State v. Kimberly D. Zapata

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.
May 12, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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 No. 2025AP425-CR Cir. Ct. No. 2022CF4307

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KIMBERLY D. ZAPATA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: KORI L. ASHLEY, Judge. Affirmed.

Before Donald, C.J., Colón, P.J., and Geenen, J.

¶1 GEENEN, J. In 2022, the Deputy Director of the City of
Milwaukee Election Commission, Kimberly D. Zapata, requested three military
absentee ballots using fictious names and directed that the ballots be sent to a state
legislator. As a result of the requests, Zapata was charged with and convicted by a
No. 2025AP425-CR

jury of three counts of election fraud under WIS. STAT. § 12.13(3)(i) (2023-24)1
and one count of misconduct in public office under WIS. STAT. § 946.12(2).

¶2 Zapata appeals from her judgment of conviction, arguing that she did
not violate WIS. STAT. § 12.13(3)(i) because she did not request fictious ballots
“for the purpose of obtaining” the ballots. She additionally argues that she did not
violate WIS. STAT. § 946.12(2) because there was no material connection between
her conduct and the powers and duties of her public office.

¶3 We conclude that WIS. STAT. § 12.13(3)(i) prohibits making false
statements for the purpose of actually or constructively obtaining an absentee
ballot, and Zapata constructively obtained the ballots she requested. We further
conclude that the evidence adduced at trial established a material connection
between Zapata’s election fraud and her public office sufficient to support her
conviction of misconduct in public office under WIS. STAT. § 946.12(2).
Accordingly, we affirm.

BACKGROUND

¶4 In November 2022, the State charged Zapata with misconduct in
public office (acting in excess of lawful authority) and three counts of making a
false statement to obtain an absentee ballot. According to the complaint, in the fall
of 2022, Zapata was the Deputy Director of the City of Milwaukee Election
Commission. After the local news reported that “an unknown” individual
fraudulently applied for military absentee ballots and had them sent to a state
legislator who was advancing “outrageous conspiracy theories” about election

1
All references to the Wisconsin Statutes are to the 2023-24 version.

2
No. 2025AP425-CR

fraud, Zapata told her supervisor that she was the person who falsified the requests
for absentee ballots. She explained that by requesting the ballots, she was trying
“to show how easy it is to commit fraud” when it comes to military absentee
ballots.

¶5 Zapata subsequently met with police about her conduct. She
admitted that through the “MyVote website,”2 she “fabricated three individuals
who did not exist, … used those fabricated names to have military voter absentee
requests sent to the municipal clerks in Shorewood, South Milwaukee, and
Menomonee Falls,” and then “had the absentee ballots sent to” the state legislator.
Zapata wanted to “make a point that there is fraud in existence” and have the
legislator “focus” on “actual true fraud[.]” Zapata acknowledged using her work
laptop and accessing a “voter registration database” that is “only available to the
municipality employees” in order to obtain the legislator’s address.

¶6 After the meeting, the State filed the charges at issue in this case,
and the case went to trial. The evidence at trial consisted of testimony from the
three municipal clerks who received Zapata’s military absentee ballot requests, the
deputy administrator for the Wisconsin Elections Commission, the lead
investigator in this case, and Zapata’s supervisor, the Executive Director of the
City of Milwaukee Election Commission. The jury also heard Zapata’s police
interview. This evidence established the following.

2
Per the trial testimony, the MyVote website is a public-facing voter portal available in
Wisconsin, wherein voters can request an absentee ballot, view their voting records and
registration information, look up their polling place, and view a sample ballot.

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No. 2025AP425-CR

¶7 As deputy director for the Milwaukee Election Commission, Zapata
worked to ensure that elections ran smoothly and securely, including overseeing
absentee voting. Her obligation was to follow the statutorily prescribed processes.

¶8 Prior to the fall 2022 election, Zapata became concerned about the
process for requesting military absentee ballots. Because a person requesting a
military absentee ballot on the MyVote website did not need to provide photo
identification or be registered to vote to make the request, Zapata felt that the
process was susceptible to fraud. Zapata raised this concern with her supervisor
and with the Wisconsin Elections Commission, to no avail.

¶9 Frustrated with public criticism of her office and by conspiracy
theories about election fraud, Zapata wanted “the truth to come out” about “actual
problems” with elections. Using her work laptop in the early morning hours of
October 25, 2022, she accessed the MyVote website and requested military
absentee ballots in the names of three fake individuals: Holly Jones, Holly Adams,
and Holly Brandtjen. Zapata looked up random home addresses in South
Milwaukee, Shorewood, and Menomonee Falls, and assigned one to each fake
name. She chose residences in South Milwaukee and Shorewood because she felt
these areas had “subpar” municipal clerks who would not catch the fraud.

¶10 Zapata requested that each ballot be sent to the home of a state
legislator because the legislator was “the most vocal election fraud politician” that
she knew. To locate the legislator’s address, Zapata logged into “WisVote,”
which is a statewide voter registration database only accessible to “employees who
are responsible for administering elections.” Zapata hoped that the municipal
clerks would issue the ballots and that when the legislator received them, the

4
No. 2025AP425-CR

legislator would “redirect … her focus away from … outrageous conspiracy
theories to something that’s actually real.”

¶11 The municipal clerks in South Milwaukee, Shorewood, and
Menomonee Falls mailed absentee ballots to the legislator’s residence. After
receiving the ballots, the legislator issued a press release opining that “someone
was trying to point out how easy it is to get military ballots in Wisconsin.” When
Zapata’s supervisor shared a news article about the legislator’s statement, Zapata
responded that the legislator “had a point.” Zapata later told her supervisor that
she was the person who falsified the requests for absentee ballots.

¶12 At the close of the State’s evidence at trial, Zapata filed two motions
to dismiss. The first motion exclusively addressed the misconduct in public office
charge. Zapata argued that the State “failed to show Ms. Zapata’s actions of
sending three absentee ballots were done in her capacity as a public employee.”
She maintained that she “was acting as a private individual[.]”

¶13 Zapata’s second motion to dismiss addressed all four charges. She
maintained that the State “completely failed to show Ms. Zapata made a false
statement for the purpose of obtaining an absentee ballot.” She asserted that she
did not commit election fraud within the meaning of WIS. STAT. § 12.13(3)(i),
because the evidence showed that “her only purpose was that the absentee ballots
would be acquired by someone else.” Because the misconduct in public office
charge was premised on a violation of § 12.13(3)(i), Zapata contended that the
misconduct charge should also be dismissed.

¶14 The circuit court denied Zapata’s motions to dismiss. The court
reasoned that, as to the election fraud charges, WIS. STAT. § 12.13(3)(i) does not
require that false statements be made for the purpose of “personally obtain[ing]”

5
No. 2025AP425-CR

an absentee ballot. In considering the misconduct in public office charge, the
court observed that there was “a lot of” evidence supporting the conclusion that
Zapata had acted in her official capacity.

¶15 The jury found Zapata guilty on all charges. Zapata appeals from
her judgment of conviction, challenging the circuit court’s denial of her motions to
dismiss at the close of the State’s case.

DISCUSSION

I. The circuit court correctly denied Zapata’s motion to dismiss the
election fraud charges under WIS. STAT. § 12.13(3)(i).

¶16 Zapata argues that the legitimacy of the election fraud charges
depends on the meaning of the phrase “for the purpose of obtaining” in WIS. STAT.
§ 12.13(3)(i). “Statutory interpretation and the application of a statute to a given
set of facts are questions of law” that we review independently. State v. Shoeder,
2019 WI App 60, ¶6, 389 Wis. 2d 244, 936 N.W.2d 172.

¶17 The well-established rules of statutory interpretation guide our
analysis. Statutory interpretation “‘begins with the language of the statute.’”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110 (citation omitted). “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. Context
and structure are also “important to 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.

6
No. 2025AP425-CR

¶18 A statute’s purpose is “perfectly relevant to a plain-meaning
interpretation of an unambiguous statute as long as” the purpose is “ascertainable
from the text and structure of the statute itself, rather than extrinsic sources, such
as legislative history.” Id., ¶48. “[A] plain-meaning interpretation cannot
contravene a textually or contextually manifest statutory purpose.” Id., ¶49; see
also State v. Dinkins, 2012 WI 24, ¶29, 339 Wis. 2d 78, 810 N.W.2d 787 (“An
interpretation that contravenes the manifest purpose of the statute is
unreasonable.”).

¶19 We first consider whether the plain meaning of the statutory
language is clear. Under WIS. STAT. § 12.13(3)(i), no person may “[f]alsely make
any statement for the purpose of obtaining or voting an absentee ballot[.]” Zapata
argues that “obtaining” should be narrowly construed to mean actual, physical
possession of the absentee ballot by the person who falsely made the statement
requesting the ballot, and Zapata never physically possessed the absentee ballots
she requested. The State argues that the term “obtaining” commonly refers to the
act of coming into “possession” of something by either personally possessing it, or
indirectly by acquiring it for another person, and the law recognizes both actual
and constructive possession. The State asserts that Zapata did not need to
physically “obtain” the ballots to constructively possess them so long as she
“exercised control over” the ballots.

¶20 The term “obtaining” is not defined in the statute. “When a term is
not defined, a general principle of statutory construction is that the term should be
given its ‘common, ordinary, and accepted meaning.’” Dinkins, 339 Wis. 2d 78,

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No. 2025AP425-CR

¶37 (citation omitted). We often refer to dictionary definitions to ascertain an
undefined term’s common, ordinary, and accepted meaning.3

¶21 The dictionary definitions offered by the parties are largely the same,
and we choose to refer to the definition from the Oxford English Dictionary, as
cited by both parties: “obtain” means “[t]o come into the possession of; to procure;
to get, acquire, or secure.”4 Because we agree with the parties that “obtaining”
something is the act of coming into “possession” of that thing, we turn to criminal
cases involving possessory offenses to further guide our analysis.

¶22 “In cases interpreting criminal statutes governing possessory
offenses, [the supreme court] has consistently concluded that the term ‘possession’
includes both actual and constructive possession.” State v. Peete, 185 Wis. 2d 4,
14-15, 517 N.W.2d 149 (1994). Constructive possession is “a description of
circumstances that are sufficient to support an inference that the person exercised
control over, or intended to possess, the item in question.” State v. Allbaugh, 148
Wis. 2d 807, 814, 436 N.W.2d 898 (Ct. App. 1989) (citation omitted).
“Constructive possession may be established by demonstrating that the defendant
knowingly had the power and intention to exercise dominion and control over the

3
See, e.g., Miller Compressing Co. v. Busby as Trustee of SFM Marital Trust, 2025
WI App 29, ¶23, 416 Wis. 2d 354, 21 N.W.3d 778; State ex rel. Kalal v. Circuit Ct. for Dane
Cnty., 2004 WI 58, ¶¶53-54, 271 Wis. 2d 633, 681 N.W.2d 110; Jamerson v. DCF, 2012 WI
App 32, ¶20, 340 Wis. 2d 215, 813 N.W.2d 221.
4
Obtain, OXFORD ENGLISH DICTIONARY, https://www.oed.com/dictionary/obtain_v
(last visited May 8, 2026); see also Obtain, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/obtain (last visited May 8, 2026); Obtain,
DICTIONARY.COM, https://www.dictionary.com/browse/obtain (last visited Apr. 21, 2026);
Obtain, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
https://ahdictionary.com/word/search.html?q=obtain (last visited May 8, 2026).

8
No. 2025AP425-CR

object, either directly or through others, thus establishing a nexus between himself
and the object.” United States v. Katz, 582 F.3d 749, 752 (7th Cir. 2009).

¶23 We agree with the State that “obtaining,” as used in WIS. STAT.
§ 12.13(3)(i), does not necessarily require that the person making the false
statement intends to physically possess the ballot.5 Interpreting “obtain” broadly
to include actual and constructive obtainment is consistent with case law
interpreting criminal statutes governing possessory offenses, and it is consistent
with the manifest purpose of the statute. See Dinkins, 339 Wis. 2d 78, ¶¶58-60.
Section 12.13 aims to protect elections from various kinds of falsifications and
fraud throughout various stages of the election process. See §§ 12.13(1)(b),
(2)(b)4., (3)(a), (am), (g), (u), (w). It would defeat the purpose of § 12.13 to allow
individuals to do what Zapata did here: inject false ballot requests into the
electoral system so long as the requestors did not direct that the ballots be sent to
themselves or someone they knew. Conversely, the State’s construction of
“obtaining” is reasonable and consistent with the manifest purpose of the statute.
“If a statute is capable of a reasonable construction that carries out the manifest
purpose of the enactment, that construction should be given.” Milwaukee Police
Ass’n v. City of Milwaukee, 2018 WI 86, ¶29, 383 Wis. 2d 247, 914 N.W.2d 597.

¶24 Having construed the term “obtaining” to include constructive
obtainment, we turn to Zapata’s argument that she did not constructively obtain
the ballots. Zapata asserts that she did not know or control the person to whom

5
Indeed, Zapata appears to acknowledge that a person can violate WIS. STAT.
§ 12.13(3)(i) even if they do not personally receive the physical ballots. For example, Zapata
observes that a person might “obtain” a ballot issued to someone else if the applicant continued to
exercise control over the ballot through the recipient as her agent.

9
No. 2025AP425-CR

she sent the ballots, so she did not constructively possess or obtain the ballots. We
reject Zapata’s argument. The evidence supports the finding that Zapata
“obtained” the absentee ballots she requested, and consistent with the case law
discussing constructive possession, the pivotal question, then, is whether Zapata
“exercised control” over the ballots. See Peete, 185 Wis. 2d at 16; Allbaugh, 148
Wis. 2d at 814; see also Katz, 582 F.3d at 752.

¶25 We conclude that she did. The evidence demonstrates that by
requesting the ballots, Zapata set off a series of actions she knew the ballots would
be subjected to. She knew that by requesting the ballots, the ballots would be
generated under the fake names that she provided. She also knew that the ballots,
once generated per her request, would be sent to the address that she provided. In
other words, Zapata controlled both the names under which the ballots would be
generated and the destination to which those ballots would be sent. She
“knowingly had the power and intention to exercise dominion and control over”
the ballots “through others” (i.e., via the election officials that create and send out
absentee ballots), “thus establishing a nexus between” Zapata and the ballots.
Katz, 582 F.3d at 752. In our view, directing the creation and destination of the
false ballots is “exercising control” over them. Because Zapata “exercised
control” over the ballots, her conduct violated WIS. STAT. § 12.13(3)(i).
Therefore, the circuit court did not err in denying Zapata’s motion to dismiss the
election fraud charges under § 12.13(3)(i).

II. The circuit court correctly denied Zapata’s motion to dismiss the
misconduct in public office charge under WIS. STAT. § 946.12.

¶26 Zapata also challenges the sufficiency of the evidence convicting her
of misconduct in public office under WIS. STAT. § 946.12. We will not reverse a
conviction “unless the evidence, viewed most favorably to the [S]tate and the

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No. 2025AP425-CR

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). “A challenge to the
sufficiency of the evidence presents two questions. We must first determine what
the State was required to prove, and then, applying the standard of review noted
above, whether it did so.” State v. Schutte, 2006 WI App 135, ¶15, 295 Wis. 2d
256, 720 N.W.2d 469.

¶27 We begin with the language of the statute. WISCONSIN STAT.
§ 946.12(2), the subsection under which Zapata was convicted, states that any
public officer or employee that does the following is guilty of a Class I felony:

In the officer’s or employee’s capacity as such officer or
employee, does an act which the officer or employee knows
is in excess of the officer’s or employee’s lawful authority
or which the officer or employee knows the officer or
employee is forbidden by law to do in the officer’s or
employee’s official capacity[.]

To convict Zapata of misconduct in public office under this statute, the State
needed to prove that: (1) at the time of the offense, Zapata was a public employee;
(2) in her capacity as a public employee, Zapata fabricated names in order to
obtain absentee ballots; (3) Zapata’s actions were in excess of her lawful authority;
and (4) Zapata knew that her conduct was in excess of her lawful authority. See
WIS JI—CRIMINAL 1731.

¶28 Zapata argues that she did not act in her capacity as a public
employee when she requested the absentee ballots, but rather, she was acting “as a
concerned private citizen.” She relies primarily on State v. Schmit, 115 Wis. 2d
657, 340 N.W.2d 752 (Ct. App. 1983) to assert that she “did not use her official

11
No. 2025AP425-CR

authority to leverage or effectuate what she did,” and as a consequence, no
“material connection” was established between her conduct and her public office.

¶29 We considered what constitutes a public employee’s official
authority in State v. Schmit, where the defendant, a prison guard, engaged in
consensual sex with an inmate while on duty. Id. at 658. The prison guard was
charged under WIS. STAT. § 942.12(2) for committing an act (fornication) which
she was “‘forbidden by law to do in [her] official capacity.’” Schmit, 115 Wis. 2d
at 659 (citation omitted). The circuit court dismissed the charge after determining
“that an act of fornication committed by a public officer while on duty did not,
standing alone, constitute misconduct in office[.]” Id.

¶30 We affirmed, concluding that WIS. STAT. § 946.12(2) “requires on
its face more than a mere violation of the criminal code by a public official.”
Schmit, 115 Wis. 2d at 660. Because the purpose of the statute is “the prevention
of the misuse of power entrusted to public officers,” we found it problematic that
there was “no suggestion in the record that the defendant utilized the power of her
office in any manner when she had intercourse with the prisoner, or that she
committed those acts in any other than a ‘purely private capacity.’” Id. at 660-62.
We observed that there was no suggestion that the defendant “threatened sanctions
or offered benefits within her power as a public officer to bestow or withhold in
order to obtain the prisoner’s consent to the acts.” Id. at 662. “The mere fact that
she was on duty when the acts were committed does not, in our judgment,
transform private acts of fornication into acts done in an official capacity. Indeed,
her conduct was far removed from any duties of the job she held.” Id.

¶31 We observed that acts which are “inherently related to the duties of
the office in question” may fall within the official capacity of the officer, but

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No. 2025AP425-CR

“[a]bsent any material connection between the forbidden act and the public
office … [the] statute does not apply.” Id. at 665. The forbidden act must
“inherently implicate the power of her public office[.]” Id. at 663.

¶32 The cases cited in Schmit confirm that acting in an “official
capacity” requires a material connection between the public official’s duties and
powers and the forbidden act. Although those cases did not involve WIS. STAT.
§ 946.12, our supreme court determined that the defendants were not acting in
their official capacities because their duties and powers were not implicated under
the circumstances. See, e.g., State v. Barrett, 96 Wis. 2d 174, 176, 180-81, 291
N.W.2d 498 (1980) (concluding that, for purposes of a statute prohibiting battery
to peace officers, a Richland County deputy sheriff was not acting in his official
capacity while making an arrest in an adjacent county because “the attempt to
exercise his powers as a peace officer outside of his county of employment is not
within the scope of his employment”); State v. Hibicke, 263 Wis. 213, 217-18, 56
N.W.2d 818 (1953) (concluding that, for purposes of a statute prohibiting bribery,
a town constable was not acting in his official capacity by soliciting money in
exchange for exerting his influence with the town board to obtain a trailer-camp
license for a person whose application had been previously denied where the
constable did not have the power to grant or vote upon the issuance of such
licenses).

¶33 We conclude that, unlike the defendants in Schmit, Barrett, and
Hibicke, the evidence adduced at trial established a material connection between
Zapata’s election fraud and her public office. In Schmit, nothing in the record
suggested that the defendant “utilized the power of her office in any manner”
when she committed the acts. Schmit, 115 Wis. 2d at 662. That cannot be said
here. Zapata used her work laptop to request the absentee ballots, and she entered

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No. 2025AP425-CR

her employee credentials to access WisVote—an administrative website only
accessible to employees administering elections—for the purpose of obtaining the
address of the state legislator to whom she sent the ballots. Additionally, Zapata
used her institutional knowledge to pick which municipalities to be the target of
her fraud, believing that these clerks were “subpar” and would not catch the fraud.
Using City-issued equipment and credentials to access an employee-only database
for the purpose of obtaining fraudulent absentee ballots from clerks that she
believed to be subpar based on knowledge she accrued only because of her public
office amounts to a “material connection” between the misconduct and the public
office, a connection that is much stronger than the incidental connections present
in Schmit or the nonexistent ones in Barrett and Hibicke. In our view, the State
established a material connection between Zapata’s election fraud and the powers
and duties inherent to her public office, and the circuit court was correct in
denying Zapata’s motion to dismiss that charge.

¶34 Before concluding, we address Zapata’s other arguments. Zapata
argues that the rule of lenity precludes punishing her for violating WIS. STAT.
§§ 12.13(3)(i) and 946.12(2) because those statutes are ambiguous, and “any
ambiguity in respect to a penal statute must be resolved against imposing penalty
provisions. Unless the legislature has made it absolutely clear against whom
penalties lie, penal provisions should not be applied.” Strong v. C.I.R., Inc., 184
Wis. 2d 619, 628-29, 516 N.W.2d 719 (1994). This argument is forfeited because
Zapata did not present it to the circuit court in her motions to dismiss. See State v.
Bodoh, 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999) (“It is the often-repeated
rule in this State that issues not raised or considered in the trial court will not be
considered for the first time on appeal.” (citation omitted)).

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No. 2025AP425-CR

¶35 Similarly, Zapata makes vague arguments related to the First
Amendment and whether she acted in excess of her authority under WIS. STAT.
§ 946.12(2). In addition to being forfeited because they were not raised before the
circuit court, they are undeveloped, and we do not develop arguments for parties.
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

CONCLUSION

¶36 For the foregoing reasons, we conclude that the circuit court
correctly denied Zapata’s motions to dismiss her charges under WIS. STAT.
§§ 12.13(3)(i) and 946.12(2). Zapata “obtained” the absentee ballots as that term
is used in § 12.13(3)(i), and the State established a material connection between
her election fraud and the duties and powers of her public office under
§ 946.12(2). We affirm.

By the Court.—Judgment affirmed.

Recommended for publication in the official reports.

15

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.
May 12, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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 No. 2025AP425-CR Cir. Ct. No. 2022CF4307

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KIMBERLY D. ZAPATA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: KORI L. ASHLEY, Judge. Affirmed.

Before Donald, C.J., Colón, P.J., and Geenen, J.

¶1 GEENEN, J. In 2022, the Deputy Director of the City of
Milwaukee Election Commission, Kimberly D. Zapata, requested three military
absentee ballots using fictitious names and directed that the ballots be sent to a
state legislator. As a result of the requests, Zapata was charged with and convicted
No. 2025AP425-CR

by a jury of three counts of election fraud under WIS. STAT. § 12.13(3)(i) (2023-
24)1 and one count of misconduct in public office under WIS. STAT. § 946.12(2).

¶2 Zapata appeals from her judgment of conviction, arguing that she did
not violate WIS. STAT. § 12.13(3)(i) because she did not request fictitious ballots
“for the purpose of obtaining” the ballots. She additionally argues that she did not
violate WIS. STAT. § 946.12(2) because there was no material connection between
her conduct and the powers and duties of her public office.

¶3 We conclude that WIS. STAT. § 12.13(3)(i) prohibits making false
statements for the purpose of actually or constructively obtaining an absentee
ballot, and Zapata constructively obtained the ballots she requested. We further
conclude that the evidence adduced at trial established a material connection
between Zapata’s election fraud and her public office sufficient to support her
conviction of misconduct in public office under WIS. STAT. § 946.12(2).
Accordingly, we affirm.

BACKGROUND

¶4 In November 2022, the State charged Zapata with misconduct in
public office (acting in excess of lawful authority) and three counts of making a
false statement to obtain an absentee ballot. According to the complaint, in the fall
of 2022, Zapata was the Deputy Director of the City of Milwaukee Election
Commission. After the local news reported that “an unknown” individual
fraudulently applied for military absentee ballots and had them sent to a state
legislator who was advancing “outrageous conspiracy theories” about election

1
All references to the Wisconsin Statutes are to the 2023-24 version.

2
No. 2025AP425-CR

fraud, Zapata told her supervisor that she was the person who falsified the requests
for absentee ballots. She explained that by requesting the ballots, she was trying
“to show how easy it is to commit fraud” when it comes to military absentee
ballots.

¶5 Zapata subsequently met with police about her conduct. She
admitted that through the “MyVote website,”2 she “fabricated three individuals
who did not exist, … used those fabricated names to have military voter absentee
requests sent to the municipal clerks in Shorewood, South Milwaukee, and
Menomonee Falls,” and then “had the absentee ballots sent to” the state legislator.
Zapata wanted to “make a point that there is fraud in existence” and have the
legislator “focus” on “actual true fraud[.]” Zapata acknowledged using her work
laptop and accessing a “voter registration database” that is “only available to the
municipality employees” in order to obtain the legislator’s address.

¶6 After the meeting, the State filed the charges at issue in this case,
and the case went to trial. The evidence at trial consisted of testimony from the
three municipal clerks who received Zapata’s military absentee ballot requests, the
deputy administrator for the Wisconsin Elections Commission, the lead
investigator in this case, and Zapata’s supervisor, the Executive Director of the
City of Milwaukee Election Commission. The jury also heard Zapata’s police
interview. This evidence established the following.

2
Per the trial testimony, the MyVote website is a public-facing voter portal available in
Wisconsin, wherein voters can request an absentee ballot, view their voting records and
registration information, look up their polling place, and view a sample ballot.

3
No. 2025AP425-CR

¶7 As deputy director for the Milwaukee Election Commission, Zapata
worked to ensure that elections ran smoothly and securely, including overseeing
absentee voting. Her obligation was to follow the statutorily prescribed processes.

¶8 Prior to the fall 2022 election, Zapata became concerned about the
process for requesting military absentee ballots. Because a person requesting a
military absentee ballot on the MyVote website did not need to provide photo
identification or be registered to vote to make the request, Zapata felt that the
process was susceptible to fraud. Zapata raised this concern with her supervisor
and with the Wisconsin Elections Commission, to no avail.

¶9 Frustrated with public criticism of her office and by conspiracy
theories about election fraud, Zapata wanted “the truth to come out” about “actual
problems” with elections. Using her work laptop in the early morning hours of
October 25, 2022, she accessed the MyVote website and requested military
absentee ballots in the names of three fake individuals: Holly Jones, Holly Adams,
and Holly Brandtjen. Zapata looked up random home addresses in South
Milwaukee, Shorewood, and Menomonee Falls, and assigned one to each fake
name. She chose residences in South Milwaukee and Shorewood because she felt
these areas had “subpar” municipal clerks who would not catch the fraud.

¶10 Zapata requested that each ballot be sent to the home of a state
legislator because the legislator was “the most vocal election fraud politician” that
she knew. To locate the legislator’s address, Zapata logged into “WisVote,”
which is a statewide voter registration database only accessible to “employees who
are responsible for administering elections.” Zapata hoped that the municipal
clerks would issue the ballots and that when the legislator received them, the

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No. 2025AP425-CR

legislator would “redirect … her focus away from … outrageous conspiracy
theories to something that’s actually real.”

¶11 The municipal clerks in South Milwaukee, Shorewood, and
Menomonee Falls mailed absentee ballots to the legislator’s residence. After
receiving the ballots, the legislator issued a press release opining that “someone
was trying to point out how easy it is to get military ballots in Wisconsin.” When
Zapata’s supervisor shared a news article about the legislator’s statement, Zapata
responded that the legislator “had a point.” Zapata later told her supervisor that
she was the person who falsified the requests for absentee ballots.

¶12 At the close of the State’s evidence at trial, Zapata filed two motions
to dismiss. The first motion exclusively addressed the misconduct in public office
charge. Zapata argued that the State “failed to show Ms. Zapata’s actions of
sending three absentee ballots were done in her capacity as a public employee.”
She maintained that she “was acting as a private individual[.]”

¶13 Zapata’s second motion to dismiss addressed all four charges. She
maintained that the State “completely failed to show Ms. Zapata made a false
statement for the purpose of obtaining an absentee ballot.” She asserted that she
did not commit election fraud within the meaning of WIS. STAT. § 12.13(3)(i),
because the evidence showed that “her only purpose was that the absentee ballots
would be acquired by someone else.” Because the misconduct in public office
charge was premised on a violation of § 12.13(3)(i), Zapata contended that the
misconduct charge should also be dismissed.

¶14 The circuit court denied Zapata’s motions to dismiss. The court
reasoned that, as to the election fraud charges, WIS. STAT. § 12.13(3)(i) does not
require that false statements be made for the purpose of “personally obtain[ing]”

5
No. 2025AP425-CR

an absentee ballot. In considering the misconduct in public office charge, the
court observed that there was “a lot of” evidence supporting the conclusion that
Zapata had acted in her official capacity.

¶15 The jury found Zapata guilty on all charges. Zapata appeals from
her judgment of conviction, challenging the circuit court’s denial of her motions to
dismiss at the close of the State’s case.

DISCUSSION

I. The circuit court correctly denied Zapata’s motion to dismiss the
election fraud charges under WIS. STAT. § 12.13(3)(i).

¶16 Zapata argues that the legitimacy of the election fraud charges
depends on the meaning of the phrase “for the purpose of obtaining” in WIS. STAT.
§ 12.13(3)(i). “Statutory interpretation and the application of a statute to a given
set of facts are questions of law” that we review independently. State v. Shoeder,
2019 WI App 60, ¶6, 389 Wis. 2d 244, 936 N.W.2d 172.

¶17 The well-established rules of statutory interpretation guide our
analysis. Statutory interpretation “‘begins with the language of the statute.’”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110 (citation omitted). “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. Context
and structure are also “important to 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.

6
No. 2025AP425-CR

¶18 A statute’s purpose is “perfectly relevant to a plain-meaning
interpretation of an unambiguous statute as long as” the purpose is “ascertainable
from the text and structure of the statute itself, rather than extrinsic sources, such
as legislative history.” Id., ¶48. “[A] plain-meaning interpretation cannot
contravene a textually or contextually manifest statutory purpose.” Id., ¶49; see
also State v. Dinkins, 2012 WI 24, ¶29, 339 Wis. 2d 78, 810 N.W.2d 787 (“An
interpretation that contravenes the manifest purpose of the statute is
unreasonable.”).

¶19 We first consider whether the plain meaning of the statutory
language is clear. Under WIS. STAT. § 12.13(3)(i), no person may “[f]alsely make
any statement for the purpose of obtaining or voting an absentee ballot[.]” Zapata
argues that “obtaining” should be narrowly construed to mean actual, physical
possession of the absentee ballot by the person who falsely made the statement
requesting the ballot, and Zapata never physically possessed the absentee ballots
she requested. The State argues that the term “obtaining” commonly refers to the
act of coming into “possession” of something by either personally possessing it, or
indirectly by acquiring it for another person, and the law recognizes both actual
and constructive possession. The State asserts that Zapata did not need to
physically “obtain” the ballots to constructively possess them so long as she
“exercised control over” the ballots.

¶20 The term “obtaining” is not defined in the statute. “When a term is
not defined, a general principle of statutory construction is that the term should be
given its ‘common, ordinary, and accepted meaning.’” Dinkins, 339 Wis. 2d 78,

7
No. 2025AP425-CR

¶37 (citation omitted). We often refer to dictionary definitions to ascertain an
undefined term’s common, ordinary, and accepted meaning.3

¶21 The dictionary definitions offered by the parties are largely the same,
and we choose to refer to the definition from the Oxford English Dictionary, as
cited by both parties: “obtain” means “[t]o come into the possession of; to procure;
to get, acquire, or secure.”4 Because we agree with the parties that “obtaining”
something is the act of coming into “possession” of that thing, we turn to criminal
cases involving possessory offenses to further guide our analysis.

¶22 “In cases interpreting criminal statutes governing possessory
offenses, [the supreme court] has consistently concluded that the term ‘possession’
includes both actual and constructive possession.” State v. Peete, 185 Wis. 2d 4,
14-15, 517 N.W.2d 149 (1994). Constructive possession is “a description of
circumstances that are sufficient to support an inference that the person exercised
control over, or intended to possess, the item in question.” State v. Allbaugh, 148
Wis. 2d 807, 814, 436 N.W.2d 898 (Ct. App. 1989) (citation omitted).
“Constructive possession may be established by demonstrating that the defendant
knowingly had the power and intention to exercise dominion and control over the

3
See, e.g., Miller Compressing Co. v. Busby as Trustee of SFM Marital Trust, 2025
WI App 29, ¶23, 416 Wis. 2d 354, 21 N.W.3d 778; State ex rel. Kalal v. Circuit Ct. for Dane
Cnty., 2004 WI 58, ¶¶53-54, 271 Wis. 2d 633, 681 N.W.2d 110; Jamerson v. DCF, 2012 WI
App 32, ¶20, 340 Wis. 2d 215, 813 N.W.2d 221.
4
Obtain, OXFORD ENGLISH DICTIONARY, https://www.oed.com/dictionary/obtain_v
(last visited May 8, 2026); see also Obtain, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/obtain (last visited May 8, 2026); Obtain,
DICTIONARY.COM, https://www.dictionary.com/browse/obtain (last visited Apr. 21, 2026);
Obtain, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE,
https://ahdictionary.com/word/search.html?q=obtain (last visited May 8, 2026).

8
No. 2025AP425-CR

object, either directly or through others, thus establishing a nexus between himself
and the object.” United States v. Katz, 582 F.3d 749, 752 (7th Cir. 2009).

¶23 We agree with the State that “obtaining,” as used in WIS. STAT.
§ 12.13(3)(i), does not necessarily require that the person making the false
statement intends to physically possess the ballot.5 Interpreting “obtain” broadly
to include actual and constructive obtainment is consistent with case law
interpreting criminal statutes governing possessory offenses, and it is consistent
with the manifest purpose of the statute. See Dinkins, 339 Wis. 2d 78, ¶¶58-60.
Section 12.13 aims to protect elections from various kinds of falsifications and
fraud throughout various stages of the election process. See §§ 12.13(1)(b),
(2)(b)4., (3)(a), (am), (g), (u), (w). It would defeat the purpose of § 12.13 to allow
individuals to do what Zapata did here: inject false ballot requests into the
electoral system so long as the requestors did not direct that the ballots be sent to
themselves or someone they knew. Conversely, the State’s construction of
“obtaining” is reasonable and consistent with the manifest purpose of the statute.
“If a statute is capable of a reasonable construction that carries out the manifest
purpose of the enactment, that construction should be given.” Milwaukee Police
Ass’n v. City of Milwaukee, 2018 WI 86, ¶29, 383 Wis. 2d 247, 914 N.W.2d 597.

¶24 Having construed the term “obtaining” to include constructive
obtainment, we turn to Zapata’s argument that she did not constructively obtain
the ballots. Zapata asserts that she did not know or control the person to whom

5
Indeed, Zapata appears to acknowledge that a person can violate WIS. STAT.
§ 12.13(3)(i) even if they do not personally receive the physical ballots. For example, Zapata
observes that a person might “obtain” a ballot issued to someone else if the applicant continued to
exercise control over the ballot through the recipient as her agent.

9
No. 2025AP425-CR

she sent the ballots, so she did not constructively possess or obtain the ballots. We
reject Zapata’s argument. The evidence supports the finding that Zapata
“obtained” the absentee ballots she requested, and consistent with the case law
discussing constructive possession, the pivotal question, then, is whether Zapata
“exercised control” over the ballots. See Peete, 185 Wis. 2d at 16; Allbaugh, 148
Wis. 2d at 814; see also Katz, 582 F.3d at 752.

¶25 We conclude that she did. The evidence demonstrates that by
requesting the ballots, Zapata set off a series of actions she knew the ballots would
be subjected to. She knew that by requesting the ballots, the ballots would be
generated under the fake names that she provided. She also knew that the ballots,
once generated per her request, would be sent to the address that she provided. In
other words, Zapata controlled both the names under which the ballots would be
generated and the destination to which those ballots would be sent. She
“knowingly had the power and intention to exercise dominion and control over”
the ballots “through others” (i.e., via the election officials that create and send out
absentee ballots), “thus establishing a nexus between” Zapata and the ballots.
Katz, 582 F.3d at 752. In our view, directing the creation and destination of the
false ballots is “exercising control” over them. Because Zapata “exercised
control” over the ballots, her conduct violated WIS. STAT. § 12.13(3)(i).
Therefore, the circuit court did not err in denying Zapata’s motion to dismiss the
election fraud charges under § 12.13(3)(i).

II. The circuit court correctly denied Zapata’s motion to dismiss the
misconduct in public office charge under WIS. STAT. § 946.12.

¶26 Zapata also challenges the sufficiency of the evidence convicting her
of misconduct in public office under WIS. STAT. § 946.12. We will not reverse a
conviction “unless the evidence, viewed most favorably to the [S]tate and the

10
No. 2025AP425-CR

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). “A challenge to the
sufficiency of the evidence presents two questions. We must first determine what
the State was required to prove, and then, applying the standard of review noted
above, whether it did so.” State v. Schutte, 2006 WI App 135, ¶15, 295 Wis. 2d
256, 720 N.W.2d 469.

¶27 We begin with the language of the statute. WISCONSIN STAT.
§ 946.12(2), the subsection under which Zapata was convicted, states that any
public officer or employee that does the following is guilty of a Class I felony:

In the officer’s or employee’s capacity as such officer or
employee, does an act which the officer or employee knows
is in excess of the officer’s or employee’s lawful authority
or which the officer or employee knows the officer or
employee is forbidden by law to do in the officer’s or
employee’s official capacity[.]

To convict Zapata of misconduct in public office under this statute, the State
needed to prove that: (1) at the time of the offense, Zapata was a public employee;
(2) in her capacity as a public employee, Zapata fabricated names in order to
obtain absentee ballots; (3) Zapata’s actions were in excess of her lawful authority;
and (4) Zapata knew that her conduct was in excess of her lawful authority. See
WIS JI—CRIMINAL 1731.

¶28 Zapata argues that she did not act in her capacity as a public
employee when she requested the absentee ballots, but rather, she was acting “as a
concerned private citizen.” She relies primarily on State v. Schmit, 115 Wis. 2d
657, 340 N.W.2d 752 (Ct. App. 1983) to assert that she “did not use her official

11
No. 2025AP425-CR

authority to leverage or effectuate what she did,” and as a consequence, no
“material connection” was established between her conduct and her public office.

¶29 We considered what constitutes a public employee’s official
authority in State v. Schmit, where the defendant, a prison guard, engaged in
consensual sex with an inmate while on duty. Id. at 658. The prison guard was
charged under WIS. STAT. § 942.12(2) for committing an act (fornication) which
she was “‘forbidden by law to do in [her] official capacity.’” Schmit, 115 Wis. 2d
at 659 (citation omitted). The circuit court dismissed the charge after determining
“that an act of fornication committed by a public officer while on duty did not,
standing alone, constitute misconduct in office[.]” Id.

¶30 We affirmed, concluding that WIS. STAT. § 946.12(2) “requires on
its face more than a mere violation of the criminal code by a public official.”
Schmit, 115 Wis. 2d at 660. Because the purpose of the statute is “the prevention
of the misuse of power entrusted to public officers,” we found it problematic that
there was “no suggestion in the record that the defendant utilized the power of her
office in any manner when she had intercourse with the prisoner, or that she
committed those acts in any other than a ‘purely private capacity.’” Id. at 660-62.
We observed that there was no suggestion that the defendant “threatened sanctions
or offered benefits within her power as a public officer to bestow or withhold in
order to obtain the prisoner’s consent to the acts.” Id. at 662. “The mere fact that
she was on duty when the acts were committed does not, in our judgment,
transform private acts of fornication into acts done in an official capacity. Indeed,
her conduct was far removed from any duties of the job she held.” Id.

¶31 We observed that acts which are “inherently related to the duties of
the office in question” may fall within the official capacity of the officer, but

12
No. 2025AP425-CR

“[a]bsent any material connection between the forbidden act and the public
office … [the] statute does not apply.” Id. at 665. The forbidden act must
“inherently implicate the power of her public office[.]” Id. at 663.

¶32 The cases cited in Schmit confirm that acting in an “official
capacity” requires a material connection between the public official’s duties and
powers and the forbidden act. Although those cases did not involve WIS. STAT.
§ 946.12, our supreme court determined that the defendants were not acting in
their official capacities because their duties and powers were not implicated under
the circumstances. See, e.g., State v. Barrett, 96 Wis. 2d 174, 176, 180-81, 291
N.W.2d 498 (1980) (concluding that, for purposes of a statute prohibiting battery
to peace officers, a Richland County deputy sheriff was not acting in his official
capacity while making an arrest in an adjacent county because “the attempt to
exercise his powers as a peace officer outside of his county of employment is not
within the scope of his employment”); State v. Hibicke, 263 Wis. 213, 217-18, 56
N.W.2d 818 (1953) (concluding that, for purposes of a statute prohibiting bribery,
a town constable was not acting in his official capacity by soliciting money in
exchange for exerting his influence with the town board to obtain a trailer-camp
license for a person whose application had been previously denied where the
constable did not have the power to grant or vote upon the issuance of such
licenses).

¶33 We conclude that, unlike the defendants in Schmit, Barrett, and
Hibicke, the evidence adduced at trial established a material connection between
Zapata’s election fraud and her public office. In Schmit, nothing in the record
suggested that the defendant “utilized the power of her office in any manner”
when she committed the acts. Schmit, 115 Wis. 2d at 662. That cannot be said
here. Zapata used her work laptop to request the absentee ballots, and she entered

13
No. 2025AP425-CR

her employee credentials to access WisVote—an administrative website only
accessible to employees administering elections—for the purpose of obtaining the
address of the state legislator to whom she sent the ballots. Additionally, Zapata
used her institutional knowledge to pick which municipalities to be the target of
her fraud, believing that these clerks were “subpar” and would not catch the fraud.
Using City-issued equipment and credentials to access an employee-only database
for the purpose of obtaining fraudulent absentee ballots from clerks that she
believed to be subpar based on knowledge she accrued only because of her public
office amounts to a “material connection” between the misconduct and the public
office, a connection that is much stronger than the incidental connections present
in Schmit or the nonexistent ones in Barrett and Hibicke. In our view, the State
established a material connection between Zapata’s election fraud and the powers
and duties inherent to her public office, and the circuit court was correct in
denying Zapata’s motion to dismiss that charge.

¶34 Before concluding, we address Zapata’s other arguments. Zapata
argues that the rule of lenity precludes punishing her for violating WIS. STAT.
§§ 12.13(3)(i) and 946.12(2) because those statutes are ambiguous, and “any
ambiguity in respect to a penal statute must be resolved against imposing penalty
provisions. Unless the legislature has made it absolutely clear against whom
penalties lie, penal provisions should not be applied.” Strong v. C.I.R., Inc., 184
Wis. 2d 619, 628-29, 516 N.W.2d 719 (1994). This argument is forfeited because
Zapata did not present it to the circuit court in her motions to dismiss. See State v.
Bodoh, 226 Wis. 2d 718, 737, 595 N.W.2d 330 (1999) (“It is the often-repeated
rule in this State that issues not raised or considered in the trial court will not be
considered for the first time on appeal.” (citation omitted)).

14
No. 2025AP425-CR

¶35 Similarly, Zapata makes vague arguments related to the First
Amendment and whether she acted in excess of her authority under WIS. STAT.
§ 946.12(2). In addition to being forfeited because they were not raised before the
circuit court, they are undeveloped, and we do not develop arguments for parties.
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

CONCLUSION

¶36 For the foregoing reasons, we conclude that the circuit court
correctly denied Zapata’s motions to dismiss her charges under WIS. STAT.
§§ 12.13(3)(i) and 946.12(2). Zapata “obtained” the absentee ballots as that term
is used in § 12.13(3)(i), and the State established a material connection between
her election fraud and the duties and powers of her public office under
§ 946.12(2). We affirm.

By the Court.—Judgment affirmed.

Recommended for publication in the official reports.

15