportunity to present a complete defense is violated if, based solely on the fact 

that the evidence against the defendant is strong, a rule of evidence or case law 

bars from admission evidence that someone other than the defendant committed 

the charged crimes. See Holmes, 547 U.S. at 329-31 and Wilson, 362 Wis. 2d 

193, ¶69.

¶23 Kuehn’s reliance on Holmes and Wilson misses the mark. Initially, 

and contrary to Kuehn’s assertion, Kuehn’s trial counsel did not testify at the 

Machner hearing that the third-party perpetrator evidence regarding W.S. was 

inadmissible because there was strong evidence of Kuehn’s guilt. In other words, 

contrary to Kuehn’s assertions in this court, trial counsel did not testify that he 

thought that the third-party perpetrator evidence was “foreclose[d].” 
No. 2018AP2355-CR

10

¶24 Rather, counsel testified that the Denny evidence was so weak 

relative to the evidence of Kuehn’s guilt that going to trial based on a weak theory 

of the case (in other words, a theory that W.S. possessed the child pornography 

instead of Kuehn) was bad strategy. Counsel testified: “[I]t seemed foolish to me, 

and it would be an untenable defense.” He further testified: “And, you know, 

such a defense would put Mr. Kuehn in a bad light if he went to trial and then 

presented that type of defense.” Therefore, there is no factual basis to support 

Kuehn’s assertion that his trial counsel was deficient because counsel failed to 

understand Kuehn’s constitutional rights as pronounced in Holmes and Wilson.

¶25 In addition, the holdings of Holmes and Wilson do not support 

Kuehn’s deficient performance argument. We agree with the State that Holmes

and Wilson do not compel counsel to pursue a third-party perpetrator after 

investigation and a determination by counsel that such a defense would be weak 

and counterproductive to counsel’s overall strategy. Holmes and Wilson concern 

the admissibility of third-party perpetrator evidence, not the question before this 

court of whether counsel’s strategy to not present such evidence was reasonable.

¶26 We now discuss whether trial counsel’s strategy was “within the 

wide range of reasonable professional assistance.” See Gutierrez, 391 Wis. 2d 

799, ¶46 (citation omitted).

2. Counsel’s Strategy Was Reasonable.

¶27 The postconviction court determined that a trial defense attempting 

to blame W.S. would lack merit and be poor strategy and, as a result, concluded 

that trial counsel’s decision not to present Denny evidence was a reasonable 

conclusion and not deficient performance. We agree and, for the reasons 

discussed next, conclude that it was within the bounds of reasonable representation 
No. 2018AP2355-CR

11

for Kuehn’s trial counsel to make the strategic decision not to present a weak 

defense regarding W.S. as the perpetrator.

10

¶28 We start by considering the strength of the evidence against Kuehn. 

Because that information was relevant to then-pending motions, the State made a 

pretrial proffer to the trial court demonstrating the strength of the evidence 

incriminating Kuehn, including establishing Kuehn’s connections to the particular 

Samsung phone which contained the child pornography images. We now 

summarize that evidence with the elements of the crime of possession of child 

pornography in mind.

11

 

10

 During the plea colloquy, Kuehn acknowledged that he and his trial counsel “had 

pretty substantial conversations about whether to go to trial, how trial might work out, pros and 

cons of that and whether to take this plea.” The postconviction court concluded, and Kuehn does 

not dispute, that Kuehn provided counsel with information regarding his belief that W.S. 

possessed the child pornography. Accordingly, trial counsel obtained discovery materials and 

additional information about W.S.’s purported culpability, and trial counsel discussed the 

possibility of filing a Denny motion for the admission of such evidence. 

11

 WISCONSIN JI—CRIMINAL 2146A states in pertinent part: 

Elements of the Crime That the State Must Prove

1. The defendant knowingly []possessed a 

recording[].... []“Possessed” means that the defendant 

knowingly had actual physical control of the recording.[]

....

[]It is not required that a person own a recording in order 

to possess it. What is required is that the person exercise control 

over the recording.[]

....

“Recording” means a reproduction of an image ... or the 

storage of data representing an image ....

2. The recording showed a child engaged in sexually 

explicit conduct.

(continued)
No. 2018AP2355-CR

12

 Kuehn conceded that he owned and used the Samsung phone.

 The Samsung phone was used to access several email accounts, each 

including the name “will” in the email address.12 One such email 

address, bigwill00778@gmail.com, was the address connected to the 

information that began the child pornography possession 

investigation of Kuehn. 

 A Milwaukee police detective determined that the “will” email 

accounts found on the Samsung phone were used to send and receive 

hundreds of images of child pornography, and that images found on 

these email accounts were also found on the Samsung phone. 

 Analysis of the Samsung phone showed a Skype account on the 

Samsung phone under the name “williamkuehn,” along with several 

accounts under the name “willgood” for a Russian search engine 

used to share child pornography. 

 

A child is a person who is under the age of 18 years.

....

3. The defendant knew or reasonably should have 

known that the recording contained depictions of a person 

engaged in actual or simulated [sexually explicit conduct].

4. The defendant knew or reasonably should have 

known that the person []shown in the recording[] ... engaged in 

sexually explicit conduct was under the age of 18 years.

(Modified for the instant case.)

12

 “[W]ill” is not a shortened version of W.S.’s first name. 
No. 2018AP2355-CR

13

 Based on electronic information associated with the Samsung phone, 

a Milwaukee police detective determined that the Samsung phone 

was used to surf a website used to share child pornography. That 

website was accessed through the Cudahy Public Library’s website 

at the same time that the detective saw Kuehn parked outside that 

library. 

 Kuehn’s ex-girlfriend was listed as the Samsung phone’s subscriber,

and the billing address was a residence belonging to Kuehn’s father. 

 Call records for the Samsung phone showed calls between that

phone and Kuehn’s father, W.S., and attorneys who represented 

Kuehn in several matters. 

 The Samsung phone showed Facebook exchanges between Kuehn 

and his ex-girlfriend, whose name appeared on a contact list in the 

phone. 

 In addition to the evidence connecting Kuehn to the Samsung 

phone’s contents, the State also proffered other-acts evidence 

alleging Kuehn’s longstanding sexual interest in prepubescent 

children and evidence that several images depicting naked children 

were torn from library books that Kuehn had checked out from a 

public library. 

¶29 The purported evidence against W.S. can reasonably be summarized 

as follows, and we consider the alleged evidence in light of the Denny three-prong 

framework. To establish motive, Kuehn relies on W.S.’s 1985 conviction for 

sexual assault of a fourteen-year-old girl. To establish W.S.’s opportunity and a 
No. 2018AP2355-CR

14

direct connection to the Samsung phone used to access the child pornography, 

Kuehn relies on W.S.’s listing as the subscriber for one IP address used to access 

child pornography, W.S.’s alleged presence with Kuehn at locations where the 

phone was used to download child pornography, and W.S.’s purported access to 

the Samsung phone in W.S.’s vehicle. We observe that, unlike the evidence 

linking Kuehn to the accounts on the Samsung phone, Kuehn has not identified 

any account activity, lawful or otherwise, that suggested W.S. used that phone.

¶30 We agree with the State, Kuehn’s trial counsel, and the 

postconviction court that the evidence against Kuehn was strong, and any 

connection between W.S. and the crimes Kuehn was charged with was, at best, 

tenuous. Therefore, counsel could reasonably conclude that, if the case went to 

trial and the Denny evidence was presented regarding W.S.’s culpability, there 

was a very high likelihood that Kuehn would be convicted of fifteen counts of 

possession of child pornography, each a class D felony with a maximum initial 

confinement of fifteen years and ten years extended supervision. See WIS. STAT.

§§ 939.50(3)(d), 948.12(3)(a), and 973.01(2)(b)4. and (d)3. Further, by going to 

trial, Kuehn would have taken no responsibility for his actions and would have 

tried to blame the crimes on someone else. Trial counsel could also reasonably 

conclude that those facts would put Kuehn in an even more negative light with the 

trial court for purposes of sentencing as opposed to pleading guilty to the five 

counts of possession of child pornography and accepting responsibility for his 

actions. 
No. 2018AP2355-CR

15

¶31 In sum, we conclude that trial counsel’s representation of Kuehn was 

not deficient, and Kuehn’s ineffective assistance of counsel argument fails.

13

II. Images Associated With the Crime.

¶32 Next, Kuehn contends that the trial court erred in imposing the child 

pornography surcharge for the ten images which formed the bases for each of the 

ten read-in offenses. We begin our analysis by discussing the applicable 

authorities and our standard of review.

A. Applicable Authorities and Standard of Review.

¶33 WISCONSIN STAT. § 973.042(2) is the statutory subpart at issue, and 

we repeat it for context: 

If a court imposes a sentence or places a person on 

probation for a crime under [WIS. STAT. §§] 948.05 or 

948.12 and the person was at least 18 years of age when the 

crime was committed, the court shall impose a child 

pornography surcharge of $500 for each image or each 

copy of an image associated with the crime. The court 

shall determine the number of images or copies of images 

associated with the crime by a preponderance of the 

evidence and without a jury.

¶34 Unless the findings are clearly erroneous, we defer to the trial 

court’s findings which determined, as required by WIS. STAT. § 973.042(2), the 

“number of images ... associated with the crime.” See State v. Smiter, 2011 WI 

 

13

 Because of our determination on the deficient performance prong, we need not reach 

the prejudice prong of the ineffective assistance of counsel analysis. Also, we need not reach the 

State’s argument that Kuehn’s guilty pleas waived his ineffective assistance of counsel 

arguments.
No. 2018AP2355-CR

16

App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (stating factual findings are subject 

to the clearly erroneous standard).

14

 

¶35 Our analysis requires interpretation of a statute. “[T]he purpose of 

statutory interpretation is to determine what the statute means so that it may be 

given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Ct. for 

Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. “Statutory 

language is given its common, ordinary, and accepted meaning, except that 

technical or specially-defined words or phrases are given their technical or special 

definitional meaning.” Id., ¶45. Both a statute’s context and the structure “in 

which [its] operative language appears” is important to its meaning. Id., ¶46.

“Therefore, statutory language is interpreted in the context in which it is used; not 

in isolation but as part of a whole; in relation to the language of surrounding or 

closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” 

Id.

B. Analysis.

1. Trial Court Determination and Matters Not in Dispute.

¶36 The trial court determined the following on this issue: “I think [the 

ten images are] all associated with the crime, the crime here being the five images 

 

14

 No evidentiary hearing was held by the trial court to determine the number of images 

associated with the crime. But, such an evidentiary hearing was not requested, and Kuehn does 

not argue on appeal that the statute requires an evidentiary hearing. In addition, Kuehn does not 

contend that an evidentiary hearing would have changed the result or our discussion of this issue.
No. 2018AP2355-CR

17

that he was convicted of and then the dismissed-and-read-in charges.”15 The 

postconviction court agreed with the trial court’s determination.

¶37 Kuehn concedes that he is liable for the surcharge for the five 

images which formed the bases for the five counts he was convicted of under WIS.

STAT. § 948.12(1m). The parties also do not dispute the following about the readin offenses images: (a) those are “images” as that term is used in WIS. STAT.

§ 973.042; (b) Kuehn was over eighteen years old at the time of his conviction; 

(c) the trial court imposed a sentence under § 948.12(1m); and (d) the images 

constituted child pornography under Wisconsin law. 

¶38 As a result, the sole question we must decide is whether the phrase 

“image associated with the crime” in WIS. STAT. § 973.042(2) includes, in this 

factual scenario, the ten images which formed the bases for the read-in offenses. 

2. Meaning of “Associated.”

¶39 The word “associated” and the phrase “associated with the crime” 

are not defined in WIS. STAT. § 967.02 (defining words and phrases in WIS. STAT.

chs. 967 to 979), nor is that word or phrase defined in WIS. STAT. § 973.042. Our 

research shows that § 973.042(2) is the only instance in which the phrase 

“associated with the crime” is used in the Wisconsin Statutes.

 

15

 The parties do not dispute for purposes of this appeal that Kuehn had in his possession 

a total of 462 images of what the State contends is child pornography. We do not determine if 

each of those 462 images were “associated with the crime” under WIS. STAT. § 973.042(2)

because the trial court ruled only that the ten images which formed the bases for the read-in 

offenses were “associated with the crime,” and the State does not ask us to reverse that order. 
No. 2018AP2355-CR

18

¶40 We may refer to a dictionary to assist us in interpreting statutes. 

Town of Grant v. Portage Cty., 2017 WI App 69, ¶40, 378 Wis. 2d 289, 903 

N.W.2d 152. In this context, “associated” is defined as “[c]onnected in thought, 

mentally related.” OXFORD ENGLISH DICTIONARY, 

https://www.oed.com/view/Entry/11976?rskey=2n1wss&result=2&isAdvanced=fa

lse#eid (last visited July 23, 2020).

3. The Ten Images Were Associated With the Crime.

¶41 For the following reasons, we conclude that the ten images were 

“associated with the crime.”

¶42 First, the language of WIS. STAT. § 973.042(2) does not require that, 

for the surcharge to be imposed, the image must be the basis for a conviction. 

Other crime surcharge statutes state that those particular surcharges are imposed 

only for “each conviction” (or virtually identical language). See, e.g., WIS. STAT.

§§ 973.043(1), 973.045(1)(a) and (b), 973.0455(1) (2017-18), and 973.046(1r)(a) 

and (b). Here, the legislature has not tied the imposition of a surcharge to only a 

conviction. Instead, our legislature cast a wider net and allows a trial court to 

impose a surcharge when the trial court makes a factual determination that an 

image is “associated with the crime.” 

¶43 Second, from a factual standpoint, the ten images were “[c]onnected 

in thought” and “mentally related” to the crime. The Presentence Investigation 

Report shows that the child pornography images which formed the bases for the 

read-in offenses were received on the same email accounts, and with the same 

device, as the images associated with the five counts of possession of child 

pornography for which Kuehn was convicted. Kuehn did not state at the time of 

sentencing, and does not argue now, that such information in the Presentence 
No. 2018AP2355-CR

19

Investigation Report is incorrect. Therefore, that information supports the trial 

court’s determination that those ten images were “associated with the crime.”

16

¶44 In light of the plain language of WIS. STAT. § 973.042(2), and 

because we defer to the trial court’s factual determination of the number of 

“images associated with the crime,” we do not conclude that the trial court’s 

findings were clearly erroneous. 

4. Kuehn’s Arguments.

¶45 Kuehn argues that the trial court’s conclusion is incorrect, and we 

reject each argument. 

¶46 First, relying on the restitution statute, WIS. STAT. § 973.20, Kuehn

contends that the images which formed the bases for the read-in offenses cannot 

be “associated with the crime” of possession of child pornography. 

Section 973.20(1g)(b) and (1r) define “read-in crime” and then state that 

restitution can be ordered for a “read-in crime.” Kuehn asserts that, because the 

legislature did not place “[e]quivalent” language in WIS. STAT. § 973.042(2)

defining what constitutes a read-in crime and did not explicitly state that a read-in 

crime can be the basis for this surcharge, the legislature meant to exclude read-in 

offenses from the phrase “associated with the crime.” Kuehn’s argument fails. 

¶47 Because WIS. STAT. §§ 973.042(2) and 973.20 use different 

phrasing, that does not foreclose the possibility that a read-in offense can be 

 

16

 That conclusion is correct whether the phrase “associated with the crime” refers to the 

crime of possession of child pornography in the abstract or if that phrase refers to the five counts 

of possession of child pornography for which Kuehn was convicted.
No. 2018AP2355-CR

20

“associated with the crime” under § 973.042(2), and Kuehn gives no viable basis 

for his argument. Put another way, there is no requirement that each statute which 

may generally refer to the same subject use the same language. Moreover, 

§§ 973.042(2) and 973.20 would not use the same statutory language because the 

legislature did not intend the statutes to be synonymous. While § 973.20(1g)(b) 

and (1r) refer to only read-in offenses, § 973.042(2) does not necessarily draw the 

line at only read-in offenses. That statutory subpart refers to a category of images 

that include, but are not limited to, images which may form a basis for a read-in 

offense. In those circumstances, the language of the two statutes would not be 

identical in light of the separate aims of the separate statutes.

¶48 Second, Kuehn argues that the phrase in WIS. STAT. § 973.042(2) 

which states that a surcharge shall be imposed “[i]f a court imposes a sentence or 

places a person on probation” will be rendered “superfluous” if the phrase “image 

... associated with the crime” includes images which formed the basis for read-in 

offenses. This argument fails because the phrase Kuehn refers to is not a 

definition of “image ... associated with the crime.” Rather, that phrase is one 

condition precedent to imposition of the child pornography surcharge. We fail to 

see how that language becomes superfluous in this context.

¶49 In sum, we affirm the trial court’s determination that the images 

which form the bases for the ten read-in offenses were “associated with the crime”

pursuant to WIS. STAT. § 973.042(2). 

III. Condition of Extended Supervision.

¶50 Finally, Kuehn contends that the trial court’s order barring Kuehn 

from contact with J.S. is overly broad and not reasonably related to his 

rehabilitation and, as a result, improperly infringes on his constitutional right to 
No. 2018AP2355-CR

21

freedom of association. We begin our discussion by considering applicable 

authorities and our standard of review.

A. Applicable Authorities and Standard of Review.

¶51 WISCONSIN STAT. § 973.01(5) states: “Whenever the court imposes 

a bifurcated sentence under sub. (1), the court may impose conditions upon the 

term of extended supervision.”17 “Sentencing courts have wide discretion and 

may impose any conditions of probation or supervision that appear to be 

reasonable and appropriate.” State v. Stewart, 2006 WI App 67, ¶11, 291 Wis. 2d 

480, 713 N.W.2d 165. 

¶52 The freedom to associate is a protected constitutional right. See City 

of Milwaukee v. Burnette, 2001 WI App 258, ¶17, 248 Wis. 2d 820, 637 N.W.2d 

447. However, “[c]onvicted felons do not enjoy the same degree of liberty as

those individuals who have not been convicted of a crime.” Stewart, 291 Wis. 2d 

480, ¶12. Therefore, “[t]he conditions [of extended supervision] may impinge 

upon constitutional rights as long as they are not overly broad and are reasonably 

related to the person’s rehabilitation.” Id., ¶12.

¶53 When a defendant challenges a condition of extended supervision as 

unreasonable on appeal, the reviewing court must determine whether the trial court 

erroneously exercised its discretion in ordering the condition. State v. Miller, 175 

Wis. 2d 204, 208, 499 N.W.2d 215 (Ct. App. 1993). We review de novo whether 

 

17

 The parties agree that the no-contact order with J.S. will be in effect only for the time 

that Kuehn is released on extended supervision. 
No. 2018AP2355-CR

22

a condition of supervision violates a defendant’s constitutional rights. Stewart, 

291 Wis. 2d 480, ¶12.

B. Analysis.

¶54 As noted, the trial court ordered Kuehn to have no contact with J.S. 

The trial court found that Kuehn posed “a grave danger to society.” But the State 

concedes, and we agree, that the trial court did not state its reasoning for the nocontact order with J.S. It would have been preferable for the trial court to state a 

basis for the no-contact order with J.S. Nonetheless, we may search the record to 

determine whether to uphold a trial court’s exercise of sentencing discretion. 

State v. Young, 2009 WI App 22, ¶29, 316 Wis. 2d 114, 762 N.W.2d 736. Such a 

basis is found in undisputed facts in the record. 

¶55 At the time Kuehn committed these offenses, J.S. had two sons, a 

ten-year-old and a two-year-old from a previous relationship, and a third son with 

Kuehn. Kuehn also had two sons with his ex-wife, at that time an eleven-year-old 

and a nine-year-old. According to the complaint, Kuehn asked an unnamed 

individual, in an email exchange, if he was interested in “boys or girls[.] I have 

three sons.” Later, Kuehn told that other individual, “[Y]ou can have my boys[,] 

how much will you pay[?]” The unnamed person replied, “400 for both?” 

¶56 The Presentence Investigation Report states and Kuehn does not 

dispute that, during his pretrial incarceration and up to the time of sentencing, he 

and J.S. “still [wrote] letters to each other and talk[ed] on the phone” and that 

“[Kuehn and J.S.] remain a couple and have been in contact ... since his 

incarceration.” Indeed, Kuehn’s briefing in this court refers to J.S. in the present 

tense as Kuehn’s “girlfriend.” Also, at the sentencing hearing, Kuehn’s attorney 

stated that Kuehn “wants to have a relationship with [J.S.] in the future.” 
No. 2018AP2355-CR

23

¶57 J.S. wants a continuing relationship with Kuehn even after the email 

exchange in which Kuehn attempted to sell her child and after knowing that 

Kuehn has possessed child pornography. A reasonable conclusion is that J.S. does 

not appreciate the gravity of Kuehn’s actions, and J.S. will not protect minors from 

Kuehn while Kuehn is on extended supervision.18

¶58 Kuehn argues that it is unreasonable to have a no-contact order with 

J.S. when there is already in place an order barring Kuehn from having contact 

with minors while on extended supervision. But, the presence of that order does 

not lead to the conclusion that it is unreasonable for the trial court to impose 

another order which has the same goal to protect children, and Kuehn gives no 

reasoning to support his argument. 

¶59 We conclude that the no-contact order with J.S. while on extended 

supervision is not overbroad or unreasonable because it is reasonably related to 

Kuehn’s rehabilitation and protection of the public. Therefore, the order does not 

improperly infringe on Kuehn’s constitutional right to freedom of association, and 

the order is not an erroneous exercise of the trial court’s discretion. 

 

18

 The postconviction court concluded that the no-contact with J.S. order is appropriate 

because Kuehn must “devote 100% of his attention to his rehabilitation” while on extended 

supervision. While we affirm the orders of the trial court and the postconviction court, we agree 

with Kuehn that this particular aspect of the postconviction court’s rationale does not support the 

no contact order with J.S. There is neither a starting point nor and end-point to that specific 

reasoning set out by the postconviction court. Virtually any activity of a defendant while on 

supervision could be banned on that basis because almost every activity distracts a defendant 

from rehabilitation as described by the postconviction court. 
No. 2018AP2355-CR

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CONCLUSION

¶60 For the foregoing reasons, the judgment and order of the trial court 

and postconviction court are affirmed.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.