COURT OF APPEALS

DECISION

DATED AND FILED

March 15, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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 thirtythree 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.
No. 2021AP1745-CR

3

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. 
No. 2021AP1745-CR

4

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 
No. 2021AP1745-CR

5

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. 
No. 2021AP1745-CR

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¶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.