State v. Aaron V. Ferguson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 15, 2023
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. 2021AP1745-CR Cir. Ct. No. 2018CF1781

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

AARON V. FERGUSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
BRAD SCHIMEL, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1745-CR

¶1 PER CURIAM. Aaron V. Ferguson appeals a judgment of conviction

for repeated sexual assault of the same child and incest. He argues portions of an
audiovisual recording of the victim’s forensic interview were improperly admitted
into evidence at trial. We affirm.

¶2 Ferguson was charged with repeated sexual assault of the same child
and incest based upon his child’s report that Ferguson had been committing acts of
sexual assault for several years, since the victim was in middle school. After
disclosing the abuse, the victim sat for a forensic interview on December 5, 2018,
at the CARE Center in Waukesha. The victim was fifteen at the time. The interview
lasted approximately forty-three minutes, with a break occurring at around thirty-
three minutes. Ferguson asserts that after the break the interviewer used leading
questions to cover topics that had already been addressed during the first part of the
interview, which Ferguson argues was an effort to “clean up some of [the victim’s]
less believable or contradictory statements.”

¶3 The State filed a pretrial motion to admit the interview recording as
evidence after the victim recanted the allegations. Among other things, the State
argued admission was warranted pursuant to the residual hearsay exception found
in WIS. STAT. § 908.03(24) (2017-18).1 The initial circuit court judge, the
Hon. Maria S. Lazar, made an oral ruling on the motion shortly before an
administrative judicial rotation that would bring the case before another judge.

¶4 The circuit court first rejected the State’s alternative argument that the
interview was admissible under WIS. STAT. § 908.08 (2017-18), even though the
victim had already turned sixteen. The court then noted that there were several

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP1745-CR

outstanding facets of the matter that it was going to leave to the new judge, including
the possible applicability of § 908.08(7) (2017-18) and the residual hearsay
exception. The court nonetheless addressed many of the outstanding issues relating
to that exception, noting repeatedly that it was leaving the ultimate decision on the
matter for the next judge.

¶5 At the conclusion of its remarks, the circuit court declared that certain
portions of the recording could not be admitted under the residual hearsay exception,
regardless of how the new judge viewed the admissibility question.2 Upon the
prosecutor’s request for clarification, the court stated, “If the next court determines
that it’s not hearsay, that it’s a prior consistent or inconsistent statement, then the
question is for that court to determine whether there’s any basis to allow it in
whatsoever, and I’m not making that ruling.”

¶6 Once the new judge was assigned, Ferguson filed a substitution
request, and the matter was ultimately transferred to the Hon. Brad D. Schimel. The
State then sought to admit the second portion of the forensic interview under the
theory that the victim might testify at trial that the sexual assaults never occurred,
in which case the victim’s interview statements could qualify as prior inconsistent
statements and would not be hearsay. See WIS. STAT. § 908.01(4)(a)1. (2017-18).
The circuit court took the matter under advisement until after the victim testified.

¶7 The court addressed the State’s request following the victim’s
testimony, clarifying that it was “not looking at these as a 908.08 hearsay exception
nor … as a residual exception to the hearsay rule. That has all previously been ruled

2
The circuit court referred specifically to the portion of the interview where the
interviewer asked “leading questions.” It concluded the victim’s statements during that portion of
the interview lacked indicia of reliability that would warrant its admissibility under the residual
hearsay exception.

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No. 2021AP1745-CR

upon.” Instead, at the State’s urging, the court evaluated the admissibility of the
interview as a prior inconsistent statement under WIS. STAT. § 906.13 (2017-18),
given that the victim at trial had acknowledged making the allegations during the
interview but denied that they were truthful. Over the defense’s objection, the court
determined the entire recording should be played for the jury. The jury ultimately
found Ferguson guilty, and he now appeals.

¶8 We review a circuit court’s evidentiary decisions for an erroneous
exercise of discretion. State v. Hunt, 2014 WI 102, ¶20, 360 Wis. 2d 576, 851
N.W.2d 434. “We will uphold a circuit court’s evidentiary ruling if it ‘examined
the relevant facts, applied a proper standard of law, used a demonstrated rational
process and reached a conclusion that a reasonable judge could reach.’” State v.
Dorsey, 2018 WI 10, ¶37, 379 Wis. 2d 386, 906 N.W.2d 158 (citation omitted).

¶9 Ferguson argues Judge Lazar properly concluded the portions of the
recording she deemed inadmissible lacked circumstantial guarantees of
trustworthiness, not only for purposes of the residual hearsay rule but also for
purposes of determining whether the evidence constituted a prior inconsistent
statement by the victim. Ferguson argues this conclusion flows from an implied
requirement in the law of evidence that a prior inconsistent statement is admissible
only upon a judicial determination that the statement bears indicia of trustworthiness
and reliability as a general matter. This being so, Ferguson argues that to obtain the
admission of the second part of the recording, the State needed to either petition for
leave to appeal Judge Lazar’s ruling, or present a proper motion for reconsideration
establishing either newly discovered evidence or a manifest error of law.

¶10 We reject Ferguson’s arguments. Ferguson draws his implied
requirement from older case law involving the admissibility of an accused’s

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No. 2021AP1745-CR

confession under circumstances where police had not complied with Miranda v.
Arizona, 384 U.S. 436 (1966) or had engaged in otherwise coercive conduct to elicit
a confession. See, e.g., Wold v. State, 57 Wis. 2d 344, 355, 204 N.W.2d 482 (1973);
State v. Shepard, 88 Wis. 185, 187, 59 N.W. 449 (1894). By contrast, extrinsic
evidence of a prior inconsistent statement by a non-party witness is taken out of the
hearsay realm by virtue of WIS. STAT. § 908.01(4)(a)1. (2017-18) and is admissible
as outlined in WIS. STAT. § 906.13 (2017-18), neither of which require a judicial
determination that the evidence is inherently reliable. Based on Ferguson’s
arguments and authority, there appears to be no support for the notion that such
matters are admissible only upon an extra-statutory determination that the evidence
bears circumstantial guarantees of trustworthiness.3

¶11 Ferguson’s remaining arguments, including that Judge Schimel failed
to consider the factors outlined in State v. Sorenson, 143 Wis. 2d 226, 421 N.W.2d
77 (1988), are all defective because they flow from this fundamental
misunderstanding of the law. Sorenson specifically stated that the enumerated
factors were designed to assist courts in “making an assessment of the admissibility
of a child’s statements under the residual [hearsay] exception.” Id. at 245. But the
court did not find the interview recording admissible under that exception; indeed,
it stated it was honoring Judge Lazar’s partial determination to the contrary.

3
Ferguson perhaps intends to rely on the notion, articulated in Wold v. State, 57 Wis. 2d
344, 354, 204 N.W.2d 482 (1973), that it is unfair to the accused to use a coerced confession for
impeachment purposes when such a confession would be otherwise inadmissible. If that is
Ferguson’s claim—or if his claim is that WIS. STAT. § 908.08 (2017-18) is the exclusive means to
obtain the admission of an audiovisual recording of a child’s statement—we deem such an
argument insufficiently developed to require a definitive determination at this time. See State v.
Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). There are significant and obvious
distinguishing features of the cases Ferguson cites that he fails to address, nor does he attempt to
establish the exclusivity of § 908.08.

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No. 2021AP1745-CR

¶12 To put a finer point on the distinction: The residual hearsay exception
contained in WIS. STAT. § 908.03(24) (2017-18) permits a hearsay statement
bearing circumstantial guarantees of trustworthiness to be admitted into evidence.
Prior inconsistent statements, by contrast, are not considered hearsay, provided they
meet the criteria contained in WIS. STAT. § 908.01(4)(a) (2017-18) and WIS. STAT.
§ 906.13 (2017-18). Based on the appellate record and the arguments before us, we
conclude the circuit court could—and did—reasonably conclude that the interview
recording was admissible under the latter statutes even though the recording had
previously been deemed inadmissible under the former statute.

By the Court.––Judgment affirmed.

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

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