State v. Dwayne Anthony Young

• Court: Court of Appeals of Wisconsin
• Decided: June 17, 2025
• Docket: 2023AP001322-CR
• Status: Unpublished

Opinion

OFFICE OF THE CLERK WISCONSIN COURT OF APPEALS 110 EAST MAIN STREET, SUITE 215 P.O. BOX 1688 MADISON, WISCONSIN 53701-1688 Telephone (608) 266-1880 TTY: (800) 947-3529 Facsimile (608) 267-0640 Web Site: www.wicourts.gov DISTRICT I

June 17, 2025 To: Hon. Glenn H. Yamahiro Sarah Burgundy Circuit Court Judge Electronic Notice Electronic Notice Dustin C. Haskell Anna Hodges Electronic Notice Clerk of Circuit Court Milwaukee County Safety Building Electronic Notice

You are hereby notified that the Court has entered the following opinion and order:

2023AP1322-CR State of Wisconsin v. Dwayne Anthony Young (L.C. # 2018CF2439)

Before White, C.J., Donald, P.J., and Geenen, J.

Summary disposition orders may not be cited in any court of this state as precedent or

authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

Dwayne Anthony Young appeals a judgment, entered upon a jury’s verdicts, convicting

him of two counts of first-degree sexual assault of a child younger than 12 years old.1 He claims

1 Before Young filed the instant appeal, he pursued a successful postconviction motion for sentence credit, and the circuit court entered an amended judgment of conviction reflecting the credit awarded. Young then appealed from the original judgment of conviction, and the State hints in its respondent’s brief that the appeal therefore has a jurisdictional defect. According to the State, the amended judgment “reflects that the [original] judgment was not final and is no longer the document controlling Young’s current conviction and confinement.” Subsequent events, however, do not alter the finality of a judgment. Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655 (1979). Accordingly, at the conclusion of Young’s postconviction litigation, he properly appealed from the judgment of conviction. See WIS. STAT. RULE 809.30(2)(j) (2023-24). There is no jurisdictional defect. All references to the Wisconsin Statutes are to the 2023-24 version. No. 2023AP1322-CR

that the circuit court erred by permitting the jury to watch an audiovisual recording of the

victim’s pretrial statement to a detective. Based upon a review of the briefs and record, we

conclude at conference that this matter is appropriate for summary disposition. See WIS. STAT.

RULE 809.21. The record shows that the videorecording was admissible under the residual

hearsay exception, WIS. STAT. § 908.03(24). Therefore, we summarily affirm.

This case arose in May 2018, when D.R. was 14 years old. At that time, she disclosed

that she had been sexually assaulted multiple times by her mother’s ex-husband, Young. Upon

hearing the allegations, D.R.’s mother, S.R., called the police. A few days later, Detective Joan

Mueller conducted a videorecorded forensic interview with D.R. The State thereafter charged

Young with two counts of first-degree sexual assault of a child younger than 12 years old,

alleging that the assaults occurred during the period from November 15, 2012, through

December 13, 2013.

At a pretrial hearing in August 2018, the circuit court considered whether D.R.’s

videorecorded interview would be admissible at trial under WIS. STAT. § 908.08(3)(a)2. Pursuant

to that statute, a circuit court conducting a criminal trial shall admit the audiovisual recording of

a statement of a child who is available to testify if the child is at least 12 years old, the trial will

begin before the child’s 16th birthday, and the interests of justice warrant admission under a

multifactor test set forth in § 908.08(4). The circuit court examined the statutory factors and

concluded that D.R.’s recorded statement was admissible under § 908.08(3)(a)2.

Numerous adjournments delayed the start of the trial, which ultimately began in

July 2022. By that time, D.R. was 18 years old. The parties therefore agreed at the outset of the

trial that her recorded statement was no longer admissible under WIS. STAT. § 908.08(3)(a)2.

2 No. 2023AP1322-CR

The State’s first trial witness was Lynn Cook, who testified as an expert on child victims’

delayed disclosure of their sexual abuse. D.R. testified next and described how Young twice had

penis-to-vagina sexual intercourse with her while S.R. was working a night job and Young was

babysitting D.R. and her brothers. Young, through counsel, cross-examined D.R. and asked her

a series of questions regarding whether she had discussed her testimony with anyone. After D.R.

denied any such discussions, the State moved to admit D.R.’s forensic interview. The State

contended that, in light of the cross-examination questions, the recorded interview was

admissible as a prior consistent statement. The circuit court took the matter under advisement.

S.R. then testified. S.R. told the jury that she began working a third-shift position in

November 2012, and Young stayed at home with the children while she was working. S.R. said

that Young moved out of the home in late November 2013, and she divorced him. Then in

May 2018, D.R. revealed that Young had sexually abused her in the past. S.R. testified that prior

to the disclosure, she had not known about the abuse but that during the period from 2012

through 2013, she noticed that D.R.’s behavior “changed.” D.R. would not look at Young, she

cried, and she seemed “scared.”

After S.R. testified, the circuit court granted the State’s motion to admit D.R.’s 2018

recorded interview. The circuit court concluded that the interview was D.R.’s prior consistent

statement, offered by the State to rebut a claim of improper influence or motive. The State then

presented the portion of the interview in which D.R. said that Young twice had penis-to-vagina

sexual intercourse with her.

The jury found Young guilty as charged. He appeals, arguing that the circuit court

erroneously admitted D.R.’s recorded interview.

3 No. 2023AP1322-CR

A circuit court has broad discretion to admit or exclude evidence. State v. Smith, 2016

WI App 8, ¶10, 366 Wis. 2d 613, 874 N.W.2d 610. Our review of a circuit court’s discretionary

decision is deferential: “It is enough that the reasons for the court’s conclusion indicate ... that

the [circuit] court undertook a reasonable inquiry and examination of the facts and the record

shows that there is a reasonable basis for the court’s determination.” State v. Achterberg, 201

Wis. 2d 291, 301, 548 N.W.2d 515 (1996) (citations and some punctuation marks omitted). We

will uphold a circuit court’s discretionary decision to admit evidence if we can discern a rational

basis for that decision. State v. Huntington, 216 Wis. 2d 671, 681, 575 N.W.2d 268 (1998).

Young argues that D.R.’s recorded interview was not a prior consistent statement but was

instead inadmissible hearsay. Hearsay is an out-of-court statement offered to prove the truth of

the matter asserted and is inadmissible at trial unless the statement fits within an applicable

hearsay exception. WIS. STAT. §§ 908.01(3), 908.02. Not all out-of-court statements are

hearsay. Pursuant to § 908.01(4)(a)2, an out-of-court statement is not hearsay if the statement is

“consistent with the declarant’s testimony and is offered to rebut an express or implied charge

against the declarant of recent fabrication or improper influence or motive[.]” Young asserts that

the circuit court erroneously admitted D.R.’s recorded forensic interview because it was an out-

of-court statement that did not qualify as a prior consistent statement under § 908.01(4)(a)2.

Young additionally examines the recorded interview in light of WIS. STAT. § 908.03(24), the

residual hearsay exception, and he argues that the interview was also not admissible under that

statute. He contends that the jury therefore improperly heard prejudicial hearsay evidence.

The State does not dispute that D.R.’s recorded interview fell outside the scope of WIS.

STAT. § 908.01(4)(a)2., governing prior consistent statements. The State asserts, however, that

the circuit court admitted the interview pursuant to State v. Gershon, 114 Wis. 2d 8, 337 N.W.2d

4 No. 2023AP1322-CR

460 (Ct. App. 1983), which permits admission of a prior consistent statement “ʻto support the

credibility of the witness,’” rather than as substantive evidence. Id. at 11-12. Thus, the State

argues, the recorded statement did not need to satisfy the requirements of § 908.01(4)(a)2.; the

evidence was admissible because it was relevant to support D.R.’s credibility. Gershon, 114

Wis. 2d at 11-12. The State further argues that, regardless of the authority provided by Gershon,

the circuit court also could have properly admitted the evidence under the residual hearsay

exception, WIS. STAT. § 908.03(24).

The record confirms that the State placed substantial reliance on Gershon during the trial

proceedings and that the circuit court cited Gershon as one of the “primary cases” governing the

question of whether to admit D.R.’s recorded statement. Young, however, did not discuss or cite

Gershon in the appellant’s brief that he filed in this court, addressing the case only in his reply

brief.

The parties’ arguments guide our approach here. In view of those arguments, we accept

the parties’ apparent agreement that D.R.’s recorded interview was inadmissible under WIS.

STAT. § 908.01(4)(a)2. Further, given Young’s failure to grapple appropriately with Gershon,

we will set aside the question of whether the circuit court erred by relying on that case to admit

the evidence. We instead begin by examining the issue that squarely divides the parties and that

they thoroughly discuss in their respective submissions: the admissibility of the recorded

interview under WIS. STAT. § 908.03(24), the residual hearsay exception. If we conclude that the

video was admissible under § 908.03(24), analysis of any other potential basis for admissibility

is not required. See State v. Baudhuin, 141 Wis. 2d 642, 648, 416 N.W.2d 60 (1987)

(explaining that an appellate court is concerned with whether the circuit court reached the correct

decision, not with the specifics of the circuit court’s reasoning).

5 No. 2023AP1322-CR

Preliminarily, we reject Young’s suggestion that we should not entertain the State’s

arguments regarding WIS. STAT. § 908.03(24), because the State did not rely on that statute in the

circuit court proceedings. Although normally we will not consider arguments that appellants

raise for the first time on appeal, State v. Bollig, 222 Wis. 2d 558, 564, 587 N.W.2d 908 (Ct.

App. 1998), the State is the respondent here. Accordingly, the applicable rule is that “a

respondent may raise any defense to an appeal even if that defense is inconsistent with the stand

taken at trial.” State v. Baeza, 156 Wis. 2d 651, 657-58, 457 N.W.2d 522 (Ct. App. 1990).

Accordingly, we turn to the question of whether the videorecording of D.R.’s 2018 statement

could properly be admitted at trial under § 908.03(24).

WISCONSIN STAT. § 908.03(24) permits a court to admit as evidence an out-of-court

“statement not specifically covered by any of the [other] exceptions [in § 908.03] but having

comparable circumstantial guarantees of trustworthiness.” Id. Admission of a child’s

videorecorded out-of-court statement is specifically covered under WIS. STAT. § 908.08(3), but

only if the child is younger than 16 years old at the time of trial. Section 908.08(7) also

addresses a child’s videorecorded statement and permits a court to admit such a statement if it

satisfies an exception to the hearsay rule. Therefore, when the exception in § 908.08(3) does not

apply because, as here, the child who gave the statement is 16 years or older at the time of trial,

we examine whether the recorded statement is admissible under the residual hearsay exception

found in § 908.03(24). See State v. Mercado, 2021 WI 2, ¶55, 395 Wis. 2d 296, 953 N.W.2d

337.

A court examines five factors, first set out in State v. Sorenson, 143 Wis. 2d 226, 421

N.W.2d 77 (1988), to determine whether a child’s recorded statement has the requisite

circumstantial guarantees of trustworthiness to warrant admission under WIS. STAT.

6 No. 2023AP1322-CR

§ 908.03(24). Mercado, 395 Wis. 2d 296, ¶56. The Sorenson factors are: (1) the attributes of

the child, including age, level of comprehension, verbal ability, and knowledge of the difference

between truth and falsehood; (2) the person to whom the statement was made, the person’s

relationship to the child, and the person’s potential motivations to lie or distort the child’s

statement; (3) the circumstances under which the statement was made, including the relation to

the time of the incident, the availability of a person in whom the child might confide, and other

contextual factors relating to the statement’s trustworthiness; (4) whether the statement contains

any sign of deceit or falsity or reveals a knowledge of matters not ordinarily attributable to a

child of similar age; and (5) the presence of other corroborating evidence, including physical

evidence of assault, statements that the child made to others, and the defendant’s opportunity or

motive to commit the crime. Id., 143 Wis. 2d at 245-46. When examining the factors, “[c]ourts

are to consider the facts of each particular case and ‘no single factor should be dispositive of a

statement’s trustworthiness.’” Mercado, 395 Wis. 2d 296, ¶56 (citation and brackets omitted).

As to the first Sorenson factor, the child’s attributes, the recording shows that D.R. was

able to communicate verbally and respond appropriately to the questions that the detective asked

during the interview. The circuit court, which considered D.R.’s attributes in 2018 when it

assessed admissibility of the recording under WIS. STAT. § 908.08(3), noted D.R.’s “very good”

ability to communicate. Additionally, at the outset of the interview, D.R. answered a series of

questions from the detective in a way that reflected an understanding of the difference between

truth and falsehood and a recognition that lying could lead to negative consequences.

Young suggests that D.R.’s age is the key attribute here and that it weighs against

admission of the recorded statement because D.R. was 14 years old when she was interviewed.

Young points out that a 14-year-old, unlike a preschool-age child, is able to calculate the effect

7 No. 2023AP1322-CR

of her statements, including the effect of making allegations against another person. Our

supreme court, however, has specifically rejected a “bright-line rule” setting the upper limits of a

child’s age for purposes of assessing the trustworthiness required by WIS. STAT. § 908.03(24).

Huntington, 216 Wis. 2d at 683-84 (concluding that an 11-year-old’s recorded statement had

circumstantial guarantees of trustworthiness). In this case, D.R.’s attributes, which include

attaining an age sufficient to understand the importance of telling the truth and “very good”

communication skills, favor admission.

Turning to the second Sorenson factor, we observe that D.R. gave her recorded statement

to a detective. Nothing in the video or in the record suggests any basis or opportunity for the

detective to fabricate or distort D.R.’s statement. Accordingly, this factor favors admission. See

Mercado, 395 Wis. 2d 296, ¶59 (stating that the second factor favors admitting the statement

where it was made to a child forensic interviewer).

The third Sorenson factor is the circumstance under which the child made the statement.

The record shows that D.R. gave her recorded statement in an austere interview room, to a

detective who repeatedly stressed the importance of telling the truth and the consequences of

lying. We recognize that, as Young reminds us, D.R. made her recorded statement several years

after the sexual assaults she described. However, the fact that a child’s statement does not

immediately follow an assault is not a controlling consideration when assessing the

trustworthiness of that statement. Id., 143 Wis. 2d at 248. “Contemporaneity and spontaneity of

statements are not as crucial in admitting hearsay statements of young sexual assault victims

under the residual exception.” Id. Moreover, the delay here is less a circumstance of the

recorded statement and more a function of the fact that D.R.’s disclosure itself was delayed.

Delayed disclosure does not undermine the trustworthiness of the statement. See id., see also

8 No. 2023AP1322-CR

State v. Hineman, 2023 WI 1, ¶61, 405 Wis. 2d 233, 983 N.W.2d 652 (Karofsky, J., concurring)

(stating that delayed disclosures are the norm, not the exception). In this regard, we note that the

only expert who testified in this case explained that delayed disclosure is common because

“children tend to have a lot of reasons not to report abuse right away[.]”

The fourth Sorenson factor is whether the child’s statement reflects signs of deceit or

falsehood and reveals knowledge of matters not ordinarily attributable to a person of the child’s

age. Id., 143 Wis. 2d at 246. The State recognizes that the sexual knowledge reflected in D.R.’s

recorded statement is unremarkable for a 14-year-old. Age alone, however, is not determinative;

as we have already noted, no bright-line rule dictates rejection of a child’s recorded statement as

untrustworthy merely because the child has reached an age at which familiarity with sexual

matters is to be expected. Huntington, 216 Wis. 2d at 683-84. Instead, the assessment of

trustworthiness turns on the specifics of the speaker and the statement. Here, the circuit court

found that D.R.’s statement did not reveal any “sign of deceit or falsity,” and that instead D.R.

appeared tearful and embarrassed. Moreover, she used unsophisticated terms such as “kit kat”

and “thing” for intimate body parts, rather than language suggesting an attempt to shock the

listener. This factor supports admissibility.

Last, a court considers whether the child’s statements are corroborated. Sorenson, 143

Wis. 2d at 246. While Young correctly points out that the State did not offer any corroborating

physical evidence, the corroboration relevant to this aspect of the analysis is not limited to

physical evidence. Id. D.R.’s statements were corroborated here by evidence of Young’s

opportunity to engage in the sexual conduct that D.R. described. See id. No dispute exists that

S.R. held a third-shift job from November 2012 through December 2013, or that Young was the

only adult in the home providing child care while S.R. was at work. Moreover, S.R. testified that

9 No. 2023AP1322-CR

during this period, she noticed changes in D.R.’s behavior in general and in relation to Young in

particular. D.R. “didn’t want to look at” Young, “would cry,” and appeared “scared to even

talk.” This final factor also favors admission.

Our review reflects that all five of the Sorenson factors favor admission under the facts

of this particular case. See Mercado, 395 Wis. 2d 296, ¶56. The recording thus possessed

sufficient guarantees of trustworthiness to be admitted under WIS. STAT. § 908.03(24).

In sum, we accept the parties’ apparent agreement that D.R.’s recorded statement was

inadmissible as a prior consistent statement under WIS. STAT. § 908.01(4)(a)2. We conclude,

however, that the recording contained sufficient indicia of reliability to be admitted under WIS.

STAT. § 908.03(24). We therefore hold that the circuit court did not erroneously exercise its

discretion in admitting the evidence, regardless of the circuit court’s specific rationale for doing

so. Accordingly, we affirm.

IT IS ORDERED that the judgment of conviction is summarily affirmed. See WIS. STAT.

RULE 809.21.

IT IS FURTHER ORDERED that this summary disposition order will not be published.

Samuel A. Christensen Clerk of Court of Appeals