State v. Joseph M. Marks

2022 WI App 20

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP1746-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSEPH M. MARKS,

DEFENDANT-APPELLANT.†

Opinion Filed: April 27, 2022
Submitted on Briefs: June 15, 2021

JUDGES: Stark, P.J., Hruz and Nashold, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Steven Roy of Sun Prairie.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Aaron R. O’Neil, assistant attorney general, and Joshua L.
Kaul, attorney general.
2022 WI App 20

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.
April 27, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2020AP1746-CR Cir. Ct. No. 2018CF151

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSEPH M. MARKS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Barron
County: JAMES C. BABLER, Judge. Affirmed.

Before Stark, P.J., Hruz and Nashold, JJ.
No. 2020AP1746-CR

¶1 NASHOLD, J. A jury found Joseph Marks guilty of two sexual
crimes that occurred when the victim, “Renee,”1 was four years old. This appeal
concerns the circuit court’s admission, pursuant to WIS. STAT. § 908.08(3), of the
audiovisual recording of Renee’s statement to a social worker. Marks argues that
the recording is not “free from excision, alteration and visual or audio distortion”
under para. (3)(b) of the statute because the State merged a separate audio recording
with the video of the interview, so as to produce a final video that the jury could
better hear. Marks further contends that Renee’s statement does not: (1) reflect her
understanding that false statements are punishable and the importance of telling the
truth, see para. (3)(c); or (2) contain sufficient indicia of trustworthiness, see para.
(3)(d). Finally, Marks argues that his trial counsel was ineffective for not moving
the court to reconsider its admission of the recording upon counsel’s later receipt of
an expert report critiquing the social worker’s interview technique.

¶2 We conclude that the merger of the audio and video in the manner
done here, so as to produce a final recording with clear, continuous sound, does not
run afoul of the requirements of WIS. STAT. § 908.08(3)(b) because the resulting
recording is free from excision, alteration, and visual or audio distortion. We further
conclude, on our independent review, that the recording is admissible under paras.
(3)(c) and (d). Finally, we determine that Marks’ trial counsel was not ineffective
for failing to bring a motion to reconsider the admission of the recording because
Marks cannot show that the expert’s report would have caused the circuit court to
change its pretrial ruling. We affirm.

1
To protect the victim’s privacy, and in keeping with the policy expressed in WIS. STAT.
RULE 809.86 (2019-20), we refer to the victim by a pseudonym and to her father, mother,
stepmother, and teacher by those identifiers. All references to the Wisconsin Statutes are to the
2019-20 version unless otherwise noted.

2
No. 2020AP1746-CR

BACKGROUND

¶3 The following allegations are taken from the criminal complaint. On
March 20, 2018, Renee’s father and stepmother contacted Cumberland Police
Department Officer Greg Chafer. The stepmother reported to Chafer statements
that Renee, then four years old, had made to her about Marks. At the time, Marks
was the live-in boyfriend of Renee’s mother, and the mother and father shared
placement of Renee and her two older siblings.

¶4 According to Renee’s stepmother, on March 19, 2018, Renee told her
the following. Marks asked Renee to pull down her pants, and Renee did so. Marks
pulled down his own pants, and Renee saw Marks’ penis. Marks “touched” Renee,
and then he had her “touch herself” (the stepmother reported that Renee “was
pointing to her crotch when she was telling [her] what had happened and where she
was touched”). Marks touched Renee “3 times at their old house and once at the
new house” (Renee’s mother and Marks moved in February 2018). The stepmother
asked Renee if Renee had told her mother; Renee said she had not because Marks
had told her to keep it a secret.

¶5 On March 21, 2018, Chafer received a call from Renee’s
prekindergarten teacher, who stated that Renee had told the teacher that she had seen
Marks’ penis, that Marks had told her to pull down her pants and touch herself, and
that Marks then pulled down his pants and touched himself. The teacher reported
“that [Renee] told her that she did not want to do it, but that [Marks] told her to just
do it.”

¶6 On March 22, 2018, Martha Moyer, a social worker for the Barron
County Department of Health and Human Services, conducted a forensic interview

3
No. 2020AP1746-CR

of Renee. The interview took place in a room at the police department, with Chafer
also present.

¶7 The State charged Marks with one count each of first-degree sexual
assault of a child under the age of thirteen and exposing genitals to a child. See WIS.
STAT. §§ 948.02(1)(e), 948.10(1). The State moved to admit the recording of
Moyer’s interview of Renee. See WIS. STAT. § 908.08(3) (to admit into evidence
the audiovisual recording of an oral statement of a child who is available to testify,
the court must make certain findings concerning the child’s age, understanding, and
trustworthiness, the recording’s accuracy, and the admission’s effect on the fairness
of the proceeding).

¶8 The circuit court held an evidentiary hearing on the State’s motion.
The threshold issue was the admissibility of a modified version of the original
interview recording that was created by law enforcement so as to remove audio
problems in the original version. See WIS. STAT. § 908.08(3)(b) (to be admitted into
evidence, the child’s recorded statement must be “accurate and free from excision,
alteration and visual or audio distortion”).

¶9 Chafer testified that when he viewed a DVD copy of the original
recording (“the original DVD”), there was no problem with the “visual portion,” but
“[t]he audio portion was cutting in and out throughout the interview.” Moyer,
however, had separately recorded the audio portion of the interview on another
device. Chafer therefore copied Moyer’s recording to a jump drive, listened to it
once, and sent the jump drive and original DVD to Larry Flessert, a senior digital
forensic examiner at the Department of Justice, Division of Criminal Investigation.
Chafer asked if Flessert “would be able to basically scrub the audio off of [the
original DVD] and replace it with the audio of [Moyer’s] recording.” Flessert did

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No. 2020AP1746-CR

just that, producing a new DVD (“the final DVD”) that combined the audio from
the jump drive with the video from the original DVD. Chafer watched the final
DVD in full and determined that the recording contained the complete interview of
Renee, did not have any distortions to the video or audio, and did not have any
“gaps.”

¶10 Flessert testified to the process he used to create the final DVD. He
explained that the original DVD stored audio and video tracks in “chunks” or
“splintered” media files. As a first step, then, Flessert “merge[d] … together” all of
the audio files and all of the video files, so as to create one “file[] that had the entire
video portion of the interview and the entire audio portion of the interview.”
Flessert then used “Vegas Video,” a video production program, to “match” Moyer’s
audio recording with the video of the interview. Flessert explained that Vegas
Video allows one to “take a given piece of audio on a certain track and align it with
video that’s on another track and then put them so that the timing is correct for the
two.” Flessert determined that Moyer’s recording and the video “matched
perfectly.”2 Thus, by substituting in Moyer’s recording, he created a video with
clear, continuous sound. Flessert testified that the process of merging audio and
video did not itself create any distortions or alterations or cause any content loss.

¶11 In opposition to the State’s motion, Marks argued that the final DVD
was inadmissible because it was “pieced … together by some means” and, therefore,
was not free from excision, alteration, or distortion under WIS. STAT.

2
Specifically, to determine that Moyer’s audio recording was identical to the audio in the
video, Flessert “left the original audio in the program,” “layered the audio [that Moyer recorded]
below it,” and “listened to the two.” Flessert stated that he “purposely misaligned” the audio that
Moyer recorded just slightly, “so when you listen to it, you get an echo.” That is, Flessert explained,
“You can hear people speaking and then a very small time later, you hear the[] same words again”
from the second audio source. Flessert testified that he listened to the entire interview in this
manner and that Moyer’s audio tracked the original audio in the video.

5
No. 2020AP1746-CR

§ 908.08(3)(b). Marks further argued that the recording did not satisfy para. (3)(c)
because it was not “made … upon the child’s understanding that false statements
are punishable and the importance of telling the truth.”

¶12 The circuit court determined that Renee’s recorded statement was
admissible under WIS. STAT. § 908.08(3). Specifically, as to para. (3)(b), the court
disagreed with Marks’ position that the final DVD was inadmissible because it
contained excisions, alterations, or visual or audio distortions. The court explained:

Did they have [a] problem recording it? Yes, but [I] was
clearly able to hear and see…. And, according to
Mr. Flessert, there’s no doubt in his mind that it was accurate
the way he put it together. And you could tell that just by
looking at it that it was—people’s mouthing was appropriate
with what was said.

The court further determined that the recording met the other statutory criteria for
admissibility under § 908.08(3).

¶13 The State played the final DVD at trial, during Moyer’s testimony.
The jury found Marks guilty of both counts charged, and the circuit court imposed
a total sentence of twelve years of initial confinement and eight years of extended
supervision.3

¶14 Marks brought a motion for postconviction relief. He argued that his
trial counsel was ineffective for not moving the circuit court to reconsider its pretrial
ruling on the admissibility of the video recording. Marks based his motion on a

3
On the count of first-degree sexual assault of a child under the age of thirteen, the circuit
court imposed a sentence of twelve years of initial confinement and eight years of extended
supervision. On the count of exposing genitals to a child, the court imposed a concurrent sentence
of one year and six months of initial confinement and two years of extended supervision.

6
No. 2020AP1746-CR

psychologist’s report subsequently obtained by trial counsel, which critiqued
various aspects of Moyer’s interview technique. According to Marks, the report
demonstrated that Renee was unreliable and that her interview was “littered with
failures.” Following a Machner4 hearing, the court denied the motion.

¶15 Marks appeals. We will discuss further facts related to the pretrial
motion hearing and postconviction proceedings where pertinent to our analysis.

DISCUSSION

I. Principles of Law and Standards of Review.

¶16 Our legislature enacted WIS. STAT. § 908.08 so as to allow children to
testify in criminal and related proceedings “in a way which minimizes the mental
and emotional strain of their participation in those proceedings” while “preserv[ing]
the right of all parties to cross-examine those child witnesses.” 1985 Wis. Act 262,
§ 1. Accordingly, § 908.08 provides a procedure for the State5 to introduce the
recorded oral statement of a child who is available to testify, as an alternative to
reliance on a hearsay exception under our rules of evidence. Sec. 908.08(7); State
v. Snider, 2003 WI App 172, ¶13, 266 Wis. 2d 830, 668 N.W.2d. 784.

¶17 If the State makes a timely and proper offer of proof, then the circuit
court is required to hold a pretrial hearing on the statement’s admissibility. WIS.
STAT. § 908.08(2). The court shall view the statement at or before the hearing, and
it shall rule on objections to the statement’s admissibility at the hearing.

4
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
5
WISCONSIN STAT. § 908.08 sets forth the procedure that “the party offering the
statement” must follow to admit an audiovisual recorded statement. See § 908.08(2)(a). For ease
of reading, we refer to this party as “the State.”

7
No. 2020AP1746-CR

Sec. 908.08(2)(b). The court shall admit the recording upon making five findings
under § 908.08(3):

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

1. Before the child’s 12th birthday; or

2. Before the child’s 16th birthday and the
interests of justice warrant its admission under
sub. (4).

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

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

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

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

See also State v. Mercado, 2021 WI 2, ¶45, 395 Wis. 2d 296, 953 N.W.2d 337
(“These statutory criteria require the circuit court to make specific findings about
the child, the verity of the recording and the lack of surprise to the opposing party.”).

¶18 Marks raises several issues on appeal, with varying standards of
review. First, he argues that the final DVD is not “accurate and free from excision,
alteration and visual or audio distortion” within the meaning WIS. STAT.
§ 908.08(3)(b) solely because it “merges” the audio from Moyer’s recording with
the original video. As framed, Marks presents a question of statutory interpretation,
which we decide de novo. Cf. Mercado, 395 Wis. 2d 296, ¶43. In doing so, we

8
No. 2020AP1746-CR

examine the language of the statute; if the meaning is plain, we ordinarily end our
inquiry. Id.

¶19 Second, Marks argues that the recording does not demonstrate
Renee’s understanding of the need to tell the truth and that false statements are
punishable, see WIS. STAT. § 908.08(3)(c), and does not contain sufficient indicia
of trustworthiness, see para. (3)(d). Generally speaking, we review evidentiary
rulings for an erroneous exercise of discretion. See State v. James, 2005 WI App
188, ¶8, 285 Wis. 2d 783, 703 N.W.2d 727. That said, we do not employ a
deferential standard in the present case. If the State offers a recording in accordance
with § 908.08(2), and if the five criteria of § 908.08(3) are met, then the circuit court
“shall” admit the recording. See § 908.08(3). Moreover, where the evidence to be
admitted is a videotape, “we are in as good a position as” the circuit court to
determine whether the recorded statement conforms to paras. (3)(c) and (d). State
v. Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196 (applying
this principle to review of circuit court findings under para. (3)(c)); see also State v.
Holt, No. 2013AP2738-CR, unpublished slip op. ¶24 (WI App Mar. 8, 2016)
(applying same principle to findings under paras. (3)(c) and (d)). Thus, our review
here is de novo.6 Jimmie R.R., 232 Wis. 2d 138, ¶39; Holt, No. 2013AP2738-CR,
¶24.

6
In State v. Holt, No. 2013AP2738-CR, unpublished slip op. ¶24 (WI App Mar. 8, 2016),
this court stated that it would review de novo the circuit court’s determinations under WIS. STAT.
§ 908.08(3)(d) because the audiovisual recording was part of the record. We do not preclude the
possibility that, in some circumstances, the determination of “indicia of trustworthiness” might
involve either discretionary decision-making or fact-finding not based on the recording itself, and
thus might warrant deferential review. For purposes of this decision, however, we apply the de
novo standard—the standard most favorable to Marks—to the court’s determination under para.
(3)(d).

9
No. 2020AP1746-CR

¶20 Finally, to demonstrate ineffective assistance of counsel, a defendant
must show that counsel’s performance was constitutionally deficient and that there
is a reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. State v. Thiel, 2003 WI 111, ¶¶18-20, 264 Wis. 2d 571,
665 N.W.2d 305. In reviewing this claim, we employ a mixed standard of review.
Id., ¶21. We uphold the circuit court’s factual findings unless clearly erroneous, but
we review de novo whether those facts demonstrate that counsel’s performance was
objectively deficient and prejudicial. Id.

II. The Recording is Accurate and Free from Excision, Alteration, and Visual or
Audio Distortion.

¶21 As stated, prior to admitting a child’s recorded statement, the circuit
court must determine that the “recording is accurate and free from excision,
alteration and visual or audio distortion.” WIS. STAT. § 908.08(3)(b). Marks argues
that the final DVD—the recorded interview of Renee played to the jury—does not
meet these criteria. Importantly, Marks does not argue that a viewer watching the
final DVD would be unable to clearly see or hear the interview because of audio or
visual problems with the recording. Nor does Marks argue that portions of the
interview are missing or that the recording is otherwise inaccurate. Rather, it is
Marks’ position that the final DVD is “plainly inadmissible” under para. (3)(b)
because of the process used to create it. That is, Marks argues, Flessert’s “merging”
of the original video and Moyer’s audio recording itself renders the final recording
inadmissible.

¶22 We disagree. The purpose of WIS. STAT. § 908.08 is to make it easier
to use the videotaped statements of children in criminal and related proceedings,
while preserving the defendant’s constitutional right to cross-examine witnesses.
Snider, 266 Wis. 2d 830, ¶13; see also 1985 Wis. Act 262, § 1. Given this purpose,

10
No. 2020AP1746-CR

para. (3)(b) sets forth standards for the recording shown to the jury or otherwise
relied on in lieu of the child’s direct testimony. Thus, plainly, the purpose and intent
of para. (3)(b) is to require, in fairness to the defendant, that the recording faithfully
represent the actual content of the interview.

¶23 With this context in mind, we consider the meaning of the statutory
requirement that the recording be “accurate and free from excision, alteration and
visual or audio distortion.” See WIS. STAT. § 908.08(3)(b). Our interpretation
begins with the language of the statute. See State ex rel. Kalal v. Circuit Ct. for
Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret
statutory language “in the context in which it is used; not in isolation but as part of
a whole.” Id., ¶46.

¶24 As indicated, the word “accurate” in WIS. STAT. § 908.08(3)(b) refers
to the recording’s faithful representation of the interview content. Understood in
context, then, the terms “excision,” “alteration,” and “distortion” relate to this
concept of accuracy. Put another way, a recording that is impermissibly excised,
altered, or distorted does not present to the fact-finder a true and complete depiction
of the interview, and thus is not accurate. Accordingly, our framework considers
whether the manipulation of the recording that occurred here impacted the accuracy
or completeness of the final recording shown to the jury.

¶25 We now turn to the dictionary meaning of the statutory terms. See
Southport Commons, LLC v. DOT, 2021 WI 52, ¶28, 397 Wis. 2d 362, 960 N.W.2d
17 (“For purposes of statutory interpretation or construction, the common and
approved usage of words may be established by consulting dictionary definitions.”).
A “distortion” is “a twisting or deforming out a natural, normal, or original shape,
form, or condition.” Distortion, WEBSTER’S THIRD NEW INTERNATIONAL

11
No. 2020AP1746-CR

DICTIONARY (unabr. 1993). Based on this definition, it might be accurate to say
that the original DVD contains audio distortions (the sound cuts in and out) and that
it therefore does not reflect the substance of the interview. But the original DVD
was not played to the jury; instead, the jury viewed the final DVD: a video
containing clear and continuous sound. Because Marks points to no audio distortion
in the final DVD, we conclude that this recording—the recording actually played to
the jury—is free from “visual or audio distortion” under WIS. STAT. § 908.08(3)(b).

¶26 An “alteration” is a “change” or “modification.” Alteration,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1993). Along
similar lines, an “excision” means “the act or procedure of” “remov[ing]” or
“cut[ting] out.” Excision, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(unabr. 1993). Certainly, there were portions of the original DVD that were changed
or removed, in that Moyer’s audio recording replaced the original audio. But we do
not view WIS. STAT. § 908.08(3)(b) as prohibiting this type of non-substantive
modification—i.e., an alteration or excision that restores sound quality so as to more
precisely capture the content of the interview. Such alteration or excision creates
or enhances (as opposed to obscures) the accuracy of the recording and thus is
consistent with the purpose and intent of the statute.

¶27 To be clear, our holding is narrow and applies to the facts before us.
Again, there is no allegation that the final DVD is an inaccurate representation of
the content of the interview. Nor does Marks challenge the State’s process for
creating this DVD. He does not argue, for example, that Moyer’s audio was
inaccurate or distorted or that Flessert did not properly merge the audio and video.
Thus, we simply hold that neither the plain language of WIS. STAT. § 908.08 nor its
underlying purpose requires us to reject the admission of a recording meeting the

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No. 2020AP1746-CR

criteria of § 908.08(3), based solely on the State’s manipulating the original video
in the manner that occurred here.

III. The Recording Meets the Standards of WIS. STAT. § 908.08(3)(c) and (d).

¶28 Marks raises two additional arguments relating to the admissibility of
Renee’s recorded statement. First, he argues that the statement was not made upon
Renee’s “understanding that false statements are punishable and of the importance
of telling the truth.”7 See WIS. STAT. § 908.08(3)(c). In support of this position,
Marks points out that Moyer made seven inquiries to establish Renee’s ability to
distinguish truth and lies and that Renee said, “I don’t know,” or shrugged in
response to five out of the seven inquiries. Moreover, Marks notes that Renee was
“unable to identify either of two [subsequent] statements offered by Ms. Moyer as
being either the truth or a lie.” Finally, Marks points out that Renee responded, “I
don’t know,” to Moyer’s question, “So what happens if a kid were to tell you
something that wasn’t true, what might happen?” Marks argues that because Renee
“failed to identify statements as truths or lies, and her understanding of the
consequences of lying is mixed,” we should conclude that Renee “does not
understand the difference between a lie and the truth.”

¶29 Having viewed Renee’s recorded interview, we readily acknowledge
that Marks has accurately described these select portions of the recording. That is,
Renee’s answers to certain questions did not, in and of themselves, reflect her
understanding that false statements were punishable and that it was important to tell

7
A child’s statement must be “made upon oath or affirmation or, if the child’s
developmental level is inappropriate for the administration of an oath or affirmation in the usual
form, upon the child’s understanding that false statements are punishable and the importance of
telling the truth.” WIS. STAT. § 908.08(3)(c). By not arguing otherwise, Marks implicitly concedes
that the administration of an oath or affirmation would have been inappropriate in this case.

13
No. 2020AP1746-CR

the truth. We conclude, however, that other portions of the recording, and the
recording as a whole, demonstrate that Renee understood these concepts. When
Moyer asked Renee about the difference between a truth and a lie, Renee responded,
“If you lie you get in trouble, if you tell the truth, you not [sic] get in trouble.” Renee
also responded in the affirmative (“yeah” or “uh-huh” with nodding) to Moyer’s
questions, “Do you think it’s important to tell true things and things that actually
happened?” and “Do you promise to only talk about things that have actually
happened?” Moreover, at the outset of the interview, Moyer instructed Renee to
always respond “I don’t know” if she did not know an answer, as opposed to
guessing an answer. Renee in fact responded, “I don’t know,” throughout the
interview, suggesting that she took Moyer’s instructions to heart.

¶30 Thus, the recording reflects that Renee was at times confused by or
unresponsive to Moyer’s questioning. However, Renee also articulated her own
understanding of a truth versus a lie, and she expressed, in her own words, the
importance of telling the truth. Whether a recording complies with WIS. STAT.
§ 908.08(3)(c) does not involve a rigid determination as to whether the child
correctly answered every question. Rather, we must examine the child’s statement
in its entirety. Here, we independently conclude that Renee’s statement was made
upon an understanding of the consequences of false statements and the importance
of telling the truth.

¶31 Marks further argues that “the time, content and circumstances of
[Renee’s] statement [do not] provide indicia of its trustworthiness.” See WIS. STAT.

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No. 2020AP1746-CR

§ 908.08(3)(d). Based on our review of the recording, we again disagree. 8 Marks’
arguments on this point center on his expert’s critiques of Moyer’s interview
technique. Marks’ expert states, for example, that it is “unusual” for more than one
person to be sitting in on the interview; that Moyer did not “pursue open-ended
questioning” after Renee provided an initial, unprompted description of the assault;
and that Moyer may have chosen names for “vagina” and “penis” that were not
Renee’s “preferred terms for sexual anatomy.” But these rather scattered and
haphazard criticisms do not lead to the conclusion that Moyer’s manner of interview
caused, or was likely to cause, Renee to give false or untrustworthy responses to
Moyer’s questions.

¶32 Marks also directs us to purported differences between Renee’s
statement and certain statements we have deemed trustworthy in other cases. See,
e.g., Holt, No. 2013AP2738-CR, ¶36 (noting that a young child’s being able to
“vividly” demonstrate oral sex with dolls is “unusual and supports a finding of
trustworthiness”). But there is no specific set of facts that must be present in order
for a court to conclude that a child’s statement is sufficiently trustworthy under WIS.

8
The State argues that Marks forfeited his argument that the recording did not comply
with WIS. STAT. § 908.08(3)(d). See State v. Huebner, 2000 WI 59, ¶¶10-11 & n.2, 235 Wis. 2d
486, 611 N.W.2d 727 (arguments not made to the circuit court are generally deemed forfeited and
will not be considered on appeal). For the sake of completeness, however, we exercise our
discretion to reach the merits of this argument. See State v. Kaczmarski, 2009 WI App 117, ¶7, 320
Wis. 2d 811, 772 N.W.2d 702 (“Forfeiture is a rule of judicial administration, and whether we apply
the rule is a matter addressed to our discretion.”).

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No. 2020AP1746-CR

STAT. § 908.08(3)(d),9 and we decline to rigidly apply or rely on the facts of other
cases as a benchmark.

¶33 Marks further suggests that Moyer’s questions reflected her own
biases and were not open-ended. We disagree with his assessment. The manner of
Moyer’s questioning and the questions themselves did not direct or encourage
Renee to respond in any particular manner. In fact, Renee gave only one narrative
description of sexual contact with Marks, and this account was in response to a
relatively broad and open-ended question at the beginning of the interview.10 Moyer
then followed up with specific questions based on Renee’s initial narrative, but she
never asked her questions in a way that suggested a “right” answer.

9
Marks cites State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77 (1988), which
sets forth the five-part test for determining whether a child’s statement contains “circumstantial
guarantees of trustworthiness” and is thus admissible under a residual hearsay exception. See WIS.
STAT. §§ 908.03(24) (the residual hearsay exception where the availability of the declarant is
immaterial), 908.045(6) (the residual hearsay exception where the declarant is unavailable).
However, Marks makes no effort to apply these factors. See State v. Pettit, 171 Wis. 2d 627, 646,
492 N.W.2d 633 (Ct. App. 1992) (we may choose not to address arguments that are inadequately
developed). Furthermore, although the Sorenson factors may guide our application of WIS. STAT.
§ 908.08(3)(d), they do not control. See, e.g., Holt, No. 2013AP2738-CR, ¶¶34-40 (applying the
Sorenson factors to determine admissibility under para. (3)(d)).
10
The following exchange encompasses Renee’s complete initial description of the
assault:

[Moyer:] So [Renee] do you know why you’re here
today?

[Renee:] No.

[Moyer:] Okay, so sometimes when I talk to kids, we talk
about problems or worries. Do you have any problems or worries?

[Renee:] A long time ago, at the old house and at the new
house, [Marks] told me pull down my pants then he pulled down
his pants and I saw his penis. Then he tell me pull down my pants
then he touched my penis then I said I don’t wanna touch his penis
because he touches mine then I touches mine.

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No. 2020AP1746-CR

¶34 Moreover, we agree with the circuit court’s statement that “there
didn’t appear to be … any coaching” of Renee. Although we are unable to
determine whether a person other than the interviewer told Renee what to say, we
agree with the State that Renee’s description of the assaults was “in a manner proper
to a four-year-old child.” In addition, Renee did not display any animosity or
negativity towards Marks. In fact, as the court noted, Renee said “some pretty nice
things” about Marks. Thus, it does not appear that Renee had any ulterior motive
for alleging sexual contact. Finally, Renee made her statement relatively close in
time to the charged dates of the crimes, which lessens the likelihood that she would
have forgotten the events described.

¶35 Based on the foregoing, we conclude that the time, content, and
circumstances of Renee’s statement provide sufficient indicia of trustworthiness
under WIS. STAT. § 908.08(3)(d).

IV. Trial Counsel Did Not Provide Ineffective Assistance.

¶36 Finally, Marks argues that his trial counsel was ineffective because,
once counsel received an expert report critiquing Moyer’s interview technique and
Renee’s reliability, counsel did not move the circuit court to reconsider its admission
of the recorded statement. This claim fails because Marks has not shown that trial
counsel’s performance was prejudicial. That is, Marks has not shown that, had
counsel brought a motion to reconsider, there would have been a reasonable
likelihood of a different result with respect to the admission of the recorded
statement and, consequently, to the outcome of the trial itself. See Strickland v.
Washington, 466 U.S. 668, 694 (1984) (to demonstrate prejudice, “the defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”); id.

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No. 2020AP1746-CR

at 697 (we need not address both the “deficiency” and “prejudice” prongs of an
ineffective assistance claim where the defendant makes an insufficient showing on
one).

¶37 At the Machner hearing, trial counsel testified that he did not consider
filing a motion for reconsideration upon receiving the expert’s report because he did
not find the critiques of the interview “terribly compelling.” In denying Marks’
postconviction motion, the circuit court implicitly agreed with counsel’s
assessment. The court stated, “[H]aving read that report, I can’t concede that this
court would have made a different ruling. There just wouldn’t have been one.”
Thus, the court apparently agreed with the State’s argument that the expert’s
critiques “went to the weight [of Renee’s statement] rather than admissibility.”

¶38 On this record, we have no basis to disturb or second-guess the circuit
court’s conclusion that it would have admitted the recorded statement even if Marks
had submitted the expert report prior to the pretrial hearing. See Koepsell’s Olde
Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App
129, ¶6, 275 Wis. 2d 397, 685 N.W.2d 853 (we review the circuit court’s decision
on a motion to reconsider for an erroneous exercise of discretion). Accordingly,
counsel’s performance in not seeking reconsideration cannot have contributed to the
guilty verdict. See, e.g., State v. Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662
(Ct. App. 1994) (where the postconviction court determined the merits of the
suppression issue in the State’s favor, there could be no prejudice stemming from
trial counsel’s failure to move to suppress, because that motion would have been
denied).

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No. 2020AP1746-CR

CONCLUSION

¶39 We conclude that Renee’s recorded statement, which was created by
merging separate video and audio recordings of her interview, is “accurate and free
from excision, alteration and visual or audio distortion” under WIS. STAT.
§ 908.08(3)(b). We further determine that the circuit court properly admitted
Renee’s recorded statement under the other criteria of § 908.08(3). Finally, we
conclude that Marks’ trial counsel did not provide ineffective assistance by not
bringing a motion to reconsider that ruling, as that motion would have been denied
in the court’s appropriate exercise of discretion. Accordingly, we affirm the
judgment of conviction and the postconviction order.

By the Court.—Judgment and order affirmed.

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