State v. Angel Mercado

2021 WI 2SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2419-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Angel Mercado,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 391 Wis. 2d 304,941 N.W.2d 835PDC No:2020 WI App 14 - Published
OPINION FILED: January 20, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 26, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Conen
JUSTICES:
ROGGENSACK, C.J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Scott E. Rosenow, assistant attorney general; with whom
on the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Scott E. Rosenow.
For the defendant-appellant, there was a brief filed by
Esther Cohen Lee, Milwaukee. There was an oral argument by
Esther Cohen Lee.
An amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Robert R. Henak,
Ellen Henak, and Henak Law Office, S.C., Milwaukee.
2021 WI 2NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2419-CR
(L.C. No. 2016CF3679)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. JAN 20, 2021
Angel Mercado, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ROGGENSACK, C.J., delivered the majority opinion for a unanimous
Court.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review the court
of appeals' decision1 that reversed the circuit court's2
conviction of Angel Mercado based on its determination that the
video-recorded forensic interviews of Mercado's victims were
inadmissible. On appeal, the State urges us to reverse the
court of appeals arguing that the victims' video-recorded
1State v. Mercado, 2020 WI App 14, 391 Wis. 2d 304, 941
N.W.2d 835.
2The Honorable Jeffrey A. Conen of Milwaukee County
presided.
No. 2018AP2419-CR
forensic interviews were admissible under the normal procedures
of Wis. Stat. §§ 908.08(1)-(6) (2017-18)3 or under the residual
hearsay exception found in Wis. Stat. § 908.03(24) by way of
Wis. Stat. § 908.08(7).
¶2 We conclude that Mercado forfeited several of his
objections to the admissibility of the forensic interviews.
Specifically, Mercado forfeited his contentions that: (1) the
circuit court erred by not watching the victims' forensic
interviews in their entirety prior to admitting them and (2) the
circuit court erred by permitting N.G. to testify prior to the
jury watching her forensic interview. Additionally, although
Mercado objected to the admissibility of N.G.'s video-recording
under Wis. Stat. §§ 908.08(2) and (3), we conclude that her
video-recording is admissible under § 908.08(7), based on the
residual hearsay exception found in Wis. Stat. § 908.03(24).
Therefore, we conclude that the circuit court did not
erroneously exercise its discretion when it admitted the three
video-recorded forensic interviews during Mercado's trial.
Accordingly, the court of appeals' decision is hereby reversed
in full and has no precedential value.
I. BACKGROUND
A. Factual Background
¶3 Mercado was arrested in August of 2016 for sexually
assaulting N.G., L.G. and O.G., who were ages four through seven
3 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2
No. 2018AP2419-CR
at the time of the assaults. The victims and their mother,
C.C., lived with Mercado during that time. C.C. had known
Mercado since 2011 and she and her children moved in with him so
that she could assist him with his day-to-day activities (e.g.,
banking, appointments, medication, etc.).
¶4 C.C. learned of the assaults on August 11, 2016, while
she was driving with N.G., her youngest daughter. After hearing
a song lyric that went "I want to lick you up and down," N.G.
said from the backseat "[t]hat's what he does." C.C. asked N.G.
who "he" was; N.G. told her "Viejo." Viejo is Spanish for "old
man" and is a nickname the victims and others used for Mercado.
¶5 When C.C. and N.G. returned home, C.C. asked L.G. if
anyone had been touching her. L.G. said yes. She too told her
mother that Mercado was the person who touched her. Finally,
C.C. waited for O.G., who at the time was out with Mercado, to
return home. She asked O.G. "has [Mercado] been touching you?"
O.G. said that "[y]es he does" and that the last time it
happened was "[t]he day before yesterday."
¶6 C.C. asked N.G. and L.G. where Mercado had touched
them. N.G. responded "down there" and pointed to "[h]er private
area." L.G. said to C.C. that "he's been touching them in their
private area and licking them." According to C.C., "private
area" or "private part" are terms that the family uses to refer
to the vagina area.
¶7 C.C. took all three girls to the hospital that night.
The hospital staff did not find any physical evidence of the
assaults; however, each victim individually repeated her
3
No. 2018AP2419-CR
allegations to the hospital staff. For example, N.G., without
being prompted, said "Viejo keeps licking me on my butt. I hate
him." When asked why she was at the hospital, L.G. responded
"To see if I'm ok. Vie[j]o has been touching me everywhere."
¶8 On August 16, 2016, C.C. took N.G., L.G. and O.G. to
the Sojourner Family Peace Center in Milwaukee where they
underwent forensic interviews with Officers Patricia Klauser and
Danillo Cardenas. Before asking about what happened to them,
the officers took the time to ascertain whether N.G., L.G. and
O.G. understood the difference between right and wrong or the
truth and a lie.
¶9 N.G. and L.G. initially had difficulty articulating
that difference. For example, Officer Cardenas asked N.G. "what
happens when somebody says something that's wrong and an adult
finds out about it?" N.G. said she did not know. N.G. also
said it would be both wrong and "not wrong" to call a pillow a
wall. Conversely, when asked if she thought it was important to
tell what is right, N.G. nodded affirmatively.
¶10 Likewise, L.G. initially told Officer Klauser it would
be the truth if someone said that Officer Klauser's black pants
were red. L.G. also said that she did not know if it was
important to "tell what really happened." However, she said it
would be "wrong" if someone said that Klauser's pants were red
when they were black.
¶11 O.G. told Officer Klauser that kids who lie at school
get "put . . . in time-out." She also stated that it would be a
lie to say that Officer Klauser's black pants were red.
4
No. 2018AP2419-CR
¶12 During N.G.'s forensic interview, she told Officer
Cardenas that "[Viejo] . . . always . . . touch[ed] [them]" and
that Mercado licked her and L.G. "on the butt." Officer
Cardenas showed N.G. a body diagram and had her point to where
Mercado touched her. She pointed to the buttocks on the
diagram, and Officer Cardenas circled the spot of the diagram
that corresponded with N.G.'s response.
¶13 Officer Klauser interviewed L.G. and O.G. Similar to
N.G., L.G. told Officer Klauser that "[Viejo] touched [her] in
[her] butt and [her] 'pee-pee', and on [her] two 'T-T's[']."
She told Officer Klauser that "[Viejo] comes in [her]
room . . . and then he walked [her] in the basement-then he
pulled [her] pants down." Officer Klauser showed L.G. a similar
body diagram and had L.G. put an 'X' wherever Mercado touched
her. L.G. drew an 'X' on the chest, pubic area and buttocks of
the diagram.
¶14 Finally, O.G. told Officer Klauser that Mercado "was
touching [her] everywhere. And he did [it to] [her] two little
sisters." Specifically, O.G. said that Mercado was "touching
[her] in . . . the private part" and that Mercado's hands were
"[u]nder [her] clothes." As with L.G., O.G. told Klauser that
the assaults happened in the basement of their home. Officer
Klauser also had O.G. put an 'X' on the diagram. She drew an
'X' on the pubic area of the body diagram.
¶15 The State filed a criminal complaint against Mercado
based upon the information obtained during the victims' forensic
5
No. 2018AP2419-CR
interviews. After learning of the criminal complaint against
him, Mercado surrendered to law enforcement.
B. Procedural Posture
¶16 The State charged Mercado with two counts of first
degree sexual assault of a child, sexual intercourse with a
child under 12 years old contrary to Wis. Stat. § 948.02(1)(b)
and one count of first degree sexual assault of a child, sexual
contact with a child under 16 years old contrary to Wis. Stat.
§ 948.02(1)(d).4
¶17 Before trial began, the State, pursuant to Wis. Stat.
§ 908.08(2)(a), informed Mercado and the circuit court of its
intent to introduce the video-recordings of the victims'
forensic interviews into evidence. In a pretrial hearing
regarding the video-recordings' admissibility, Mercado objected
to the introduction of N.G.'s and L.G.'s video-recordings.
Specifically, Mercado alleged that N.G. "evinces in this
interview . . . zero ability to be able to tell the examiner the
difference between truth and a lie." Mercado raised the same
objection regarding L.G. The State disagreed. It acknowledged
that "[N.G.] does have some trouble with the examples that she's
given." Nonetheless, the State argued that the video-recording
showed that she understood the importance of telling the truth.
4While the jury was deliberating, the State moved to amend
count one to first degree sexual assault of a child, sexual
contact with a child under 13 years old contrary to Wis. Stat.
§ 948.02(1)(e).
6
No. 2018AP2419-CR
Mercado did not object to the introduction of O.G.'s forensic
interview.
¶18 The court agreed to watch "the first few minutes of
each of the videos" to determine whether N.G. and L.G.
understood the difference between the truth and a lie as
required by Wis. Stat. § 908.08(3)(c). The State also cited a
portion of N.G.'s video-recording wherein N.G. corrects one of
Officer Cardenas's statements as "important context" for her
understanding. The court agreed to watch that portion of the
video-recording as well.
¶19 After reviewing the "relevant portions" of the video-
recordings, the court determined that N.G. had "some
acknowledgement of knowing what it means to tell the truth and
what it means to not tell the truth." Similarly, the court
determined that "there's far more in [L.G.'s] interview that
goes toward the importance of telling the truth." Therefore,
the court allowed the State to introduce both video-recordings.
Mercado again raised an objection to N.G.'s video-recording at
this juncture; he did not renew his objection to L.G.'s video-
recording. The court overruled Mercado's objection.
¶20 Mercado's case continued to trial in January of 2017.5
There, the State introduced the video-recordings of their
The court declared a mistrial in Mercado's initial trial
5
because the translators involved would not have been able to
translate the forensic interviews in real time for Mercado. The
court ordered the videos be transcribed before the case moved
forward.
7
No. 2018AP2419-CR
forensic interviews which were admitted into evidence.6 The
State also provided the jury with transcripts of the videos.
Mercado did not object to either O.G.'s or L.G.'s video-
recordings. After each video, the State called each victim to
the stand to testify.
¶21 L.G. testified consistent with what she told her
mother, what she told Nurse Susan Kanack at the hospital and
with what she said during her forensic interview. Specifically
she testified that "[Mercado] was pulling our pants down,
pulling mine down, and then he was doing stuff to our private
parts." She clarified that "stuff" meant licking. When asked
why she put Xs on the drawing during her interview L.G.
responded, "Because he was doing nasty stuff." She testified
that "he" meant Viejo——Mercado.
¶22 O.G. had a more difficult time on direct examination;
she said she was scared. However, she made it clear that she
remembered Officer Klauser, made Xs on the drawing, and told
Klauser the truth when they talked. On cross-examination O.G.
reiterated that she was told to tell the truth and that she
talked to Officer Klauser about Mercado.
¶23 Finally, and before the State showed N.G.'s video-
recording, the court called N.G. to "get her to speak loudly
enough and to respond to everyone's questions." Mercado did not
object to the order of testimony, but moved to prevent N.G. from
6The State also introduced each victim's body diagram and
their medical records without objection.
8
No. 2018AP2419-CR
testifying "because she's not a competent witness because of the
truth and lack-of-truth issue." The court overruled Mercado's
motion stating that "[t]here's no such thing as competent
witnesses anymore . . . it's up to the jury." Thereafter,
Mercado agreed to "give it a try and see where it goes." The
court stated that "[i]f there's some indicia of understanding of
telling the truth, some, then I think that becomes an issue for
credibility issues."
¶24 The court called N.G. to the stand and entered into
the following colloquy with her:
THE COURT: . . . do you know the difference
between the truth and a lie?
[N.G.]: No.
THE COURT: Do you know what a lie is? A lie is
when you say something that's not right. Do you
understand that?
[N.G.]: (Nods.)
THE COURT: Okay, good. I'm going to ask you
just a few questions, and you just help me out with
what you know, okay? If I said that I was wearing a
green robe, is that right or not?
[N.G.]: No.
THE COURT: It's not right? Why?
[N.G.]: Because it's not.
. . . .
THE COURT: Is it green?
[N.G.]: No, black.
THE COURT: It's black?
9
No. 2018AP2419-CR
[N.G.]: Yeah.
THE COURT: Okay. So that is a lie that this is
green, right? Yes or no?
[N.G.]: No.
THE COURT: Is it true that this is green?
[N.G.]: No.
THE COURT: Okay, so then it must be a lie,
right? Yes?
[N.G.]: Yes.
¶25 The State asked N.G. several similar questions to
ascertain her ability to comprehend the difference between the
truth and a lie. This attempt continued when the trial resumed
the next morning. The court entered into a colloquy with N.G.
that resembled the one it entered into the day before. This
time, N.G. answered yes to the court's question "[y]ou have to
tell us the truth, right?" She also said yes when asked if she
promised to tell the truth. On direct examination, she said
that she remembered talking to Officer Cardenas and that she had
seen him before.
¶26 On cross-examination N.G. answered "no" to most of
defense counsel's questions regarding whether she remembered
Officer Cardenas or told him "serious stuff." Mercado argued
that this obviated any meaningful opportunity for cross-
examination. The court disagreed with Mercado noting its
concern was that N.G. would not answer any questions on the
stand at all. The court stated, "Meaningful opportunity for
cross-examination means ask questions and whatever answers there
10
No. 2018AP2419-CR
are, those are the answers that everyone's stuck with with that
particular witness . . . ." The court told Mercado's trial
counsel that she would have an opportunity for further cross-
examination after the video was shown to the jury. The jury
then heard testimony from Officer Cardenas and watched N.G.'s
video-recording. Despite being afforded the opportunity,
Mercado did not request any further examination of N.G. after
the jury saw her video.
¶27 Mercado moved to dismiss the charge related to N.G.
"based on the statements on the witness stand and the statements
in the video." The court denied the motion finding that a prima
facie case had been made and N.G.'s statements on the stand came
down to credibility. The jury returned a guilty verdict on all
counts.
¶28 Mercado subsequently moved to vacate his convictions.
Mercado alleged the circuit court made several errors during
trial. He alleged that the circuit court erred by (1) not
watching the three forensic interviews in their entirety before
admitting them into evidence; (2) conflating N.G.'s ability to
testify as a credible witness with the truthfulness requirement
of Wis. Stat. § 908.08(3)(c); (3) permitting N.G. to testify
before her forensic interview was played for the jury; and
(4) admitting the transcripts of the forensic interviews because
they were not certified. The State argued that the court met
the statutory requirements of Wis. Stat. §§ 908.08(2) and (3)
and, even if it had not, all three videos were admissible under
Wis. Stat. § 908.08(7) via the residual hearsay exception found
11
No. 2018AP2419-CR
in Wis. Stat. § 908.03(24). The State further argued that
N.G.'s video was admissible as a prior inconsistent statement
and any error in admitting the transcript was harmless. The
court agreed with the State and denied Mercado's motion for
postconviction relief.
¶29 Mercado appealed to the court of appeals reprising his
postconviction arguments. The court of appeals agreed with
Mercado. It held that the circuit court contravened Wis. Stat.
§ 908.08(2)(b) by not watching the forensic interviews in their
entirety before admitting them into evidence. State v. Mercado,
2020 WI App 14, ¶41, 391 Wis. 2d 304, 941 N.W.2d 835. It also
held that N.G. and L.G. did not demonstrate the requisite
understanding of truthfulness for the court to have satisfied
§ 908.08(3)(c). Id., ¶44. Further, it held that the circuit
court erred in the order in which it received evidence under
§ 908.08(5)(a). Id., ¶57. It held that the circuit court,
under State v. James, 2005 WI App 188, 285 Wis. 2d 783, 703
N.W.2d 727, was not permitted to allow N.G. to testify prior to
playing her video-recording. Mercado, 391 Wis. 2d 304, ¶57.
Finally, the court of appeals held that because the circuit
court did not comply with §§ 908.08(2) and (3), the video-
recordings were not admissible as residual hearsay and N.G.'s
video-recording was not a prior inconsistent statement. Id.,
¶49.
¶30 The State contended that Mercado forfeited his
objections related to O.G. and L.G. because he did not timely
object to the admission of either O.G.'s or L.G.'s video-
12
No. 2018AP2419-CR
recording.7 In a footnote, the court of appeals chose not to
apply Wis. Stat. § 901.03(1)(a) forfeiture to Mercado's
objections because it believed the rule to be one of judicial
administration. Id., ¶32 n.6.
¶31 We granted the State's petition for review. On
review, we determine: (1) whether Mercado forfeited all of his
objections relating to O.G. and L.G. and one argument related to
N.G. by not raising them at trial, in his postconviction motion
or on appeal, and (2) whether N.G.'s video-recording is
admissible under the residual hearsay exception. We also
determine the proper interpretation of Wis. Stat. §§ 908.08(2)
and (5).
II. DISCUSSION
A. Standard of Review
¶32 Whether a party properly preserved an objection for
purposes of appeal is a question of law that we review
independently. State v. Agnello, 226 Wis. 2d 164, ¶9, 593
N.W.2d 427 (1999). Questions of statutory interpretation are
questions of law that we review independently. State v.
Wiskerchen, 2019 WI 1, ¶16, 385 Wis. 2d 120, 921 N.W.2d 730.
7 As it related to Mercado's contention that the circuit
court did not make the requisite finding of L.G.'s understanding
of the truth under Wis. Stat. § 908.08(3)(c), the State argued
on appeal that, although Mercado preserved the issue by
objecting in the pretrial hearing, he did not raise that issue
on appeal and therefore conceded the circuit court's finding.
The dissent agreed that Mercado conceded that point. See
Mercado, 391 Wis. 2d 304, ¶94 (Fitzpatrick, J., dissenting).
13
No. 2018AP2419-CR
¶33 Whether N.G.'s video-recording is admissible as
residual hearsay requires us to apply Wis. Stat. § 908.03(24) to
undisputed facts; that is a question of law that we review
independently. See Warehouse II, LLC v. DOT, 2006 WI 62, ¶4,
291 Wis. 2d 80, 715 N.W.2d 213. Further, we "will not reverse a
lower court decision where that court has exercised its
discretion based on a mistaken view of the law if the facts and
their application to the proper legal analysis support the lower
court's conclusion." State v. Sorenson, 143 Wis. 2d 226, 250,
421 N.W.2d 77 (1988).
B. Forfeiture
¶34 We first examine whether Mercado forfeited all of his
objections as they relate to O.G. and L.G. and one objection as
it relates to N.G. by not objecting at trial, raising an issue
in his postconviction motion or raising an issue on appeal. If
Mercado did forfeit his objections, the State argues that the
court of appeals erred by directly reviewing and reversing the
alleged errors to which Mercado did not object. We conclude
that, under Wis. Stat. § 901.03(1), Mercado forfeited several of
his objections by either not raising them during his trial or
raising an issue on appeal. First, Mercado did not object to
the court's showing of O.G.'s video-recording at any stage until
he moved for postconviction relief. Additionally, although
Mercado objected to the admissibility of L.G.'s video-recording
during a pre-trial hearing, he did not renew his Wis. Stat.
§ 908.08(3)(c) argument relating to L.G. on appeal to the court
of appeals. Finally, Mercado did not object to the court
14
No. 2018AP2419-CR
permitting N.G.'s testimony prior to showing her video-
recording.8
¶35 Forfeiture occurs when a party fails to raise an
objection.9 State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653,
761 N.W.2d 612. We have espoused important reasons why courts
should abide by the forfeiture rule. Those rules include, for
example, allowing circuit courts to correct errors in the first
instance, providing circuit courts and parties with fair notice
of an error and an opportunity to object, and preventing
"attorneys from 'sandbagging' errors" by not raising them during
trial and alleging reversible error upon review. State v.
Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727.
¶36 In the context of admitting or denying admission of
evidence, forfeiture is contemplated by statute. Wisconsin
Stat. § 901.03(1) provides that, "Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of a party is affected and . . . [i]n case the
ruling is one admitting evidence, a timely objection or motion
to strike appears of record . . . ." Two things are required
Mercado also failed to object to the admission of the non-
8
certified transcripts of the victims' forensic interviews.
However, the court of appeals did not reach a conclusion on that
argument, Mercado, 391 Wis. 2d 304, ¶59 n.9, and Mercado did not
renew that argument before us. Therefore, we do not address the
transcripts.
Forfeiture, the failure to assert a claimed right, is to
9
be distinguished from "waiver," which occurs when a party
affirmatively relinquishes a right. State v. Ndina, 2009 WI 21,
¶¶31-32, 315 Wis. 2d 653, 761 N.W.2d 612.
15
No. 2018AP2419-CR
before an appellate court may reverse evidentiary
errors: (1) the violation of a party's substantial right10 and
(2) an objection or motion to strike.
¶37 In this context, reviewing courts generally are
limited to three exceptions to the forfeiture rule. First, Wis.
Stat. § 901.03(4) permits reversal of unobjected-to errors when
a reviewing court finds plain error.11 Additionally, appellate
courts may reverse unobjected-to errors in the interest of
justice or due to ineffective assistance of counsel.12 See Wis.
10 When a circuit court erroneously admits evidence that
affects a substantial right of a party and the party benefitted
fails to show beyond a reasonable doubt that the admitted
evidence did not contribute to the verdict, reversible error may
occur. State v. Monahan, 2018 WI 80, ¶33, 383 Wis. 2d 100, 913
N.W.2d 894.
11 Plain errors are those that are "so fundamental that a
new trial or other relief must be granted." Virgil v. State, 84
Wis. 2d 166, 191, 267 N.W.2d 852 (1978) (citation omitted).
"[T]he plain-error doctrine should be reserved for cases where
there is the likelihood that the erroneous introduction of
evidence has denied a defendant a basic constitutional right."
State v. Sonnenberg, 117 Wis. 2d 159, 178, 344 N.W.2d 95 (1984).
12 Although provisions relating to forfeiture are codified
in Wis. Stat. § 901.03, forfeiture, as a doctrine of judicial
administration, is grounded in common law. See Village of
Trempealeau v. Mikrut, 2004 WI 79, ¶¶15-16, 273 Wis. 2d 76, 681
N.W.2d 190. It is common law that permits appellate review of
unobjected-to errors in certain circumstances. See, e.g., State
v. Counihan, 2020 WI 12, ¶¶28, 32, 390 Wis. 2d 172, 938 N.W.2d
530 (permitting review of an unobjected-to error due to
ineffective assistance of counsel). The legislature must
explicitly abrogate common-law exceptions in the text of the
statute if it intends to change the common law. Waukesha Cnty.
v. Johnson, 107 Wis. 2d 155, 162, 320 N.W.2d 1 (1982) ("The
canons of construction provide that a statute does not abrogate
or change any principle or rule of common law unless it is so
clearly expressed as to leave no doubt of the legislature's
16
No. 2018AP2419-CR
Stat. § 752.35 (discretionary reversal when it appears that the
full controversy has not been fully tried or there is a
miscarriage of justice); State v. Avery, 2013 WI 13, ¶38, 345
Wis. 2d 407, 826 N.W.2d 60 ("The supreme court and the court of
appeals may set aside a conviction through the use of our
discretionary reversal powers"); see also State v. Erickson, 227
Wis. 2d 758, 768, 596 N.W.2d 749 (1999) (declining to reach a
forfeited issue but rather "analyz[ing] the [forfeiture] within
the ineffective assistance of counsel framework").
¶38 Upon a review of the record, we cannot identify a
single instance during the trial in which Mercado objected to
O.G.'s video-recording; he therefore forfeited his objection in
regard to its admissibility. In addition, although he objected
to L.G.'s video-recording during a pretrial hearing, he did not
renew his objection in his postconviction motion or during
appellate proceedings.13 Finally, even when Mercado objected to
intent." (footnote omitted)).
Mercado is correct that he properly preserved his
13
challenge to L.G.'s video-recording for purposes of appeal by
objecting during his pre-trial hearing. See State v.
Bustamante, 201 Wis. 2d 562, 571, 549 N.W.2d 746 (Ct. App. 1996)
(holding that a defendant need not renew at trial an objection
that the defendant lodged against a motion in limine in order to
properly preserve it for appeal). However, he did not raise
that issue in his postconviction motion or before the court of
appeals. The State argues that because Mercado did not dispute
the State's forfeiture argument on appeal, Mercado conceded the
argument. In his dissenting opinion, Judge Fitzpatrick agreed.
We agree as well. When a party does not respond to an argument,
we may deem that argument conceded. Waukesha Cnty. v. S.L.L.,
2019 WI 66, ¶42, 387 Wis. 2d 333, 929 N.W.2d 140.
17
No. 2018AP2419-CR
the admission of N.G.'s video-recording under Wis. Stat.
§§ 908.08(2) and (3), he did not contend it was error for N.G.
to testify before her video until he moved for postconviction
relief. Once again, he failed to bring this evidentiary matter
to the circuit court's attention in a timely manner, thereby
forfeiting his objection. We are uncertain why the court of
appeals chose to ignore the multiple forfeitures in this case.
To the extent that there are defenses related to the
admissibility of O.G.'s and L.G.'s video-recordings, we conclude
Mercado forfeited those arguments and there was therefore no
error in the circuit court admitting either video-recording.
¶39 However, having reached the above conclusion, we must
nevertheless address Wis. Stat. § 908.08 because the court of
appeals chose to ignore forfeiture and to directly review and
reverse based on the alleged errors. In so doing, the court of
appeals misinterpreted subsections of § 908.08.
C. Wisconsin Stat. §§ 908.08(2) and (5)
¶40 As an out-of-court statement, a child's statement
during a forensic interview is hearsay if it is offered at trial
for the truth of the matter asserted. See Wis. Stat.
§ 908.01(3). However, "an out-of-court statement, even though
hearsay, may be admissible if it fits within a recognized
exception to the hearsay rule." Virgil v. State, 84 Wis. 2d
166, 185, 267 N.W.2d 852 (1978).
¶41 Video-recordings of a child's statements are
admissible if the child is available to testify and the child's
statements fall into one of the provisions of Wis. Stat.
18
No. 2018AP2419-CR
§ 908.08. The statutory exception serves the important purpose
of "'minimiz[ing] the mental and emotional strain of
[children's] participation [at trial].'" State v. Snider, 2003
WI App 172, ¶13 n.6, 266 Wis. 2d 830, 668 N.W.2d 784 (quoting
1985 Wis. Act 262, § 1). In addition, the legislature enacted
§ 908.08 to "make it easier, not harder, to employ videotaped
statements of children in criminal trials and [other] related
hearings." Id., ¶13. It is with this background in mind that
we discuss § 908.08's requirements.
1. Viewing Wis. Stat. § 908.08 Video-Recordings
¶42 When a party introduces a child's statement in a
video-recording, the offering party and the court must comply
with the procedures set forth in Wis. Stat. §§ 908.08(2)(a) and
(b). First, the party intending to introduce a child's recorded
statement "shall file . . . an offer of proof" that shows
certain information relating to the video and provide that offer
of proof to other parties. § 908.08(2)(a). Next, the court
"shall conduct a hearing on the statement's admissibility [and]
[a]t or before the hearing, the court shall view the statement."
§ 908.08(2)(b). Finally, at the hearing, "the court . . . shall
rule on objections to the statement's admissibility."
§ 908.08(2)(b).
¶43 Determining how much of a child's video-recording that
a circuit court is required to review under Wis. Stat.
§ 908.08(2)(b) requires us to interpret § 908.08(2)(b).14
We agree with the State that "statements" would not
14
include portions of videos such as a black screen with no audio,
19
No. 2018AP2419-CR
Statutory interpretation begins with the language of the
statute. State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. If the plain
language is clear, we stop the inquiry. Id., ¶45. "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.
When statutory language is ambiguous, we go beyond the plain
language. Id., ¶47. The court of appeals determined that the
plain language of § 908.08(2)(b) requires a circuit court to
review a child victim's recording in its entirety before
admitting it into evidence. We disagree.
¶44 Wisconsin Stat. § 908.08(2)(b) requires a circuit
court to conduct a hearing on the "statement's admissibility."
In Wis. Stat. ch. 908, the word "statement" is defined using
general terms. A statement is "(a) an oral or written assertion
or (b) nonverbal conduct of a person, if it is intended by the
person as an assertion." Wis. Stat. § 908.01(1). This general
definition does not help us in interpreting the question
presented, which is whether the circuit court is obligated to
review everything that is said on a recording or some lesser
amount. Instead, to answer that question, we look beyond the
general definition of "statement" and look to the context in
static, or video of an empty room, but that is not where the
contest is here.
20
No. 2018AP2419-CR
which the term "view the statement" is used to determine the
scope of Wis. Stat. § 908.08(2)(b).
¶45 The context in which a statutory term appears is
important to its meaning. Kalal, 271 Wis. 2d 633, ¶46. The
term, "statement," appears preceding Wis. Stat. § 908.08(3),
which sets criteria for admitting the recording of what a child
has said. Those statutory criteria require the circuit court to
make specific findings about the child, the verity of the
recording and the lack of surprise to the opposing party.
Therefore, we interpret the extent of what a circuit court must
view in § 908.08(2)(b) in light of the obligations that
§ 908.08(3) places on the circuit court. Stated otherwise, the
scope of the court's review under § 908.08(2)(b) is driven by
the obligations the court must satisfy in § 908.08(3).
¶46 Recordings of children's testimonies will differ
depending on the facts of the case and the attributes of the
child. Therefore, the circuit court will need to exercise its
discretion in determining how much of each recording it must
review under Wis. Stat. § 908.08(2)(b) in order to be able to
make the findings required by § 908.08(3). Here, the circuit
court fulfilled its § 908.08(2) obligations because it viewed
the amount of the video-recordings necessary to make § 908.08(3)
findings, and therefore, we conclude that the court
appropriately exercised its discretion in deciding not to review
the entire recording.
¶47 Accordingly, we decline to adopt the court of appeals'
bright-line rule that a circuit court must view a Wis. Stat.
21
No. 2018AP2419-CR
§ 908.08 video-recording in its entirety in every case. Rather,
the decision on how much of a § 908.08 video-recording a circuit
court is to review is limited to those portions necessary to
make the requisite findings under Wis. Stat. § 908.08(3); this
is a discretionary decision made on a case-by-case basis. See,
e.g., State v. Huntington, 216 Wis. 2d 671, ¶18, 575 N.W.2d 268(1998) (noting that the excited utterance hearsay exception is
fact-dependent and declining to create a bright-line rule for
that exception).
2. Child Witnesses Testimony
¶48 We also determine the appropriate interpretation of
Wis. Stat. § 908.08(5) as it relates to the order in which
circuit courts receive testimony. Here, the court of appeals
held that the circuit court erred by permitting N.G. to testify
before the jury saw her video. Again, we disagree. The purpose
of § 908.08(5)(a) is to direct what happens immediately after a
child's recorded forensic interview is shown, not what happens
before that showing.
¶49 Wisconsin Stat. § 908.08(5)(a) states:
If the court or hearing examiner admits a recorded
statement under this section, the party who has
offered the statement into evidence may nonetheless
call the child to testify immediately after the
statement is shown to the trier of fact. Except as
provided in par. (b), if that party does not call the
child, the court or hearing examiner, upon request by
any other party, shall order that the child be
produced immediately following the showing of the
statement to the trier of fact for cross-examination.
22
No. 2018AP2419-CR
Whether this statute precludes a circuit court from permitting a
child to testify prior to the showing of the child's video-
recording is a matter of statutory interpretation.
¶50 We conclude that the plain language of Wis. Stat.
§ 908.08(5)(a) relates to what occurs immediately after a
child's recorded statement is shown. It does not affect what
happens before the video-recording is presented because
§ 908.08(5)(a) says nothing about events preceding the finder of
fact viewing such a video-recording. It permits the offering
party to "call the child to testify immediately after the
statement is shown to the trier of fact." Upon the request of
another party, § 908.08(5)(a) requires that "the court or
hearing examiner . . . shall order that the child be produced
immediately following the showing of the statement . . . for
cross-examination." Notably absent from either of those
sentences is any reference to what testimony should or should
not occur prior to showing the video-recording. As such, we
decline to accept the court of appeals' proffered limitation.
See County of Dane v. LIRC, 2009 WI 9, ¶33, 315 Wis. 2d 293, 759
N.W.2d 571 ("We will not read into the statute a limitation the
plain language does not evidence."). As § 908.08(5)(a) does not
control what occurs prior to the finder of fact viewing a video-
recording of a child's statement, we conclude that permitting
N.G. to testify beforehand fell under the circuit court's
general authority to reasonably control the "mode and order
of . . . presenting evidence" under Wis. Stat. § 906.11.
23
No. 2018AP2419-CR
¶51 Here, the court of appeals said that it found support
for its conclusion in its opinion in State v. James. See
Mercado, 391 Wis. 2d 304, ¶57. We are unpersuaded. In James,
the court of appeals was not asked whether a child may testify
before his or her video-recording is shown. Rather, the court
was tasked with determining whether the circuit court
erroneously exercised its discretion when it refused to show a
child's video-recording before the child testified based on the
circuit court's concern that if the child subsequently refused
to say anything on the stand a Crawford violation would occur
thereby requiring the court to declare a mistrial.15 James, 285
Wis. 2d 783, ¶4. The court of appeals reversed the circuit
court and held that the statutory procedure of having a child
witness available to testify at trial after the video-recording
is shown was a nondiscretionary obligation. Id., ¶12. The
court of appeals held that the statutory procedure satisfies the
Confrontation Clause as long as the child testifies. Id., ¶11.
¶52 We agree with this interpretation of Wis. Stat.
§ 908.08(5)(a). However, it does not follow that a child is not
permitted to testify before his or her video-recording simply
because a child witness is not required to do so. We agree with
the court of appeals statement in James that § 908.08(5)(a)
"does not impermissibly interfere with the functioning of the
judiciary and constitutes an appropriate exercise of shared
15 Crawford v. Washington, 541 U.S. 36 (2004).
24
No. 2018AP2419-CR
judicial and legislative power," and therefore, the circuit
court was required to follow § 908.08(5)(a). Id., ¶¶20, 25.
¶53 To the extent that James has been interpreted as
concluding that Wis. Stat. § 908.08(5)(a) precludes circuit
courts from also calling a child witness before a video-
recording is shown, that interpretation is erroneous. James did
not so hold. Section 908.08(5)(a) is limited to the procedure a
circuit court must follow after a child's recorded statement is
shown to the trier of fact.
D. The Residual Hearsay Exception
¶54 Finally, we address the admissibility of N.G.'s video-
recording under the residual hearsay exception, Wis. Stat.
§ 908.03(24). We begin by addressing whether N.G.'s video-
recording is admissible under Wis. Stat. § 908.08(7).
¶55 Wisconsin Stat. § 908.08(7) permits circuit courts to
admit a child's recorded statement "that is hearsay and is
admissible under this chapter as an exception to the hearsay
rule." When a party introduces a child's video-recording under
§ 908.08(7), the video-recording's admissibility is not limited
by the requirements of §§ 908.08(2) and (3). Snider, 266
Wis. 2d 830, ¶12. Here, the applicable hearsay exception is the
residual hearsay exception found in Wis. Stat. § 908.03(24).
The residual hearsay exception permits the admission of "[a]
statement not specifically covered by any of the foregoing
[hearsay] exceptions but having comparable circumstantial
guarantees of trustworthiness." § 908.03(24).
25
No. 2018AP2419-CR
¶56 We have set out five factors that courts look to in
determining whether a video-recording of a child's statement
meets circumstantial guarantees of trustworthiness:
First, the attributes of the child making the
statement should be examined, including age, ability
to communicate verbally, to comprehend the statements
or questions of others, to know the difference between
truth and falsehood, and any fear of punishment,
retribution or other personal interest, such as close
familial relationship with the defendant, expressed by
the child which might affect the child's method of
articulation or motivation to tell the truth.
Second, the court should examine the person to
whom the statement was made, focusing on the person's
relationship to the child, whether that relationship
might have an impact upon the statement's
trustworthiness, and any motivation of the recipient
of the statement to fabricate or distort its contents.
Third, the court should review the circumstances
under which the statement was made, including relation
to the time of the alleged assault, the availability
of a person in whom the child might confide, and other
contextual factors which might enhance or detract from
the statement's trustworthiness.
Fourth, the content of the statement itself
should be examined, particularly noting any sign of
deceit or falsity and whether the statement reveals a
knowledge of matters not ordinarily attributable to a
child of similar age.
Finally, other corroborating evidence, such as
physical evidence of assault, statements made to
others, and opportunity or motive of the defendant,
should be examined for consistency with the assertions
made in the statement.
Sorenson, 143 Wis. 2d at 245-46. Courts are to consider the
facts of each particular case and "no single factor [should] be
dispositive of a statement's trustworthiness." Id. at 246.
26
No. 2018AP2419-CR
¶57 Upon consideration of the Sorenson factors in this
case, we conclude that N.G.'s statement has circumstantial
guarantees of trustworthiness such that it is admissible under
the residual hearsay exception.
¶58 First, N.G. was four years old at the time of the
assaults. As we stated in Sorenson, "a child at such a young
age is unlikely to review an incident of sexual assault and
calculate the effect of a statement about it." Id. N.G.'s age
"tend[s] to support the veracity of [her] report of sexual
abuse" by Mercado. Id. Additionally, she had a close
relationship with Mercado having lived with him and spent time
with him outside of the house. See Huntington, 216 Wis. 2d 671,
¶25 ("[T]he defendant and Jeri maintained essentially a father-
daughter relationship since she was three years old."); see also
Snider, 266 Wis. 2d 830, ¶18 (noting that the victim "thought of
Snider as an uncle"). Finally, despite N.G.'s difficulty
explicitly stating that she understood the difference between
the truth and a lie, "[c]onfusion and unresponsiveness under
these circumstances may be accorded less weight . . . unless
deliberate falsity is otherwise shown." Sorenson, 143 Wis. 2d
at 247. So, although she had trouble articulating the
difference between the truth and a lie, there is simply no
evidence that N.G. deliberately fabricated her statement. The
first Sorenson factor weighs in favor of admitting the video-
recording.
¶59 Second, N.G. made her statement to a police officer.
Similar to the social worker in Sorenson to whom the victim made
27
No. 2018AP2419-CR
her statement, Officer Cardenas had experience conducting these
types of forensic interviews and did not appear to utilize
coercive interviewing techniques.16 Id. at 247-48 (noting that
the social worker "had experience with counseling and child
sexual abuse cases" and that we perceived no evidence of a
motive to coerce the victim to inculpate her father). He
interviewed her in his official capacity as a police officer.
See Huntington, 216 Wis. 2d 671, ¶28. We detect no motive to
coerce N.G. to implicate Mercado nor any motive to have her
fabricate her assertions. Officer Cardenas's relationship with
N.G. weighs in favor of admitting N.G.'s video-recording.
¶60 Third, the circumstances under which N.G. made her
statement support its reliability. Again, N.G. made her
statement during a one-on-one interview with a police officer at
a neutral location. Additionally, although difficult to
pinpoint, the timing of the statement in relation to the
assaults is at least a neutral factor. The assaults occurred
between June and August of 2016. This puts her statement in a
range of potentially a few days to one or two months after the
assaults.17 As we noted in Sorenson, "Contemporaneity and
Officer Cardenas testified that he has been working for
16
the sensitive crimes division of the Milwaukee Police Department
for "approximately five years" and has conducted "close to 200"
forensic interviews with children ages 4-12.
O.G. told her mother that the last assault happened "the
17
day before yesterday." This was in August. N.G.'s medical
record indicates that the last assault occurred on August 9,
2016. However, it does not appear from the record that N.G.
explicitly indicated a date range wherein the assaults occurred,
and the State acknowledged that "it seems unclear when exactly
28
No. 2018AP2419-CR
spontaneity of statements are not as crucial in admitting
hearsay statement[s] of young sexual assault victims under the
residual exception." Sorenson, 143 Wis. 2d at 249; see also
Huntington, 216 Wis. 2d 671, ¶30 (noting that a two-week period
between the assault and the statement did not detract from its
trustworthiness). Accordingly, we conclude that the potential
several week delay in reporting does not undercut the
truthfulness of N.G.'s statement.
¶61 Fourth, the content of N.G.'s statement further
supports its trustworthiness. As we stated in Sorenson, "A
young child is unlikely to fabricate a graphic account of sexual
activity because it is beyond the realm of his or her
experience." Sorenson, 143 Wis. 2d at 249. N.G. told Officer
Cardenas that Mercado "licked [her] on [her] butt." She also
demonstrated knowledge appropriate for her age, saying for
example that her butt is used "to pee" and using the term "butt"
for both her buttocks and genitals. Based on the manner in
which she described the assaults, the content of her statement
appears to be free from adult manipulation. See Snider, 266
Wis. 2d 830, ¶18.
¶62 Fifth, there is circumstantial evidence that
corroborates N.G.'s statement to Officer Cardenas. We note at
the outset that there was not physical evidence of the assaults,
which is to be expected given the nature of the assaults.
the assaults began in relation to when the disclosures
happened."
29
No. 2018AP2419-CR
Huntington, 216 Wis. 2d 671, ¶32. Rather, we conclude there is
corroborating evidence in the consistency of N.G.'s statements.
Specifically, N.G. offered nearly identical statements to her
mother and to Nurse Kanack. In both circumstances she was
unprompted and offered these statements voluntarily. As noted
in the facts of this case, she told her mother about the assault
after hearing a song lyric. Nurse Kanack testified that N.G.
"blurted . . . out spontaneously" that "Viejo keeps licking me
on my butt; I hate him." Additionally, O.G. and L.G.
acknowledged that Mercado assaulted all three of them. We
conclude that these surrounding statements are sufficient to
corroborate N.G.'s statement to Officer Cardenas.
¶63 In assessing all five Sorenson factors, we conclude
that there are sufficient circumstantial guarantees of
trustworthiness to permit N.G.'s statement to be admitted under
the residual hearsay exception.18
¶64 The court of appeals concluded otherwise. It
determined that factors one and four were fatally missing.
Mercado, 391 Wis. 2d 304, ¶49. The court of appeals held the
first factor was not met because N.G. did not demonstrate that
she understood the difference between the truth and a lie. Id.Because we conclude that N.G.'s video-recording is
18
admissible under the residual hearsay exception, we need not
settle whether the circuit court correctly found that N.G.
understood the importance of telling the truth. See Maryland
Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300,
786 N.W.2d 15 ("Issues that are not dispositive need not be
addressed."). For the same reason, we do not address whether
N.G.'s video was admissible as a prior inconsistent statement.
30
No. 2018AP2419-CR
The court of appeals also held that by not watching the video-
recordings in their entireties, the circuit court could not have
made a determination that the statements were free from
indications of falsity contrary to the requirements of the
fourth factor. Id.¶65 The court of appeals rationale is flawed for at least
two reasons. First, the court of appeals combined the
requirements of Wis. Stat. §§ 908.08(2), (3) and (7).
Specifically, it held that N.G. did not demonstrate the
requisite level of truthfulness "as required by the first
factor." Id. This conflates the first Sorenson factor with the
child's understanding of the importance of telling the truth,
found in § 908.08(3)(c). As outlined above, veracity of
reporting is to be considered under the first factor; however,
circuit courts are to examine other attributes of the child as
well. Next, the court of appeals held that "by not reviewing
the videos in their entirety prior to admitting them, the trial
court did not fully comply with the fourth . . . factor relating
to the content of the statement and whether there are
indications that the information is false." Id. Once again,
this conclusion injects a requirement that is unnecessary in a
§ 908.08(7) analysis.
¶66 As the court of appeals previously explained in
Snider:
[T]he plain language of Wis. Stat. § 908.08(7) permits
the admission of a child's videotaped statement under
any applicable hearsay exception regardless of whether
the requirements of subsections (2) and (3) have been
31
No. 2018AP2419-CR
met. Section 908.08(1) permits the admission of a
"videotaped oral statement of a child who is available
to testify, as provided in this section." The
remaining subsections of the statute provide two ways
for the statement to be admitted "as provided in this
section." The first is by meeting the various
requirements set forth in subsections (2) and (3). If
these requirements are met, the court "shall admit the
videotape statement," § 908.08(3), and it need not
consider any other grounds for admitting a statement.
Alternatively, a court "may also admit into evidence a
videotape oral statement of a child that is hearsay
and is admissible under this chapter as an exception
[to] the hearsay rule." Section 908.08(7). This
language can only be read to mean that, if a child's
videotape statement is admissible under one of the
hearsay exceptions set forth in Wis. Stat. § 908.03,
the requirements listed in the preceding subsections
of § 908.08 are inapplicable.
Snider, 266 Wis. 2d 830, ¶12 (emphasis in original). We agree
with Snider's conclusion. Section 908.08 provides two methods
by which a party may introduce a child's video-recording. By
requiring a video-recording to satisfy subsections (2) and (3)
despite the plain language of subsection (7), the court of
appeals read one of the two modes of admission out of the
statute. "Statutory language is read where possible to give
reasonable effect to every word, in order to avoid surplusage."
Kalal, 271 Wis. 2d 633, ¶46. The court of appeals'
interpretation violates this principle.
¶67 The second flaw in the court of appeals' discussion is
that, assuming arguendo that factors one and four were not met
here, the court of appeals did not weigh the missing factors
against the ones it appeared to conclude were present. Its
opinion merely makes the conclusory statement that factors one
and four were not met and the circuit court therefore erred in
32
No. 2018AP2419-CR
admitting the video-recording as residual hearsay. Mercado, 391
Wis. 2d 304, ¶49. As we explained in Sorenson, no single factor
is dispositive. The court of appeals should have considered all
five factors and made its decision based on the comparative
weights it gave to all of the Sorenson factors. Even if some
portions of some of the factors were missing, there was other
evidence that overwhelmingly supports admitting the video-
recording.19
¶68 For all of the above reasons, we conclude that N.G.'s
video-recording was admissible as residual hearsay and the court
of appeals' statutory interpretation and analysis were
incorrect.
IV. CONCLUSION
¶69 We conclude that Mercado forfeited several of his
objections to the admissibility of the forensic interviews.
Specifically, Mercado forfeited his contentions that: (1) the
circuit court erred by not watching the victims' forensic
interviews in their entirety prior to admitting them, and
(2) the circuit court erred by permitting N.G. to testify prior
to the jury watching her forensic interview. Additionally,
although Mercado objected to the admissibility of N.G.'s video-
As with Sorenson, N.G.'s statement was admitted under a
19
different hearsay exception. However, we "will not reverse a
lower court decision where that court has exercised its
discretion based on a mistaken view of the law if the facts and
their application to the proper legal analysis support the lower
court's conclusion." State v. Sorenson, 143 Wis. 2d 226, 250,
421 N.W.2d 77 (1988).
33
No. 2018AP2419-CR
recording under Wis. Stat. §§ 908.08(2) and (3), we conclude
that her video-recording is admissible under § 908.08(7) based
on the residual hearsay exception found in Wis. Stat.
§ 908.03(24). Therefore, we conclude that the circuit court did
not erroneously exercise its discretion when it admitted the
three video-recorded forensic interviews during Mercado's trial.
Accordingly, the court of appeals' decision is hereby reversed
in full and has no precedential value.
By the Court.—The decision of the court of appeals is
reversed.
34
No. 2018AP2419-CR
1