State v. Angel Mercado

2020 WI App 14
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP2419-CR

† Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,†

V.

ANGEL MERCADO,

DEFENDANT-APPELLANT.

Opinion Filed: February 4, 2020
Submitted on Briefs: September 9, 2019
Oral Argument:

JUDGES: Brash, P.J., Kessler and Fitzpatrick, JJ.
Concurred:
Dissented: Fitzpatrick, J.

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Esther Cohen Lee of Hall, Burce & Olson SC, Milwaukee.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Scott E. Rosenow, assistant attorney general, and Joshua L.
Kaul, attorney general.
2020 WI App 14

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.
February 4, 2020
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. 2018AP2419-CR Cir. Ct. No. 2016CF3679

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANGEL MERCADO,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. CONEN, Judge. Reversed and cause remanded
with directions.

Before Brash, P.J., Kessler and Fitzpatrick, JJ.

¶1 BRASH, P.J. Angel Mercado appeals his judgment of conviction for
two counts of first-degree sexual assault of a child for having sexual contact with a
child under the age of thirteen, and one count of first-degree sexual assault of a child
No. 2018AP2419-CR

for having sexual intercourse with a child under the age of twelve. He also appeals
the trial court’s denial of his postconviction motion for a new trial on the grounds
that the trial court erred in admitting the videos of forensic interviews of the three
children. Mercado argues that the court did not follow all of the statutory procedures
for the admission of those videos, as set forth in WIS. STAT. § 908.08 (2017-18).1
He further asserts that admission of the videos under alternative grounds—either
pursuant to the residual hearsay exception, or, in the case of the youngest child, as
a prior inconsistent statement—would have been in error as well.

¶2 The trial court rejected Mercado’s claims, stating that it “perceive[d]
no error” in statutory procedure in its admission of the videos. The court also agreed
with the State that in any event, all three videos were admissible under the residual
hearsay exception, and that the video of the youngest child was admissible as a prior
inconsistent statement.

¶3 We disagree. The record indicates that the statutory requirements for
admission of all three of the videos were not fully met and further, that the
requirements for admission under the residual hearsay exception or as a prior
inconsistent statement likewise were not satisfied. We therefore reverse Mercado’s
convictions on all three charges and remand this matter for a new trial.

BACKGROUND

¶4 The charges against Mercado involve three children: O.E.G., born
January 23, 2009; L.A.G., born August 2, 2011; and N.L.G., born July 25, 2012.

1
All references to the Wisconsin Statutes are to the 2017-18 version, unless otherwise
noted.

2
No. 2018AP2419-CR

The assaults on the children were alleged to have occurred between June 2016 and
August 2016, when the three children and their mother, C.J.C., were living with
Mercado at his residence on South 24th Street in Milwaukee.2 C.J.C. stated that she
had known Mercado since 2011, and that they had moved in with Mercado so that
she could assist him with his daily care: his medication, his appointments, and some
household duties.

¶5 C.J.C. found out about the sexual assaults in August 2016. She was
in the car with N.L.G. after running errands and had started singing along to a song
on the radio which included the lyrics “I want to lick you up and down.” N.L.G.
blurted out “[t]hat’s what he does.” C.J.C. then asked her who did that, and N.L.G.
answered “Viejo”—the children’s nickname for Mercado.

¶6 When they arrived at the residence, C.J.C. asked L.A.G. if anyone had
been touching her, to which she responded “yes.” C.J.C. asked her if it was “Viejo”
who had been touching her, and she responded affirmatively. When O.E.G. returned
home that evening, C.J.C. also asked her if “Viejo” had been touching her, and she
responded that he had. She then took the girls to the hospital that night to be
examined. A few days later, police officers conducted forensic interviews with each
of the children, which were videotaped.

¶7 Mercado was subsequently charged with two counts of first-degree
sexual assault of a child for having sexual intercourse with a child under the age of
twelve, and one count of first-degree sexual assault of a child for having sexual
contact with a child under the age of twelve. The matter proceeded to trial in
November 2016; however, it resulted in a mistrial due to difficulties with accurately

2
C.J.C. had another child, J.G.—a thirteen-year-old—who also lived at the residence on
South 24th Street. She is not involved in this case.

3
No. 2018AP2419-CR

translating the videos of the children’s forensic interviews for Mercado. As a result,
the trial court ordered that the videos be transcribed so that the transcriptions could
be read to Mercado as the videos were being played at trial. Those transcripts, which
were prepared by the district attorney’s office, were also to be provided to the jury
at the time the videos were played to assist the jurors in understanding any portions
of the videos that were difficult to hear.

¶8 The matter was then re-tried in January 2017. The video of L.A.G.’s
forensic interview was introduced and played. At the time of the interview, L.A.G.
had just turned five years old, but told the officer she was four—even after the
officer asked about her birthday, which had occurred just two weeks prior to the
interview. In the video, the officer conducting the interview tried to establish that
L.A.G. understood the difference between the truth and a lie by discussing the color
of the officer’s pants: her pants were black, and she asked L.A.G. that if someone
said they were red, whether that was the truth or a lie; L.A.G. answered “I think
that’s the truth.” L.A.G. also stated that she did not know whether it was important
to tell the truth, and would not promise to tell the truth during the interview. She
subsequently told the officer that Mercado had carried her to the basement, pulled
her skirt down, and put his tongue on her “pee-pee” and had “licked [her] butt too.”
She also stated that he had done the same thing to her sisters.

¶9 After the video was played, L.A.G. testified. During the trial court’s
colloquy with her to establish her ability to understand the difference between the
truth and a lie, L.A.G. first said that she did not know what it meant to tell the truth,
but said that a lie was not telling the truth. The trial court then asked her questions
regarding the color of his robe, and whether stating that it was pink was a lie, and
she answered affirmatively. L.A.G. then testified that Mercado had done “nasty
stuff” to her on the table in the basement, including licking her on the chest, below

4
No. 2018AP2419-CR

the waist, and on her butt. When asked if this happened over her clothes, under her
clothes, or “something else,” L.A.G. replied that it was “something else” but could
not explain.

¶10 Next, the video of O.E.G.’s forensic interview was played. O.E.G.—
who was seven years old at the time of the interview—was asked the same question
by the officer about the color of her pants, and O.E.G. answered that saying they
were red was a lie. O.E.G. also responded that “a kid who gets caught telling a lie”
would get a “time-out.” O.E.G. then told the officer that the man they live with was
touching her in “the private part,” and touching her two little sisters too.

¶11 After the video was played, O.E.G. testified. She refused to provide
any information regarding her assaults while on the stand, but she did state that she
had told the truth to the officer who conducted the forensic interview, and that she
was mad at Mercado because of the things that she had talked about with the officer.

¶12 With regard to N.L.G., Mercado had previously requested at a pretrial
motion hearing that the video of her forensic interview not be admitted based on her
lack of understanding between telling the truth and a lie as observed in her video.
The officer conducting the interview tried to establish her comprehension by asking
N.L.G.—who had recently turned four years old at the time of the interview—if a
pillow was called a wall; she said that was “not wrong.” Additionally, she did not
answer the officer’s questions regarding whether there are consequences for not
telling the truth. In fact, the officer’s report regarding the interview stated that
N.L.G. “was unable to articulate the difference between truth and lie” and that she
“did not understand that there were consequences for telling lies and could not say
whether it was important to tell the truth.”

5
No. 2018AP2419-CR

¶13 The trial court ruled that those concerns were an issue of credibility
for the jury to determine, and that N.L.G. should be allowed to testify if there was
even the “slightest” indication that she could testify as to what happened to her.
However, the court was concerned that N.L.G. would “sit there and say nothing”
when called to testify, which would not provide a meaningful opportunity for cross-
examination. Thus, the court determined that the best course of action would be to
have N.L.G. testify before her video was played, and then provide the defense with
the opportunity to continue its cross-examination after the video.

¶14 When N.L.G. took the stand, the trial court asked her about the color
of his robe—whether saying that it is green would be a lie when it is actually black.
N.L.G. answered that saying it was green would not be telling the truth, but rather
would be a lie. She indicated that she understood that she had to tell the truth and
promised to do so while testifying.

¶15 The prosecutor then asked N.L.G. whether she remembered the
officer who did her forensic interview. Her response was mixed—she said she
remembered him, then said she had not seen him before, but then stated that she
remembered talking to him “a while back[.]” However, when defense counsel asked
the same question, N.L.G. stated that she did not remember the officer and that she
had not talked to him about any “serious things” that had happened to her with
Mercado.

¶16 At a sidebar following these exchanges, defense counsel argued that
there was no meaningful opportunity to cross-examine N.L.G. because she did not
remember the forensic interview. The trial court disagreed, noting that a meaningful
opportunity for cross-examination “means ask questions and whatever answers
there are, those are the answers that everyone’s stuck with[.]” The court further

6
No. 2018AP2419-CR

observed that the record at that point was advantageous to the defense since it
reflected that N.L.G. had stated that she did not remember the forensic interview.

¶17 The court then indicated that it would allow defense counsel to further
cross-examine N.L.G. after her video was played so that counsel could “ask specific
questions about the video.” However, defense counsel declined, stating that she was
“not asking for additional opportunity” for cross-examination because she saw “no
point … in continuing to try to ask a witness something that she has no memory of
occurring.”

¶18 N.L.G.’s forensic video was then played for the jury. It was difficult
to discern what N.L.G. was saying during much of the video; however, she told the
officer that Mercado had licked her on her butt, her leg, her hand, and her back, and
had touched her arm. These statements were made in the midst of N.L.G. also
making other statements to the officer, such as that her mother had “rolled [her]
down the stairs … like a ball”; that someone had given her a prize with a cockroach
in it; that L.A.G. had made popcorn; asking whether she had to take her shoes off;
asking the officer who had cut his hair; and asking whether the officer had a
microwave. The court had ordered that N.L.G. remain in the court room while the
video was played “in case there is a need for additional cross-examination”;
however, she was not recalled.

¶19 C.J.C. also testified at the trial. She explained her relationship with
Mercado: that she had known him for five or six years and they were “good
friends.” She stated that she had been having “a lot of problems” and admitted that
the children had previously been in foster care for two years. She explained that
Mercado “was willing to take [her] in with [her] girls and help [her] out,” and that
she was in return helping him with “in-home care,” including his medical and

7
No. 2018AP2419-CR

financial affairs. C.J.C. also stated that when she first asked the children about what
had happened to them, she had spoken with all three of them together.

¶20 The nurse who examined the children at the hospital testified as well.
She stated that she asked each girl if they knew why they were there, and that the
girls each told her that “Viejo” had been touching them. She further testified that
she had observed no signs of injuries to the girls. Additionally, the officers who
conducted the forensic interviews of the girls testified, explaining their procedures
for conducting the interviews.

¶21 Mercado then testified in his defense. He repeatedly denied assaulting
any of the children, saying they were like his daughters. He stated that C.J.C. had a
“vice” which kept her from maintaining a stable place to live, and that he had taken
her and the children “off of the street” four different times. Mercado also stated that
he knew C.J.C. had previously “lost [the children] to the State” because of being
homeless, and that because he “love[s] her like [his] own daughter” he could not
“leave her on the streets.”

¶22 Mercado testified that he generally did not discipline the children, but
that about two months prior to the complaint in this case he had to carry the children
out of his room when they were jumping on his bed because C.J.C. was “all drugged
up” and unable to take care of them. He also stated that around the time of the
complaint he had refused to give C.J.C. money because he knew that she would use
it to buy drugs. He noted that she had his bank card to “help” him with his banking,
and he had since discovered that she had been withdrawing money from his account,
and that he thought “this is all just because of money.”

8
No. 2018AP2419-CR

¶23 The jury convicted Mercado on all three counts.3 The sentences
imposed by the trial court totaled forty-five years of initial confinement and thirteen
years of extended supervision, to be served concurrently.4

¶24 Mercado filed a postconviction motion, asserting that it was error for
the trial court to have admitted the videos of the forensic interviews. Mercado
argued that the court did not comply with all of the requirements for admission as
set forth in WIS. STAT. § 908.08. Specifically, Mercado contended that the court
was required to view the entire length of each video pursuant to § 908.08(2)(b),
noting that at the pretrial hearing, the court made a statement that it was “going to
review the first few minutes of each of the videos” so that the court could discuss it
in greater detail the next day.

¶25 Mercado also asserted that the trial court did not make the required
findings set forth in WIS. STAT. § 908.08(3). These required findings include a
determination “[t]hat the child’s statement was made upon oath or affirmation or, if
the child’s developmental level is inappropriate for the administration of an oath or
affirmation in the usual form, upon the child’s understanding that false statements
are punishable and of the importance of telling the truth.” Sec. 908.08(3)(c).
Mercado argued that this finding could not be made with regard to N.L.G. based on
her lack of understanding in the video between telling the truth and a lie.

3
Pursuant to an entry in CCAP, the State made a motion during the trial to amend one of
the charges for sexual intercourse with a child to sexual contact; thus, the charges for which
Mercado was convicted are two counts of sexual contact with a child under the age of thirteen, and
one count of sexual intercourse with a child under the age of twelve. We may take judicial notice
of CCAP records; CCAP is an acronym for Wisconsin’s Consolidated Court Automation Programs,
and the online website consists of information entered by court staff. See Kirk v. Credit Acceptance
Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522.
4
The count of sexual intercourse with a child under the age of twelve carries a mandatory
minimum penalty of twenty-five years of initial confinement.

9
No. 2018AP2419-CR

¶26 Mercado further argued that in allowing N.L.G. to testify before her
video was shown to the jury, the trial court did not follow the statutory procedure
for calling the child to testify immediately after the video is viewed for cross-
examination. See WIS. STAT. § 908.08(5)(a). Mercado also contended that it was
reversible error for the transcripts of the videos provided to the jury to be uncertified:
they were not prepared by a certified court reporter but rather by the district
attorney’s office, and they were not transcribed by the official court reporter as they
were being played during the trial.

¶27 The trial court rejected all of Mercado’s arguments. The court
maintained that all three children—including N.L.G.—had “demonstrated the
requisite understanding of the importance of telling the truth and that false
statements were punishable.” The court further noted that its statements at the
pretrial hearing regarding watching “the first few minutes” of the videos was
followed up the next day at trial by its statements that it had “reviewed all relevant
portions of the videos necessary to make its ruling on their admissibility[.]” 5

¶28 With regard to N.L.G.’s testimony, the trial court indicated that it
found it appropriate to have N.L.G. testify before the video was shown “in order to
prevent prejudice to [Mercado] should her testimony lead to the exclusion of the
video.” The court further stated that it had offered Mercado the opportunity to cross-
examine N.L.G. after her video was played, which he waived.

5
At the pretrial motion hearing on November 8, 2016, the trial court stated that with regard
to the videos of the forensic interviews, it “[hadn’t] seen anything.” The next day, November 9,
2016, prior to commencing the first trial, the court noted that it had reviewed “relevant portions”
of the videos of N.L.G. and L.A.G. The court at that time did not explain what that included, and
further, it did not indicate that it had watched any of O.E.G.’s video. However, in its written
decision denying Mercado’s postconviction motion, the court noted that it had “viewed all three
videos in their entirety when they were played for the jury at the trial[.]”

10
No. 2018AP2419-CR

¶29 Finally, the trial court observed that the court reporter was not
required to transcribe the videos, and that any argument relating to the non-
certification of the transcripts utilized during the trial had been forfeited by Mercado
as he did not raise the issue at trial. Moreover, Mercado had made no showing that
the transcripts were inaccurate.

¶30 This appeal follows.

DISCUSSION

¶31 On appeal, Mercado reiterates the arguments he raised in his
postconviction motion—that the videos of the forensic interviews of the children
were admitted erroneously. “Trial courts have broad discretion to admit or exclude
evidence and to control the order and presentation of evidence at trial; we will upset
their decisions only where they have erroneously exercised that discretion.” State
v. James, 2005 WI App 188, ¶8, 285 Wis. 2d 783, 703 N.W.2d 727. “The trial court
acts erroneously when its discretionary ruling contravenes nondiscretionary statutes
or is based on an incorrect interpretation of the law.” Id. “Whether the trial court
properly interpreted the law presents a question of law that we review
independently.” Id.

1. The trial court did not comply with the requirements of WIS. STAT.
§ 908.08(2)-(3).

¶32 WISCONSIN STAT. § 908.08 is a hearsay exception created by the
legislature to specifically address concerns relating to the admission of audiovisual
recordings of statements by children. We first discuss Mercado’s argument that the
trial court failed to comply with the statutory requirements of § 908.08 in admitting

11
No. 2018AP2419-CR

the videotaped statements of all three children in this case. 6 This requires us to
interpret the provisions of that statute.

¶33 We interpret WIS. STAT. § 908.08 according to the well established
tenets of statutory construction. “The aim of statutory construction is to determine
the legislature’s intent.” Fond Du Lac Cty. v. Town of Rosendale, 149 Wis. 2d
326, 332, 440 N.W.2d 818 (Ct. App. 1989). “This intent is primarily deduced from
the language which the legislature has chosen to use.” Id. “Therefore, statutory
language is interpreted in the context in which it is used; not in isolation but as part
of a whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” State ex rel. Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.

¶34 Mercado first argues that pursuant to WIS. STAT. § 908.08(2)(b), the
trial court was required to view the videos in their entirety prior to ruling on their
admissibility. That section states:

Before the trial or hearing in which the statement is
offered and upon notice to all parties, the court or hearing
examiner shall conduct a hearing on the statement’s
admissibility. At or before the hearing, the court shall view
the statement. At the hearing, the court or hearing examiner
shall rule on objections to the statement’s admissibility in
whole or in part. If the trial is to be tried by a jury, the court

6
The State argues that Mercado has forfeited this argument because he did not timely raise
objections at trial to the admission of all three videos; he only objected to admitting N.L.G.’s video.
“Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed
to our discretion.” State v. Kaczmarski, 2009 WI App 117, ¶7, 320 Wis. 2d 811, 772 N.W.2d 702.
In this case, these videos were essentially the only evidence against Mercado. In fact, the State
concedes that “it likely would not have been able to prove” its case against Mercado with regard to
N.L.G. without her video. Therefore, based on those circumstances, we choose not to apply the
rule of forfeiture here. Additionally, we note that the State did not argue forfeiture in response to
Mercado’s postconviction motion, so the issue was not addressed by the trial court in its denial of
that motion.

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No. 2018AP2419-CR

shall enter an order for editing as provided in [WIS. STAT.]
§ 885.44(12).

Sec. 908.08(2)(b).

¶35 In its postconviction decision, the trial court stated that it had
“reviewed all relevant portions of the videos necessary to make its ruling on their
admissibility[.]” (Emphasis added.) The State argues that this is sufficient because
the purpose of this requirement is “advanced by requiring a [trial] court to review
only … those parts that are the subject of objections to the video’s admissibility.”

¶36 In support of this argument, the State compares WIS. STAT.
§ 908.08(2)(b) to WIS. STAT. § 885.44(11), the requirements for the admission of
videotaped depositions. The latter statute states:

(11) Ruling on objections. In ruling on objections
the court may view the entire videotape or pertinent parts
thereof, listen to an audiotape of the videotape sound track,
or direct the objecting party to file a partial transcript. The
court shall make written rulings on objections and an order
for editing. Copies of the court’s rulings and order for
editing shall be sent to the parties and the objecting witness.

Id.

¶37 We first point out that WIS. STAT. § 908.08(2)(b) does not include
language that allows for viewing only the “pertinent parts” of a video; rather, it
simply states that “the court shall view the statement.” Id. “One of the maxims of
statutory construction is that courts should not add words to a statute to give it a
certain meaning.” Fond Du Lac Cty., 149 Wis. 2d at 334.

¶38 Furthermore, it is clear from the plain language of WIS. STAT.
§ 885.44(11) that its primary purpose is to direct the trial court when ruling on
objections to deposition testimony. See id. While WIS. STAT. § 908.08(2)(b) also

13
No. 2018AP2419-CR

contemplates the trial court ruling on objections to admissibility, that is not the
primary purpose of that section; rather, that section directs the trial court on the
procedure for admitting the video.

¶39 In fact, WIS. STAT. § 908.08(2)(b) specifically instructs the trial court
to review the child’s statement in the video at or prior to the hearing on admissibility
and then rule on objections to admissibility, either “in whole or in part.” Id. This
procedure, as described in the statute, suggests that a complete review of the video
is required under § 908.08(2)(b).

¶40 Moreover, the videotaped statements permitted under WIS. STAT.
§ 908.08 may be unsworn, a distinct difference from the videotaped depositions
contemplated in WIS. STAT. § 885.44(11). Pursuant to § 908.08(3)(c), a child
witness need not be sworn prior to making the videotaped statement if “the child’s
development level is inappropriate for the administration of an oath[.]” See id. In
that case, the video is still admissible upon a finding by the trial court that the child
has demonstrated an understanding “that false statements are punishable and of the
importance of telling the truth.” See id. In contrast, in a videotaped deposition the
witness has been sworn, so that witness has declared that he or she will testify
truthfully. See § 885.44(2)(f); see also WIS. STAT. § 906.03. This provides a
heightened level of trustworthiness for the deposition statement which is not
necessarily present with a child’s videotaped statement. See § 906.03.

¶41 As such, we are not persuaded that WIS. STAT. § 908.08(2)(b) allows
for the trial court to view only the “relevant portions” of a video prior to ruling on
its admissibility. Therefore, we agree with Mercado that because the trial court
stated at the pretrial hearing regarding the admission of the videos that it had not
viewed the video of O.E.G. and had viewed only the “relevant portions” of the

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No. 2018AP2419-CR

videos of L.A.G. and N.L.G.—with no explanation of what that entailed7—the court
did not satisfy the statutory requirement to “view the statement[s]” prior to
admitting them into evidence. See id.

¶42 We further conclude that the trial court did not make all of the
requisite findings as required under WIS. STAT. § 908.08(3). Specifically, the trial
court must make all of the following findings prior to admitting a video:

(a) That the trial or hearing in which the recording is
offered will commence:

1. Before the child’s 12th birthday[.]

….

(b) That the recording is accurate and free from
excision, alteration and visual or audio distortion.

(c) That the child’s statement was made upon oath or
affirmation or, if the child’s developmental level is
inappropriate for the administration of an oath or affirmation
in the usual form, upon the child’s understanding that false
statements are punishable and of the importance of telling
the truth.

(d) That the time, content and circumstances of the
statement provide indicia of its trustworthiness.

(e) That admission of the statement will not unfairly
surprise any party or deprive any party of a fair opportunity
to meet allegations made in the statement.

Id.

7
Judge Fitzpatrick in his dissent asserts that we should assume the trial court’s description
of “relevant portions” refers to the entire statements of the children as recorded, as opposed to also
viewing the portions of the videos that show only the empty interview room. See Dissent, ¶84. We
disagree. The trial court did not explain on the record what it meant by “relevant portions.”
Furthermore, as previously noted, the court states in its written decision on Mercado’s
postconviction motion that it had “viewed all three videos in their entirety when they were played
for the jury at trial[.]” (Emphasis added). This implies that the court had not viewed the videos in
their entirety prior to ruling that they were admissible.

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No. 2018AP2419-CR

¶43 The findings required in (a)1. and (e) are not in dispute. However, we
believe that the findings relating to (b) and (d) are difficult to make without viewing
the entire video.

¶44 Furthermore, from our review of the videos, we are unable to conclude
that the finding required in (c) could be made with regard to L.A.G. and N.L.G. In
their respective forensic interviews, neither child demonstrated a firm understanding
of the difference between the truth and a lie, or that there are negative consequences
for telling a lie; indeed, this issue was specifically noted in the report of the officer
who interviewed N.L.G. Moreover, although the trial court engaged in a colloquy
with each child upon being called to testify to establish this requirement, under WIS.
STAT. § 908.08(3) this finding was to be made before ruling that the videos were
deemed admissible, based on the statements in the videos—not at trial while taking
the children’s testimony.

¶45 As a result, we conclude that the trial court did not comply with the
requirements of WIS. STAT. § 908.08(2) or (3) in admitting the videos of the three
children. Thus, the court erroneously exercised its discretion in admitting the videos
under that statute. See James, 285 Wis. 2d 783, ¶8.

2. The videos are not admissible under the residual hearsay exception.

¶46 The State argues—and the trial court agreed—that the videos were
nevertheless admissible under the residual hearsay exception. Under WIS. STAT.
§ 908.08(7), the trial court may admit a video under a hearsay exception “without
requiring compliance with § 908.08(2) and (3).” State v. Snider, 2003 WI App 172,
¶16, 266 Wis. 2d 830, 668 N.W.2d 784. The residual hearsay exception, set forth
at WIS. STAT. § 908.03(24), permits the admission of a statement “not specifically

16
No. 2018AP2419-CR

covered” by any other hearsay exception “but having comparable circumstantial
guarantees of trustworthiness.”

¶47 The courts have determined that “[t]he residual hearsay exception is
designed as a catch-all exception that allows hearsay statements that may not
comport with established exceptions, but which still demonstrate sufficient indicia
of reliability to be admitted.” State v. Huntington, 216 Wis. 2d 671, 687, 575
N.W.2d 268 (1998). In fact, our supreme court has recognized that “there is a
compelling need for admission of hearsay arising from young sexual assault
victims’ inability or refusal to verbally express themselves in court,” and that the
residual hearsay exception “is an appropriate method to admit these statements if
they are otherwise proven sufficiently trustworthy.” State v. Sorenson, 143 Wis.
2d 226, 243, 421 N.W.2d 77 (1988).

¶48 The court in Huntington established five factors which the trial court
must consider when applying the residual exception to a child’s out-of-court
statements: (1) the attributes of the child, including age, ability to communicate,
comprehension of questions, and understanding of the difference between the truth
and falsehood; (2) the relationship between the child and the person to whom the
statement was made; (3) the circumstances under which the statement was made,
including the time frame between when the assault occurred and when the statement
was made, as well as other contextual clues that could assist in determining the
statement’s trustworthiness; (4) the content of the statement, including any
indication of false information; and (5) any corroborating evidence, such as physical
evidence of an assault, statements made by the victim to others, and opportunity or
motive of the defendant. Id., 216 Wis. 2d at 687-88.

17
No. 2018AP2419-CR

¶49 The videos do not meet all of these requirements. As previously
discussed, L.A.G. and N.L.G. did not demonstrate that they understood “the
difference between the truth and falsehood,” as required by the first factor. See id.
at 687 (citation omitted). Furthermore, by not reviewing the videos in their entirety
prior to admitting them, the trial court did not fully comply with the fourth
Huntington factor relating to the content of the statement and whether there are
indications that the information is false. See id. As a result, the videos were not
admissible under the residual hearsay exception.

¶50 If it is found that a hearsay statement was erroneously admitted, that
decision is subject to a harmless error analysis. State v. Britt, 203 Wis. 2d 25, 41,
553 N.W.2d 528 (Ct. App. 1996). “Generally, an error is harmless if there is no
reasonable possibility that it contributed to the conviction.” State v. Tulley, 2001
WI App 236, ¶7, 248 Wis. 2d 505, 635 N.W.2d 807. A reasonable possibility is
“one sufficient to undermine confidence in the outcome of the proceeding.” Id.
“The burden of proof is on the beneficiary of the error to establish that the error was
not prejudicial.” Id. In other words, any error in admitting the videos will be
deemed to be harmless only if the State, which benefitted from the error, proves
“beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” See State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851
N.W.2d 434 (citations omitted). “In making this determination, we weigh the effect
of the inadmissible evidence against the totality of the credible evidence supporting
the verdict.” Britt, 203 Wis. 2d at 41.

¶51 Based on the record, we conclude that the videos were the key pieces
of evidence—indeed, they were essentially the only evidence—in this case. There
were no witnesses to the assaults. There was no DNA evidence located on any of
the children. Mercado had no prior convictions. Thus, the statements of the children

18
No. 2018AP2419-CR

in those videos were crucial to the case against him. Therefore, their erroneous
admission cannot be deemed to be harmless. See id.

3. N.L.G.’s video is not admissible as a prior inconsistent statement.

¶52 Finally, the State argues that N.L.G.’s video was admissible as a prior
inconsistent statement. This argument stems from the statement made by N.L.G. at
trial, while she was being questioned by the trial court as well as the prosecutor and
defense counsel to determine her level of comprehension: she stated that she did
not remember having the forensic interview with the officer. This questioning of
N.L.G. was done prior to her video being played for the jury, due to the court’s
concerns that N.L.G. would not speak while on the stand, which in turn would not
provide a meaningful opportunity for cross-examination.

¶53 Thus, the State contends that N.L.G.’s video is admissible as extrinsic
evidence of a prior inconsistent statement pursuant to WIS. STAT. § 906.13. Under
that statute, such a statement is admissible only if at least one of the following
factors is applicable:

1. The witness was so examined while testifying as
to give the witness an opportunity to explain or to deny the
statement.

2. The witness has not been excused from giving
further testimony in the action.

3. The interests of justice otherwise require.

Sec. § 906.13(2)(a).

¶54 The State asserts that N.L.G.’s video is a prior inconsistent statement
admissible as a hearsay exception pursuant to WIS. STAT. § 908.08(7), and thus does
not require compliance with § 908.08(2) and (3). See Snider, 266 Wis. 2d 830, ¶16.

19
No. 2018AP2419-CR

However, pursuant to its definition set forth at WIS. STAT. § 908.01(4)(a)1., a prior
inconsistent statement is not hearsay. Therefore, it cannot be categorized as a
hearsay exception that would allow for admission of the video pursuant to
§ 908.08(7).

¶55 Furthermore, we have already concluded that the trial court failed to
make the requisite findings as set forth in WIS. STAT. § 908.08(3) prior to admitting
any of the videos, including a finding that N.L.G. understood the difference between
the truth and a lie, pursuant to § 908.08(3)(c). As discussed above, a finding
regarding N.L.G.’s comprehension should have been made at the time the trial court
ruled that her video was admissible—before she took the stand at trial. See id. Had
that been properly determined, there would have been no reason for the line of
questioning that resulted in her statement that she did not remember her interview.

¶56 “[T]he purpose of statutory interpretation is to determine what the
statute means so that it may be given its full, proper, and intended effect.” State ex
rel. Kalal, 271 Wis. 2d 633, ¶44. As such, our interpretation of statutory language
must be reasonable in order to “avoid absurd or unreasonable results.” See id., ¶46.
We conclude that permitting the admission of N.L.G.’s video as a prior inconsistent
statement pursuant to WIS. STAT. § 906.13(2)(a), when the requirements of WIS.
STAT. § 908.08 had not been met, would be an unreasonable result: it would
effectively render the requirements of § 908.08—the statute that regulates the
admission of such videos, which includes a determination of their trustworthiness—
superfluous.

¶57 Moreover, as Mercado points out, the trial court failed to comply with
WIS. STAT. § 908.08(5)(a) when it allowed N.L.G. to testify prior to showing her
video. That section states that if the trial court admits a video under this statute, the

20
No. 2018AP2419-CR

party who offered the statement “may nonetheless call the child to testify
immediately after the statement is shown to the trier of fact.” Sec. 908.08(5)(a)
(emphasis added). This court in James interpreted that provision to
“unambiguously require[] the videotape to precede direct and cross-examination.”
Id., 285 Wis. 2d 783, ¶9 (emphasis added).8 Thus, the trial court’s decision to allow
N.L.G. to testify prior to the showing of her video did not comply with the relevant
law on this issue, and was therefore erroneous. See id., ¶8. Accordingly, the trial
court’s finding that N.L.G.’s video was also admissible as a prior inconsistent
statement is also erroneous, because the statement of N.L.G. upon which that
argument is based—that she did not remember the forensic interview—was only
given as a result of the court erroneously allowing N.L.G. to be questioned prior to
the showing of her video, pursuant to James. See id., ¶9.

¶58 In sum, we acknowledge that the purpose of enacting WIS. STAT.
§ 908.08 “was to make it easier, not harder, to employ videotaped statements of
children in criminal trials and related hearings.” See Snider, 266 Wis. 2d 830, ¶13 &
n.6. However, we also recognize that the legislature included specific requirements
in the statute, couched in terms that mandate the trial courts’ compliance. See
Karow v. Milwaukee Cty. Civil Serv. Comm’n, 82 Wis. 2d 565, 570, 263 N.W.2d
214 (1978) (“The general rule is that the word ‘shall’ is presumed mandatory when
it appears in a statute.”). As explained above, several of those mandatory
requirements were not met here.

8
We subsequently questioned in a later, unpublished per curiam decision whether we had
“correctly interpreted the statute in James” based on the language of the statute. See State v. Gatlin,
Nos. 2014AP2351-CR and 2014AP2352-CR, unpublished slip op. ¶90 (WI App May 12, 2016).
Nevertheless, as we acknowledged in Gatlin, we are bound by that interpretation. See id., ¶92.

21
No. 2018AP2419-CR

¶59 Therefore, we reverse the convictions of Mercado on all three counts
and remand this matter to the trial court for a new trial.9

By the Court.—Judgment and order reversed and cause remanded
with directions.

9
Given our decision, we do not reach Mercado’s argument regarding the certification of
the transcripts. 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.”).

22
No. 2018AP2419-CR(D)

¶60 FITZPATRICK, J. (dissenting). I respectfully dissent.

I. Introduction.

¶61 I do not join the Majority opinion for two main reasons. First,
Mercado argues that his convictions should be reversed because of purported errors
of the trial court. However, as to almost every alleged error of the trial court,
Mercado never raised objections in the trial court consistent with the arguments he
makes on appeal. Our supreme court has held that it “is essential to the efficient
and fair conduct of our adversary system of justice” for the arguments raised on
appeal to have previously been made in the trial court. State v. Huebner, 2000 WI
59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727. I discern no principled reason to not,
in these circumstances, employ Wisconsin law on the forfeiture of arguments. So,
unlike the Majority opinion, I conclude that Mercado forfeited those arguments.1
Second, regarding the sole issue advanced on appeal by Mercado where he made an
objection at trial concerning the admissibility of one of the victims’ statements, I
disagree with the Majority opinion and conclude that the statement of the victim
was admissible.

¶62 I now summarize Wisconsin law regarding forfeiture of arguments.

1
As mentioned later in this dissent, Mercado is not without an avenue for relief. He can
file a motion in the trial court alleging that he received ineffective assistance of counsel at trial.
However, Mercado has not yet opted to pursue relief through that approach.
No. 2018AP2419-CR(D)

II. Wisconsin’s Forfeiture Rule.

¶63 “It is a fundamental principle of appellate review that issues must be
preserved at the [trial] court.” Id., ¶10; see also Vollmer v. Luety, 156 Wis. 2d 1,
10, 456 N.W.2d 797 (1990) (stating that “‘[o]ne of the rules of well nigh universal
application established by courts in the administration of the law is that questions
not raised and properly presented for review in the trial court will not be reviewed
on appeal’” (citation omitted)). This concept is known as the “forfeiture rule”
because issues not preserved in the trial court are deemed forfeited.2 Huebner, 235
Wis. 2d 486, ¶11. “The [forfeiture] rule is not merely a technicality or a rule of
convenience; it is an essential principle of the orderly administration of justice.” Id.
(citing Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 894-95
(Scalia, J., concurring) (citing 9 C. Wright and A. Miller, Federal Practice and
Procedure § 2472 at 455 (1971))). “The rule promotes both efficiency and fairness,
and ‘go[es] to the heart of the common law tradition and the adversary system.’”
Id. (citing State v. Caban, 210 Wis. 2d 597, 604-05, 563 N.W.2d 501 (1997)).

¶64 The forfeiture rule serves important objectives. Id., ¶12; Vollmer, 156
Wis. 2d at 10-11. First, “[r]aising issues at the trial court level allows the trial court
to correct or avoid the alleged error in the first place, eliminating the need for
appeal,” and thereby resulting in efficient judicial administration. Huebner, 235
Wis. 2d 486, ¶12; Vollmer, 156 Wis. 2d at 11. Second, a timely and
contemporaneous objection gives the parties and the trial court notice of the issue
and a fair opportunity to address the objection through argument. Huebner, 235

2
The Wisconsin Supreme Court has recognized that the previously used phrase, “waiver
rule” is “imprecise,” and it is “better to label” this as the “forfeiture rule” because “it refers to the
forfeiture of a right by silence rather than the intentional relinquishment of a known right.” State
v. Huebner, 2000 WI 59, ¶11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727.

2
No. 2018AP2419-CR(D)

Wis. 2d 486, ¶12. Third, the forfeiture rule “encourages attorneys to diligently
prepare for and conduct trials.” Id.; see Vollmer, 156 Wis. 2d at 11. “In fact, some
attorneys might be induced to build in an error to ensure access to the appellate
court, notwithstanding their deficient performance at trial.” Vollmer, 156 Wis. 2d
at 11; see also Huebner, 235 Wis. 2d 486, ¶12 (“[T]he rule prevents attorneys from
‘sandbagging’ errors, or failing to object to an error for strategic reasons and later
claiming that the error is grounds for reversal.”). Fourth, appellate courts should
not “blindside trial courts with reversals based on theories which did not originate
in their forum.” State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App.
1995).

¶65 This appeal concerns questions about the admissibility of evidence,
and the forfeiture rule is stated explicitly in the Wisconsin Rules of Evidence.
WISCONSIN STAT. § 901.03(1) (2017-18)3 states, in relevant part:

Error may not be predicated upon a ruling which
admits … evidence unless a substantial right of the party is
affected; and

(a) Objection. In case the ruling is one admitting
evidence, a timely objection or motion to strike appears of
record, stating the specific ground of objection.

(Emphasis added in first paragraph.) Consistent with that statute, this court has held
that it is “incumbent upon defense counsel to police” testimony proffered by the
State that may be objectionable. See State v. Delgado, 2002 WI App 38, ¶11, 250
Wis. 2d 689, 641 N.W.2d 490. Specific and contemporaneous objections must be
made to evidence in order to preserve error for appeal, and it is not the duty of the
courts to “sua sponte strike testimony that is inadmissible.” Id., ¶12.

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

3
No. 2018AP2419-CR(D)

¶66 This court has applied the forfeiture rule in the context of WIS. STAT.
§ 908.08, a rule of evidence central to the issues raised by Mercado, and held:

The notion that a trial court is required to continually
monitor a defendant’s trial strategy and witness examination
places too great a burden on the trial court, and risks both
unwanted interference in a defendant’s case and an inference
that the judge is representing the defendant.… “‘This court
has not looked with favor upon claims of prejudicial error
based upon the trial court’s failure to act when no action was
requested by counsel.’”

State v. Williquette, 180 Wis. 2d 589, 603, 510 N.W.2d 708 (Ct. App. 1993), aff’d,
190 Wis. 2d 677, 526 N.W.2d 144 (1995) (citations omitted).

¶67 With the forfeiture rule, and its objectives, in mind, Mercado’s
arguments raised on appeal are now considered.

III. Transcripts of the Victims’ Statements.

¶68 Mercado contends that his convictions should be reversed because the
trial court admitted into evidence, and provided to the jury during trial, transcripts
of the three victims’ recorded statements which were transcribed by the State.
Mercado argues that the trial court erred in two ways. First, the transcripts were not
certified by a court reporter and, second, the three victims’ recorded statements were
not reported by the court reporter while those recorded statements were played for
the jury during the trial. The trial court denied Mercado’s postconviction motion on
these grounds because: (a) Mercado did not make any objection, at or before the
trial, to the preparation of the transcripts; and (b) Mercado did not establish that the
transcripts provided to the jury were inaccurate in any way.

¶69 On appeal, Mercado renews those arguments. For its part, the
Majority opinion recognizes, but does not resolve, these two issues. See Majority,

4
No. 2018AP2419-CR(D)

¶59 n.9. I believe the arguments made by Mercado should be resolved by affirming
the trial court.4

¶70 The State contends that Mercado forfeited these arguments by not
lodging any objections at or before trial regarding the transcripts or the reporting of
the victims’ recorded statements. The State asserts that Mercado’s raising of these
issues on appeal is the type of “sandbagging” the forfeiture rule is meant to avoid
and that, if Mercado had made a timely objection, any alleged errors could have
been avoided by the trial court. Mercado does not dispute that no objection to the
preparation of the transcripts, or the failure of the court reporter to transcribe the
recorded statements during trial, was made at or before the trial. Rather, Mercado
makes only one argument that the forfeiture rule should not apply in this instance.
He relies solely on his contention that, in State v. Ruiz-Velez, 2008 WI App 169,
314 Wis. 2d 724, 762 N.W.2d 449, no objection was made at trial to the introduction
of the transcript of a victim’s recorded statement, and this court considered the issue
on appeal.

¶71 I reject Mercado’s argument for three reasons. Mercado’s argument
regarding the Ruiz-Velez trial is undeveloped in that he cites in only a general sense
to the Ruiz-Velez opinion for the point he attempts to make; that is, Mercado gives
no citation to a paragraph number of that opinion to support his assertion that no
contemporaneous objection was made at the Ruiz-Velez trial. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (stating that we need not
consider an argument unsupported by citation to legal authority). As well, Ruiz-

4
For the reasons that follow, this court need not reach the questions of whether Wisconsin
law requires that the transcripts of the victims’ recorded statements be certified by a court reporter
or whether the court reporter was required to transcribe the recorded statements while those were
played for the jury at trial.

5
No. 2018AP2419-CR(D)

Velez cannot be read as granting a blanket exception to the forfeiture rule any time
there is a question about the admission of a transcript of a victim’s statement.

¶72 Next, Mercado makes no argument as to why the forfeiture rule should
not be applied to these issues, and he makes no attempt to explain why no objections
were made at or before trial. In other words, Mercado does not give this court any
rebuttal to the State’s arguments that Mercado’s assertions are examples of
sandbagging, and that objections by Mercado at or before trial could have alleviated
any asserted errors. Without any reply from Mercado, I conclude that Mercado does
not dispute the State’s argument. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525
N.W.2d 99 (Ct. App. 1994) (stating that a proposition asserted by a respondent on
appeal and not disputed by the appellant’s reply may be taken as admitted).

¶73 Moreover, I agree with the State and the trial court that Mercado has
not established that the transcripts provided to the jury were inaccurate, or that
failing to have the court reporter transcribe the victims’ recorded statements at trial
prejudiced his defense in any way. Because Mercado has not shown that the
admission in evidence of the transcripts, or the failure to have the reporter transcribe
the recorded statements at trial, affected his “substantial right[s],” Mercado’s
arguments cannot be valid bases for an appeal. See WIS. STAT. § 901.03(1) (“Error
may not be predicated upon a ruling which admits … evidence unless a substantial
right of the party is affected.”).

¶74 For these reasons, I conclude that Mercado’s appeal of these issues
should be rejected because Mercado has not made any developed arguments as to
why the forfeiture rule should not be applied to these issues or how his substantial
rights were prejudiced by the actions of the trial court. It is not up to this court to
attempt to construct those arguments for Mercado. See Industrial Risk Insurers v.

6
No. 2018AP2419-CR(D)

American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d
82 (“[W]e will not abandon our neutrality to develop arguments [for the parties].”).

IV. Trial Court’s Review of the Audiovisual Recordings.

¶75 Next, the Majority opinion remands for a new trial regarding all three
victims because the trial court did not view the audiovisual recordings in their
entirety before trial.5 I disagree because Mercado forfeited his right to appeal this
issue, and the trial court complied with the requirements of the applicable rule of
evidence.

A. Mercado Forfeited This Argument.

¶76 WISCONSIN STAT. § 908.08(2)(b) is germane to this discussion and,
for context, the pertinent portion of that statute is repeated:

Before the trial … in which the [victim’s] statement
is offered and upon notice to all parties, the court … shall
conduct a hearing on the statement’s admissibility. At or
before the hearing, the court shall view the statement.

(Emphasis added.) Mercado argues that the trial court erred because it did not
review each “entire video” which contained the victims’ statements. In response,
the State argues, and Mercado does not dispute, that Mercado’s trial attorney made
no objection to introduction into evidence of the three recordings based on the trial
court’s failure to review each entire recording. Mercado completely ignores the
State’s forfeiture argument and does not even attempt to give this court a reason
why, on appeal, this court should not apply the forfeiture rule.

5
The Majority opinion follows the lead of the parties and the trial court and refers to
“videos.” I sometimes use the terms “audiovisual recording” or “recording” interchangeably to be
consistent with the terms of the statute. See, e.g., WIS. STAT. § 908.08(1) and (3)(b).

7
No. 2018AP2419-CR(D)

¶77 In a footnote in which the State’s forfeiture argument is recognized,
the Majority opinion does not apply the forfeiture rule. Majority, ¶32 n.6.

¶78 I conclude that Mercado forfeited this argument. Mercado failed to
object at trial to the trial court’s actions. As noted, Mercado does not bother to give
an excuse for that failure and refuses to respond to the State’s forfeiture argument.
In these circumstances in which Mercado did not object at trial, does not fashion an
argument on appeal, and ignores a contrary argument from the State, I suggest that
not applying the forfeiture rule puts this court in the position of an advocate for
Mercado and abandons our necessary neutrality. See Industrial Risk Insurers, 318
Wis. 2d 148, ¶25 (“[W]e will not abandon our neutrality to develop arguments [for
the parties].”); Schlieper, 188 Wis. 2d at 322 (stating that a proposition asserted by
a respondent on appeal and not disputed by the appellant’s reply may be taken as
admitted). In other words, we should not be making arguments Mercado does not
himself advance.

¶79 Indeed, everything about these circumstances calls for invoking that
rule. To allow Mercado not to object to the trial court’s action and then prevail on
this issue on appeal is, I suggest, the “sandbagging” our supreme court has
counseled that this court should avoid. See Huebner, 235 Wis. 2d 486, ¶12. Also,
reversing the trial court on this issue is, in my opinion, “blindsiding” of the trial
court which this court has recognized as a problem to avoid. Rogers, 196 Wis. 2d
at 827.

B. The Trial Court Complied With WIS. STAT. § 908.08(2)(b).

¶80 Moreover, even if Mercado had properly preserved this issue for
appeal, his argument should be rejected because the trial court complied with WIS.
STAT. § 908.08(2)(b).

8
No. 2018AP2419-CR(D)

¶81 I submit that the Majority opinion’s error is that it accepts Mercado’s
argument that the trial court was required to view each “entire video” that contained
the victims’ statements. That argument conflates the terms “video” (or, as noted in
the statute, “audiovisual recording” or “recording”) with the term “statement.” But,
WIS. STAT. § 908.08(2)(b) uses only the term “statement” rather than “video” or
“recording.” See § 908.08(2)(b) (“At or before the hearing, the court shall view the
statement.” (emphasis added)). For the following reasons, I conclude that the terms
“video” or “recording” are not synonymous with the term “statement” as used in the
statute and are distinct as applied in this case.

¶82 Whether the terms “statement” and “recording” are synonymous is a
matter of statutory interpretation. See State v. Tarantino, 157 Wis. 2d 199, 208,
458 N.W.2d 582 (Ct. App. 1990) (statutory interpretation in the context of WIS.
STAT. § 908.08). In construing a statute, we are to interpret the statute in the context
in which it is used and in relation to language surrounding closely related statutes.
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d
633, 681 N.W.2d 110. We have previously interpreted the term “statement” in the
context of § 908.08 as meaning “the act or process of stating, reciting, or presenting
orally.” Tarantino, 157 Wis. 2d at 208-09 (citing WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1585 (1976)). The only reasonable reading of
§ 908.08(2)(b) is that the “statement” of each victim was their act of answering
questions and stating information. In contrast, the “recording,” as the term is used
in § 908.08, is the medium for electronically capturing that statement and having it
available to be seen and heard again. Therefore, the terms “statement” and “video”
or “recording” are not synonymous as those terms are used in § 908.08.

¶83 The distinction is further borne out by a review of the three victims’
statements in this case which have been recorded and are in the record. See State v.

9
No. 2018AP2419-CR(D)

Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196 (stating that,
when the question concerns what can be seen and heard on a video, an appellate
court is “in as good a position” as the trial court to make that determination). A
review shows that approximately ten percent of each “recording” entered into
evidence has no person in view, and there is no sound from anyone speaking during
those same portions of the recordings. Those stretches are at the beginning and end
of the recordings. The longest stretch with no one on camera and no one speaking
is over three minutes and forty seconds at the beginning of the recording which
contains L.A.G.’s statement. In other words, the “statement” of L.A.G. does not
start until approximately three minutes and forty seconds into the “recording.”

¶84 The above analysis of the statute, and the recordings made for this
case, put the trial court’s finding in the proper context. The trial court stated the
following in its postconviction written decision regarding events which occurred
before the start of the trial:

While [Mercado] asserts that the court’s remarks on
November 8, 2016 that it would review the “first few
minutes” of the videos indicate that [the circuit court] failed
to view the statements as required by [WIS. STAT.
§] 908.08(2)(b), the court made [it] perfectly clear on
November 9, 2016 that it had reviewed all relevant portions
of the videos necessary to make its ruling on their
admissibility, including the end of the interview with
NLG.[6]

(Emphasis added.) I see no reason why we should not take the trial court judge at
his word that he “reviewed all relevant portions of the video.” A trial court’s factual

6
The next sentence of the trial court’s postconviction written decision states: “Further,
the court viewed all three videos in their entirety when they were played for the jury at trial, and
there was nothing in them which altered the court’s view of their admissibility.” I do not discern
how this sentence in any way contradicts or qualifies the previous sentence of the trial court’s
decision which is quoted in the text, above.

10
No. 2018AP2419-CR(D)

findings are not clearly erroneous if the findings are supported by any credible
evidence in the record, or any reasonable inferences from that evidence. See
Insurance Co. of N. Am. v. DEC Int’l, Inc., 220 Wis. 2d 840, 845, 586 N.W.2d
691 (Ct. App. 1998). To satisfy the requirement in the statute that “the court shall
view the statement,” the trial court did not need to view the entire video or recording
as Mercado argues. Instead, the trial court was required only to view the
“statement.” The trial court’s review of “relevant portions of the videos” is
reasonably construed as the trial court having viewed the “statements” rather than
every second on each video; that is, the trial court did not view the parts of the
recordings that did not contain visual and audio of the statements of the victims.7

¶85 For those reasons, I conclude that the trial court complied with WIS.
STAT. § 908.08(2)(b).

V. Order of Presentation of Evidence.

¶86 Next, Mercado requests reversal of his conviction regarding N.L.G.
because N.L.G. testified prior to the showing of her recorded statement to the jury.
Mercado contends that this violated the provision of WIS. STAT. § 908.08(5)(a)
which states in pertinent part:

If the court … 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…. [I]f that party does not call the child, the court …
upon request by any other party, shall order that the child be

7
As well, the Majority opinion has placed a requirement on trial courts that the statute
does not. Now, to comply with the Majority opinion, each trial court judge in this state who must
“view the statement” under WIS. STAT. § 908.08(2)(b) must view every second of the recording,
regardless of whether anyone is on the screen or whether there are any voices that can be heard.

11
No. 2018AP2419-CR(D)

produced immediately following the showing of the
statement to the trier of fact for cross-examination.

I conclude that Mercado has forfeited his right to appeal this issue.

¶87 The State argues on appeal that Mercado forfeited this argument
because he did not raise, at trial, any objection to the order of presentation of
evidence regarding N.L.G. More particularly, the State asserts that, if raised by
Mercado at trial, any potential error could have been avoided, and Mercado’s
argument on appeal is another example of “sandbagging” of the trial court.

¶88 Mercado does not dispute that he failed to make an objection at trial.
In addition, Mercado recognizes the State’s forfeiture argument, but he gives no
reason as to why no objection was made or why the forfeiture rule should not be
applied on appeal—with one exception. Mercado contends obliquely that the
forfeiture rule should not be imposed in this case for this sole reason: “In [State v.
James, 2005 WI App 188, 285 Wis. 2d 783, 703 N.W.2d 727], the defendant did
not raise an objection to the procedure directed by the [c]ourt to have the victim
testify first and then the video would be shown.” Mercado’s argument, to put it
mildly, is disingenuous. This is so because it was James, the defendant in that case,
who objected to the statutory procedure under WIS. STAT. § 908.08(5)(a) of first
showing the recorded statements of the two child witnesses and then subsequently
making the children available for live questioning before the jury. James, 285 Wis.
2d 783, ¶1. It was the State that appealed the trial court’s order which granted
James’s request not to apply the statutory procedure. Id., ¶8.8 For those reasons,

8
Mercado’s brief in this court does not cite to any particular paragraph of State v. James,
2005 WI App 188, 285 Wis. 2d 783, 703 N.W.2d 727, but makes vague statements about the case
without a required citation. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992) (stating that we need not consider an argument unsupported by citation to legal authority).

12
No. 2018AP2419-CR(D)

the holding in James has no applicability to this issue. Accordingly, Mercado’s sole
argument regarding application of the forfeiture rule should be rejected.

¶89 I again see no reason not to apply the forfeiture rule to this issue.
Mercado’s trial counsel’s actions are reasonably seen as “sandbagging” the trial
court, and a failure to apply the forfeiture rule “blindside[s]” the trial court judge
who received no objection to the procedure applied at trial. See Huebner, 235 Wis.
2d 486, ¶12; Rogers, 196 Wis. 2d at 827.

¶90 In addition, I disagree with the Majority opinion holding on this issue
for the same reason I discuss below regarding the Majority’s holding on whether
N.L.G.’s statement is admissible as a prior inconsistent statement; that is, the
Majority concludes that the only evidentiary avenue for admission of N.L.G.’s
recorded statement is through WIS. STAT. § 908.08.

VI. Prior Inconsistent Statement.

¶91 The Majority opinion concludes that the trial court did not comply
with the requirements of WIS. STAT. § 908.08(3)(c) in determining whether the
recorded statements of L.A.G. and N.L.G. were admissible.9 The Majority opinion
also concludes that N.L.G.’s statement was not admissible as a “prior inconsistent

9
WISCONSIN STAT. § 908.08(3)(c) states in pertinent part:

The court … shall admit the recording upon finding all of
the following:

….

(c) That the child’s statement was made upon oath or
affirmation or, if the child’s developmental level is inappropriate
for the administration of an oath or affirmation in the usual form,
upon the child’s understanding that false statements are
punishable and of the importance of telling the truth.

13
No. 2018AP2419-CR(D)

statement.” For the following reasons, I would affirm the trial court because
Mercado has made no argument in this court regarding the admissibility of L.A.G.’s
statement under § 908.08(3)(c), and N.L.G.’s statement is admissible as a prior
inconsistent statement.

A. No Argument From Mercado About L.A.G.’s Statement.

¶92 In this court, Mercado has a separate section of his brief-in-chief, at
pages 17-19, which takes up the question of whether the trial court made, or based
on the record could have made, the necessary findings under WIS. STAT.
§ 908.08(3)(c). That section of Mercado’s brief-in-chief mentions N.L.G., and only
N.L.G., in regard to this issue. Mercado does not argue in this court that the trial
court failed to comply with § 908.08(3)(c) regarding L.A.G.’s recorded statement.

¶93 In fact, the State calls out Mercado in its brief regarding Mercado’s
failure to make an argument about L.A.G. in this context:

On appeal, Mercado challenges only the
admissibility of [N.L.G.]’s video–not [O.E.G.]’s and
[L.A.G.]’s videos–under [WIS. STAT. §] 908.08(3)(c)….
Mercado thus concedes that [O.E.G.]’s and [L.A.G.]’s
videos satisfied [§] 908.08(3)(c) because he has not
challenged the [trial] court’s ruling to that effect. The State
thus will address only [N.L.G.]’s video.

In reply, Mercado never disputes the State’s contention and, again in a separate
section of his reply brief regarding § 908.08(3)(c), does not mention L.A.G.’s
statement.

¶94 For those reasons, I conclude that Mercado has conceded the State’s
assertion that Mercado has not raised any issue on appeal regarding L.A.G.’s
statement and its admissibility vis-à-vis WIS. STAT. § 908.08(3)(c). Schlieper, 188

14
No. 2018AP2419-CR(D)

Wis. 2d at 322 (stating that a proposition asserted by a respondent on appeal and not
disputed by the appellant’s reply may be taken as admitted).

¶95 Nonetheless, the Majority opinion states: “Furthermore, from our
review of the videos, we are unable to conclude that the finding required in [WIS.
STAT. § 908.08(3)](c) could be made with regard to L.A.G. and N.L.G.” Majority,
¶44. I disagree with that conclusion because Mercado does not make that argument
on appeal regarding L.A.G., and this court should not put itself in the position of
making an argument for Mercado that he does not make. See Industrial Risk
Insurers, 318 Wis. 2d 148, ¶25 (“[W]e will not abandon our neutrality to develop
arguments [for the parties].”).

B. Admissibility of N.L.G.’s Statement.

¶96 We have finally arrived at an issue Mercado both raised in the trial
court and advances on appeal; that is, whether the recorded statement of N.L.G. was
properly admitted into evidence by the trial court under WIS. STAT. § 908.08(3)(c)
or another rule of evidence. The Majority opinion concludes that N.L.G.’s
statement was inadmissible because the trial court failed to make the requisite
findings under § 908.08(3)(c) and the statement was inadmissible under what is
sometimes referred to as the “residual” hearsay exception, WIS. STAT. § 908.03(24).
I do not believe we need to reach those questions because, unlike the Majority
opinion, I agree with the trial court that N.L.G.’s statement was admissible as a prior
inconsistent statement.

¶97 The first question within this issue is whether N.L.G.’s recorded
statement was a prior inconsistent statement pursuant to WIS. STAT. § 908.01(4)(a),

15
No. 2018AP2419-CR(D)

which states in relevant part: “A statement[10] is not hearsay if: (a) … The
declarant[11] testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is: 1. Inconsistent with the declarant’s
testimony.” (Emphasis added.) The State contends that N.L.G.’s testimony at trial
was inconsistent with the recorded statement because, while testifying before the
jury, N.L.G. denied talking to, or remembering talking to, the police officer who
conducted the forensic interview of her. The question of “inconsistency” is a
preliminary determination on admissibility made by the trial court under WIS. STAT.
§ 901.04(1). See DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN
EVIDENCE, § 801.402 at p. 782 (4th ed. 2017). Here, the trial court concluded that
N.L.G.’s recorded statement was inconsistent with her trial testimony, and I agree.
Mercado does not argue otherwise on appeal and has, therefore, conceded the point.
See Schlieper, 188 Wis. 2d at 322.

¶98 The second question within this issue concerns WIS. STAT.
§ 906.13(2)(a) and its requirement that a prior inconsistent statement must satisfy
one of the three factors noted in that statute to be admissible in evidence. The factor
stated in § 906.13(2)(a)2. is whether “[t]he witness has not been excused from
giving further testimony in the action.” The record shows that N.L.G. was available
for further testimony, including cross-examination concerning the statement, after
the recorded statement was shown. See Majority, ¶18. Mercado makes no coherent

10
WISCONSIN STAT. § 908.01(1) defines “statement” to include “an oral … assertion.” No
one questions that the recorded statement of N.L.G. meets that definition.
11
WISCONSIN STAT. § 908.01(2) defines “declarant” as “a person who makes a statement.”
Of course, there is no dispute that N.L.G. is a declarant as defined in that portion of the statute.

16
No. 2018AP2419-CR(D)

argument otherwise and concedes the point.12 Therefore, in this specific situation,
N.L.G.’s recorded statement satisfies § 906.13(2)(a).

¶99 The third question within this issue is whether N.L.G.’s recorded
statement was admissible in evidence. The Wisconsin Rules of Evidence confirm
that N.L.G.’s prior inconsistent recorded statement was admissible. There can be
no question that N.L.G.’s recorded statement, which describes acts of Mercado that
form a basis for the charges in the information, is “relevant” under the expansive
language of WIS. STAT. § 904.01.13 In turn, WIS. STAT. § 904.02 states: “All
relevant evidence is admissible, except as otherwise provided by the constitutions
of the United States and the state of Wisconsin, by statute, by these rules, or by other
rules adopted by the supreme court.” (Emphasis added.) So, absent an authority
which excludes N.L.G.’s recorded statement, the statement was admissible in
evidence.

¶100 The Majority opinion excludes N.L.G.’s recorded statement within
the context of WIS. STAT. § 908.08. As an example, the Majority opinion cites to
§ 908.08(7) which states in relevant part: “At a trial … under sub. (1), a court …
may also admit into evidence an audiovisual recording of an oral statement of a
child that is hearsay and is admissible under this chapter as an exception to the
hearsay rule.” So, to be admissible under subsection (7) of § 908.08, the statement
must be: (a) hearsay; and (b) admissible as an exception to the hearsay rule. The
Majority opinion states that, pursuant to WIS. STAT. § 908.01(4)(a)1., a prior

12
In Mercado’s reply brief, he states, “[N.L.G.], therefore, would not have been able to
give further testimony upon cross-examination.” However, that statement is not tied in any
discernable way to any reasoning.
13
WISCONSIN STAT. § 904.01 states: “‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”

17
No. 2018AP2419-CR(D)

inconsistent statement is not hearsay and, therefore, a prior inconsistent statement
cannot comply with the requirements of § 908.08(7). Majority, ¶54.

¶101 I agree with that conclusion as far as it goes. However, I part ways
with my colleagues at this point in the analysis because they give no reason to
exclude this prior inconsistent recorded statement of N.L.G. other than the fact that
it does not fit within WIS. STAT. § 908.08. According to the Majority opinion,
§ 908.08, in effect, reaches out and excludes evidence which is otherwise admissible
if that evidence does not come within the express terms of § 908.08. That premise,
which I contend is an error, is the necessary basis for the Majority opinion’s analysis
in ¶¶52 through 57 of the Majority opinion.

¶102 The Majority opinion’s reading of WIS. STAT. § 908.08 has the effect
of keeping out of evidence a recorded statement of a victim, such as the one given
by N.L.G., which, in these circumstances, is otherwise admissible in evidence.
There is no case law, or reasonable reading of § 908.08, which leads to the
conclusion that the provisions of § 908.08 are the bottleneck through which any
recorded statement of a child must be admitted into evidence, if at all, in a criminal
case.

¶103 To come to its conclusion, the Majority opinion necessarily adds
words to WIS. STAT. § 908.08(1). As construed by the Majority, that portion of the
statute now must be read as follows: “In any criminal trial … the court … may
admit into evidence the audiovisual recording of an oral statement of a child who is
available to testify, [only] as provided in this section.” Courts should not add words
to rules or statutes which have not been chosen by the legislature. See Fond Du
Lac Cty. v. Town of Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App.

18
No. 2018AP2419-CR(D)

1989) (stating that “[o]ne of the maxims of statutory construction is that courts
should not add words to a statute to give it a certain meaning”).

¶104 As recognized by the Majority opinion at Majority, ¶58, “[t]he
legislature’s purpose in enacting WIS. STAT. § 908.08 was to make it easier, not
harder, to employ videotaped statements of children in criminal trials and related
hearings.” State v. Snider, 2003 WI App 172, ¶13, 266 Wis. 2d 830, 668 N.W.2d
784. In addition, we are to interpret statutes and rules in such a way as to harmonize
statutes so that construction of those does not lead to absurd results. James, 285
Wis. 2d 783, ¶24. The conclusion of the Majority, I believe, leads to an absurd
result in that an otherwise admissible prior inconsistent statement—which should
now be easier to get into evidence—is now blocked from admissibility by the
Majority opinion’s incorrect reading of § 908.08.

VII. Conclusion.

¶105 To be clear, Mercado is not without an avenue for relief. He may be
able to obtain reversal of his convictions if his trial counsel was constitutionally
ineffective. If Mercado files a motion with sufficient information, he will be granted
an evidentiary hearing at which time the trial court will determine whether his trial
counsel was ineffective for failing to make objections at trial as discussed above,
and the trial court will determine whether any alleged ineffectiveness prejudiced
Mercado. See Strickland v. Washington, 466 U.S. 668, 687 (1984). However,
rather than making arguments for Mercado, or ignoring that objections were not
made at trial by Mercado’s attorney, I believe this court should let the standard
ineffective assistance of counsel procedures play out as we do in other cases.

¶106 For those reasons, I respectfully dissent.

19