¶ 116. {concurring). I write in concurrence because I, like the lead opinion, conclude that in light of these proceedings as a whole, Gonzalez has met his burden of demonstrating a reasonable likelihood that the jury applied the instruction on Count 1 in a manner that violates the constitution. In particular, Gonzalez has met his burden of demonstrating that the instruction was ambiguous and that there is a reasonable likelihood that the jury applied the instruction in a way that relieved the State of having to prove beyond a reasonable doubt that Gonzalez exhibited or played harmful material to three-year-old A.G. I wish to clarify, however, that the jury instruction on Count 1 was a legally correct statement of the law. I concur to highlight that the lead opinion should not be read as now requiring that the word "knowingly" be added to the first element of the jury instruction on Wis. Stat. § 948.11(2)(a). Indeed, both the pattern jury instruction and the instruction given in this case track the exact language of § 948.11(2)(a). In a different case, under a different set of facts, this identical jury instruction might not pose any constitutional concerns.
*314I. ANALYSIS
A. The jury instruction was a legally correct statement of the law.
¶ 117. The jury instruction on Count 1 tracked the exact language of Wis. Stat. § 948.11(2)(a). Section 948.11(2)(a) provides that a person is guilty of a Class I felony if he or she "with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration" and either (1) "knows or reasonably should know that the child has not attained the age of 18 years" or, alternatively, (2) "has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan."
¶ 118. Likewise, in this case, the circuit court instructed the jury as follows:
Exposing a child to harmful material, as defined in § 948.11(2)(a) of the Criminal Code of Wisconsin, is committed by one who, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration and has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.
The circuit court then broke down the statutory definition into four elements, instructing the jury that the State must prove each element beyond a reasonable doubt:
Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following four elements were present.
*3151.The defendant exhibited or played harmful material to [A.G.].
2. The defendant had knowledge of the character and content of the material.
This requires that the defendant knew that the material contained a description, narrative account, or representation of nudity, sexually explicit conduct, sexual excitement, sadomasochistic abuse, physical torture, or brutality.
3. [A.G.] was under the age of 18 years.
4. The defendant had face-to-face contact with the child before or during the exhibition or playing of the material.
¶ 119. As the lead opinion explains, and I do not dispute, the circuit court erred when it instructed the jury on the fourth element and applied the incorrect alternative under the statute. See lead op., ¶¶ 46-52. As I more fully explain in Part B, on the basis of the fourth element, I conclude that Gonzalez has met his burden of demonstrating a reasonable likelihood that the jury applied the legally correct jury instruction in a manner that violates the constitution. See infra ¶¶ 130-36.
¶ 120. The fourth element is a means of determining that the defendant knew the child was under the age of 18. See lead op., ¶ 46. Under the statute, the State can prove the fourth element in one of two ways: either by proving that the defendant (1) "kn[ew] or reasonably should [have] know[n] that the child ha[d] not attained the age of 18 years" or, alternatively, (2) "ha[d] face-to-face contact with the child before or *316during the sale, rental, exhibit, playing, distribution, or loan." See Wis. Stat. § 948.11(2)(a). In this case, given the fact that A.G. is Gonzalez's daughter, the circuit court should have instructed the jury that the fourth element is satisfied if the defendant "kn[ew] or reasonably should [have] know[n] that [A.G.] ha[d] not attained the age of 18 years." See § 948.11(2)(a). The alternative "face-to-face" instruction is inapplicable under the facts of this case. See lead op., ¶¶ 51-52; infra ¶¶ 130-31.
¶ 121. In spite of the fact that the instruction on the fourth element did not fit the facts of this case, the jury instruction otherwise tracked the exact language of Wis. Stat. § 948.11(2)(a). The lead opinion claims to conclude that the instruction was a legally correct statement of the law. See lead op., ¶¶ 26-28. Still, at times, the lead opinion implies that the jury instruction was legally inaccurate because the word "knowingly" was absent from the instruction's first element.1 That is, the lead opinion implies that the circuit court was required to explicitly instruct the jury that the jury *317must be satisfied beyond a reasonable doubt that the defendant "knowingly exhibited or played harmful material to A.G." In support, the lead opinion relies upon this court's decision in State v. Thiel, 183 Wis. 2d 505, 515 N.W.2d 847 (1994). The lead opinion reasons:
As the defendant, the circuit court, the court of appeals, the State, and this court know, the supreme court in State v. Thiel, 183 Wis. 2d 505, 535, 515 N.W.2d 847 (1994), interpreted Wis. Stat. § 948.11 to mean that "an individual violates [the statute] if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children."
Wisconsin Stat. § 948.11, construed narrowly as Thiel instructs, is the law. The circuit court must instruct the jury according to that law.
Lead op., ¶¶ 33-34 (alteration in original); see also lead op., ¶ 75 ("The Thiel court interpreted the statutory language to ensure that the statute was not unconstitutionally overbroad. That interpretation requires that an accused 'knowingly' exhibit the harmful material to the child."). The lead opinion misreads Thiel when it suggests that the circuit court was required to add the word "knowingly" to the first element of the jury instruction. In so doing, the lead opinion rewrites the statute in a manner that Thiel expressly advocated against. I, unlike the lead opinion, am not so willing to usurp the role of the legislature or disregard the precedent that Thiel commands.
¶ 122. Our decision in Thiel must be understood in context. In that case, the defendant raised a facial constitutional challenge to Wis. Stat. § 948.11, arguing that the statute, as written, is substantially overbroad. 183 Wis. 2d at 518-20. Specifically, the defendant main*318tained that the language of § 948.11(2)(a), which provides that a person may not "exhibit" material that is harmful to children, effectively chills legitimate activities protected by the First Amendment — including an adult's right to sell, view, or examine sexually explicit materials deemed harmful to minors. Id. at 521. We disagreed, concluding that "[t]he statute properly regulates the dissemination of materials considered to be harmful to minors without unduly burdening the rights of adults to have access to these same materials." Id. at 523.
¶ 123. As the Thiel court recognized, pursuant to Ginsberg v. New York, 390 U.S. 629 (1968), a state may enact a "variable obscenity" statute that prohibits the distribution of sexually explicit materials to children, even though the same materials would not be considered obscene if distributed to an adult. Thiel, 183 Wis. 2d at 524-27. At the same time, such statutes must strike a proper balance between a state's compelling interest in protecting children and an adult's First Amendment right to have access to materials not considered obscene for adults. See id. at 531 (citing Am. Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990)). Accordingly, variable obscenity statutes must be narrowly construed and, importantly, cannot be rewritten in order to conform to constitutional requirements. See id. at 533.
¶ 124. The Thiel court concluded that Wis. Stat. § 948.11, as written, can be narrowly construed to strike "a proper balance between this state's compelling interest to protect the physical and psychological well-being of our youth while not precluding adult access to materials deemed to be harmful to minors though not obscene for adults." Id. at 533-34. We reasoned that the language of § 948.11 has been narrowly drafted to only *319incidentally affect an adult's First Amendment right to view materials not considered obscene for adults. Id. at 534. In particular, the language of § 948.11(2)(a), providing that a person may not sell, loan, exhibit, or transfer harmful materials to a child, "focuses upon the affirmative conduct of an individual toward a specific minor or minors." Id. at 535. With that being the focus, the statute is "[djistinct from those cases involving the commercial display of materials to a general, consumer audience." Id. A person violates § 948.11 only "if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children in sec. 948.11(l)(b)." Id.
¶ 125. Thiel does not stand for the proposition that the word "knowingly" is a requisite of the first element of the jury instruction on Wis. Stat. § 948.11(2)(a). To the contrary, the Thiel court concluded that the statute, as written, "focuses upon the affirmative conduct of an individual toward a specific minor or minors." Id. at 535. Hence, just as the circuit court and court of appeals concluded in the instant case, see lead op., ¶ 38, the statute's requirement that a person "sell[], rent[], exhibits, play[], distribute^, or loan[]" harmful material "to a child" already contemplates knowing and affirmative conduct. The lead opinion rejects this analysis, see id., ¶ 39, and instead, appears to rely on Thiel for the proposition that the circuit court was required to explicitly instruct the jury that the jury must be satisfied beyond a reasonable doubt that the defendant "knowingly exhibited or played harmful material to A.G." However, such rewriting of § 948.11 (2) (a) amounts to judicial legislating and is exactly what the Thiel court made clear it could not do. See 183 Wis. 2d at 532-33; see also Heimerl v. *320Ozaukee Cnty., 256 Wis. 151, 155, 40 N.W.2d 564 (1949) ("[W]hile a statute should be held valid whenever by any fair interpretation it may be construed to serve a constitutional purpose, courts cannot go beyond the province of legitimate construction to save it, and where the meaning is plain, words cannot be read into it or out of it for the purpose of saving one or other possible alternative.").
¶ 126. In sum, in Thiel, this court did not rewrite Wis. Stat. § 948.11(2)(a) and insert the word "knowingly" before the phrase "sells, rents, exhibits, plays, distributes, or loans to a child any harmful material . . . ." Instead, as we parsed the statute, we narrowly construed that existing phrase as one which, as written, already encompasses affirmative conduct towards a specific minor or minors — as opposed to the act of selling, renting, exhibiting, playing, distributing, or loaning the objected to material to an adult or group of adults when it is not known that a minor is part of the group.2
¶ 127. Accordingly, both the language of Wis. Stat. § 948.11(2) (a) and this court's decision in Thiel lead me to conclude that the jury instruction on Count 1 was a legally correct statement of the law and that the absence of the word "knowingly" from the first element did not render the instruction deficient. In a different case, under a different set of facts, this identical jury instruction might not pose any constitutional concerns.
¶ 128. However, I agree with the lead opinion that in light of these proceedings as a whole, and particu*321larly in light of the jury instruction's misapplication of the fourth element, Gonzalez has met his burden of demonstrating a reasonable likelihood that the jury applied the legally correct jury instruction in a manner that violates the constitution.
B. In light of these proceedings as a whole, Gonzalez has met his burden of demonstrating a reasonable likelihood that the jury applied the jury instruction in a manner that violates the constitution.
¶ 129. A defendant is entitled to a new trial if he or she establishes that" 'there is a reasonable likelihood that the jury applied the challenged [jury] instruction[] in a manner that violates the constitution.'" State v. Burris, 2011 WI 32, ¶ 45, 333 Wis. 2d 87, 797 N.W.2d 430 (quoting State v. Lohmeier, 205 Wis. 2d 183, 193, 556 N.W.2d 90 (1996)). "[A]n 'especially heavy burden'" is placed upon a defendant "who . . . seeks to show constitutional error from a jury instruction that quotes a state statute." Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831 (2009) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). A defendant meets that burden if he or she " 'show[s] both that the instruction was ambiguous and that there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.'" Burris, 2011 WI 32, ¶ 48 (quoting Waddington, 129 S. Ct. at 831). Upon review, we consider the challenged jury instruction "in light of the proceedings as a whole, instead of viewing a single instruction in artificial isolation." Lohmeier, 205 Wis. 2d at 194.
¶ 130. In this case, in light of the proceedings as a whole, I agree with the lead opinion that Gonzalez has met his burden of demonstrating that the jury instruc*322tion on Count 1 was ambiguous and that there is a reasonable likelihood that the jury applied the instruction in a way that relieved the State of having to prove beyond a reasonable doubt that Gonzalez exhibited or played harmful material to A.G. See lead op., ¶ 78 ("The jury instruction at issue in the present case failed to sufficiently instruct the jury of the meaning of the statutory language under the circumstances of the present case. Reviewing the jury instruction and proceedings as a whole, it is reasonably likely that the jury was misled." (Emphasis added.)). Unlike the lead opinion, I do not arrive at that conclusion on the grounds that the jury instruction did not explicitly instruct the jury that it must be satisfied beyond a reasonable doubt that the defendant "knowingly" exhibited or played harmful material to A.G.3 See id., ¶¶ 36-37. As discussed above, the jury instruction correctly stated the *323law. Instead, I conclude that the jury instruction was ambiguous and that there is a reasonable likelihood that the jury was misled because the instruction misapplied the fourth element of the offense, given the facts of this case.
¶ 131. As mentioned earlier, the circuit court misapplied Wis. Stat. § 948.11(2)(a) when it instructed the jury that it must be satisfied beyond a reasonable doubt that Gonzalez "had face-to-face contact with [A.G.] before or during the exhibition or playing of the [harmful] material." As the lead opinion explains, the instruction on "face-to-face contact" is generally applicable to Internet transactions, in which the defendant may assert the affirmative defense under § 948.11(2) (c) *324that he or she "had reasonable cause to believe the child had attained the age of 18 years." See lead op., ¶ 52; Wis JI — Criminal 2142A. In such cases, the State bears the burden of proving that the defendant had "face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan" of the harmful material and therefore had knowledge of the child's age. § 948.11(2)(a)2.; see also State v. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684.
¶ 132. In this case, however, the instruction on "face-to-face contact" was unnecessary because Gonzalez's knowledge of A.G.'s age was not in doubt; A.G. is Gonzalez's daughter. Thus, the circuit court should have instructed the jury that the fourth element is satisfied on the alternative grounds that Gonzalez "kn[ew] or reasonably should [have] know[n] that [A.G.] ha[d] not attained the age of 18 years." See Wis. Stat. § 948.11(2)(a).
¶ 133. In a different case, a jury instruction's erroneous application of the instruction on "face-to-face contact" might not rise to the level of a due process violation. However, in this case, in light of the proceedings as a whole, it is reasonably likely that the instruction on "face-to-face contact" misled the jury into believing that the State did not have to prove beyond a reasonable doubt that Gonzalez exhibited or played harmful material to A.G.
¶ 134. By instructing the jury that it must be satisfied beyond a reasonable a doubt that Gonzalez "had face-to-face contact with [A.G.] before or during the exhibition or playing of the [harmful] material," the jury instruction may have relieved the State of having to prove that Gonzalez exhibited or played harmful material to A.G. (Emphasis added.) That is, if the jury found that Gonzalez had face-to-face contact with A.G. *325before, but not during, the exhibition or playing of the harmful material, then it is reasonably likely that the jury did not believe that Gonzalez exhibited or played the harmful material to A.G. That likelihood is compounded by defense counsel's closing arguments and the questions submitted by the jury.
¶ 135. In his closing arguments, Gonzalez's counsel repeatedly spoke of "face-to-face" contact in relation to the State having to prove that Gonzalez exhibited or played the pornographic video to A.G.4
¶ 136. In addition, the jury specifically asked the circuit court to "[cjlarify statement 'the defendant exhibited or played harmful material To [A.G.] [the child],'" see lead op., ¶ 63, and to define "face-to-face contact with the child," see id., ¶ 68.
¶ 137. I do not pretend to know the jury's thought process or the meaning behind its questions; the court's role is not to invite such speculation. Nonetheless, the lead opinion does much of this. See id., ¶ 74 (speculating that the jury questions "raise the issue of whether the defendant had to know that the child was present" and "went to whether the defendant's exhibiting or playing the video to the child had to be done 'knowingly' "). Still, I am satisfied that, given the closing arguments and the jury questions as they related to the fourth element, it is at least reasonably likely that the jury instruction misled the jury into believing that the *326State did not have to prove beyond a reasonable doubt that Gonzalez exhibited or played harmful material to A.G.
¶ 138. In conclusion, I'want to make clear that the jury instruction was a legally correct statement of the law and that the absence of the word "knowingly" from the first element did not render the instruction deficient. In a different case, under a different set of facts, this identical jury instruction might not pose any constitutional concerns. However, I agree with the lead opinion that in light of these proceedings as a whole, Gonzalez has met his burden of demonstrating a reasonable likelihood that the jury applied the legally correct jury instruction in a manner that violates the constitution.
¶ 139. For the foregoing reasons, I respectfully concur.
¶ 140. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this concurrence.See, e.g., lead op., ¶ 3 ("The jury instruction did not sufficiently define the first element of the crime, namely, that the State must prove beyond a reasonable doubt that the defendant knowingly exhibited the harmful material to the child."); id., ¶ 26 n.14 ("For the reasons set forth, we would conclude that the instruction was not a correct statement of the law and was prejudicial error."); id., ¶ 36 (concluding that Gonzalez has met his burden of demonstrating that there is a reasonable likelihood that the jury instruction misled the jury because "the jury instruction did not explicitly instruct the jury that the State must prove beyond a reasonable doubt that the defendant knowingly, as opposed to accidentally, exhibited the harmful material to the child"); id., ¶ 83 ("[T]he instruction for Count 1 did not include the word 'knowing' or 'intentional.'").
See State v. Weidner, 2000 WI 52, ¶ 20, 235 Wis. 2d 306, 611 N.W.2d 684 (explaining that the Thiel court "not[ed] that the term 'exhibit' contemplates affirmative conduct to target specific minors rather than a commercial display to a general audience" (emphasis added)).
The lead opinion supports its conclusion, in part, by comparing the jury instruction on Count 1 with the jury instruction on Count 2. See lead op., ¶¶ 80-86. On Count 2, consistent with the express language of Wis. Stat. § 948.055(1), the circuit court instructed the jury that "[s]ection 948.055 of the Criminal Code of Wisconsin is violated by a person who intentionally causes a child to view or listen to sexually explicit conduct for the purpose of sexually arousing or gratifying the person or humiliating or degrading the child." (Emphasis added.) The lead opinion compares that instruction's explicit reference to "intentionally" with the instruction on Count 1, noting that "[t]he instruction for Count 1 has no similarly explicit 'intention' or 'knowing' language." Lead op., ¶ 84. In making such a comparison, the lead opinion makes several false insinuations, including suggesting that the terms "knowingly" and "intentionally" are one and the same. They are not. In the criminal statutes, the terms "knowingly" and "intentionally" have distinct and particularized meanings. Compare Wis. Stat. § 939.23(2) with § 939.23(3).
*323The lead opinion also falsely insinuates that Count 1 and Count 2 are somehow interrelated. A violation of Wis. Stat. § 948.11(2)(a), Count 1, is separate and distinct from a violation of Wis. Stat. § 948.055(1), Count 2. As the jury instructions make explicit, the crimes are comprised of entirely different elements. Compare Wis JI — Criminal 2142 with Wis JI— Criminal 2125. Notably, a person is guilty of violating Wis. Stat. § 948.055(1) if he or she "intentionally causes a child who has not attained 18 years of age to view or listen to sexually explicit conduct" and does so "for the purpose of sexually arousing or gratifying the actor or humiliating or degrading the child." If the child is under the age of 13, then the actor is guilty of a Class F felony. § 948.055(2)(a). In comparison, neither criminal "intention" nor sexual arousal is an element of Wis. Stat. § 948.11(2)(a). A violation of § 948.11(2)(a) is a Class I felony.
Despite the fact that these two counts "arose out of allegedly simultaneous events," lead op., ¶ 82, it is entirely legitimate for the jury to convict on one and not the other, and I reject the lead opinion's insinuation otherwise. For example, it is possible that the jury could believe that the defendant exhibited or played the pornographic video to A.G. but did not intentionally cause her to view his masturbation for the purpose of sexually arousing him or humiliating her.
For example, Gonzalez's counsel argued that "[tjhere is absolutely no evidence that [Gonzalez] intentionally exposed [A.G.] to the video in a face-to-face confrontation or context, which is required by the statute for the first count." Similarly, he argued that Gonzalez's behavior was "consistent with a reasonable parent who would not and has testified [] would not intentionally knowingly exhibit a face-to-face, for their child, a porno movie . . . ."