State v. Angel Mercado

2021 WI 2, 953 N.W.2d 337, 395 Wis. 2d 296

• Court: Wisconsin Supreme Court
• Decided: January 20, 2021
• Docket: 2018AP002419-CR
• Status: Published

Opinion

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: 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 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,

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?

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?

THE COURT: Is it true that this is green?

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

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

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

By the Court.—The decision of the court of appeals is

reversed.

34 No. 2018AP2419-CR