State v. Jerry D. Fishbaugher

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 24, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1558-CR Cir. Ct. No. 2015CF876

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JERRY D. FISHBAUGHER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for La
Crosse County: RAMONA A. GONZALEZ, Judge. Order reversed and cause
remanded with directions.

Before Kloppenburg, Graham, and Nashold, JJ.

Per curiam opinions 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).
No. 2021AP1558-CR

¶1 PER CURIAM. Jerry Fishbaugher appeals a judgment of
conviction and an order denying his postconviction motion. We reverse the order
denying the postconviction motion and remand for a post-trial hearing on the
admissibility of a video recording of an interview with a child witness (generally,
the “recorded statement”).1

¶2 After a jury trial, Fishbaugher was convicted of first-degree sexual
assault-intercourse with a child under 12 and exposing a child to harmful
materials. On the Thursday before the trial started on a Monday, the State filed an
offer of proof to use a recorded audiovisual statement of the alleged victim. This
timing failed to comply with the statutory requirement to file such an offer not less
than ten days before trial, unless the court permits a later filing on a showing of
good cause. See WIS. STAT. § 908.08(2)(a) (2019-20).2 Fishbaugher responded to
the offer by objecting to the recorded statement based on both the timing of the
offer of proof and what he asserted were certain ways in which it failed to comply
with the standard for admissibility provided in § 908.08(3). However, the circuit
court did not make any explicit rulings regarding Fishbaugher’s objection or the
admissibility of the recorded statement, and the recorded statement was played at
the trial.

¶3 In his postconviction motion, Fishbaugher alleged, among other
issues, that his trial counsel was ineffective by not sufficiently objecting to the
admission of the recorded statement. The circuit court denied the motion.

1
Although the appellant appeals both a judgment and an order, we address only the
order for the reasons set forth in this opinion.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP1558-CR

¶4 In this appeal, the parties agree that Fishbaugher made a sufficient
objection to the recorded statement at trial to preserve the issue for appeal, and
therefore we should review the issue directly, rather than in the ineffective
assistance context. In addition, the parties appear to agree that, although there is
some uncertainty about the extent to which the circuit court ruled on
Fishbaugher’s objections before trial, we should regard the circuit court’s pretrial
and postconviction discussions together as constituting one decision to admit the
recorded statement. The State concedes in its brief that if the recorded statement
was not admissible, the error was not harmless, and Fishbaugher is entitled to a
new trial.

¶5 On appeal, Fishbaugher renews his arguments regarding the
untimeliness of the State’s offer of proof and his concerns about admissibility.
The parties agree that the circuit court’s discussions have not so far addressed
either of these points. More specifically, the circuit court has not determined that
good cause was shown for the offer being untimely. Nor has the court determined
that the recorded statement was admissible under the provisions of WIS. STAT.
§ 908.08(3), held the hearing on its admissibility, or ruled on Fishbaugher’s
objections, as required by § 908.08(2)(b).

¶6 The parties further agree that we may, but are not required to, review
the record ourselves to determine whether the recorded statement was properly
admitted. We decline to do so here. By statute, the circuit court was required to
hold a hearing on admissibility at which parties could have presented evidence to
support or undermine the findings required by WIS. STAT. § 908.08(3). We regard
this type of evidentiary decision as different from many evidentiary issues that
arise during a trial, in that there is a specific procedure to be followed that is a
prerequisite to admissibility of a recorded statement of a child witness. That

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No. 2021AP1558-CR

procedure was not followed here, and the circuit court has not made the necessary
findings for admissibility on the record. Under the circumstances, we decline to
assume that the court implicitly made the proper findings of good cause and
admissibility. This conclusion applies equally to the State’s argument on appeal
that the recorded statement should be admitted under the residual hearsay
exception.

¶7 Instead, we remand for the necessary hearing to be held. As the
State points out, this is consistent with past practice in certain cases. See, e.g.,
Upchurch v. State, 64 Wis. 2d 553, 564, 219 N.W.2d 363 (1974) (remanding for
post-trial determination of voluntariness of defendant’s statement that was used at
trial); State v. Sorenson, 152 Wis. 2d 471, 497-99, 449 N.W.2d 280 (Ct. App.
1989) (remanding for post-trial determination of whether witness was unavailable,
for purpose of applying hearsay rule; also collecting cases where similar remands
occurred).

¶8 Therefore, we reverse only the order denying the postconviction
motion and we remand for a hearing. At that hearing the circuit court must
consider: (1) Fishbaugher’s objection that there was insufficient cause for the late
offer of proof; and (2) whether the recorded statement was admissible under WIS.
STAT. § 908.08(3). We do not preclude the circuit court from also considering
whether the video was admissible under the residual hearsay exception as
provided in § 908.08(7).

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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