State v. Kris V. Zocco

`

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 27, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal Nos. 2018AP1145-CR Cir. Ct. Nos. 2013CF4702
2013CF4798
2018AP1146-CR
IN COURT OF APPEALS
STATE OF WISCONSIN DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KRIS V. ZOCCO,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for
Milwaukee County: DANIEL L. KONKOL and CAROLINA STARK, Judges.
Affirmed.

Before Kessler, Brennan and Kloppenburg, 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. 2018AP1145-CR
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¶1 PER CURIAM. A jury convicted Kris Zocco of knowingly
possessing sixteen recordings of child pornography. Zocco raises numerous issues
on appeal. First, Zocco argues that the circuit court erroneously denied his
motions to suppress evidence obtained from his apartment pursuant to two search
warrants on the grounds that: (1) probable cause did not support the issuance of a
warrant for the search of photos and videos on Zocco’s smartphone, the execution
of which led to the issuance of a subsequent warrant to search “devices” on which
the child pornography recordings were found; and (2) the seizure of an external
hard drive and CDs exceeded the scope of that subsequent warrant. Second,
Zocco argues that the evidence was insufficient to establish that he knowingly
possessed the sixteen child pornography recordings. Third, Zocco argues that he
is entitled to a Machner hearing on whether trial counsel was ineffective for not
requesting a supplemental jury instruction that defined the knowledge element of
the charged crime.1 Fourth, Zocco argues that the court erroneously rejected
Zocco’s “other acts” objection and motion for a mistrial related to the State’s
reference at trial to uncharged images of child pornography located on the CDs
seized from Zocco’s apartment. Fifth, Zocco argues that he is entitled to a new
trial in the interest of justice because of the errors alleged above. Sixth, Zocco
argues that the court erroneously exercised its discretion in imposing sentence
based on the court’s deeming Zocco to be a “consumer” of child pornography and
on the aggravated nature of the contents of the recordings. Seventh, Zocco argues

1
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). Zocco argues
in the alternative that his due process rights were violated by the circuit court’s failure to provide
the supplemental jury instruction. However, he forfeited this claim by failing to request the
instruction. His independent due process argument fails for the same reasons, set forth in the
discussion below, that his ineffective assistance of counsel claim fails; therefore, we do not
address his independent claim separately.

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that the court improperly required as a condition of extended supervision that he
“not be involved in any conduct that rises to the level of a finding of probable
cause that you have violated the criminal law.” For the reasons stated, we reject
all of Zocco’s arguments and affirm.

BACKGROUND

¶2 Following the execution of a series of search warrants at Zocco’s
Milwaukee apartment in October 2013, the State charged Zocco with drug and
child pornography offenses. This appeal concerns the child pornography charges
only. The complaint alleged that police “uncovered approximately 23 videos
depicting child pornography” on an external hard drive and CDs that were seized
from Zocco’s apartment pursuant to the search warrants. The complaint charged
Zocco with seventeen counts of possession of child pornography; the first sixteen
counts concerned videos on the external hard drive and the last count concerned a
video on a CD.

¶3 The circuit court denied Zocco’s suppression motions challenging
the search warrants, and the case proceeded to a jury trial. The jury convicted on
the first sixteen counts and acquitted on the seventeenth count. After sentencing,
Zocco filed a postconviction motion, which the court denied without a hearing.
This appeal follows.2

DISCUSSION

¶4 We address each of Zocco’s arguments in turn.

2
The Honorable Daniel L. Konkol presided at trial and sentencing, and the Honorable
Carolina Stark denied Zocco’s postconviction motion.

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I. Motions to Suppress

¶5 Zocco argues that the evidence found on the external hard drive and
CDs should have been suppressed because: (1) probable cause did not support the
issuance of a warrant for the search of photos and videos on Zocco’s smartphone,
the execution of which led to the issuance of the warrant to search “devices” on
which the child pornography recordings were found; and (2) the seizure of the
external hard drive and CDs exceeded the scope of that subsequent warrant. We
first summarize the standard of review and applicable legal principles; we next
provide additional pertinent background; and we then explain why we conclude
that Zocco’s challenges to the issuance and execution of the two search warrants
fail.

A. Standard of Review and Applicable Legal Principles

¶6 “Whether a search and seizure is constitutional remains a question of
law that we review de novo….” State v. LaCount, 2008 WI 59, ¶34, 310 Wis. 2d
85, 750 N.W.2d 780 (italics added).

¶7 In our review of a challenge to the issuance of a search warrant, we
are limited to the record as it existed before the judge at the time the warrant was
issued. State v. Sloan, 2007 WI App 146, ¶8, 303 Wis. 2d 438, 736 N.W.2d 189.
The question before us is whether the judge “was ‘apprised of sufficient facts to
excite an honest belief in a reasonable mind that the objects sought are linked with
the commission of a crime, and that they will be found in the place to be
searched.’” Id. (citation omitted). “The well-established test for probable cause is
that it is ‘flexible,’ and is ‘a practical commonsense decision’ that is made
considering ‘the totality of the circumstances,’” State v. Silverstein, 2017 WI App
64, ¶22, 378 Wis. 2d 42, 902 N.W.2d 550 (citations omitted), and the judge

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issuing or denying the warrant “may make the usual inferences reasonable persons
would draw from the facts presented.” State v. St. Martin, 2011 WI 44, ¶16, 334
Wis. 2d 290, 800 N.W.2d 858 (citation omitted). “In reviewing whether there was
probable cause for the issuance of a search warrant, we accord great deference to
the determination made by the warrant-issuing [judge].” State v. Ward, 2000 WI
3, ¶21, 231 Wis. 2d 723, 604 N.W.2d 517.

¶8 In our review of a challenge to the execution of a search warrant, we
are guided by the principle that “[a] search warrant’s execution must be conducted
reasonably, and the search and seizure must be limited to the scope that is
permitted by the warrant. Whether a seized item is properly within the search
warrant’s scope depends on the search warrant’s terms and on the nature of the
items that were seized.” LaCount, 310 Wis. 2d 85, ¶38 (citations omitted).

B. Additional Background

¶9 While Zocco challenges only the second and third of a series of four
search warrants issued in October 2013, we provide background as to all four
warrants in order to provide necessary context for the analysis of his challenges.

¶10 The first warrant was issued on October 16, 2013, to search Zocco’s
apartment on the 18th floor of a Milwaukee apartment building for drugs and drug
paraphernalia. The search warrant affidavit made the following pertinent
assertions. A woman, K.D., was reported missing on October 12, and video
surveillance at Zocco’s apartment building showed K.D. with Zocco at his
apartment building on October 10, the night before her cell phone stopped activity;
the video surveillance did not show K.D. leaving the building. Zocco told police
that on the night of October 10, he and K.D. left the apartment to purchase
cocaine, returned to the apartment and used some of the cocaine, “may have”

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smoked marijuana, went out to a club, returned to his apartment and used the rest
of the cocaine, and K.D. performed oral sex on him. Zocco’s statements about
both his and K.D.’s dress and comings and goings during that time were
contradicted by the building’s surveillance footage. Video surveillance showed
Zocco leaving in his vehicle on the evening of October 11 and returning in the
vehicle during the afternoon of October 12. After parking, Zocco removed from
his vehicle’s front passenger compartment a small white plastic bag, which the
officer believed contained cocaine and marijuana.

¶11 The second warrant was issued on October 18, 2013, to search the
contents of Zocco’s smartphone for evidence of homicide, mutilating or hiding a
corpse, and drug offenses. Zocco had been arrested on October 17 with his
smartphone on him. The affidavit for the October 18 search warrant reiterated the
first warrant information summarized above and related the following results of
the search executed pursuant to the first warrant. Police found cocaine and
marijuana in Zocco’s apartment and noticed that the shower curtain in the
bathroom had been ripped off and was missing. A cadaver dog detected the odor
of human remains in the first-floor trash room of Zocco’s building, in the parking
area about twenty-five feet from Zocco’s assigned parking space, in the 18th-floor
trash chute, and at the exterior door of Zocco’s 18th-floor apartment. The cadaver
dog also detected the odor of human remains in Zocco’s bathroom and laundry
and on Zocco’s bed.3

3
This last sentence refers to the results of another warrant that was issued the day before
this second warrant, when Zocco was arrested; we do not separately identify this warrant because
the parties treat it as incidental.

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¶12 The third warrant was issued on October 22, 2013, to search for
evidence of representations depicting nudity, including items used to restrain a
person’s arms and legs, and “[c]ameras, video recording devices, or any other
device capable of capturing photo and video images, to include a detailed forensic
examination of the contents within.” The search warrant affidavit reiterated the
information in the prior two warrant affidavits and noted evidence obtained from
the prior warrants. The evidence retrieved from Zocco’s phone as a result of the
second warrant included photos and one video of K.D., taken in the bedroom of
Zocco’s apartment. In one photo K.D. was lying on her back naked, eyes closed,
mouth open, hands bound, and apparently unconscious. Another photo depicted
K.D. naked, lying face down on a bed, with her hands and feet bound. A third
photo depicted K.D. in the same position with her eyes closed and mouth open,
seemingly unconscious, with a hand on the back of her head pushing her face into
the bed. In the video, K.D. was blindfolded and apparently unaware of being
recorded, performing oral sex on a man with his hand pushing her head down.

¶13 A fourth warrant was issued on October 23, 2013, to search specific
“data storage devices” seized from Zocco’s apartment for child pornography. The
search warrant affidavit stated that, in executing the third warrant described above,
police seized data storage devices and found on a CD a video of a prepubescent
girl rubbing a dildo on her vagina, which is the basis for one of the charges in this
case. It was in executing this warrant that police found the remaining sixteen child
pornography recordings charged in this case.

¶14 Zocco challenged these four search warrants on various grounds in
both pretrial motions and his postconviction motion, all of which were denied. On
appeal, he challenges only the second and third search warrants, and we proceed to
address each challenge in turn.

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C. Probable Cause Supporting the Second Search Warrant

¶15 Zocco argues that there was no probable cause to search his phone
for photos and videos pursuant to the second search warrant. Specifically, he
argues that the second search warrant was supported by probable cause only “to
search for evidence of Zocco’s drug offenses [and w]hile communications
information would fall within that purpose, photos and videos would not.”
Zocco’s argument is refuted by the record.

¶16 The second search warrant was issued to search the “contents” of
Zocco’s smartphone for evidence of homicide, mutilating or hiding a corpse, and
drug offenses. This warrant was supported by an affidavit that related Zocco’s
own statements of drug use with K.D., the seizure of drugs from Zocco’s
apartment, video surveillance showing K.D. and Zocco entering his apartment
building but never showing K.D. leaving, a torn-off and missing shower curtain in
Zocco’s bathroom, the detection of the odor of human remains in Zocco’s
apartment and in areas of the building associated with him, and Zocco’s false
statements about his and K.D.’s dress and comings and goings around the time
K.D. went missing.

¶17 We conclude that the facts stated in the affidavit suffice to support
an honest belief that evidence linking Zocco to crimes related to K.D.’s
disappearance and unlawful drug activity would be found on Zocco’s phone, and
that photos and videos on Zocco’s phone properly constituted such evidence. See
Sloan, 303 Wis. 2d 438, ¶8. Zocco’s arguments to the contrary fail because they
ignore relevant facts.

¶18 Zocco’s argument that the warrant was supported by probable cause
only to search for evidence of drug crimes, and that only “speculation” supported a

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search for evidence of homicide and hiding a corpse, ignores the vast majority of
the facts stated in the supporting affidavit indicating his involvement in K.D.’s
disappearance.4 This defect also sinks his argument that only “communications,”
and not photos and videos, may be searched for evidence of drug crimes.
Regardless of the merit, if any, of his distinction between “communications” and
photos and videos, his argument fails because the warrant was also supported by
probable cause to search for evidence of the crimes of homicide and hiding a
corpse, and he makes no argument that evidence of those crimes does not include
photos and videos. Nor does Zocco argue that the photos and videos on his phone
are not “contents” of his phone, as identified in the warrant.

¶19 Finally, Zocco’s argument that the State conceded in its circuit court
brief opposing Zocco’s postconviction motion that, as asserted by Zocco,
“probable cause for the warrant did not extend beyond evidence of drug crimes,”
takes the State’s briefing out of context. The State argued pretrial that the second
warrant established probable cause for crimes related to both the drug activity and
K.D.’s disappearance. In his postconviction motion, Zocco argued that in making
its pretrial ruling the circuit court had erred when it did not discuss “a connection
between the phone” and K.D.’s disappearance. In its postconviction brief, the
State responded to Zocco by arguing that the court’s reference to only the drug-
activity basis for the warrant did not render the court’s admission of the cell phone
evidence erroneous because there were ample facts supporting probable cause to
search for evidence of drug crimes. That argument was not a concession that there

4
His argument that the cadaver dog evidence must be ignored because it is not based on
scientific evidence is unsupported by factual or legal authority, and, therefore, we do not consider
it further. See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (court
need not address issues insufficiently developed or lacking citations to authority).

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was not also probable cause to search for evidence of crimes related to K.D.’s
disappearance.

¶20 In sum, Zocco fails to show that probable cause did not support the
second warrant to search for the contents of his phone, including photos and
videos, for evidence of unlawful activity related to K.D.’s disappearance and
drugs.

D. Exceeding the Scope of the Third Search Warrant

¶21 Zocco argues that the seizure of the external hard drive and CDs
exceeded the scope of the third search warrant. Specifically, he argues that the
“objects of search” described in the warrant, “[c]ameras, video recording devices,
or any other device capable of capturing photo and video images,” do not include
the external hard drive and CDs seized pursuant to the third search warrant.
Zocco’s argument is refuted by statutory definitions.

¶22 The third search warrant was issued to search for evidence of
representations depicting nudity in violation of WIS. STAT. § 942.09(2) (2013-14).5
It was supported in part by photos retrieved from Zocco’s phone showing K.D.
naked and apparently either unconscious or unaware that she was being recorded.
The warrant authorized the search of “[c]ameras, video recording devices, or any
other device capable of capturing photo and video images, to include a detailed
forensic examination of the contents within.” In executing the third warrant,
police seized an external hard drive and CDs from Zocco’s apartment.

5
All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise
noted. We observe that the changes that have been made to the statutes cited since 2013-14 are
not material to the issues on appeal.

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¶23 WISCONSIN STAT. § 942.09(2) prohibits “captur[ing] a representation
that depicts nudity” without consent. The statute defines the pertinent terms as
follows. “‘Captures a representation’ means takes a photograph, makes a motion
picture, videotape, or other visual representation, or records or stores in any
medium data that represents a visual image.” Sec. 942.09(1)(a).
“‘Representation’ means a photograph, exposed film, motion picture, videotape,
other visual representation, or data that represents a visual image.”
Sec. 942.09(1)(c).

¶24 We agree with the State that the external hard drive and CDs are
devices that record or store data that represent visual images; that devices that
record or store data that represent visual images “capture” representations of the
images as “captures a representation” is defined by WIS. STAT. § 942.09(1)(a); and
that, therefore, police did not exceed the warrant’s scope by seizing those devices
because they are, in the words of the warrant, “capable of capturing photo and
video images” within the meaning of the statute. Zocco’s arguments to the
contrary ignore the statute.

¶25 First, Zocco argues that a CD is not a device, citing a dictionary
definition of “device” as “a piece of equipment or a mechanism” and arguing that
a CD “is neither.” However, another dictionary defines “device” as “a thing made
or adapted for a particular purpose,” see Device, Dictionary.com and Oxford
University Press, http://www.lexico.com/en/definition/device (last visited August
21, 2019), and the statute defines “captures a representation” as “records or stores
in any medium data that represents a visual image.” WIS. STAT. § 942.09(1)(a). It
is obvious that CDs are things capable of either recording or storing data that
represent visual images. Moreover, the complete text of the definition of “device”
that Zocco cites is a “piece of equipment or a mechanism designed to serve a

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special purpose or perform a special function.” Device, Merriam-Webster,
https://merriam-webster.com/dictionary/device (last visited August 21, 2019).
Zocco does not explain how CDs are not “pieces of equipment” designed “to serve
a special purpose or perform a special function.”

¶26 Second, Zocco argues that, precisely because the external hard drive
and CDs store files only and are “not capable of translating images to recorded
form,” like cameras or recorders, under the principle of ejusdem generis the
external hard drive and CDs cannot be included by what Zocco calls the warrant’s
“catch-all” phrase, “or any other device capable of capturing photo and video
images,” which follows the references to “cameras, video recording devices.”
Again, this argument ignores the statute, which as explained above includes
“stores … data that represents visual images” in its definition of “captures a
representation.” Under the statute, “captures a representation” includes not only
any device that “takes” or “makes” images, but also any device that “stores”
images. Zocco’s reliance on the principle of ejusdem generis is inapposite in light
of the statutory definition.

¶27 Third, Zocco argues that devices like the external hard drive and
CDs that “merely store files” do not “capture” images under our holding in State
v. Chagnon, 2015 WI App 66, 364 Wis. 2d 719, 870 N.W.2d 27. However,
Chagnon does not help Zocco. In that case, we held that “captures a
representation” does not apply to cutting pictures from magazines and newspapers
and pasting them into a notebook. Id., 364 Wis. 2d 719, ¶¶2, 35. However, we
also acknowledged that the part of the statutory definition of “captures a
representation” as “stores” embraces the “collection and storage of digital data.”
Id.¸ ¶28. As the State notes, the external hard drive and CDs could be locations
where Zocco could keep photos and videos that he may have taken as part of

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“capturing” them; police in their investigation were not required to overlook the
external hard drive and CDs just because they might contain images that Zocco
did not himself take.

¶28 In sum, Zocco fails to show that the seizure of the external hard
drive and CDs exceeded the scope of the third search warrant.

II. Sufficiency of the Evidence

¶29 Zocco argues that the evidence was insufficient to establish that he
knowingly possessed the sixteen child pornography recordings. Specifically,
Zocco argues that the evidence “at best provides a basis for guesswork or
speculation” that he had the knowledge required for conviction of possession
because: it was undisputed that the sixteen recordings were among “thousands of
legitimate files”; there was no evidence that Zocco ever searched for child
pornography, tried to encrypt or hide the files containing the recordings, knew
their titles, or viewed or accessed the recordings; and “one cannot tell what files
are likely to [contain] child pornography without actually viewing them.” We first
summarize the standard of review and applicable legal principles; we next provide
additional pertinent background; and we then explain why we conclude that the
evidence was sufficient to sustain Zocco’s convictions.

A. Standard of Review and Applicable Legal Principles

¶30 “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 our de
novo review.” State v. Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d
410 (italics added).

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¶31 “[I]n reviewing the sufficiency of the evidence to support a
conviction, an appellate court may not substitute its judgment for that of the trier
of fact unless the evidence, viewed most favorably to the state and the conviction,
is so lacking in probative value and force that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis. 2d 493, 507, 451 N.W.2d 752 (1990). “If any possibility exists that the trier
of fact could have drawn the appropriate inferences from the evidence adduced at
trial to find the requisite guilt, an appellate court may not overturn a verdict even if
it believes that the trier of fact should not have found guilt based on the evidence
before it.” Id. “It is well established that a finding of guilt may rest upon
evidence that is entirely circumstantial and that circumstantial evidence is
oftentimes stronger and more satisfactory than direct evidence.” Id. at 501.

¶32 To establish that Zocco was guilty of possession of child
pornography, the State was required to prove beyond a reasonable doubt for each
of the sixteen recordings charged that: (1) Zocco “knowingly possessed” the
recording; (2) the recording showed a child engaged in sexually explicit conduct;
(3) Zocco “knew or reasonably should have known” the recording depicted a child
engaged in sexually explicit conduct; and (4) Zocco “knew or reasonably should
have known” the child was under eighteen years old. See WIS JI—CRIMINAL
2146A. Zocco stipulated that the recordings contained child pornography.
Accordingly, the State was required to prove that he knowingly possessed each
recording, and that he knew or reasonably should have known that each recording
showed a child under eighteen engaged in sexually explicit conduct.

¶33 “Knowing possession” means that a jury would need to find that the
State had shown either that Zocco “knowingly had actual physical control of the
recording” or that “it [was] in an area over which [Zocco] ha[d] control and

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[Zocco] intend[ed] to exercise control over the recording.” See WIS JI—
CRIMINAL 2146A.

¶34 “Reasonably should have known” means that a jury would need to
find that the State had shown that Zocco “had an awareness of certain facts and
information that would have caused a reasonable person to conclude” that each
recording showed a child under eighteen engaged in sexually explicit conduct.
See State v. Schaefer, 2003 WI App 164, ¶¶31, 37, 41, 266 Wis. 2d 719, 668
N.W.2d 760 (statute requiring that the State show that the defendant “reasonably
should know” that the pornography he or she possesses depicts a minor means that
“[t]he State must show that the defendant had an awareness of certain facts and
information that would have caused a reasonable person to conclude that the
persons depicted in the materials were minors”).

B. Additional Background

¶35 At trial, the State called Zocco’s apartment property manager and
five detectives; Zocco called a forensic computer analyst.

¶36 The property manager testified that the apartment was leased by
Zocco and that Zocco was the sole occupant.

¶37 Detective Corbett testified that police found thirty-nine CDs and an
external hard drive in a bedroom in Zocco’s apartment. Police did not find any
device in Zocco’s apartment that could play a CD.

¶38 Detective Walisiewicz testified that he inspected the thirty-nine CDs
seized from Zocco’s apartment and found child pornography on five of them.

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¶39 Detective Lips testified as to his training and experience with
forensic computer analyses and child pornography cases. He testified that he
inspected the contents of the external hard drive and the CDs containing child
pornography, and Detective McKee testified that he peer-reviewed Lips’s report
and concluded that Lips followed protocols. For each child pornography
recording for which Zocco was charged, Lips identified the title and described
what the recording showed; he also testified as to the terms in the recording titles
that are common child pornography search terms and that are commonly
associated with child pornography.

¶40 Lips testified that he found child pornography in two different user-
created folders on the external hard drive. Inside a folder labeled “ACG lap savrs”
Lips found a subfolder labeled “Previews,” which contained the child pornography
recordings charged in Counts 1 through 5. Inside a folder labeled “LimeWire”
Lips found a subfolder labeled “more moves,” which contained the child
pornography recordings charged in Counts 6 through 14, and a subfolder labeled
“temp move,” which contained the child pornography recordings charged in
Counts 15 and 16.

¶41 What follows is a list of the title of each recording by count:

Count 1: C\acg lap savrs\Previews\Preview of -
Best Vicky BJ & Handjob with sound .mpg

Count 2: C\acg lap savrs\Previews\Preview of
BabyJ - chairraped 4yo.mpg

Count 3: C\acg lap savrs\Previews\Preview of
pedo.mpg

Count 4: C\acg lap savrs\Previews\Preview of
raygold sex and blowjob scene.mpg

Count 5: C\acg lap savrs\Previews\Preview of
Underage - Oral and Ride.mpg

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Count 6: C\LimeWire\more moves\Vicky willing
bed rape pthc llyo kdquality.mpg

Count 7: C\LimeWire\moremoves\-4yogirl sucks
and eats cum pedo r@ygold hussyfan lolitaguy Ism pthc
babyshivid.mpg

Count 8: \C\LimeWire\more moves\- Best Vicky
BJ & Handjob with sound (r@ygold pedo reelkiddymov
underage illegal lolita daughter incest xxx oral
handjob).mpg

Count 9: C\LimeWire\more moves\BJAfileOfNow
- 7yo Guat chick gets fucked in backseat and remains silent
hussyfan r@ygold pthc lyo 2yo 3yo 4yo 5yo.mpg

Count 10: \C\LimeWire\more moves\BJAfile
OfNow - real underage lyo gets cock fucked pussy rubbed
by daddy baby pussy cunt rub pthc hussyfan r@ygold
babyshivid 2yo 3yo 4yo 5yo 6yo 7yo.avi

Count 11: C\LimeWire\more moves\child sexually
abused Mafia Sex.Ru_Children_Kids_Hard_000013_
R@ygold_Mexican_Girl_Really_Good_Pthc_Child_Sex_P
orn_Pedo_5.48.mpg

Count 12: C\LimeWire\more moves\goicochea
Vincent pedofilia collection R@ygold PEDO - Raygold
Russian IIYo Preteen (no sound).mpg

Count 13: C\LimeWire\more moves\Kids Teens
Women (Porno-Lolitas-Preteens-ReelkiddymovR@Ygold-
Hussyfans-Underage-Girls-Children-Pedofilia-Pthc-Ptsc-
Xxx-Sexy

Count 14: C\LimeWire\more moves\real underage
fuck cum baby 2yo rape crys Babyshivid husssfan r@ygold
pthc-2Yo Toddler Naked On Mans Lap (Pthc Pedo
Babyfuck}lyo 2yo 3yo 4yo.mpg

Count 15: C\LimeWire\temp moves\8 Best little
girl in a pink dress, r@ygold hello video (illegal underage
lolita preteen pedo).mpg

Count 16: C\LimeWire\temp moves\(Pthc) 6Yo
Babyj - Bedtime Rape Until Cum private pedo child girl
lyo 2yo 3yo 4yo 5yo 6yo 7yo 8yo 9yo lOyo vicky laura
jenny sofie fdsa hussyfan russian korea.mpg

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¶42 All of the recordings showed only girls, and eleven of the sixteen
recordings showed girls performing oral sex on adult men.

¶43 Lips testified that he found on the external hard drive the following
materials associated with Zocco: a subfolder labeled “iTunes” that contained a
music library belonging to “Kris”; and subfolders containing Zocco’s resumés and
photographs.

¶44 In a subfolder labeled “My Playlist” Lips testified that he found a
playlist containing links to videos with explicit titles indicating child pornography
content.

¶45 Lips testified that on a CD found alongside the CD charged in Count
17, police found both child pornography and a “Kris Zocco” TiVo payment
document.

¶46 Lips testified that the recording charged in Count 17 was one of
about 150 files on that CD, and that its title was not indicative of child
pornography.

¶47 In his testimony, Lips acknowledged that: there was no evidence
that Zocco searched or viewed websites for child pornography or had the
capability of playing the CDs; the external hard drive had not been used since
2009; people generally do not “stop” interest in child pornography, but Lips has
observed a “trend” of fewer downloads in child pornography investigations as
technology has advanced, internet speeds have increased and child pornography
has become more widely available; and the child pornography recordings on the
external hard drive represented a very small fraction of a percent of the files on the
drive.

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¶48 Lips testified that on the external hard drive there were neither
profiles nor folders with information of people other than Zocco, that the files on
the drive were not predominantly work-related, that the names of possible user
profiles that Lips could see were either overwritten or deleted and were not
currently in use, and that the only information indicating who would have been
using or controlling the drive was comprised of the files associated with Zocco.

¶49 Lips testified that the child pornography recordings found on the
external hard drive were in the list of folders that any user could see, and that the
list would “[h]it you right in the face.”

¶50 The defense expert testified that he found tens of thousands of files
and other computer users’ profiles on the external hard drive, and that the list of
folders was not readily apparent. The expert testified that he did not “remember”
whether the forensic tool that he employed indicated that “anything at all was
deleted at any point in time.” He testified that it was his opinion that the external
hard drive likely belonged to Zocco’s company and was given to him for work,
but that the manufacturing date on the hard drive threw “a monkey wrench” into
that opinion. He testified that adult pornography can have child pornography
titles, that the 1,700 “pornography type files” on the external hard drive contained
adult or child pornography, and that there were tens of thousands of other files.

¶51 The State recalled Detective Lips, who testified how he knew the
user profiles on the external hard drive were deleted or overwritten, that he did not
find any user profiles other than Zocco’s presently on the hard drive, and that none
of the deleted user profiles could have been responsible for placing on the hard
drive the content that was currently saved on the hard drive. He testified that a
shortcut to a subfolder of the “ACG lap savrs” folder showed a user name of

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2018AP1146-CR

“Zocco,” and demonstrated how when he created a folder link using his own
profile, the shortcut path name to that folder showed his user name. He testified
that the majority of the video, music, and personal folders and documents on the
external hard drive were pornography.

¶52 As stated, the jury found Zocco guilty on all counts involving the
external hard drive (Counts 1 through 16) and not guilty on the count involving the
CD (Count 17).

C. Analysis

¶53 The following evidence was sufficient to show that Zocco
knowingly possessed the recordings on the external hard drive: the external hard
drive was found in a bedroom in his apartment; the apartment was leased only to
Zocco; the drive contained Zocco’s resumés, photos, and music; the drive
contained a playlist with links to child pornography titles of the recordings that
would have had to be input into the playlist; and, as testified by Detective Lips, the
only information indicating who would have been using or controlling the drive
were the files associated with Zocco. This evidence shows that the recordings on
the external hard drive were in an area over which Zocco had control and supports
the inference that Zocco intended to exercise control over the recordings.

¶54 The following evidence was sufficient to show that Zocco knew or
reasonably should have known that the recordings contained child pornography:
the titles of the recordings, which contain terms that expressly refer to child
pornography or that involve common child pornography search terms as testified
to by Detective Lips; Lips’s testimony that the titles were easily visible in the list
of folders that any user would see; the uniformity of the contents of the recordings,
showing only girls and mostly girls performing oral sex on adult men; and the

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child pornography (along with a TiVo receipt in Zocco’s name) found on the CDs
in Zocco’s apartment. This evidence supports the inference that Zocco knew or
should have known that the recordings contained child pornography.

¶55 Zocco’s arguments to the contrary do not persuade. First, Zocco
argues that there was no evidence that he had saved or viewed or tried to hide the
recordings, and the recordings comprised a very small portion of the total files on
the drive. Zocco’s argument that there was no direct evidence that he had saved
the child pornography recordings to the external hard drive ignores the evidence
that the only information indicating who would have been using or controlling the
drive were the files associated with Zocco, which provided circumstantial
evidence that Zocco knowingly possessed the recordings on the drive. Zocco’s
argument that there was no direct evidence that he ever saw the titles of the files
ignores the evidence that the titles were easily visible in the list of folders that any
user would have seen and that those folders contained other files directly
connected with Zocco, such as his résumés and photos, which also provided
circumstantial evidence that Zocco knowingly possessed the recordings on the
drive. This argument also ignores that possessing is a separate and distinct crime
from accessing under the statute. See WIS. STAT. § 948.12. Zocco’s argument that
the files were so few that they “easily could have been acquired by accident”
merely posits an inference that a jury could have drawn. This court must follow
the inference that supports the jury’s verdict unless the evidence was incredible as
a matter of law. See State v. Alles, 106 Wis. 2d 368, 376-77, 316 N.W.2d 378
(1982).

¶56 Second, Zocco argues that the evidence was not sufficient to show
that he knew or should have known that the recordings contained child
pornography. Specifically, absent direct evidence that he viewed or otherwise

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knew of their contents, he argues that there was no evidence that he should have
known their contents—that is, given the information known to him, a reasonable
person would not conclude that the files contained child pornography. This
argument disregards the titles of the recordings, which together with the evidence
that the titles were in a list of folders that any user could see, that other files in the
folders containing the titles were directly connected with Zocco, that the only user
name found on the drive was Zocco’s, and that the recordings were in user-created
folders, support the inference that Zocco reasonably should have known that those
recordings contained child pornography. Zocco argues that because one “cannot
tell a book by its cover,” a reasonable person would “investigate further or simply
delete the files.” To the contrary, the jury determined that a reasonable person
seeing the titles could conclude that the files contained child pornography.

¶57 A jury could reasonably find that Zocco both knowingly possessed
the recordings and should have known that the recordings contained child
pornography. We conclude that the evidence was sufficient to sustain the
convictions.6

III. Ineffective Assistance of Trial Counsel Regarding the Jury Instructions

¶58 Our supreme court has summarized the ineffective assistance of
counsel standards as follows:

Whether a defendant was denied effective assistance of
counsel is a mixed question of law and fact. The factual
circumstances of the case and trial counsel’s conduct and

6
While the State in its respondent’s brief generally presents well-supported analyses on
the issue of sufficiency of the evidence, we observe that more than once the State presents in
quotation language from cases that does not appear as quoted. We caution counsel to use
quotation marks only for language that actually appears as quoted.

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No. 2018AP1145-CR
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strategy are findings of fact, which will not be overturned
unless clearly erroneous; whether counsel’s conduct
constitutes ineffective assistance is a question of law,
which we review de novo. To demonstrate that counsel’s
assistance was ineffective, the defendant must establish that
counsel’s performance was deficient and that the deficient
performance was prejudicial. If the defendant fails to
satisfy either prong, we need not consider the other.

Whether trial counsel performed deficiently is a
question of law we review de novo. To establish that
counsel’s performance was deficient, the defendant must
show that it fell below “an objective standard of
reasonableness.” In general, there is a strong presumption
that trial counsel’s conduct “falls within the wide range of
reasonable professional assistance.” Additionally,
“[c]ounsel’s decisions in choosing a trial strategy are to be
given great deference.”

Whether any deficient performance was prejudicial
is also a question of law we review de novo. To establish
that deficient performance was prejudicial, the defendant
must show that “there is 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.”

State v. Breitzman, 2017 WI 100, ¶¶37-39, 378 Wis. 2d 431, 904 N.W.2d 93
(italics added and citations omitted).

¶59 To prevail on a claim of ineffective assistance of counsel, a
defendant must present the testimony of trial counsel at a Machner hearing. See
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
However, not every postconviction motion alleging ineffective assistance of
counsel requires a Machner hearing. State v. Allen, 2004 WI 106, ¶10, 274 Wis.
2d 568, 682 N.W.2d 433. The standard for whether a defendant is entitled to a
Machner hearing is summarized as follows:

Whether a defendant’s postconviction motion
alleges sufficient facts to entitle the defendant to a hearing
for the relief requested is a mixed standard of review. First,

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2018AP1146-CR

we determine whether the motion on its face alleges
sufficient material facts that, if true, would entitle the
defendant to relief. This is a question of law that we
review de novo. If the motion raises such facts, the circuit
court must hold an evidentiary hearing. However, if the
motion does not raise facts sufficient to entitle the movant
to relief, or presents only conclusory allegations, or if the
record conclusively demonstrates that the defendant is not
entitled to relief, the circuit court has the discretion to grant
or deny a hearing.

Allen, 274 Wis. 2d 568, ¶9 (italics added and citations omitted). To provide
nonconclusory allegations, a postconviction motion must present the “who, what,
where, when, why, and how” with sufficient particularity for the circuit court to
meaningfully assess the claim of ineffective assistance. Id., ¶23.

¶60 In his motion, Zocco alleges that trial counsel provided ineffective
assistance by failing to request a jury instruction that defined the charged offense
consistent with applicable law. Specifically, he focuses on the “reasonably should
know” requirement of the crime of possessing child pornography: “[w]hoever
possesses” child pornography that “[t]he person knows, or reasonably should
know … contains depictions of sexually explicit conduct” involving children.
WIS. STAT. § 948.12(1m)(b). Citing Schaefer, Zocco alleges that trial counsel was
deficient for not requesting a jury instruction that defined “reasonably should
know” as “what a reasonable person [would] conclude … based on what the
[person] actually knew.” See id., ¶¶40-41 (“The State must show that the
defendant had an awareness of certain facts and information that would have
caused a reasonable person to conclude that” the recordings contained child
pornography.). Zocco alleges that he was prejudiced because without this
instruction, the jury was “[left] to assume erroneously that the mere negligent
failure of Zocco to learn or discover the nature of the recordings was sufficient for

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conviction.” On appeal, Zocco also alleges that “the [S]tate’s [closing] argument
misled the jury by relying on an improper simple negligence theory.”

¶61 Zocco’s allegations of prejudice are speculative and unsupported by
the record. His contention that the jury must have interpreted “reasonably should
know” as “the failure to exercise the care which a reasonable person would use in
similar circumstances” is speculation that he does not tether to anything in the
record. His citations to the State’s closing argument neither reference a “mere
negligence” theory nor frame the evidence in negligence terms. We agree with the
State that there is no probability of a different result because given the number and
titles of the recordings, the consistency of their contents, the other child
pornography found, and the connections with Zocco, all as detailed in the
preceding section, the jury could conclude that Zocco reasonably should have
known that the recordings contain child pornography.

¶62 In sum, Zocco fails to meet his burden to show that he is entitled to a
hearing on this issue.

IV. “Other Acts” Evidence

¶63 Zocco argues that the circuit court erroneously rejected Zocco’s
“other acts” objection and motion for a mistrial related to the State’s reference at
trial to uncharged images of child pornography located on the CDs seized from
Zocco’s apartment. We first summarize the applicable legal principles, next
present additional pertinent background, and then explain why we reject Zocco’s
argument.

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A. Applicable Legal Principles

¶64 The admissibility of evidence lies within the circuit court’s
discretion. State v. Dukes, 2007 WI App 175, ¶26, 303 Wis. 2d 208, 736 N.W.2d
515. A court properly exercises its discretion when it considers the facts of record,
applies the proper legal standard, and reasons its way to a rational and legally
sound conclusion. Id.

¶65 “[E]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that the person acted in
conformity therewith.” WIS. STAT. § 904.04(2)(a). However, such evidence may
be admissible when offered for another purpose, “such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” Id. Moreover, not all evidence of prior bad acts constitutes “other
acts” evidence in the eyes of the law. State v. Seefeldt, 2002 WI App 149, ¶21,
256 Wis. 2d 410, 647 N.W.2d 894. “Evidence is not ‘other acts’ evidence if it is
… inextricably intertwined with the crime.” Dukes, 303 Wis. 2d 208, ¶28. Such
evidence is admissible as long as it is relevant and its probative value is not
outweighed by the danger of unfair prejudice or other related concerns. See WIS.
STAT. §§ 904.02, 904.03.

¶66 “The denial of a motion for mistrial will be reversed only on a clear
showing of an erroneous use of discretion[.]” State v. Ross, 2003 WI App 27, ¶47,
260 Wis. 2d 291, 659 N.W.2d 122. The court must decide, in light of all the facts
and circumstances, whether the claimed error is sufficiently prejudicial to warrant
a mistrial. State v. Nienhardt, 196 Wis. 2d 161, 166, 537 N.W.2d 123 (Ct. App.
1995). A mistrial is appropriate only when a “manifest necessity” exists for the

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No. 2018AP1145-CR
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termination of the trial. State v. Bunch, 191 Wis. 2d 501, 507, 529 N.W.2d 923
(Ct. App. 1995).

B. Additional Background

¶67 Zocco filed a pretrial motion to exclude evidence of other acts
“either prior to or following the date of the alleged offense.” At a pretrial hearing,
the prosecutor stated that: (1) the State’s expert would discuss the items located
on the external hard drive and the one CD on which the charges were based; and
(2) the State would not be “introducing any other acts, as far as anything beyond
the content of the actual … items that contain the child pornography evidence in
this case.”

¶68 In her opening statement, the prosecutor told the jury that it would
hear that detectives found child pornography on five of the thirty-nine discs taken
from Zocco’s apartment. As she began describing the discs’ content, defense
counsel objected because the State had not filed an “other acts motion.” The
prosecutor responded that the information pertained to the evidence collected in
the case, was part of the overall discovery in the case “from the beginning,” was
referenced in the police reports, was found on the same date and was the basis for
the subsequent search warrant for inspecting the external hard drive, and was
“required for a complete and accurate picture of how the evidence was uncovered
[and] what steps led to the next step” in the investigation. The circuit court
determined that the uncharged child pornography evidence was relevant as to the
knowing possession element of the charges and advised the prosecutor to delineate
“exactly which items are in the 17 counts that are being charged,” to avoid the jury
using the evidence of the uncharged child pornography to find Zocco guilty of the
charges.

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No. 2018AP1145-CR
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¶69 Zocco moved for a mistrial based on the State’s reference in its
opening statement to other acts without having provided notice. The circuit court
denied the motion, ruling that the State was referring not to other acts evidence but
to “items that were in the exact context” and “in the nature of the same events.”

¶70 During trial, one detective testified that he found child pornography
recordings on five of the thirty-nine CDs that were seized from Zocco’s apartment;
another detective testified that the four uncharged CDs contained child
pornography, all but one CD showing a girl performing oral sex with an adult
male; and in closing argument the prosecutor referenced the child pornography
found on the five CDs and told the jury that it should consider only the fifth CD,
the one containing the images that were the basis for one of the charges.

¶71 In his postconviction motion, Zocco argued that the circuit court
erroneously admitted other acts evidence and denied his mistrial motion. The
postconviction court rejected Zocco’s argument, ruling that the circuit court had
not erroneously exercised its discretion because the uncharged child pornography
was “inextricably intertwined with the evidence … that formed the basis of the
charged counts.” See Dukes, 303 Wis. 2d 208, ¶28.

C. Analysis

¶72 We conclude that the circuit court properly admitted the evidence
and denied the mistrial motion because the evidence was not improper. This
evidence is not other acts evidence. Other acts evidence refers to “instances of a
person’s ... conduct ... not the subject of [the case being litigated].” RONALD J.
ALLEN ET AL., EVIDENCE: TEXT, PROBLEMS, AND CASES 236 (5th ed. 2011). Here,
the evidence Zocco points to—recordings of child pornography found on four CDs
taken from Zocco’s apartment—is circumstantial evidence (without an

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No. 2018AP1145-CR
2018AP1146-CR

impermissible propensity inference) that was part of a chain of facts by which the
jury could infer that Zocco knowingly possessed the child pornography found on
the external hard drive and a fifth CD taken from his apartment on the same date.
See State v. Wedgeworth, 100 Wis. 2d 514, 531-33, 302 N.W.2d 810 (1981)
(“evidence relating to the weapons found in the defendant’s residence [was] part
of a chain of facts by which the state sought to have the jury infer that the
defendant possessed heroin with the intent to deliver” where the quantity of heroin
seized was “insufficient in itself to prove intent to deliver”).

¶73 Thus, the evidence of the uncharged child pornography recordings
found on the four CDs taken on the same date as the external hard drive and fifth
CD was both inextricably intertwined with the evidence regarding the charged
child pornography recordings on the external hard drive and fifth CD and was also
necessary to complete the story of the crime on trial. See Dukes, 303 Wis. 2d 208,
¶28 (evidence that is “needed to completely describe the crime that occurred and is
thereby inextricably intertwined with the crime” is relevant and is not other acts
evidence). The jury could have reasonably found that this evidence tended to
make Zocco’s knowing possession of the charged child pornography recordings
more probable than it would have been without the evidence, and it was therefore
relevant to establishing his guilt. See WIS. STAT. § 904.01.

¶74 As we understand Zocco’s briefing, he makes two arguments to the
contrary. First, Zocco argues that the evidence of the uncharged child
pornography recordings found on the four CDs is evidence of different acts from
the charged child pornography recordings found on the external hard drive and the
fifth CD because possession of each recording may be charged as a separate
offense. See State v. Multaler, 2002 WI 35, ¶¶64-67, 252 Wis. 2d 54, 643
N.W.2d 437 (holding that individual images of child pornography on one storage

29
No. 2018AP1145-CR
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device may be separately charged). However, Zocco does not explain why the
fact that possession of each recording may be separately charged necessarily
means that the evidence of the uncharged recordings cannot be circumstantial
evidence of Zocco’s knowing possession of the charged recordings. As the circuit
court stated, “If the State finds … multiple items of contraband, they don’t have to
charge somebody with every item of contraband” or risk being unable to present
the items not charged as evidence of knowledge and lack of mistake. Zocco
presents no legal authority to the contrary.

¶75 Zocco also argues that the State “whipsawed” him by “breach[ing]”
its pretrial assurance that it would not rely on other acts evidence. However,
Zocco’s argument fails in light of our conclusion that the evidence of the
uncharged child pornography recordings is not other acts evidence. Moreover, the
State’s expert discussed only the material found on the external hard drive and CD
as charged, and the other State witnesses testified only as to the items containing
child pornography, both consistent with the State’s “pretrial assurance.”

¶76 In sum, Zocco fails to show that the circuit court erroneously
admitted the evidence of the uncharged child pornography recordings and denied
his mistrial motion.

V. New Trial in the Interest of Justice

¶77 Zocco argues that he is entitled to a new trial because the admission
of the other acts evidence and the absence of the supplemental jury instruction
prevented the real controversy from being fully tried, and because justice
miscarried in light of the absence of that jury instruction and the insufficiency of
the State’s evidence. For the reasons stated above, we have rejected Zocco’s
assertions as to the other acts evidence, the jury instruction, and the sufficiency of

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the evidence, and we therefore decline to exercise our discretionary authority to
grant Zocco a new trial in the interest of justice. See State v. Echols, 152 Wis. 2d
725, 745, 449 N.W.2d 320 (Ct. App 1989) (basing a request for a new trial “with
arguments that have already been rejected adds nothing”).

VI. Exercise of Discretion in Imposing Sentence

¶78 Zocco argues that the circuit court erroneously based its sentence on
two facts: (1) Zocco’s status as a “consumer” of child pornography, and (2) the
aggravated nature of the child pornography recordings found in his possession.
More specifically, Zocco appears to argue both that the former is inaccurate and
that the latter is irrelevant because there was no evidence that he had accessed or
seen the recordings on the external hard drive. Zocco’s argument does not survive
the applicable standard of review.

¶79 Sentencing falls within the discretion of the sentencing court.
McCleary v. State, 49 Wis. 2d 263, 275, 182 N.W.2d 512 (1971); State v. Gallion,
2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. “Discretion contemplates a
process of reasoning based on the facts of record and reasonable inferences from
those facts and a conclusion supported by a logical rationale founded upon proper
legal standards.” State v. Klubertanz, 2006 WI App 71, ¶16, 291 Wis. 2d 751,
713 N.W.2d 116 (citing McCleary, 49 Wis. 2d at 277).

¶80 The principal objectives of a sentence include protecting the
community, punishing the defendant, rehabilitating the defendant, and deterring
others from committing crimes. Gallion, 270 Wis. 2d 535, ¶40. In determining
the sentencing objectives, the sentencing court must consider certain factors,
including the gravity of the offense, the character of the defendant, and the need to
protect the public. Harris v. State, 75 Wis. 2d 513, 519, 250 N.W.2d 7 (1977)

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No. 2018AP1145-CR
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(citing McCleary, 49 Wis. 2d at 274-76). The weight assigned to each factor is
left to the court’s discretion. Harris, 75 Wis. 2d at 520. “When the circuit court
has exercised its discretion, we follow a consistent and strong policy against
interference with the discretion of the [sentencing] court, and we afford ‘a strong
presumption of reasonability’ to the court’s sentencing determination because the
[sentencing] court is best suited to consider the relevant factors and demeanor of
the convicted defendant.” Klubertanz, 291 Wis. 2d 751, ¶20 (citing Gallion, 270
Wis. 2d 535, ¶18).

¶81 As for Zocco’s objection to the circuit court’s considering him to be
consumer of child pornography, Zocco does not explain why it was necessary for
the State to have proved that he viewed the recordings on his external hard drive in
order for the court to consider him to be a consumer of the recordings found there.
The court reasonably stated that, while Zocco may not have been involved in
producing the child pornography recordings on his external hard drive, Zocco was
“providing an audience or consumer for” the child pornography recordings in his
possession simply by knowingly possessing them. Zocco’s own description of
himself as a “passive possessor” is not inconsistent with the court’s contrasting the
active role of a producer with that of a consumer. The court explained why even
“passive possession,” in Zocco’s words, is a serious offense, and pointed to the
legislature’s requiring a minimum of three years’ initial confinement for the
offense as an indication of its gravity.

¶82 As for Zocco’s objection to the circuit court’s consideration of the
“aggravated” contents of the recordings, the court noted that many of the
recordings showed “actual sexual assaults of children,” involving “physical
activity that had to be absolutely painful for the children,” many of whom were
very young, including toddlers. Where that “aggravated” nature of the contents

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could be reasonably inferred from the titles of the recordings, and where, as the
State’s expert testified, those titles were readily visible on the external hard drive,
Zocco fails to explain why the nature of the contents was not relevant to the
gravity of his knowing possession of those recordings, even in the absence of
evidence that he had viewed them on the external hard drive.

¶83 We understand the essence of Zocco’s argument to be that the circuit
court should have given less weight to the fact of Zocco’s possession and to the
contents of the recordings because there was no evidence that Zocco viewed the
recordings on the external hard drive. However, such weighing is for the circuit
court, not this court. See Harris, 75 Wis. 2d at 520. The court acknowledged that
it had been several years since the recordings had been viewed or shared but
balanced that fact against such factors as the need to discourage the accumulation
of increasing amounts of child pornography, the “excruciating” nature and length
of sexual assaults shown on the recordings (from eleven seconds to over thirty-
three minutes), a statement from one of the victims in the recordings describing
the adverse effects of her victimization, and Zocco’s lack of remorse or
responsibility. As a result of that balancing, the court concluded that there needed
to be ample time for punishment for the “very serious possession [of] very serious
child pornography,” for rehabilitation, and for protection of the public. Zocco
fails to show that the court erred in considering the facts and reasonable inferences
from the evidence at trial, in order to make a reasoned decision that a reasonable
judge could make.

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VII. Validity of the Extended Supervision Condition

¶58 Zocco challenges the validity of the extended supervision condition
“that you [Zocco] not be involved in any conduct that rises to the level of a finding
of probable cause that you have violated the criminal law.”

¶59 Circuit courts have “broad discretion” to impose conditions of
extended supervision “as long as the conditions are reasonable and appropriate.”
State v. Koenig, 2003 WI App 12, ¶7, 259 Wis. 2d 833, 656 N.W.2d 499. A
condition may not conflict with other statutory provisions. State v. Hoppe, 2014
WI App 51, ¶8, 354 Wis. 2d 219, 847 N.W.2d 869. A condition is not
unconstitutionally vague if it provides “fair and adequate notice” of the conduct
required. Koenig, 259 Wis. 2d 833, ¶¶9, 14.

¶60 Zocco argues that: (1) the condition is unreasonable because it
conflicts with the preponderance of the evidence burden to prove a violation of a
condition of supervision; and (2) the condition is unconstitutionally vague because
it requires that Zocco not engage in behavior that others might deem as probable
cause of illegality. We reject both arguments as follows.

¶61 First, Zocco fails to explain how the standard for the Department of
Corrections to prove a violation to revoke supervision (preponderance of the
evidence) is relevant to the standard for him to avoid probable cause of
committing a violation. That is, he does not explain why there is a conflict
between holding the Department to one standard of proof to revoke supervision,
and holding him to a different standard in conducting himself while on
supervision.

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¶62 Second, Zocco concedes that the definition of probable cause is not
vague. Rather, he argues that the condition depends on the “notions of others” as
to what constitutes probable cause of a crime. However, Zocco does not develop
this argument in terms of his constitutional challenge. Accordingly, we do not
further consider his challenge based on vagueness. See Herder Hallmark
Consultants, Inc. v. Regnier Consulting Grp., Inc., 2004 WI App 134, ¶16, 275
Wis. 2d 349, 685 N.W.2d 564 (ordinarily we will not address undeveloped
arguments).

CONCLUSION

¶63 For the reasons stated, we reject Zocco’s appellate arguments and
affirm.

By the Court.—Judgments and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18)

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