State v. Catherine E. Edwards, 2023AP1042-CR, 3/6/25, District IV (not recommended for publication); case activity
Edwards’s appeal focuses on the definition of “lewd exhibition of intimate parts” and the state’s closing arguments as to child pornography. COA rejects Edwards’s arguments on appeal and affirms her convictions for possession of child pornography.
The state charged Edwards with one count of sexual assault of a child under 16 as a party to the crime and two counts of possession of child pornography. The underlying events involved Edwards’s boyfriend, Nicholas Kvatek, and a 14-year-old girl, “A.B.” Police found a video on Kvatek’s phone showing him and Edwards assaulting A.B. On Edwards’s phone, police found two photographs A.B. standing in their living room, “completely naked and holding a paintbrush.” Her buttocks and/or breasts were visible in the pictures. (¶¶3-6).
At trial, Edwards denied having sex with A.B., taking photographs showing A.B. naked, or knowing that the two photographs forming the basis of the child pornography counts were on her phone. Her trial counsel did not object to the child porn jury instruction, but twice moved to dismiss the two counts on the basis that the pictures did not meet the definition of child porn. (¶¶7-10). In closing, the state seemingly argued, multiple times and over trial counsel’s objection, that the video on Kvatek’s phone was associated with the child porn charges against Edwards. (¶12). Trial counsel moved for a mistrial, and the circuit court denied his motion. (¶13). The jury found Edwards guilty on all counts.
Edwards moved for postconviction relief, arguing that there was insufficient evidence to convict her on the possession of child pornography counts, that her trial counsel was ineffective for failing to object to the child porn jury instruction, and that the state made an improper closing argument. At the postconviction hearing, trial counsel testified that he was not aware at trial that the definition of “lewd exhibition of intimate parts” used in the jury instructions had been enacted by statute after the offense dates, and that, had he been aware, he would have asked for the definition set forth in case law to be used if it was advantageous to Edwards. The circuit court denied the postconviction motions. (¶15).
Edwards makes three arguments on appeal: (1) that there was insufficient evidence to support her convictions for possession of child pornography under the definition of “lewd exhibition of intimate parts” and the jury would not have convicted her if it had been properly instructed; (2) her trial counsel was ineffective for failing to object to the use of the statutory definition in the same jury instruction; and (3) the prosecutor improperly commented on the evidence in his rebuttal argument.
As to Edwards’s sufficiency argument, COA agrees with the parties that the common law definition, which “required that the image visibly displays a child’s intimate parts and that the image is ‘sexually suggestive,’ meaning that the child is posed as a sex object or there is an unusual or unnatural focus on the child’s intimate parts” applies. See State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991). Regardless of the incorrect instruction, COA concludes that the evidence was sufficient to convict Edwards. (¶¶29-31).
As to her second claim, Edwards concedes that she forfeited her objection to the use of the incorrect jury instruction and both parties agree that COA may consider the issue under the IAC framework. (¶33). The definition the jury was given here is that “Lewd exhibition of intimate parts means the display of less than fully and opaquely covered intimate parts of a person who is posed as a sex object or in a way that places an unnatural or unusual focus on the intimate parts.” (¶35).
Edwards asserts that this definition is broader than the applicable common law definition of “lewd exhibition of intimate parts” because under the common law definition, the state “was required to prove both that A.B. was posed as a sex object and that she was photographed in way that placed an unusual or unnatural focus on her intimate parts.” However, the COA already rejected that interpretation. The court therefore concludes that the two definitions are materially the same, and rejects Edwards’s IAC claim on the deficient performance prong because the jury instruction accurately stated the controlling law. (¶¶38-39).
Last, Edwards argues that the prosecutor’s statements that she “participated in the manufacture of child pornography” by participating in the recorded sexual assault (found on Kvatek’s phone). Edwards’s trial counsel objected during the argument and moved for a mistrial after the jury began deliberations. COA holds that Edwards fails to show on appeal that the circuit court erroneously exercised its discretion by denying her motion for a mistrial. The prosecutor’s remarks did not “suggest[] that the jury should arrive at a verdict by considering factors other than the evidence.” (¶51); see State v. Neuser, 191 Wis. 2d 131, 136, 528 N.W.2d 49 (Ct. App. 1995).
Instead, COA agrees with the circuit court’s determination “that the prosecutor reasonably interpreted the evidence—namely, the 52-second video recording and the testimony that the dildo observed in the video recording was found in Kvatek and Edwards’ bedroom—to argue that the video recording of the sexual assault of A.B. was, by its nature, the manufacture of child pornography; that Edwards participated in the sexual assault shown in that video recording; and that her denial of that fact should not be believed.” COA concludes that “there was no confusion” as the state clarified who possessed the video versus the photographs that Edwards was charged with here. (¶51). Further, the jury was properly instructed that statements by the attorneys were not evidence and that each possession of child pornography count applied to a specific, labeled exhibit consisting of a photograph. (¶53).
