State v. Thomas A. Nelson

2021 WI APP 2

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP194-CR

† Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS A. NELSON,

DEFENDANT-APPELLANT.†

Opinion Filed: December 9, 2020
Submitted on Briefs: December 20, 2019

JUDGES: Gundrum, J.
Concurred: Davis, J.
Dissented: Reilly, P.J.

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Steven W. Zaleski of Zaleski Law Firm, Madison.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Anne C. Murphy, assistant attorney general, and Joshua L.
Kaul, attorney general.
2021 WI App 2

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.
December 9, 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. 2019AP194-CR Cir. Ct. No. 2017CF101

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS A. NELSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Racine County:
FAYE M. FLANCHER, Judge. Affirmed.

Before Reilly, P.J., Gundrum and Davis, JJ.

¶1 GUNDRUM, J. Thomas A. Nelson appeals a judgment of conviction
for second-degree sexual assault, false imprisonment, and four counts of felony bail
jumping. He claims his constitutional Confrontation Clause right was violated at
trial by the State’s use of nurse practitioner Rita Kadamian’s report of her
No. 2019AP194-CR

examination of the victim without Kadamian herself testifying. Nelson made no
objection to this use during the trial, but now claims it was “plain error.” Nelson
also contends the prosecutor committed misconduct during her closing argument
and the court failed to take sufficient steps to address it, resulting in a denial of due
process and plain error. Nelson fails to convince us that any errors occurred, but
even if there were errors, they were not “plain errors,” and they were harmless.

Background

Use of Kadamian’s report

¶2 The State charged thirty-year-old Nelson with nine felony counts,
including second-degree sexual assault, strangulation, and false imprisonment, in
connection with his violent assault of seventeen-year-old J.T.1 on January 21, 2017.
Nelson initially denied having sexual contact with J.T., but following the return of
incriminating DNA testing, he took the position at trial that he did have sex with her
but that it was consensual “rough” sex. The following relevant evidence was
presented at trial.

¶3 Hours after the assault, J.T. was examined by Gillian Lackey, a Sexual
Assault Nurse Examiner (SANE) at Wheaton Franciscan Hospital in Racine.
Lackey testified that during a SANE examination, she “listen[s] to the history of the
assault,” conducts “a physical assessment for any kind of illness or injury,” and then
collects evidence. The “biggest difference” between a SANE examination and “just
a physical that you would give somebody,” Lackey stated, is that during a SANE
examination, “we actually collect evidence, DNA.” When Lackey listens to an
alleged victim’s “history of the assault,” there is a “victim[’]s advocate” present and

1
We use fictitious initials to aid in protecting the identity of the victim.

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No. 2019AP194-CR

“usually … a police officer … as well.” In this case, an advocate and a detective
were present when J.T. provided Lackey the history of the assault by Nelson.

¶4 Because there was concern about the possible involvement of drugs
or alcohol in connection with the assault, Lackey procured a sample of J.T.’s urine
and blood for testing. Lackey then prepared her “specialty forensic exam room”
and set up an evidence collection kit from the Department of Justice “based on what
[J.T.’s] history of [the] assault was and where [Lackey felt] the most evidence and
DNA c[ould] be collected off of her body.”

¶5 During a SANE examination, if the alleged victim is wearing the same
clothing as during the assault, as J.T. was, Lackey collects the clothing. She lays
out a sheet with paper pads that the alleged victim stands on, and he or she then
removes his or her clothing. The alleged victim puts on a gown, and Lackey places
the sheet and clothing into a bag that she seals. Lackey followed this procedure with
J.T., and on the witness stand, Lackey identified the various articles of clothing she
collected from J.T.

¶6 Consistent with standard procedure, Lackey next performed and
documented a “head to toe” assessment of J.T. Lackey noted and photographed
“red marks” on J.T.’s ears and left cheek, “markings” on her inner thigh, and
bruising on her breasts and left arm. The State showed the photographs to the jury,
and Lackey testified that the injuries to J.T.’s arm and thigh were consistent with
J.T.’s report that Nelson had bit her in those areas during the assault. After the head-
to-toe assessment, Lackey collected evidence from J.T.’s mouth, hands, arm,
breasts, thigh, and neck, collecting the latter because J.T. had indicated that Nelson
had “placed his hands around her neck” during the assault.

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¶7 Lackey next examined, photographed, and collected evidence from
J.T.’s vaginal area. She observed injury to J.T.’s vagina, but because it was “very
swollen,” J.T. was “extremely uncomfortable,” and she was bleeding due to her
menstrual cycle, Lackey was not certain if the injury was a tear or an abrasion.
When asked if J.T. had “any injury to her hymen,” Lackey responded, “[n]ot that I
was able to see.” Lackey did observe “swelling and inflammation” on J.T.’s labia
majora and what “look[ed] like an abrasion” on her labia minora.

¶8 Lackey explained that the evidence she collects during a SANE
examination is sealed in an “evidence collection box” that is “handed off to a police
officer” and ultimately “goes to the crime lab.” Lackey testified that she also
collected evidence from Nelson and that Nelson and J.T. were kept in separate
rooms “to avoid any kind of cross contamination.”

¶9 Through cross-examination and redirect examination, Lackey agreed
that “part of [her] job is to collect evidence for criminal prosecution purposes.” She
acknowledged that while she observed J.T.’s injuries, she did not “personally …
know how they got there,” and it was possible they “could have been part of a
consensual action as opposed to a[] [non]consensual action.” She acknowledged
that she observed no injuries to J.T.’s neck, but testified that with a strangulation
victim, she might or might not find such injuries depending on the amount of
pressure applied and length of time. Lackey further acknowledged that “some
women on their menstrual cycle can be swollen” in the vaginal area where J.T. was
swollen. She added, however, that J.T. had reported that she was at the end of her
cycle and “it’s not usually common to have that intense of inflammation and
swelling” at the end of a menstrual cycle.

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¶10 On February 2, 2017, eleven days after the assault and SANE
examination, J.T. was seen by nurse practitioner Rita Kadamian at the Racine
County Child Advocacy Center at Children’s Hospital of Wisconsin [CHW] in
Racine. Kadamian prepared a report in relation to her examination of J.T.; however,
Kadamian did not testify at Nelson’s trial because she was on medical leave at the
time. Instead, Michael Cahill, a nurse practitioner in the Milwaukee County Child
Advocacy Center at CHW in Milwaukee, testified for the State. Cahill explained
that he is on a team of medical providers who evaluate children and adolescents
referred to the center because of physical, sexual, or other abuse and that Kadamian
works in a similar role at the center in Racine. Cahill testified regarding portions of
Kadamian’s “medical report” related to her “medical examination” of J.T.

¶11 When asked why J.T. would have been seen at the Racine center on
February 2 when she had previously been examined by a SANE nurse on the day of
the assault eleven days earlier, Cahill responded that it is “routine standard protocol
to medically follow up in about two weeks to do some further testing” for infections,
sexually transmitted diseases, and pregnancy. Referring to Kadamian’s report,
Cahill testified that it indicated Kadamian observed bruising and a healed tear on
J.T.’s hymen. He agreed that the report further indicated that these injuries “were
consistent with penetrating blunt force trauma.” Cahill testified that it is not
possible to “date” the bruising or tear that Kadamian observed and confirmed that
tissue “down there … heal[s] rather quickly.”

¶12 Nelson did not object to the admission of Kadamian’s report into
evidence or to Cahill’s testimony regarding the report. Instead, counsel for Nelson
cross-examined Cahill, and in doing so, got Cahill to confirm that he was “not saying
whether penetration was forced or consensual” and that the report indicated that J.T.
“bruises bleeds easily.”

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¶13 Although Cahill testified to very little of Kadamian’s report, and the
report was never provided to the jury during its deliberations, in order to later
analyze the testimonial versus nontestimonial nature of the report—in relation to
Nelson’s Confrontation Clause challenge—we note many of its details.

¶14 On page one, the report is titled “Child Advocacy and Protection
Services Sexual Abuse Evaluation” and identified as “Progress Notes” of
Kadamian. The “Service” is identified as “Child Advocacy-Protection,” and there
is an indication that the report relates to a “Consultation/evaluation requested by:
Caledonia PD [Matthew] Vannucci [and] Racine County Human Services
Department Darcy Knutson.” The “Chief Complaint” is noted as “Concern for
Sexual Abuse.” According to the report, J.T. was brought to the Center “by [her]
mother” for “consultation/evaluation of possible child maltreatment.” The report
details the history of the assault as provided by “mother, medical records and
patient,” including that J.T. reported that Nelson ejaculated during the assault and
“did not use a condom.”

¶15 Page two of the report indicates that J.T. was being evaluated “for
follow up of injuries.” It states that J.T. “denies pain or discharge on this date. She
reports a small amount of bleeding has continued since the incident.” The report
details J.T.’s medications and prescriptions as well as prescribed dosages, and
indicates “No Known Allergies,” “Headache” for “Past Medical History,” and “No
pertinent past surgical history.” It identifies the “Family History” of J.T.’s mother,
father, and paternal and maternal grandparents and notes that “[t]here is second hand
smoke exposure and there are pets in the home (dog).” The report states that since
the assault, J.T. “wakes during night and feels tired all the time” and prior to the
assault there were “no concerns with sleep.”

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¶16 Page three of the report provides a detailed review of numerous
“Systems” of J.T., including “Respiratory,” “Cardiovascular,” “Endocrine,” and
“Musculoskeletal.” For her gastrointestinal system, the report notes that J.T. did
have diarrhea “for a few days at start of med[icine] regime,” and for her
hematological system, the report states: “Bruises/bleeds easily.” The report
identifies J.T.’s height, weight, pulse, temperature and other “Vitals.”

¶17 Page four provides details of Kadamian’s “Physical Exam” of J.T.,
particularly related to her “Systems.” Comments provided under “Genitourinary”
include:

The labia majora are unremarkable without lesions or
evidence of injury. Clitoral hood, labia minora and urethra
are unremarkable. Walls of the vestibule are normal without
lesions or erythema. Fossa navicularis is unremarkable
without evidence of trauma. The hymen is estrogenized.
Contusion is noted on the hymen at 3 o’clock and a healed
transection is present at 6 o’clock. Cervix normal in
appearance with ectropian present. There is no discharge or
odor. Posterior fourchette is unremarkable. Perineum is
unremarkable.

The report identifies that only center “staff” was present during J.T.’s examination.

¶18 The “Assessment,” on pages four and five, indicates: “1. Child sexual
assault, 2. Vaginal bleeding, and 3. Immunization due.” It further states:

[J.T.] is a 17 y.o. female evaluated at the [center] for
sexual assault. [J.T.] is noted to have a contusion to the
hymen and a healed transection. These injuries are
indicative of blunt force penetrating trauma. Genital injuries
heal rapidly. The contusion is acute and supports [J.T.’s]
disclosure of sexual assault.

Vaginal bleeding: No site of active bleeding is noted on
examination. This finding is likely related to a hormonal
response from the pregnancy prophylaxis administered
following the incident.

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No. 2019AP194-CR

Exposure to toxic stress such as child sexual assault
results in a very high risk of adverse health, mental health,
and emotional consequences due to the direct and indirect
effects of the adversity on the child’s physical, psychosocial,
cognitive, and emotional development. Because of
suspected maltreatment, this child is at high risk of
experiencing short-term and long-term negative
consequences.

Page five of the report further identifies “Plan,” and states, “Orders Placed This
Encounter, Procedures: Anogenital exam/Colposcopy, RPR, Rapid HIV ½ Ag Ab
w/ Reflex, Hepatitis B Panel, Hepatitis C Ab, POCT Human Chorionic
Gonadotropin [hCG] Urine [i.e., pregnancy test].” Page five indicates “No
medications ordered at this visit.” Kadamian’s listed “Recommendations” are:

Recommend mental health therapy.

Blood testing at local laboratory approximately 02/21/2017.

Continue HIV PEP as directed.

Follow-up with PCP or GYN for worsening/continued
vaginal bleeding.

Follow up with PCP for immunizations and repeat HIV,
Hepatitis B, Hepatitis C and RPR in 4 months.

Discussed routine adolescent care and contraceptive options.

Education provided: Child sexual abuse; examination and
findings; STI testing.

Investigation and safety plan per law enforcement and/or
CPS [Child Protective Services].

Discussed medical evaluation and recommendations with
mother and patient. They appeared to understand.

Page five further states: “Verbal education provided: Anticipatory guidance; Child
sexual abuse; Developmental issues and behaviors; Diagnosis and disease
management; HIV; Immunization; Laboratory and radiology testing; Medical
evaluation; STI; Traumatic stress.”

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¶19 The final page of the report identifies J.T.’s current living
arrangement, education and employment status, eating habits and activities, history
relevant to the use and lack of use of substances, sexual history and practices, and
her denial of current symptoms of depression or anxiety. This last page also
suggests, via a “CC” notation, that a copy of the report was provided to Knutson, a
Dr. George Milonas, and Vannucci.

Closing Argument

¶20 Prior to the presentation of closing arguments at trial, the circuit court
provided the jury with various instructions, including: “Consider only the evidence
received during this trial and the law as given to you by these instructions, and from
these alone … reach your verdict”; “Evidence is … the sworn testimony of
witnesses[,] … the exhibits the Court has received, … [and] … any facts to which
the lawyers have agreed or stipulated or which the court has directed you to find.…
Again, you are to decide the case solely on the evidence offered and received at
trial”; “The remarks of the attorneys are not evidence”; and “Consider carefully the
closing arguments of the attorneys, but their arguments, conclusions and opinions
are not evidence. Draw your own conclusions from the evidence and decide upon
your verdict according to the evidence under the instructions given to you by the
Court.”

¶21 During the prosecutor’s initial closing argument, about nine pages
worth of transcript, she presented the evidence in support of a finding of guilt for
each of the crimes with which Nelson was charged. She explained how, following
the assault, Nelson denied having any sexual contact with J.T., but after DNA tests
later confirmed that semen found inside her body during the SANE examination
was Nelson’s, he then took the position at trial that he had had sex with her but that

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No. 2019AP194-CR

it was consensual. The prosecutor detailed the evidence of J.T.’s injuries including
bruising and bite marks, other evidence of a physical struggle including “scratches
all over [Nelson’s] back,” and J.T.’s testimony that she tried to fight off Nelson.
The prosecutor also discussed how such evidence was inconsistent with Nelson’s
theory that J.T. consented to the sexual encounter and detailed the various forms of
violence used by Nelson to which J.T. testified including, as the prosecutor stated
it, “grabb[ing] her face,” “grabb[ing] her neck, … and put[ting] his fingers in her
mouth so she couldn’t make any noise while he was sexually assaulting her.”

¶22 The prosecutor further discussed the relationship of particular
evidence to particular charges, before stating: “You know, I don’t know what else
I can say about whether or not Thomas Nelson committed these crimes. I firstly
believe that he did. I think the evidence absolutely—.” (Emphasis added.) At this
point, defense counsel objected, and a sidebar was held. Following the sidebar, the
prosecutor wrapped up her initial closing argument, stating:

The evidence in this case shows us that he did commit that
sexual assault. Her body shows it, his body shows it. The
evidence in this case shows us that he committed that
strangulation. Her body shows that with the bruises on her
face and her evidence – her testimony is all evidence. That
proves it as well. The evidence shows us that he imprisoned
her falsely in that room based on the evidence that [J.T.] told
you about.

(Emphasis added.)

¶23 After defense counsel presented his closing argument and the
prosecutor presented her rebuttal, the circuit court further instructed the jury. It
began by repeating an instruction it had provided before the start of closing
arguments: “Ladies and gentlemen, consider carefully the closing arguments of the
attorneys, but their arguments, conclusions and their opinions are not evidence.
Draw your own conclusions from the evidence and decide upon your verdict

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No. 2019AP194-CR

according to the evidence under the instructions given to you by the Court.” The
court then provided additional instructions to the jury before the jury began
deliberations.

¶24 The jury found Nelson guilty on the charges of second-degree sexual
assault and false imprisonment, as well as four of the related felony bail jumping
charges, and not guilty on the strangulation charge and two of the related felony bail
jumping charges. Nelson was subsequently sentenced and now appeals.

Discussion

¶25 Having neglected or declined to object to the State’s use of
Kadamian’s report through Cahill’s testimony, Nelson challenges such use for the
first time on appeal, claiming the use violated his right to confrontation and
constituted “plain error.” Nelson also contends that the prosecutor committed
misconduct when she stated during her closing argument, “You know, I don’t know
what else I can say about whether or not Thomas Nelson committed these crimes. I
firstly believe that he did,” and that the court took insufficient action to address the
misconduct, resulting in a denial of due process and plain error. We conclude no
errors were committed, but even if errors were committed, they were not “plain
errors,” and they were harmless.

Kadamian’s Report and Cahill’s Related Testimony

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¶26 Nelson insists his confrontation right was violated and plain error
occurred when Cahill testified regarding Kadamian’s report.2 We disagree.

Confrontation Clause

¶27 Before we consider whether “plain error” occurred, we must first
determine whether any error occurred. To this end, we consider Nelson’s argument
that Cahill’s testimony as to Kadamian’s report violated Nelson’s Sixth Amendment
right to be confronted with witnesses against him. This is a question of law we
review de novo. State v. Mattox, 2017 WI 9, ¶19, 373 Wis. 2d 122, 890 N.W.2d
256.

¶28 “[A] defendant’s right to confrontation is violated if the trial court
receives into evidence out-of-court statements by someone who does not testify at
the trial if those statements are ‘testimonial’ and the defendant has not had ‘a prior
opportunity’ to cross-examine the out-of-court declarant.” Id., ¶24 (emphasis
added; citation omitted). Discussing the United States Supreme Court’s sea change
in Confrontation Clause jurisprudence in Crawford v. Washington, 541 U.S. 36
(2004), our state supreme court observed in Mattox:

The Crawford Court did not provide a comprehensive
definition of “testimonial,” but it concluded that, “at a
minimum,” “testimonial” statements include “prior
testimony at a preliminary hearing, before a grand jury, or at
a former trial and ... police interrogations” because these are
the types of evidence “at which the Confrontation Clause
was directed.”

2
Nelson makes no legal distinction between Kadamian’s report and Cahill’s related
testimony and provides no argument suggesting one should be treated differently than the other.
Because of this, the fact that Cahill’s testimony that was related to the Confrontation Clause
challenge was just directly referencing Kadamian’s observations as detailed in her report, and the
fact that the jury was never made aware of any portions of the report other than those to which
Cahill testified, we too make no legal distinction between the report and Cahill’s related testimony.

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No. 2019AP194-CR

Mattox, 373 Wis. 2d 122, ¶24. “Post-Crawford,” the Mattox court stated,
“confrontation challenges begin with an analysis of whether the out-of-court
statements used against a defendant are ‘testimonial.’” Mattox, 373 Wis. 2d 122,
¶24 (citation omitted). “If the statements are not testimonial, the Confrontation
Clause is not implicated.” Id.

¶29 In determining whether an out-of-court statement is testimonial, we
must decide “whether, in light of all the circumstances, viewed objectively,” the
“declarant is acting as a witness against the defendant” by considering whether the
“primary purpose” of the statement was to “gather evidence for [the defendant’s]
prosecution” or “substitute for testimony in a criminal prosecution.” Id., ¶¶32, 33
(quoting Ohio v. Clark, 135 S. Ct. 2173, 2180-81 (2015)). Some factors for
determining the primary purpose of a particular statement include: “(1) the
formality/informality of the situation producing the out-of-court statement; (2)
whether the statement is given to law enforcement or a non-law enforcement
individual; (3) the age of the declarant[3] and (4) the context in which the statement
was given.” Mattox, 373 Wis. 2d 122, ¶32.

¶30 Here, Kadamian examined J.T. on February 2, prepared the related
report, and was the declarant of the content therein. According to the totality of the
report itself and Cahill’s testimony related to it, the primary purpose of Kadamian’s
examination of J.T. was to evaluate her overall health, treat any conditions needing
treatment, and recommend a health care plan for J.T. going forward. The primary
purpose of Kadamian’s report related to the examination, like reports related to most
health examinations, was to document Kadamian’s medical findings as to the

3
This factor is not applicable to the analysis in this case and will not be discussed further.
See State v. Mattox, 2017 WI 9, ¶32 n.7, 373 Wis. 2d 122, 890 N.W.2d 256.

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No. 2019AP194-CR

condition of J.T.’s health on February 2 and the health care plan and
recommendations for J.T.’s care going forward. Because the primary purpose of
the report was neither “to gather evidence for [Nelson’s] prosecution” nor to
“substitute for testimony in a criminal prosecution,” the report was not testimonial,
and thus its use at trial did not implicate the Confrontation Clause. See id., ¶33.

¶31 Considering the first factor of the primary purpose test—the
formality/informality “of the situation” producing the out-of-court statement—we
note that the Mattox court expressed that the “typewritten, titled, and signed” nature
of the toxicology report in that case amounted only to “slight formality” and “d[id]
not imply a testimonial purpose in a way that traditionally formal attestations, such
as notarization or certification, might.” Mattox, 373 Wis. 2d 122, ¶34 (citing Clark,
135 S. Ct. at 2180). The same can be said of Kadamian’s report.

¶32 As to the second factor, whether the “statement [was] given to law
enforcement or a non-law enforcement individual,” id., ¶32, the Mattox court stated,
“statements to persons other than law enforcement officers [are] ‘much less likely
to be testimonial than statements to law enforcement officers,’” id., ¶34 (citation
omitted). Here, Kadamian did not make a statement “to law enforcement officers”
in the traditional sense of an officer questioning Kadamian and Kadamian informing
the officer as to her knowledge related to an offense. That said, Kadamian’s report
does indicate that her “consultation/evaluation” with J.T. was “requested by” both
law enforcement and nonlaw enforcement individuals—police officer Vannucci and
human services employee Knutson, respectively—and that a copy of the report was
provided to both law enforcement, Vannucci, and nonlaw enforcement individuals,
Knutson and Dr. Milonas. The request for the “consultation/evaluation” by a law
enforcement officer involved in the criminal case against Nelson and the provision
of the related report to that officer certainly suggests that at least some purpose of

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No. 2019AP194-CR

the report was related to the investigation of Nelson.4 However, the fact that a
human services employee also requested the “consultation/evaluation” and both she
and a physician (perhaps J.T.’s primary care physician) were apparently also
provided copies of the report indicates that at least an equal purpose of the report
was to document Kadamian’s medical findings as to J.T.’s health condition and the
health care plan and recommendations for J.T.’s care going forward. The report
certainly is in no way akin to “testimonial” statements such as “prior testimony at a
preliminary hearing, before a grand jury, or at a former trial” or even “police
interrogations,” which are “the types of evidence ‘at which the Confrontation Clause
was directed.’” See id., ¶24.

¶33 By themselves, the “slight formality” of Kadamian’s report and its
provision to a law enforcement officer along with a human services employee and
a physician do not answer the question of whether the primary purpose of the report
was to “gather evidence for” or “substitute for testimony in” Nelson’s prosecution.
See id., ¶¶32, 33. Fortunately, there is another factor—“the context in which the
statement was given”—that provides greater clarity on the primary purpose of the
report.

¶34 The report is a fairly standard medical report, like any that one might
see if he/she requested a copy of his/her medical report related to an examination by
a health care professional. While part of the context is that the February 2
examination was performed and the report was made eleven days after the sexual

4
We do not assume a prosecutorial purpose of the “consultation/evaluation” merely from
the fact a law enforcement officer was one of the individuals who requested it. Certainly a law
enforcement officer interacting with a sexual assault victim would have concern for the health and
well-being of that victim and, acting on this concern, well might request that the victim seek
medical attention, regardless of any potential prosecutorial purpose. In this case, however, the fact
that a copy of Kadamian’s report appears to also have been provided to the law enforcement officer
suggests some prosecutorial purpose.

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No. 2019AP194-CR

assault and as a follow-up to that assault, this is to be expected in that, according to
Lackey’s testimony, J.T.’s body bore many obvious injuries on January 21—
bruises, bite marks, and injury to her vaginal area—indicating she had suffered a
traumatic physical event. Indeed, Kadamian’s report itself indicates that the
evaluation was “for follow up of injuries.” J.T. had also indicated to Lackey that
Nelson did not wear a condom and ejaculated more than once during the assault.
Cahill, who performed for CHW in Milwaukee the same type of Child Advocacy
Center role as Kadamian did for CHW in Racine, testified that J.T. would have been
seen at the Racine center eleven days after the assault because it was “routine
standard protocol” to “medically follow up” about two weeks after a sexual assault
in order to test for infections, sexually transmitted diseases, and possible pregnancy
stemming from the assault.

¶35 The report documents J.T.’s sleep problems following the assault,
injuries to her hymen, and various testing—focused on J.T.’s health—that was
ordered at the February 2 examination. Also significant, Kadamian’s report
indicates that

[e]xposure to toxic stress such as child sexual assault
results in a very high risk of adverse health, mental health,
and emotional consequences due to the direct and indirect
effects of the adversity on the child’s physical, psychosocial,
cognitive, and emotional development. Because of
suspected maltreatment, this child is at high risk of
experiencing short-term and long-term negative
consequences.

Thus, Kadamian’s report was also focused on seventeen-year-old J.T.’s mental
health, which understandably could be significantly compromised as a result of the
assault eleven days earlier.

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No. 2019AP194-CR

¶36 Kadamian’s “Recommendations” include “mental health therapy”
and “[b]lood testing at local laboratory approximately” three weeks later as well as
the recommendation that J.T. follow up with her primary care physician (“PCP”) or
gynecologist “for worsening/continued vaginal bleeding” and with her PCP “for ...
repeat HIB, Hepatitis B, Hepatitis C and RPR in 4 months.” Kadamian further wrote
that she discussed “routine adolescent care and contraceptive options” and the
“medical evaluation and recommendations with mother and patient,” adding that
they “appeared to understand.”

¶37 Kadamian’s examination of J.T. and creation of the related report
were focused on J.T.’s health, not the gathering of evidence for prosecution of
Nelson or serving as a substitute for testimony against him. See Mattox, 373
Wis. 2d 122, ¶37. As indicated, the primary purpose of the examination was to
evaluate J.T.’s health, treat her as needed, and recommend a health care plan for her
going forward. As to the report, while snippets of it had potential value to the
prosecution of Nelson—and to his defense—see infra note 7, the totality of it
indicates its primary purpose was not to aid in prosecuting him but to document
Kadamian’s medical findings as to J.T.’s health condition on February 2 and record
the health care plan and recommendations for her care going forward. Any possible
prosecutorial use was secondary.

¶38 While a challenge to the SANE report from the January 21, 2017
examination of J.T. is not before us, because Nelson significantly conflates in his
briefing Lackey’s January 21 SANE examination of J.T. with Kadamian’s February
2, 2017 non-SANE examination—and by implication their respective reports—we
think it appropriate to directly compare the nature of the two types of examinations.

17
No. 2019AP194-CR

¶39 Lackey testified to her role as a SANE nurse and her SANE
examination of J.T. on the day of the assault. To become a SANE nurse, Lackey
received significant additional training above and beyond that needed to become a
registered nurse. She was trained in “the fundamentals of sexual assault
examinations, assessing injuries, documentation, [and] evidence collection,” and
attended forty hours of training “instructed by members of the Department of Justice
[DOJ].” She then attended a course where she “received further training on
evidence collection and the assessment of a victim.”

¶40 Discussing the main difference between a SANE examination and “a
physical,” Lackey noted that with a SANE examination, “we actually collect
evidence, DNA.” In addition, a victim advocate is present during a SANE
examination, and a law enforcement officer usually is also present when the victim
provides the history of the assault, which is what occurred during Lackey’s January
21 SANE examination of J.T.

¶41 Detailing the examination she performed on J.T., Lackey explained
that it was performed in a “specialty forensic exam room.” Lackey secured urine
and blood samples from J.T. because there was reason to believe “this was a drug
or alcohol facilitated assault,” not because securing such samples were important
for J.T.’s own health. Lackey set up an evidence collection kit from DOJ “based on
what [J.T.’s] history of [the] assault was and where [Lackey felt] the most evidence
and DNA c[ould] be collected off of her body.” Lackey meticulously collected
J.T.’s clothes and placed them “in a bag for evidence collection,” which she then
sealed.

18
No. 2019AP194-CR

¶42 During the January 21 SANE examination, Lackey took photographs
“for evidence” in the “particular way” that she had been taught. 5 After examining
the outside of J.T.’s body, Lackey collected evidence from J.T.’s mouth and hands
as well as her breasts, arm, inner thigh and neck, because J.T. had indicated that
Nelson had made contact with her in those areas. Lackey also photographed and
collected evidence from J.T.’s genitalia. After collecting the evidence, Lackey
sealed it in an envelope, initialed over the seal, and placed the envelope in an
evidence collection box that was then sealed and “handed off to a police officer”
and it “ultimately [went] to the crime lab.” Lackey explained how she also took and
preserved evidence from Nelson. On cross-examination, she agreed that “[p]art of
[her] job is to collect evidence for criminal prosecution purposes.”

¶43 In stark contrast, the record gives no indication that Kadamian, or
Cahill—who functioned in a role similar to Kadamian—were ever instructed by
DOJ or received training related to evidence collection. Furthermore, at her
February 2 examination of J.T., Kadamian collected and sealed no evidence, much
less handed it off to a police officer so that it would get to “the crime lab.” She
never collected J.T.’s clothes or took photographs of J.T. in any way, much less a
“particular way” for use as evidence. There was no victim advocate or law
enforcement personnel present for any portion of Kadamian’s examination of J.T.
While Lackey’s January 21 SANE examination was heavily focused on the

5
Lackey testified that she was “taught to take [photographs] from a distance so we can see
a full picture of her body, then zooming in closer and closer, and then use of rulers” to “show the
length and the diameter of the injury.”

19
No. 2019AP194-CR

collection and preservation of evidence of the assault for law enforcement,
Kadamian’s February 2 examination was focused on J.T.’s health.

¶44 Nelson spends a significant portion of his briefing arguing that
Kadamian’s report was testimonial because she—Kadamian—is a SANE nurse and
performed a SANE examination on J.T.6 Relatedly, Nelson also states there is
“significant case law from other jurisdictions where courts have found ... a victim’s

6
Nelson writes:

[SANE nurses] are trained and certified through the Wisconsin
Department of Justice which operates a “Medical Forensic
Program.” The explicit and bold banner for the program’s web
site claims, “Working with crime labs to collect physical
evidence.” Under the category of “What is a medical forensic
examiner?” the first function noted by DOJ is that “Sexual assault
forensic examiners perform the medical forensic exam, gather
information for the medical forensic history, collect and document
forensic evidence, and document pertinent physical findings from
patient.” Of course, the DOJ notes that they also “testify in court,
if needed.” Indeed, they are specifically trained in “Courtroom
testimony and Legal Considerations.” Sexual assault nurse
examiners are additionally trained that their role and purpose is to
function as part of a “county based team,” a “sexual assault
response team,” or “SART.”

Also on the team are a law enforcement representative and a
prosecutor. As such, although Kadamian was not a peace officer,
she was by formal training and protocol part of the law
enforcement and prosecutorial team.

She was also an agent of law enforcement by statute. In this
regard, WIS. STAT. § 949.20, “Sexual Assault Forensic
Examination Compensation,” provides a specific and explicit
mechanism by which a “health care provider” is compensated by
the state, through the Department of Justice, in exchange for
collecting evidence for a law enforcement agency.

….

… [Kadamian] was ... a professional who was formally and
specifically trained to collect, document, and preserve evidence as
the primary purpose of her examination of a sexual assault victim.

(Emphasis added.)

20
No. 2019AP194-CR

statements to a SANE nurse to be testimonial.” (Emphasis added.) The problem
with Nelson’s argument is he has identified no evidence in the record indicating
Kadamian is a SANE nurse, was trained to function as a SANE nurse, ever
performed a SANE examination in her life, or has ever been trained by members of
DOJ. The evidence overwhelmingly suggests Kadamian is not a SANE nurse and
did not perform a SANE examination on J.T.

¶45 Perhaps Nelson mistakes Kadamian for Lackey, who unquestionably
was a SANE nurse (and trained by DOJ), performed a SANE examination on J.T.
the day of the assault, and in doing so, was clearly focused on collecting evidence
for potential criminal prosecution. But Kadamian is not Lackey and the examination
Kadamian performed on J.T. eleven days after Lackey’s was a very different
examination, with a different primary purpose, from that performed by Lackey.
While a strong argument could be made that the primary purpose of Lackey’s
examination was for criminal prosecution, the primary purpose of Kadamian’s
examination of J.T., as indicated, was to evaluate her health condition on February
2, treat her as needed, and recommend a health care plan for her going forward. The
primary purpose of the related report was to document Kadamian’s medical findings
and record the health care plan and recommendations for J.T.’s future care. Because
the primary purpose of Kadamian’s report was neither “to gather evidence for” nor
“substitute for testimony in” the prosecution of Nelson, the report and Cahill’s
related testimony did not constitute “testimonial” statements. As a result, the
Confrontation Clause was not implicated, see Mattox, 373 Wis. 2d 122, ¶37, and
Nelson’s Confrontation Clause challenge fails.

Plain Error Doctrine

21
No. 2019AP194-CR

¶46 The “plain error” doctrine “allows appellate courts to review errors
that were otherwise forfeited by a party’s failure to object.” State v. Miller, 2012
WI App 68, ¶18, 341 Wis. 2d 737, 816 N.W.2d 331. As we have stated,

Plain error is “error so fundamental that a new trial or other
relief must be granted even though the action was not
objected to at the time.” The error, however, must be
“obvious and substantial,” and courts should use the plain
error doctrine sparingly. There is no bright-line rule for what
constitutes plain error. Rather, the existence of plain error
will turn on the facts of the particular case.

Id., ¶18 (emphasis added; citations omitted). The defendant bears the burden in the
first instance to “show[] that the unobjected to error is fundamental, obvious, and
substantial.” State v. Jorgensen, 2008 WI 60, ¶23, 310 Wis. 2d 138, 754 N.W.2d
77 (emphasis added). This court independently reviews the record to determine if
a new trial is warranted due to plain error. State v. Mayo, 2007 WI 78, ¶28, 301
Wis. 2d 642, 734 N.W.2d 115.

¶47 As we have concluded, Kadamian’s report and Cahill’s related
testimony were nontestimonial, the Confrontation Clause was not implicated in the
admission of this evidence, and thus there was no error. But even if this was a “close
call,” which it is not, Nelson certainly has not met his burden to demonstrate that

22
No. 2019AP194-CR

any error was “obvious”—a necessary showing for us to conclude an error
constitutes “plain error.”7

7
Because Nelson chose to challenge the State’s use of Kadamian’s report and Cahill’s
related testimony on plain error grounds instead of ineffective assistance of counsel grounds—due
to his defense counsel’s failure to or decision not to object to this evidence—there is no Machner
hearing testimony that would provide insight into counsel’s reasons for not objecting. See State v.
Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979). It may be that counsel
strategically chose not to object due to the value of the report and testimony to Nelson. For
example, on cross-examination, counsel successfully pressed Cahill until Cahill acknowledged that
Kadamian’s report noted that J.T. “bruises bleeds easily.” Counsel then utilized that evidence in
his closing argument to argue that the injuries to J.T. were consistent with Nelson’s theory that he
engaged in “rough” but consensual sex with J.T. not violent, nonconsensual sex, as J.T. alleged:

We talk about the bruises. She’s got some bruises. I dare
suspect if any of you go home and look in the mirror, you will
have bruises that are much worse or worse than what you just saw
there. You … get home and you say, gee, how did that happen?
You don’t even know at times. But you compare that to what she
testified to.

She testified that he was all over her, he throttled her
repeatedly. He bit her repeatedly all over her body. She even said
he drew blood. He did all those things, and yet only the two marks
where it could be or may be bite marks. There’s two marks.

… It doesn’t take much when people are engaging in a little
rough sex to have that kind of stuff, but use your common sense….

Plus what does Childrens Hospital say? She’s easily bruised.
So first of all, she’s easily bruised.… [T]hat’s one of [the
findings]. She was easily bruised.

So you have to look at all of that because the pictures you see
do not show somebody whacking around somebody with vicious
force. It just doesn’t show that because it never happened.

(Emphasis added.) For better or worse, the plain error doctrine allows a defendant to utilize at trial
evidence he/she hopes may aid him/her in securing a not guilty verdict and if that turns out
unsuccessful, then claim “plain error” on appeal without requiring testimony from defense counsel
as to whether he or she had a strategic reason for not objecting.

23
No. 2019AP194-CR

¶48 Akin to the ineffective assistance of counsel requirement that the law
must be “clear” and “settled” before it can be said that counsel performed deficiently
in taking or failing to take a particular action, see State v. Morales-Pedrosa, 2016
WI App 38, ¶¶16, 26, 369 Wis. 2d 75, 879 N.W.2d 772; State v. McMahon, 186
Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), for an error to constitute “plain
error,” the error must be not only fundamental and substantial but also “obvious” or
“clear,” see State v. Lammers, 2009 WI App 136, ¶12, 321 Wis. 2d 376, 773
N.W.2d 463 (“‘Plain error’ means a clear or obvious error.”). In this case, it cannot
reasonably be argued that it was clear/obvious that the primary purpose of
Kadamian’s report was “to gather evidence for” or “substitute for testimony in” the
prosecution of Nelson and thus that it was clear/obvious that the report was
testimonial and its use even implicated, much less violated, Nelson’s Confrontation
Clause right. While we conclude no error occurred, there certainly was no plain
error. We further note that, for the reasons stated below, see infra ¶¶49-51, any

We further note that in addition to somewhat supporting Nelson’s theory that Nelson
engaged in consensual “rough” sex with J.T. as opposed to nonconsensual rough/violent sex,
counsel’s use of Kadamian’s report and Cahill’s related testimony could well have contributed to
the not guilty verdict on the felony strangulation charge, and the two related felony bail jumping
charges. This is so because while J.T. testified on direct examination that Nelson “choked” her and
went further on cross-examination by agreeing that Nelson choked her “repeatedly,” “very, very
hard,” and to the point of “restrict[ing] [her] breathing,” Lackey testified that during her SANE
examination of J.T. hours after the assault, she found evidence of bruising on multiple other areas
of J.T.’s body but no evidence of bruising or petechiae (i.e., “the popping of blood vessels in the
smaller capillaries”) on J.T.’s neck. The jury could easily have concluded that if J.T. had bruises
on other areas of her body and generally “bruises bleeds easily,” as indicated by Cahill’s testimony
from Kadamian’s report, and Nelson had in fact strangled her as J.T. testified, one would expect to
see some bruising or petechiae on J.T.’s neck as well. Furthermore, beyond the obvious relevance
to the strangulation and related bail jumping charges, if the jury questioned J.T.’s testimony that
Nelson strangled her “repeatedly” and “very, very hard”—as it apparently did since it acquitted
him on this charge and the related bail jumping charges—this lack of confidence in her testimony
as to some aspects of what happened during the sexual encounter necessarily threatened to
undermine the jury’s confidence in J.T.’s testimony as to other key aspects of the encounter,
including whether or not it was consensual. All of this is to say that it is entirely possible that, for
strategic reasons, Nelson’s counsel may have actually wanted Kadamian’s report and Cahill’s
related testimony to be used at trial, but the plain error doctrine takes no account of that.

24
No. 2019AP194-CR

“error” related to Cahill’s testimony regarding Kadamian’s report also was not
“substantial,” another required showing for an error to constitute a “plain error.”
See Jorgensen, 310 Wis. 2d 138, ¶23; Miller, 341 Wis. 2d 737, ¶18.

Harmless Error

¶49 Even if admission of the report was error, the error was harmless. See
State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851 N.W.2d 434 (An “error is
harmless if it is ‘clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.’” (citation omitted)). To begin, the
report was never shown to the jury, so the jury’s knowledge related to it was limited
to the very minimal portions of it presented through Cahill’s testimony. The
substance of his testimony as to the report was that on February 2, 2017, Kadamian
had observed bruising and a healed tear on J.T.’s hymen, indicated that these injuries
“were consistent with penetrating blunt force trauma,” and noted that J.T. “bruises
bleeds easily.” In addition to his testimony related to the report, Cahill also
indicated that it was not possible to “date” the bruising or tear, tissue “down there
... heal[s] rather quickly,” and he was “not saying” that the injury to J.T.’s hymen
was caused by “penetration [that] was forced or consensual.”

¶50 Two witnesses earlier, however, SANE nurse Lackey testified that
just hours after the assault, she observed an injury, either a tear or abrasion, to and
significant swelling of J.T.’s vagina. Lackey added that she further observed what
“look[ed] like an abrasion” on J.T.’s labia minora and “swelling and inflammation”
on her labia majora. While Lackey acknowledged that “some women on their
menstrual cycle can be swollen,” she added that “it’s not usually common to have
that intense of inflammation and swelling” at the end of a menstrual cycle, and J.T.
was at the end of her cycle. Thus, while Cahill testified that Kadamian’s report

25
No. 2019AP194-CR

indicated Kadamian had observed bruising and a healed tear on J.T.’s hymen, this
added no evidence of import that Lackey had not already effectively provided
through her testimony regarding the injuries she observed to J.T.’s vaginal area.
And while Cahill did testify that Kadamian indicated in her report that the bruising
and tear to J.T.’s hymen “were consistent with penetrating blunt force trauma,” he
also confirmed that he was “not saying” whether the “penetration was forced or
consensual.” Lackey similarly acknowledged that it was possible the injuries to
J.T.’s vaginal area “could have been part of a consensual action as opposed to a[]
[non]consensual action.”

¶51 Significantly, the question before the jury was not whether Nelson had
had sexual intercourse with J.T. on January 21, 2017, whether J.T. had injuries to
her vaginal area following the intercourse, or even whether the intercourse caused
the injuries; rather, the question was whether J.T.’s injuries were caused during
consensual rough sex, as Nelson argued, or nonconsensual rough/violent sex, as J.T.
testified and the State argued.8 On this determinative point, Cahill’s testimony
added nothing beyond what was indicated by Lackey’s unchallenged testimony, and
thus we are convinced beyond a reasonable doubt that the result of this case would

8
In his opening statement, Nelson’s counsel laid out Nelson’s theory of defense that
Nelson and J.T. “had some rough sex. But that doesn’t make it illegal or forced or coerced.” In
her closing argument, the prosecutor engaged on Nelson’s theory. After discussing J.T.’s testimony
regarding Nelson choking her and putting his fingers in her mouth during the assault, the scratches
J.T. inflicted on Nelson’s body, and the bruises and bite marks on J.T.’s body, the prosecutor
continued: “Does she look like someone who had rough sex with someone who [sic] enjoyed it?
No, she looks like somebody who was desperately trying to get him to stop.” In his closing
argument, Nelson’s counsel again argued that Nelson and J.T. “engag[ed] in a little rough sex.”
J.T. unmistakably testified that she did not consent to the sexual intercourse and repeatedly told
Nelson “No.”

26
No. 2019AP194-CR

have been the same for Nelson (or possibly worse, see supra note 7 strangulation
discussion) if Cahill had never testified regarding Kadamian’s report.

Prosecutor’s Comment in Closing Argument

¶52 Near the end of the prosecutor’s initial closing argument, she stated:
“You know, I don’t know what else I can say about whether or not Thomas Nelson
committed these crimes. I firstly believe that he did ….”9 Nelson claims this
comment constituted misconduct and that the circuit court’s failure to take
additional steps to “cure” it resulted in a denial of due process and plain error. We
conclude there was no error.

¶53 We review as a matter of law whether a due process violation or plain
error has occurred. See State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922
N.W.2d 468; Mayo, 301 Wis. 2d 642, ¶28.

¶54 “Closing argument is the lawyer’s opportunity to tell the trier of fact
how the lawyer views the evidence and is usually spoken extemporaneously and
with some emotion.” State v. Adams, 221 Wis. 2d 1, 19, 584 N.W.2d 695 (Ct. App.

9
Scattered throughout her initial closing argument detailing and reasoning through the
evidence, the prosecutor made several other similar comments, such as, “Well, that’s not what the
evidence shows me,” “I don’t think [J.T.] consented to the sexual intercourse,” “Did he use
violence? I think he did, and her body proves it,” and “[t]he evidence tells me that Thomas Nelson
raped [J.T.] against her will.” (Emphasis added.) Because Nelson did not object, either at trial or
on appeal, to these or to any other comments by the prosecutor, he has forfeited and abandoned any
objection to them. See Apex Elecs. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998)
(“The oft-repeated rule of Wisconsin appellate practice is that issues not raised in the circuit court
will not be considered for the first time on appeal.”); Reiman Assocs., Inc. v. R/A Advert., Inc.,
102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981) (issues not “briefed or argued on
appeal” are abandoned). And because she made these additional comments, even if the circuit court
did err in some way with regard to the one comment Nelson does challenge on appeal, such error
was harmless as the prosecutor repeatedly informed the jury of her personal view of the evidence
several times throughout the closing argument. All that said, we conclude that there was no error
with regard to these unchallenged comments for the same reasons we conclude there was no error
related to the comment Nelson does challenge.

27
No. 2019AP194-CR

1998) (citation omitted). And as Nelson recognizes in his brief-in-chief, a
prosecutor may “tell a jury what he or she believes is the truth of the case, [if] it is
clear that the [prosecutor’s] belief is merely a comment on the evidence before the
jury.” This is consistent with the law. As our supreme court has stated:

The judicially established guideposts for a prosecutor’s
closing argument are basic. This court has said that counsel
in closing argument should be allowed “considerable
latitude,” with discretion to be given to the trial court in
determining the propriety of the argument. The prosecutor
“may comment on the evidence, detail the evidence, argue
from it to a conclusion, and state that the evidence convinces
him [or her] and should convince the jurors.” …

The line between permissible and impermissible
argument is … drawn where the prosecutor goes beyond
reasoning from the evidence to a conclusion of guilt and
instead suggests that the jury arrive at a verdict by
considering factors other than the evidence.

State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979) (emphasis added;
citations omitted).

¶55 As Nelson acknowledges, the challenged comment came at the end of
the prosecutor’s summation of the evidence. The comment did not amount to
misconduct as it was merely a comment on what the evidence showed and was
directly connected to the prosecutor’s summation of the evidence showing Nelson’s
guilt; it was effectively a comment that the prosecutor was convinced by the
evidence and the jury should be too. The law permits this. See id.

¶56 While Nelson focuses on the prosecutor’s statement of “You know, I
don’t know what else I can say about whether or not Thomas Nelson committed
these crimes. I firstly believe that he did…,” the next comment by the prosecutor is
noteworthy. Her next words were “I think the evidence absolutely—” at which
point Nelson’s counsel objected and a sidebar was held.

28
No. 2019AP194-CR

¶57 Leading up to the challenged comment, the prosecutor carefully
detailed the trial evidence for the jury and reasoned from it in arguing for a finding
of guilt on each of the charges. At the end of her summation, the prosecutor
expressed her belief that the evidence supported a finding of guilt as to each crime,
a belief the jurors of course would have already known as the prosecutor had brought
the charges, put forth the evidence, and presented an impassioned closing argument
in trying to convict Nelson on each charge. Because of defense counsel’s objection
almost immediately after the prosecutor’s challenged comment, the prosecutor did
not get to finish her “I think the evidence absolutely—” statement. For this reason,
we do not know exactly what the prosecutor would have stated, but it is clear she
was returning to her focus on the evidence itself.

¶58 As indicated, a claim of “plain error” can be utilized in circumstances
where defense counsel failed to object to the challenged action by a prosecutor. See
Miller, 341 Wis. 2d 737, ¶18. But here, Nelson’s counsel did object and asked to
“approach” the bench. A sidebar discussion was held, and the prosecutor thereafter
resumed her initial closing argument. We can easily assume the sidebar led to the
prosecutor modifying her word choice for the remainder of her initial closing
argument as she had been using “I” and “me” up until that point, see supra note 9,
but then immediately switched to “us” for the brief remainder of her initial closing,
firstly stating, “The evidence in this case shows us that he did commit that sexual
assault.”10 (Emphasis added.) The circuit court also responded to defense counsel’s
objection by restating to the jury—in its first instructions following the conclusion
of closing arguments—that the “arguments, conclusions and … opinions [of the
attorneys] are not evidence” and then “[d]raw your own conclusions from the

10
While it is not entirely clear who the prosecutor meant by “us,” it can be reasonably
inferred that “us” included the jury if not everybody who was present for the trial.

29
No. 2019AP194-CR

evidence and decide upon your verdict according to the evidence under the
instructions given to you by the Court.” (Emphasis added.) Thus, defense counsel
did object, and the court did take appropriate responsive action.

¶59 Recognizing that defense counsel objected and the circuit court
responded, Nelson grasps at straws in pointing out that the court “did not strike the
prosecutor’s remark or instruct the jury that it should not consider it,” “did not
specifically address the prosecutor’s particular remark,” or “admonish or rebuke the
prosecutor in any respect.” These arguments go nowhere as Nelson fails to develop
any argument for how the response the circuit court did provide actually amounted
to error or how these other suggestions would have been more appropriate or
beneficial, especially in light of the fact it is often a specific and reasonable trial
strategy of defense attorneys to avoid drawing unnecessary attention to a concerning
remark. See, e.g., State v. Jackson, 2011 WI App 63, ¶31, 333 Wis. 2d 665, 799
N.W.2d 461. Moreover, the court did instruct the jury—twice—that it should base
its decision on the “evidence” and that the “arguments, conclusions and opinions”
of counsel are “not evidence.” We presume the jury follows the court’s instructions,
see State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989), and as
the State notes in its response brief, “Nelson does not provide any reason to believe
that the jury failed to follow that instruction.”

¶60 While neither the prosecutor, the circuit court, nor defense counsel
committed error with regard to the challenged remark of the prosecutor, even if the
court’s failure to take the specific actions Nelson now claims it should have taken
did amount to error, such failure certainly did not amount to “plain error.” As
previously noted, plain error is not just error, but error that is “clear” and “obvious.”
It is not clear and obvious that the court’s response to Nelson’s objection by
engaging in a sidebar discussion with the parties that led to (1) the prosecutor

30
No. 2019AP194-CR

changing her pronoun choice and (2) the court repeating the comments-of-the-
attorneys-are-not-evidence instruction, rather than taking Nelson’s now-preferred
actions, was error.

¶61 In State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, ¶88, 613 N.W.2d
606, our supreme court stated:

When a defendant alleges that a prosecutor’s statements
constituted misconduct, the test we apply is whether the
statements ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’ We cannot
conclude that the prosecutor’s statements in this case were
so egregious as to constitute plain error. The comments were
limited in scope, and the trial court sustained the defendant’s
objections and directed the prosecutor to limit his argument
to the facts in evidence. The defendant made no motion for
mistrial after the trial court addressed the objections. “[A]ll
we can assume is that the defendant was satisfied with the
court’s ruling and curative measure, and that he had no
further objections. The defendant took his chances with the
jury, curative instruction and all.” Accordingly, we find no
plain error ....

(Citations omitted). The same holds for this case. Nelson did object, the court took
action in response, and Nelson raised no concerns and made no motion for mistrial
thereafter. “[A]ll we can assume is that [Nelson] was satisfied with the court’s
ruling and curative measure, and that he had no further objections. [Nelson] took
his chances with the jury, curative instruction and all.” See id. We find no error.

By the Court.—Judgment affirmed.

31
No. 2019AP194-CR(C)

¶62 DAVIS, J. (concurring). I write separately to emphasize certain
aspects of this case that, in my view, inevitably lead to the result we reach but also
demonstrate that our decision should not be read as foreclosing the possibility, if
not likelihood, that in future cases, the testimony of an examining nurse in a sexual
assault case (whether a SANE nurse or anyone else) should be viewed as
testimonial, subject to the Sixth Amendment right of confrontation. Consequently,
it would be a mistake for future parties considering either the presentation of, or
objection to, such testimony, whether it be from a report or otherwise, to take from
our decision any message that such testimony is generally admissible. It is not. It
is admissible in this case, where a nurse practitioner acted as a surrogate to describe
the forensic findings in a report prepared by another nurse (who may or may not
have been a SANE nurse) and where there was no objection (the particular
importance of which, in cases such as these, is a point I address below). Although
guidance can be gained from our decision, the underlying evidentiary issue is one
that, for better or worse, defies easy categorization, and should be addressed on a
case-by-case basis.

¶63 This appears to be the first published decision in Wisconsin
addressing the Sixth Amendment implications of testimony provided by a medical
professional acting as a surrogate for a nontestifying witness in a sexual assault
case.1 Review of similar cases around the country shows a divergence of results.

1
In State v. Higgins, No. 2010AP861-CR, unpublished slip op. ¶28 (WI App. Feb. 1,
2011), this court issued an authored but unpublished decision concerning the admissibility of
statements of a minor sexual assault victim to a SANE nurse under the medical records exception
to hearsay.
No. 2019AP194-CR(C)

Close inspection reveals that this divergence stems from factual differences among
the cases, rather than disagreement on the applicable legal standard. Vivid proof of
this point comes from two decisions, unanimously decided by the same court on the
same day, reaching opposite conclusions about the testimonial nature of a SANE
nurse report. In State v. Bennington, 264 P.3d 440 (Kan. 2011), the Kansas
Supreme Court provided a detailed analysis on this issue, concluding that a SANE
nurse report was testimonial under the facts of that case—facts that included the
presence of a police officer taking notes during the history portion of the exam and
providing questions for the nurse to ask during the examination portion. In the
companion case of State v. Miller, 264 P.3d 461 (Kan. 2011), that same court
reached the opposite conclusion with respect to statements made by a four-year-old
sexual assault victim to a SANE nurse without police officer presence, finding such
statements nontestimonial because they were made primarily for medical purposes.

¶64 In short, a SANE or similar exam may give rise to testimonial
evidence in one situation and not another. I will not rehash the reasons why the
evidence compels a finding that the primary purpose of Kadamian’s examination
was not testimonial under current Sixth Amendment jurisprudence, other than
simply to reiterate what is implicit in the Majority opinion: even in this case, a
different result may have ensued had the surrogate testified for Nurse Lackey, rather
than Kadamian. Majority, ¶¶38-43.

¶65 A different result on the testimonial issue could also have been
possible had an adequate trial record been made, which leads to the second aspect
of this case that bears emphasis: the uniquely important role played by the
requirement for a contemporaneous objection in Confrontation Clause cases. The
lack of such an objection seals the result here. The rule that claimed error on such
grounds must be preserved by a contemporaneous objection, with little room for the

2
No. 2019AP194-CR(C)

later invocation of plain error, serves at least two important roles in Confrontation
Clause cases, and particularly in Confrontation Clause cases involving a surrogate
testifying for an unavailable forensic expert.

¶66 First, contemporaneous objection allows the parties and the trial court
to fully flesh out whether the objected-to testimony is, in fact, testimonial. The
Dissent asserts that Kadamian’s report is conclusively testimonial based only on
some language in the prosecutor’s closing argument (at which point the possible
testimonial nature of Kadamian’s report was irrelevant), along with a brief notation
(which is itself hearsay) in that report showing that the exam was requested by both
law enforcement and medical personnel. I disagree with the Dissent’s view, not
because there is no possibility that it is right, but because a possibility is all it is, and
that is due to the inherent difficulty in assessing the testimonial nature of this type
of proof without any factual development of the sort that would occur upon a proper
objection. With an objection, the parties, the trial court, and, if necessary, this court,
would have had the opportunity to fully assess, through one or more witness voir
dires, the purpose of the exam, including the significance of the reference to law
enforcement, and we would not be left to now speculate on appeal. As it stands, the
only nonhearsay evidence we have on this point is Cahill’s testimony—in which he
stated that these follow-up exams serve a primarily medical purpose.2 And, as the

2
This testimony would suggest that Kadamian’s report was not testimonial regardless of
whether she is a SANE nurse. Cf. id, ¶31 (statements to SANE nurse fell within hearsay exception
for statements made “for medical diagnosis or treatment”).

3
No. 2019AP194-CR(C)

Majority notes, this testimony is fully consistent with the “Plan” and
“Recommendations” portion of the report itself.3

¶67 The second purpose served by the requirement of a contemporaneous
objection is perhaps even more salient—it allows reviewing courts to determine if
the error in failing to object was, in fact, error at all, as opposed to a strategic choice
based on a reasonable belief that the defense would be better off with the surrogate
than the actual witness. As noted by the Seventh Circuit in a case that also involved
a surrogate expert (a chemist in a drug case):

Hearsay usually is weaker than live testimony, and
defendants may prefer the hearsay version rather than
making an objection that would compel the prosecution to
produce a stronger witness. If a confrontation-clause
objection had been made and granted in this case, for
example, the result would have been the appearance of [the
chemist who performed the lab work] Olson on the stand,
and then defendants would have been worse off than they
were with [the surrogate testifying chemist] DeFrancesco—
for defense counsel could undermine DeFrancesco’s
testimony by reminding the jury that he had not done any of
the work and that flaws in Olson’s procedures may have
been omitted from the lab notes. That it may be to
defendants’ advantage to accept the hearsay version of
evidence makes it problematic to entertain a Crawford claim
via the plain-error clause of Fed.R.Evid. 103(d). A defendant
who sincerely wants live testimony should make the
demand, so that the declarant can be produced. The lack of
a demand for testimony by an available declarant leads to the

3
An objection would have also allowed the parties to address the question, raised in the
Majority opinion, of whether Kadamian was, in fact, a SANE nurse. Although the Dissent suggests
that we do not have that information because Kadamian was not at trial, to the extent this point is
relevant to whether her report is testimonial, the fact remains that it was the defendant’s failure to
object that prevented this information from being developed for purposes of determining whether
a surrogate witness should have been permitted to testify about Kadamian’s report. It is not the
State’s obligation to anticipate the need to make a record sufficient to rebut a later claim of
unobjected-to error based on plain error grounds. As noted below, it is also possible that
arrangements could have been made to produce Kadamian if an objection had been made.

4
No. 2019AP194-CR(C)

conclusion that the appellate argument is strategic rather
than sincere.

United States v. Moon, 512 F.3d 359, 361 (7th Cir. 2008).

¶68 These concerns are fully in play here. Certainly a distinct possibility
exists that Nelson’s counsel made a deliberate, and quite reasonable, decision not to
object to Cahill as a surrogate witness—counsel may have had good reason to
believe that an objection would have simply prompted the State to call Kadamian
back from medical leave. For all we know, the State may have even told Nelson’s
counsel in advance that Kadamian was on medical leave but, if necessary, could be
brought back or testify by video, and counsel, realizing that Kadamian’s testimony
would likely be more damaging than Cahill’s, agreed to the surrogate. Or perhaps
counsel knew more about the purpose of Kadamian’s report than the sparse clues in
this record let on, including why the exam was performed or whether Kadamian was
a SANE nurse. No court, to my knowledge, has overturned a conviction on plain
error grounds where the lawyer’s failure to object was a conscious, reasonable
strategic decision. Such a result creates the potential for sandbagging and multiple
retrials, with all the attendant costs (financial certainly, but particularly in cases of
this nature, emotional too) that entails. It is perhaps in part for this reason that the
United States Supreme Court stated, post-Crawford v. Washington, 541 U.S. 36

5
No. 2019AP194-CR(C)

(2004), that “the defendant always has the burden of raising his Confrontation
Clause violation.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327 (2009).4

¶69 Without a more developed record, we do not know if an objection
would or even should have been sustained and, critically, we do not know if the
failure to object was a strategic choice. Cahill was simply called to the stand and
allowed to testify unimpeded by an objection, with the offhand statement of the
prosecutor that Kadamian was on “medical leave” being the only clue given as to
why there was need for a surrogate. But we do have a ready-made legal vehicle for
learning more—a vehicle that should, in cases where a defendant suffers legitimate,
unfair harm from unobjected-to error, provide a level of protection as robust as the
plain error doctrine. That vehicle, of course, is an ineffective assistance of counsel
claim. Nelson could have brought such a claim, but—perhaps tellingly—did not.
Had he done so, it would almost certainly have led to a Machner hearing,5 where
the trial court could have learned exactly why counsel did not object and then
determined whether the failure to do so was a reasoned choice or an oversight that
might lead to a deficiency finding under Strickland v. Washington, 466 U.S. 668
(1984). Any chance that the defendant was using plain error as a device to secure

4
This statement by the United States Supreme Court was in response to what it
characterized as “sky falling down” arguments of the dissent concerning logistical problems in
requiring in-person testimony to admit forensic analyst reports, and in particular the concern that
applying the Confrontation Clause to such reports would undermine the statutes that exist in some
states imposing on defendants the burden of providing notice of the defendant’s intent to confront
forensic analysts. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 325-27 (2009). The Court’s
emphatic expression as to the defendant’s unqualified obligation to object appears to be an
acknowledgment of the important purpose such objections serve to ensure an orderly application
of the Confrontation Clause under the expanded regime ushered in five years earlier by Crawford
v. Washington, 541 U.S. 36 (2004).
5
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

6
No. 2019AP194-CR(C)

an impermissible “do over” on the basis of a reasonable but unsuccessful trial
strategy would be minimized, if not eliminated.

¶70 From an institutional standpoint, an ineffective assistance of counsel
claim is a more desirable way to address these types of errors than through an
analysis that ascribes plain error to what may have actually been a well-reasoned
strategic choice. Only where a reviewing court can conclude that no reasoned
strategic choice not to object was possible should plain error enter the picture. State
v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77, relied on by the
Dissent for the proposition that plain error can attach to unobjected-to Confrontation
Clause violations, would appear to be such a situation. That was a case where the
prosecution was permeated with Confrontation Clause violations (and others as
well, including inappropriate conduct by the prosecuting attorney and the trial
judge). The defendant in Jorgensen showed up drunk at a sentencing hearing on a
prior conviction. He was arrested for bail jumping and operating while intoxicated,
and the case was tried to a jury. At the jury trial, both the trial court and the
prosecutor were present at the earlier sentencing hearing where the violation
occurred (so neither should have been involved in prosecuting and hearing the case
at all). Both made comments to the jury about what they previously saw and
surmised, without taking the stand. The supreme court noted the potential ethical
concerns, as well as the Confrontation Clause problems, caused by this set of events.
The testimony of these “witnesses” was subjected to no adversarial testing in any
form. The “testimony” was in as formal a setting as it gets—a courtroom. The error
in that case was without any doubt “fundamental, obvious and substantial.” The
trial judge charged with catching the error instead participated in it. There was no
possibility that the failure to object could have been based on a strategic choice. I
am comfortable that Jorgensen does not dictate a finding of plain error in this case,

7
No. 2019AP194-CR(C)

where the substitution of Cahill for Kadamian could potentially have been viewed
as a favorable development for Nelson.

¶71 That is not to say that there can never be situations involving the
failure to object to hearsay testimony by a SANE nurse where the record forecloses
the possibility that the failure was strategic or reasonable, thereby allowing for the
possibility of plain error. A case where a SANE nurse testifies as to what the victim
told him or her, thereby depriving the defendant in a sexual assault case of his or
her fundamental right to confront his or her accuser, might be an example. Cf. Virgil
v. State, 84 Wis. 2d 166, 184-93, 267 N.W.2d 852 (pre-Crawford case where “the
inexplicable failure of defense counsel to object to … clearly inadmissible” hearsay
testimony by co-participant, implicating defendant as party to a crime in the victim’s
murder and robbery, constituted plain error). Such testimony may or may not be
deemed testimonial—meaning the objection may or may not be sustained—but it is
hard to imagine a strategic reason not to object to such testimony.

¶72 This is not that type of situation. As discussed above, there most
certainly could have been a reasoned decision not to object to Cahill’s surrogacy for
Kadamian, but because Nelson has chosen not to pursue relief under the theory that
would allow inquiry into that point, we have no way of knowing if that is the case.
For important policy reasons, we should not entertain claims of plain error where
the alleged error may, in fact, have stemmed from a reasonable and deliberate choice
by defense counsel. Instead, any claim for relief should fall within the more
factually developed confines of an ineffectiveness claim.

8
No. 2019AP194-CR(D)

¶73 REILLY, P.J. (dissenting). I respectfully dissent as
Dr. Rita Kadamian performed a “Sexual Abuse Evaluation” for “Child Advocacy
and Protection Services” as part of a police investigation of Thomas Nelson for the
primary purpose of collecting evidence. Kadamian’s statements are testimonial, and
as Nelson was given no opportunity to cross-examine Kadamian, Nelson’s Sixth
Amendment right to confrontation was violated.

¶74 The Majority finds that the “primary purpose” of Kadamian’s
examination of J.T. “was to evaluate her overall health, treat any conditions needing
treatment, and recommend a health care plan for J.T. going forward.”1 Majority,
¶30. This finding is directly contrary to the facts in the record and the prosecutor’s
own argument to the jury that J.T.’s “Sexual Abuse Evaluation” by Kadamian was
part of a police “investigation[]” and that J.T. “had two … complete strangers insert
objects into her most intimate body parts in order to collect evidence.” (Emphasis
added.)

¶75 The issue before us is whether Kadamian’s statements (not her report)
read in by a surrogate witness at trial violate the Confrontation Clause. The Majority
excuses the violation by arguing that only “minimal” portions of Kadamian’s
statements were read to the jury.2 Majority, ¶¶13, 49. The “minimal” statements

1
The Majority’s factual conclusion that Kadamian’s report is “like reports related to most
health examinations” is problematic as the Majority’s factual conclusion is not found in the record.
See Majority, ¶30.
2
The Majority spends eight paragraphs detailing what the jury did not hear. Majority,
¶¶13-19, 49.
No. 2019AP194-CR(D)

that the jury did hear went directly to elements the State needed to prove: “use or
threat of force or violence” and that J.T. “did not consent to the sexual intercourse.”
See WIS JI—CRIMINAL 1208.

¶76 The State needed Kadamian’s “minimal” statements as
Gillian Lackey did not offer an opinion on use of force/violence and did not rule out
a consensual act.3 Lackey testified that while she observed J.T.’s injuries, she did
not “personally … know how they got there,” and it was possible they “could have
been part of a consensual action as opposed to a[] [non]consensual action.” Given
this testimony, the State needed Kadamian’s statements that J.T. suffered “blunt
force penetrating trauma” to an “acute” level and her opinion that J.T.’s internal
injury “supports” sexual assault. Kadamian provided the necessary evidence that
was lacking from Lackey’s testimony.4

¶77 The Majority discounts the importance of Kadamian’s statements, but
the Majority did not prosecute this case—the State did. The State, via the police,
“requested” as part of its investigation of Nelson that Kadamian conduct a second
“Sexual Abuse Evaluation,” and, as the State told the jury, Kadamian “collect[ed]
evidence” from J.T. The fact that Kadamian’s evidence came in the form of expert
opinion testimony based upon her physical examination of J.T. does not mean
Kadamian’s statements are not “testimonial” under the Confrontation Clause. The
State thought Kadamian’s testimony important enough that it brought in a surrogate

3
Lackey was also subject to attack given her lack of credentials. Lackey admitted that she
was not certified as a sexual assault nurse examiner (SANE) as “[y]ou have to be a [SANE] for two
years in order to sit for board exams to become certified.”
4
The Majority argues that “the record gives no indication that Kadamian … [was] ever
instructed [as a SANE] by DOJ or received training related to evidence collection.” Majority, ¶43.
We do not know that information because Kadamian did not testify. What we do know is that
Kadamian is a sexual abuse examiner based on the State’s request that she perform a “Sexual Abuse
Evaluation” and that they asked her to “collect evidence” as part of her evaluation.

2
No. 2019AP194-CR(D)

witness to get Kadamian’s testimony before the jury and highlighted her testimony
in both opening statements and closing arguments. Kadamian’s testimony was not
“minimal” to the State—it was vital.

Confrontation Clause

¶78 An out-of-court statement must be “testimonial” in order for a
violation of the Sixth Amendment Confrontation Clause to occur. State v. Mattox,
2017 WI 9, ¶24, 373 Wis. 2d 122, 890 N.W.2d 256. The Majority guarantees the
“non-testimonial” answer by finding that Kadamian’s “primary purpose” in seeing
J.T. was to perform an “overall health” examination. Majority, ¶30. By objectively
applying the facts in the record, however, it is clear that the “primary purpose” of
Kadamian’s “Sexual Abuse Evaluation” was a police-directed investigation to
collect and gather evidence for the prosecution of Nelson.

¶79 The United States Supreme Court has “labored to flesh out what it
means for a statement to be ‘testimonial’” since Crawford v. Washington, 541 U.S.
36 (2004), and its progeny. Ohio v. Clark, 576 U.S. 237, 244 (2015). In Davis v.
Washington, 547 U.S. 813, 822 (2006), the Court adopted the “primary purpose”
test which classified nontestimonial versus testimonial statements as follows:

Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.

3
No. 2019AP194-CR(D)

In Clark, the Court fleshed out the parameters of the primary purpose test, observing
that an “ongoing emergency” as discussed in Davis was not the only factor and the
court “must consider ‘all of the relevant circumstances.’” Clark, 576 U.S. at 244.

¶80 Our supreme court recently addressed the “primary purpose” test in
Mattox.5 The court explained, “the dispositive ‘question is whether, in light of all
the circumstances, viewed objectively, the primary purpose of the [out-of-court
statement] was to creat[e] an out-of-court substitute for trial testimony.’” Mattox,
373 Wis. 2d 122, ¶32 (alterations in original) (quoting Clark, 576 U.S. at 245). “The
primary purpose test decides whether the declarant is acting as a witness against the
defendant, by considering whether the primary purpose of the out-of-court statement
‘was to gather evidence for [the defendant’s] prosecution.’” Id. (alteration in
original; citations omitted).

¶81 The Mattox court considered the following factors, from Clark, to
determine whether a statement is testimonial: “(1) the formality/informality of the
situation producing the out-of-court statement; (2) whether the statement is given to
law enforcement or a non-law enforcement individual; (3) the age of the declarant;
5
In State v. Mattox, 2017 WI 9, ¶¶1, 15, 373 Wis. 2d 122, 890 N.W.2d 256, Mattox argued
that the admission of a toxicology report through the testimony of the medical examiner, who did
not author the report, violated his right to confrontation. The Mattox court disagreed, finding that
the primary purpose of the toxicology report “was to provide information to the medical examiner
as part of the autopsy protocol, not to establish certain toxicology levels in order to prove an element
of a criminal charge.” Id., ¶33. The court reasoned that

no charges were pending or contemplated against Mattox at the
time the medical examiner requested the toxicology report.
Because the toxicology report was not intended to substitute for
testimony in a criminal prosecution, the report’s primary purpose
very clearly is not testimonial.

Id.

4
No. 2019AP194-CR(D)

and (4) the context in which the statement was given.” Mattox, 373 Wis. 2d 122,
¶32 (footnote omitted) (citing Clark, 576 U.S. at 244-49). In general, the court
explained, “[a] formal out-of-court statement is considered more likely to be
testimonial, and an informal one is considered less likely to be testimonial.” Id.,
¶34. Mattox concluded that the toxicology report at issue “was not prepared for or
given to law enforcement, making it much less likely to be testimonial.” Id. The
court also noted that the declarant in Mattox created the report at the request of the
medical examiner, not the police. Id., ¶35. The findings in the toxicology report
were generated to help the medical examiner6 determine cause of death, “not to help
the police produce evidence for a criminal prosecution.” Id.

¶82 Applying this methodology, Kadamian’s statements are testimonial.
First, there was no “ongoing emergency” as Kadamian conducted her “Sexual
Abuse Evaluation” in a formal setting at “Child Advocacy and Protection Services”
eleven days after the event. Kadamian’s report of the evaluation was requested by
police, given to police, and is akin to the battery affidavit in Davis. See Davis, 547
U.S. at 829-32. Examining the “context” in which Kadamian’s statements were
given also reflects their testimonial nature. Kadamian performed the “Sexual Abuse
Evaluation” at the request of police, unlike Mattox where the toxicology report was
prepared at the request of the medical examiner. See Mattox, 373 Wis. 2d 122,
¶¶10, 34. Mattox is clear that where the statement is prepared for law enforcement
and given to law enforcement, then the factors weigh heavily in favor of a finding
that the statement is testimonial. See id., ¶¶34-35. The “primary purpose” of
Kadamian’s “Sexual Abuse Evaluation” was to gather and collect evidence for the

6
The State in Mattox asked the court to declare all autopsy reports to be nontestimonial
evidence, which our supreme court declined, noting that the medical examiner did testify against
Mattox, eliminating any confrontation argument with respect to the autopsy report itself. Mattox,
373 Wis. 2d 122, ¶¶38-40.

5
No. 2019AP194-CR(D)

prosecution of Nelson. Kadamian was a conduit of police by virtue of her
statements being made at their request to collect evidence against Nelson and also
related to past events/findings/conclusions for use in Nelson’s criminal prosecution:
“The contusion is acute and supports [J.T.’s] disclosure of sexual assault.” See id.,
¶¶32, 34; see also Davis, 547 U.S. at 822. Kadamian’s statements are testimonial.

Plain Error Doctrine

¶83 “Plain error is ‘error so fundamental that a new trial or other relief
must be granted even though the action was not objected to at the time.’” State v.
Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77 (quoting State v.
Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984)). The unobjected-to
error must be “obvious and substantial.” Id. (citation omitted). “[T]he existence of
plain error will turn on the facts of the particular case” as “[t]he quantum of evidence
properly admitted and the seriousness of the error involved are particularly
important.” Id., ¶22 (citations omitted). “Erroneously admitted evidence may tip
the scales in favor of reversal in a close case, even though the same evidence would
be harmless in the context of a case demonstrating overwhelming evidence of guilt.”
Id. (citation omitted). “Thus, no bright-line rule exists to determine automatically
when reversal is warranted.” Id.

¶84 Our supreme court’s decision in Jorgensen is on point. In Jorgensen,
defense counsel did not object to testimonial evidence that was offered to the jury
by the judge and prosecutor from a transcript of an earlier court hearing. Id., ¶¶29,
34. Our supreme court concluded “that the unobjected to errors of the judge and the
prosecutor” were “fundamental, obvious, and substantial” and that the state had
failed to prove that the errors were harmless and, therefore, constituted plain error:

The opportunity to question one’s accusers is central to our
adversarial system. Without confrontation, potential errors,

6
No. 2019AP194-CR(D)

mistakes of fact, and ambiguities are neither examined nor
tested by opposing counsel. Since these observations likely
helped to establish elements of the crimes charged, these
were not trivial comments by the circuit court.

Id., ¶¶36, 54 (emphasis added).

¶85 If an error is fundamental, obvious, and substantial, then the burden
shifts to the State to establish harmless error. Id., ¶23. The State must prove
“beyond a reasonable doubt that a rational jury would have found the defendant
guilty absent the error.” Id. (citation omitted). We are to consider the following
factors to determine whether the error was harmless:

(1) the frequency of the error; (2) the importance of the
erroneously admitted evidence; (3) the presence or absence
of evidence corroborating or contradicting the erroneously
admitted evidence; (4) whether the erroneously admitted
evidence duplicates untainted evidence; (5) the nature of the
defense; (6) the nature of the State’s case; and (7) the overall
strength of the State’s case.

Id. If the State fails to meet its burden “beyond a reasonable doubt,” then we may
conclude that the errors constitute plain error. Id.; see also State v. Deadwiller,
2013 WI 75, ¶41, 350 Wis. 2d 138, 834 N.W.2d 362.

¶86 The Majority, in addressing plain error (and harmless error thereafter)
states, “it cannot reasonably be argued that it was clear/obvious that the primary
purpose of Kadamian’s report was ‘to gather evidence for’ or ‘substitute for
testimony in’ the prosecution of Nelson.” Majority, ¶48. All I can do in dissent is
point to the facts in the record. The police both requested and received Kadamian’s
“Sexual Abuse Evaluation.” The prosecutor told the jury that Kadamian conducted
an “investigation[]” and that Kadamian “collect[ed] evidence” for the State. The
facts are clear to the police, prosecutor, jury, and myself that Kadamian was

7
No. 2019AP194-CR(D)

collecting evidence for and at the direction of the police as part of an investigation
for the prosecution of Nelson.

¶87 As in Jorgensen, the confrontation violation in this case is a
fundamental, obvious, and substantial error, and the State failed in its burden to
show “beyond a reasonable doubt” that the error was harmless. See Jorgensen, 310
Wis. 2d 138, ¶23. Addressing the aforementioned seven factors, the confrontation
violation was complete throughout the testimony of Michael Cahill, and
Kadamian’s statements played a prominent role in the State’s opening statements
and closing argument. Kadamian’s statements addressed the criminal element of
“use of force” through her statement that there was evidence of “blunt force
penetrating trauma.” Kadamian’s statements countered Lackey’s “difficult[y]” in
determining “what exactly [the injury] was” and that it was possible J.T.’s injury
“could have been part of a consensual action as opposed to a[] [non]consensual
action.” Kadamian’s investigation via her examination of J.T. led to her opinion
that J.T.’s injury “supports” her “disclosure of sexual assault.” Nelson’s defense
and the State’s case keyed in on the elemental heart of Kadamian’s statements—
Nelson saying rough consensual sex and J.T. saying nonconsensual sex by use of
force. The State’s case was dependent upon proof of “force” and nonconsent, and
Kadamian’s statements provided both.

¶88 The State has not shown “beyond a reasonable doubt” that a rational
jury would have found Nelson guilty absent the errors. See id., ¶23. Kadamian was
not subjected to cross-examination, and Nelson was convicted without
constitutional guarantees due to him under the Sixth Amendment. The jury heard
inadmissible, prejudicial evidence that helped establish elements of the crimes
charged, which violated Nelson’s right to confrontation and likely affected the

8
No. 2019AP194-CR(D)

jury’s verdict. Admission of Kadamian’s statements was plain error and was not
harmless. I respectfully dissent and would reverse and remand for a new trial.

9