The District 4 Court of Appeals Thursday upheld the dismissal of videotape evidence of David W. Johnson, 59, of Watertown, Wis., allegedly having sex with his wife, a stroke victim, in Divine Savior Nursing Home in Portage in 2005, The Madison Capital Times reported Friday.

Portage police installed the camera without Johnson's knowledge after nursing home officials said they suspected Johnson was sexually touching his wife, the Milwaukee Journal Sentinel reported Friday.

A spokesman for state Attorney General J.B. Van Hollen said his office may appeal the case to the Wisconsin Supreme Court because prosecutors view the case as sexual assault, the Sentinel reported.

Johnson's lawyer, T. Christopher Kelly, of Madison, said his client should be left alone.

"Mr. Johnson deeply loves his wife," Kelly said. "He's spent every day talking to her, holding her, trying to stay connected with her and bring her back. I think he's entitled to privacy in this matter."