State v. Mercado
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The Supreme Court reversed the decision of the court of appeals reversing the denial of Defendant's motion for postconviction relief on the basis that the video-recorded forensic interviews of Defendant's victims were inadmissible, holding that the circuit court did not abuse its discretion when it admitted the three video-recorded forensic interviews during Defendant's trial.
Defendant was charged with sexually abusing three victims, who were ages four through seven at the time of the assaults. Before trial, the State informed Defendant and the circuit court of its intent to introduce the video recordings of the victims' forensic interviews into evidence. The court allowed the State to introduce the video recordings. The jury returned a guilty verdict on all counts. The trial court later denied Defendant's motion for postconviction relief. The court of appeals reversed, concluding that the video recordings were not admissible. The Supreme Court reversed, holding (1) Defendant forfeited several of his objections to the admissibility of the forensic interviews; and (2) the circuit court did not abuse its discretion when it admitted the three video-recorded forensic interviews during Defendant's trial.
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2021 WI 2 SUPREME 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 835 PDC No:2020 WI App 14 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 20, 2021 October 26, 2020 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee 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 Ellen of Henak, Criminal and Defense Henak Law Lawyers by Office, Robert S.C., R. Henak, Milwaukee. 2021 WI 2 NOTICE 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, FILED Plaintiff-Respondent-Petitioner, JAN 20, 2021 v. 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. ¶1 of PATIENCE DRAKE ROGGENSACK, C.J. appeals' decision1 that reversed Reversed. We review the court the circuit court's2 conviction of Angel Mercado based on its determination that the video-recorded forensic inadmissible. On appeal, the State urges us to reverse the court of appeals interviews arguing that of the Mercado's victims' victims were video-recorded State v. Mercado, 2020 WI App 14, 391 Wis. 2d 304, 941 N.W.2d 835. 1 The presided. 2 Honorable Jeffrey A. Conen of Milwaukee County 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 objections conclude to the that Mercado admissibility of forfeited the several forensic of interviews. Specifically, Mercado forfeited his contentions that: circuit court erred by not watching the his (1) 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 Therefore, we exception conclude found that in the Wis. Stat. circuit § 908.03(24). 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. A. ¶3 BACKGROUND Factual Background Mercado was arrested in August of 2016 for sexually assaulting N.G., L.G. and O.G., who were ages four through seven All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 3 2 No. at the time of the assaults. C.C., lived with Mercado 2018AP2419-CR The victims and their mother, 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." who "he" was; N.G. told her "Viejo." C.C. asked N.G. 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. O.G. said She asked O.G. "has [Mercado] been touching you?" that "[y]es he does" and that the last time it happened was "[t]he day before yesterday." ¶6 them. area." C.C. asked N.G. and L.G. where Mercado had touched N.G. responded "down there" and pointed to "[h]er private 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 3 individually repeated her No. allegations to the hospital staff. 2018AP2419-CR For example, N.G., without being prompted, said "Viejo keeps licking me on my butt. him." When asked why she was at the hospital, L.G. responded "To see if I'm ok. ¶8 the I hate Vie[j]o has been touching me everywhere." On August 16, 2016, C.C. took N.G., L.G. and O.G. to 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. ¶12 During N.G.'s forensic interview, she 2018AP2419-CR 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 room . . . and then Klauser he that walked pulled [her] pants down." "[Viejo] [her] in the comes in [her] basement-then he 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. sisters." And he did [it to] [her] two little 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. Klauser also had O.G. put an 'X' on the diagram. Officer 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. interviews. 2018AP2419-CR After learning of the criminal complaint against him, Mercado surrendered to law enforcement. B. ¶16 Procedural Posture 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 forensic to introduce interviews the into video-recordings evidence. In of a the pretrial victims' hearing regarding the video-recordings' admissibility, Mercado objected to the introduction Specifically, of Mercado N.G.'s alleged and that L.G.'s N.G. video-recordings. "evinces in this interview . . . zero ability to be able to tell the examiner the difference between truth and a lie." objection regarding L.G. Mercado raised the same 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. While 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). 4 6 No. 2018AP2419-CR Mercado did not object to the introduction of O.G.'s forensic interview. ¶18 each The court agreed to watch "the first few minutes of of the understood videos" the to difference determine between whether the required by Wis. Stat. § 908.08(3)(c). N.G. truth and and a L.G. lie as The State also cited a portion of N.G.'s video-recording wherein N.G. corrects one of Officer Cardenas's understanding. statements as "important context" for her 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 videorecording. ¶20 There, The court overruled Mercado's objection. Mercado's case continued to trial in January of 2017.5 the State introduced the video-recordings of their The court declared a mistrial in Mercado's initial trial 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. 5 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 recordings. not object to either O.G.'s or L.G.'s video- 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 pants testified that "[Mercado] was pulling our down, pulling mine down, and then he was doing stuff to our private parts." She clarified that "stuff" meant licking. why put she Xs on the drawing during her responded, "Because he was doing nasty stuff." When asked interview L.G. 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 The State also introduced each victim's body diagram and their medical records without objection. 6 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 no such thing to the jury." stating witnesses that "[t]here's anymore . . . it's up as competent 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 between the truth and a lie? [N.G.]: know the No. THE COURT: Do you know what a lie is? when you say something that's not right. understand that? [N.G.]: difference A lie is Do you (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: [N.G.]: It's not right? Because it's not. . . . . THE COURT: [N.G.]: Is it green? No, black. THE COURT: It's black? 9 Why? No. [N.G.]: 2018AP2419-CR Yeah. THE COURT: Okay. So that is a lie that this is green, right? Yes or no? [N.G.]: No. THE COURT: [N.G.]: Is it true that this is green? No. THE COURT: right? Yes? [N.G.]: ¶25 The Okay, so then it must be a lie, Yes. 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 defense On cross-examination counsel's questions N.G. answered regarding whether Officer Cardenas or told him "serious stuff." that this obviated examination. The any court meaningful disagreed "no" she most of remembered Mercado argued opportunity with to Mercado for cross- 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 crossexamination 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. before Stat. her § 908.08(3)(c); forensic interview (3) permitting was played N.G. for the to testify 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. in Wis. Stat. § 908.03(24). The State further 2018AP2419-CR 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 Mercado. arguments. The court of appeals agreed with 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. held that N.G. and L.G. did not demonstrate the It also 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 12 O.G.'s or L.G.'s video- No. recording.7 apply 2018AP2419-CR In a footnote, the court of appeals chose not to Wis. Stat. § 901.03(1)(a) forfeiture to Mercado's objections because it believed the rule to be one of judicial administration. ¶31 We Id., ¶32 n.6. granted the review, we determine: State's petition for review. On (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, admissible and under (2) whether the residual N.G.'s hearsay video-recording exception. We is also determine the proper interpretation of Wis. Stat. §§ 908.08(2) and (5). II. A. ¶32 purposes Standard of Review Whether a party properly preserved an objection for of independently. appeal of is State N.W.2d 427 (1999). questions DISCUSSION law a v. question Agnello, of 226 law that Wis. 2d we 164, review ¶9, 593 Questions of statutory interpretation are that we review independently. State v. Wiskerchen, 2019 WI 1, ¶16, 385 Wis. 2d 120, 921 N.W.2d 730. 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). 7 13 No. ¶33 Whether N.G.'s video-recording is 2018AP2419-CR admissible as residual hearsay requires us to apply Wis. Stat. § 908.03(24) to undisputed facts; independently. that is a question court law that we review See Warehouse II, LLC v. DOT, 2006 WI 62, ¶4, 291 Wis. 2d 80, 715 N.W.2d 213. lower of decision where Further, we "will not reverse a 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. ¶34 Forfeiture 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 14 did not object to the court No. permitting N.G.'s testimony Forfeiture occurs prior to showing party fails 2018AP2419-CR her video- recording.8 ¶35 objection.9 when a to raise an 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 noncertified 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. 8 Forfeiture, the failure to assert a claimed right, is to 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. 9 15 No. before an errors: appellate court may reverse 2018AP2419-CR evidentiary (1) the violation of a party's substantial right10 and (2) an objection or motion to strike. ¶37 In this context, reviewing courts generally limited to three exceptions to the forfeiture rule. are First, Wis. Stat. § 901.03(4) permits reversal of unobjected-to errors when a reviewing court finds plain error.11 courts may reverse unobjected-to Additionally, appellate errors in the interest justice or due to ineffective assistance of counsel.12 of See Wis. 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. 10 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). 11 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 12 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 appellate proceedings.13 his postconviction motion or during Finally, even when Mercado objected to intent." (footnote omitted)). Mercado is correct that he properly preserved his 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. 13 17 No. the admission of N.G.'s video-recording 2018AP2419-CR 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. ¶40 As Wisconsin Stat. §§ 908.08(2) and (5) 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, be may admissible if it exception to the hearsay rule." fits within a recognized 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 18 provisions of Wis. Stat. No. § 908.08. of 2018AP2419-CR The statutory exception serves the important purpose "'minimiz[ing] the mental and emotional [children's] participation [at trial].'" strain of 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. ¶42 Viewing Wis. Stat. § 908.08 Video-Recordings 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). rule on Finally, at the hearing, "the court . . . shall objections to the statement's admissibility." § 908.08(2)(b). ¶43 a Determining how much of a child's video-recording that circuit court § 908.08(2)(b) is required requires us to to review interpret under Wis. Stat. § 908.08(2)(b).14 We agree with the State that "statements" would not include portions of videos such as a black screen with no audio, 14 19 No. Statutory interpretation statute. begins with the 2018AP2419-CR language of the State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. language is clear, we stop the inquiry. If the plain 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 admitting it into evidence. ¶44 Wisconsin Stat. in its entirety before We disagree. § 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." definition does not Wis. Stat. § 908.01(1). help us in interpreting This general 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 important to its meaning. Kalal, 271 Wis. 2d 633, ¶46. term, preceding "statement," appears Wis. Stat. is The § 908.08(3), which sets criteria for admitting the recording of what a child has said. make Those statutory criteria require the circuit court to specific recording and findings the lack about of the child, surprise the to the verity of opposing the party. Therefore, we interpret the extent of what a circuit court must view in § 908.08(2)(b) in light of § 908.08(3) places on the circuit court. the obligations that 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. ¶48 Wis. Child Witnesses Testimony We also determine the appropriate interpretation of Stat. § 908.08(5) as it relates circuit courts receive testimony. to the order in which 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 videorecording is a matter of statutory interpretation. ¶50 We conclude § 908.08(5)(a) that relates the to plain what occurs child's recorded statement is shown. happens before the language of Wis. immediately Stat. after a It does not affect what video-recording is presented because § 908.08(5)(a) says nothing about events preceding the finder of fact viewing such a video-recording. party to "call the child to It permits the offering testify immediately statement is shown to the trier of fact." another party, § 908.08(5)(a) requires after the Upon the request of that "the court or hearing examiner . . . shall order that the child be produced immediately following cross-examination." the showing Notably of absent the statement . . . for 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 videorecording of a child's statement, we conclude that permitting N.G. to general testify authority beforehand to fell reasonably under the circuit control the "mode and of . . . presenting evidence" under Wis. Stat. § 906.11. 23 court's order No. ¶51 for its 2018AP2419-CR Here, the court of appeals said that it found support conclusion in its opinion Mercado, 391 Wis. 2d 304, ¶57. in State v. James. We are unpersuaded. See In James, the court of appeals was not asked whether a child may testify before his or her video-recording is shown. was tasked with determining whether Rather, the court 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 Wis. 2d 783, ¶4. James, 285 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. ¶52 We agree § 908.08(5)(a). with this interpretation of Id., ¶11. Wis. Stat. 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. the court of appeals statement in James that We agree with § 908.08(5)(a) "does not impermissibly interfere with the functioning of the judiciary 15 and constitutes an appropriate exercise Crawford v. Washington, 541 U.S. 36 (2004). 24 of shared No. judicial and legislative power," and therefore, court was required to follow § 908.08(5)(a). ¶53 To concluding courts the that from extent Wis. also that James has a child the been interpreted precludes witness before recording is shown, that interpretation is erroneous. not so hold. circuit Id., ¶¶20, 25. Stat. § 908.08(5)(a) calling 2018AP2419-CR as circuit a video- James did 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. ¶54 The Residual Hearsay Exception Finally, we address the admissibility of N.G.'s video- recording under § 908.03(24). the We residual begin by hearsay exception, addressing whether Wis. N.G.'s Stat. video- recording is admissible under Wis. Stat. § 908.08(7). ¶55 admit Wisconsin Stat. § 908.08(7) permits circuit courts to 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 Wis. 2d 830, ¶12. residual hearsay of §§ 908.08(2) and (3). Snider, 266 Here, the applicable hearsay exception is the exception found in Wis. Stat. § 908.03(24). The residual hearsay exception permits the admission of "[a] statement [hearsay] not specifically exceptions but covered by having comparable guarantees of trustworthiness." any § 908.03(24). 25 of the foregoing circumstantial No. ¶56 2018AP2419-CR 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." 26 Id. at 246. No. ¶57 case, Upon we consideration conclude that of the N.G.'s Sorenson statement 2018AP2419-CR factors has in this 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." "tend[s] abuse" to by support the Mercado. veracity Id. of [her] Additionally, Id. report she had N.G.'s age of sexual 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 fatherdaughter 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 deliberate falsity is otherwise shown." at 247. So, difference although between the she truth had and weight . . . unless Sorenson, 143 Wis. 2d trouble a lie, articulating there is simply evidence that N.G. deliberately fabricated her statement. the no The first Sorenson factor weighs in favor of admitting the videorecording. ¶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 with social worker sexual abuse motive to "had cases" coerce experience and the that victim we to counseling perceived no inculpate her and child evidence of father). a 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, statement the support circumstances its under reliability. which Again, N.G. N.G. made her made her statement during a one-on-one interview with a police officer at a neutral pinpoint, location. the timing Additionally, of the although statement assaults is at least a neutral factor. between June and August of 2016. in difficult relation to to the The assaults occurred 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 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. 16 O.G. told her mother that the last assault happened "the 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 17 28 No. spontaneity of statements are not as crucial 2018AP2419-CR 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). several week Accordingly, we conclude that the potential delay in reporting does not undercut the truthfulness of N.G.'s statement. ¶61 Fourth, the content of supports its trustworthiness. N.G.'s statement As we stated in further Sorenson, "A young child is unlikely to fabricate a graphic account of sexual activity because experience." it is beyond the realm Sorenson, 143 Wis. 2d at 249. of his knowledge appropriate for her her N.G. told Officer Cardenas that Mercado "licked [her] on [her] butt." demonstrated or age, She also 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 corroborates N.G.'s statement to Officer Cardenas. that We note at the outset that there was not physical evidence of the assaults, which is to the assaults happened." be expected began in given the relation 29 nature to when of the the assaults. disclosures No. Huntington, 216 Wis. 2d 671, ¶32. 2018AP2419-CR 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 unprompted and offered these statements voluntarily. she was 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; acknowledged conclude that I hate that him." Mercado these Additionally, assaulted surrounding all three statements are O.G. and of them. L.G. sufficient We to corroborate N.G.'s statement to Officer Cardenas. ¶63 that In assessing all five Sorenson factors, we conclude there are sufficient circumstantial guarantees of trustworthiness to permit N.G.'s statement to be admitted under the residual hearsay exception.18 ¶64 The determined court that of factors appeals one and Mercado, 391 Wis. 2d 304, ¶49. concluded otherwise. four fatally were It missing. 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 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. 18 30 No. 2018AP2419-CR The court of appeals also held that by not watching the videorecordings in their entireties, the circuit court could not have made a determination indications of falsity fourth factor. ¶65 two contrary statements to the were free requirements from of the The court of appeals rationale is flawed for at least requirements Specifically, factor." the Id. reasons. requisite that First, of it level Id. the court Wis. Stat. held that of of appeals §§ 908.08(2), N.G. truthfulness did "as not combined (3) the and (7). demonstrate required by the the first 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 indications that the information is false." whether Id. there are Once again, this conclusion injects a requirement that is unnecessary in a § 908.08(7) analysis. ¶66 As the court of appeals previously explained 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 in 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). with Snider's conclusion. We agree 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 appeals read one statute. language of the of two subsection modes of (7), the admission court out of of the "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. Wis. 2d 304, ¶49. is dispositive. Mercado, 391 As we explained in Sorenson, no single factor 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. ¶69 We objections conclude to the that CONCLUSION Mercado admissibility of forfeited the several forensic court interviews in erred by not their entirety watching prior the to victims' admitting his interviews. Specifically, Mercado forfeited his contentions that: circuit of (1) the forensic 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 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). 19 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 § 908.03(24). hearsay exception found in Wis. Stat. 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 reversed. 34 of the court of appeals is No. 1 2018AP2419-CR
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